Rishi And Anr. vs The State
2008 Latest Caselaw 151 Del

JUDGMENT

G.S. Sistani, J.

1.'Nemo moriturus praesumitur mentire' a man will not meet his maker with a lie in his mouth?. The present case revolves around two dying declarations made by the deceased dated 30.6.2002. The necessary facts of this case are : that on 30.6.2002 at about 2:25 a.m. information was received in Police Station Hauz Khas that a person had received burn injuries due to stove in house No. 192 near Balmiki Basti, Katwaria Sarai, New Delhi. The information was recorded as DD No. 29A, copy of the same was handed over to S.I Amar Singh, who reached the place of occurrence along with constable Dharamvir. On reaching the place of occurrence, S.I. Amar Singh found in the courtyard of the house some kerosene oil lying spread on the floor, some match sticks, one kerosene stove and a plastic bottle lying. On learning that the injured has been removed to Safdarjung hospital, leaving behind constable Dharamjeet, S.I. Amar Singh also went to the burn ward of Safdarjung Hospital and found, injured-Sunil, admitted there. The injured gave the history of the incident by stating that he sustained thermal burn injury; while he was asleep suddenly when he woke up, he found that his body was wet with kerosene oil and he saw his wife light a match stick and burnt him, she was accompanied by her brother. Dr. Sushil Kumar Azad, PW-13, recorded this history on the MLC (Ex.PW-13/1) in his hand. S.I. Amar Singh collected the MLC of Sunil and filed an application for permission to record the statement of the injured. Vide endorsement Ex.PW-15/3 on the application, Sunil was declared fit for making statement by the doctor. S.I. Amar Singh recorded the statement of the injured, Sunil. This statement is Ex.PW-13/3. In this statement before S.I. Amar Singh, injured-Sunil stated that he was residing at house (house No. 192 near Balmiki Basti, Katwaria Sarai, New Delhi) of the Arun Kumar, as a tenant; he was doing the job of sweeper in a private hostel and his wife was a domestic servant. He has a son aged 10 years and a daughter aged 3 years. He was married to Manju 12 years back. He stated that on 29.6.2006 he had scolded his wife, as she did not serve him food and for this reason his wife Manju got annoyed and called her brother, Rishi. He further stated that on the previous night his wife did not serve him dinner and so he went to sleep without having taken any food and slept on the bed in the courtyard of his house. Around mid-night he smelt some kerosene oil due to which he got up and saw his wife, Manju pouring kerosene on him and his brother-in-law standing with her and he was having a match box and he threw a lighted match stick on him due to which his body caught fire. On his raising an alarm, son of his neighbour came to his rescue, he put some water in his body and tore away his clothes and then his wife-Manju took him to the hospital. He stated that his wife and his brother- in-law (Rishi) attempted to kill him by putting him in fire. On 20.6.2002 at 2:45 p.m. Sunil succumbed to the burn injury and the duty constable in the hospital informed the Police Station Hauz Khas about the death of the Sunil, which was recorded as DD No. 14A.

2. After completing the investigation, charge-sheet was filed for trial of the accused persons.

3. The appellants have filed the present appeal against the judgment dated 28.8.2006 as well as order of sentence dated 29.8.2006 delivered by the Additional Sessions Judge, New Delhi, in the case FIR No. 403/2002 Police Station Hauz Khas, whereby the learned Judge has held the appellants guilty for the offence under Section 302 IPC read with 34 IPC and both the appellants were sentenced to imprisonment for life and to pay fine of Rs. 1000/- and in default of payment of fine RI for 2 months.

4. Prosecution, in support of their case have examined 16 witnesses. PW-1, Arun Kumar and PW-2 were the material witnesses. Both the witness were cross- examined by the learned APP, as they had turned hostile. PW-3 was examined in part and PW-4 was also one of the neighbours, who also turned hostile. PW-5, Ashok Kumar, is the brother of the deceased. Since he was not present at the spot, he was not an eye witness to the incident. PW-5 had deposed that his brother (decease) and his wife were not having cordial relations and were constantly quarreling. Manju had in fact left Sunil a number of times and went to her parent's house. According to this witness, as Rishi (brother-in-law of the deceased) and sister-in-law of the deceased used to reside with Sunil; quarrel used to take place. PW-6, Sushil is another neighbour of the deceased, who was also not present at the time of the occurrence, however, he has identified the body of the deceased.

5. PW-8 is Vikas minor son of deceased Sunil. PW-9 is Ct. Jai Prakash who remained posted for guarding the dead body of Sunil in the mortuary and received the sealed parcels from the doctor and joined investigation with the IO at the time of arrest of the accused persons on 1.7.2002. PW-10 is HC Prakash Chand who proved that on 30.6.02 at 4.55 PM he recorded the FIR of this case on receipt of rukka from SI Amar Singh through Ct. Dharamjeet. He proved the copy of FIR as Ex.PW10/A by producing the original FIR. However, the examination in chief of this witness remained unconcluded. PW-11 is Ct. Dharamjeet who reached the place of occurrence with the IO on 30.6.2006 and took the rukka from the IO for registration of FIR at PS Hauz Khas and then joined investigation with the IO after registration of FIR and witnessed the articles taken into possession by the IO from the spot. PW-12 is Dr. B. Swain, Chief Medical Officer, Safdarjung Hospital who conducted the post mortem examination on the dead body of Sunil and proved the post mortem report as Ex.PW-12/A according to which cause of death was shock resulting from ante-mortem burn injuries. PW-13 is Dr. Sushil Kumar Azad who attended deceased Sunil in Safdarjung Hospital on admission in the burn ward and recorded history of the injuries, given by deceased Sunil, on his MLC prepared by him which he proved as Ex.PW13/A. PW-14 is Dr. Arvind who gave his opinion regarding cause of death of Sunil was shock consequent upon ante-mortem burn injuries to the tune of 70%. PW-15 is SI Amar Singh, IO of the case. PW- 16 is Dr. Surender Kumar Chawla who proved that the death summary of deceased Sunil was prepared by Dr. Ansul and proved the death summary as Ex.-PW16/A.

6. Statement of the appellants were recorded under Section 313 of the Cr.P.C. Both the appellants denied the case of the prosecution and also stated that the I.O. has fabricated the statement of the deceased, Sunil, by obtaining his thumb impression on a blank paper and also demanded Rs. 20,000/- from them. Since the amount was not paid to the I.O., a false FIR was registered.

7. It is submitted by learned Counsel for the appellants that the appellants have been convicted solely on the basis of two dying declarations of the deceased, which do not inspire confidence, as the two dying declarations are full of contradictions and thus learned Sessions Judge committed a legal error with regard to the admissibility of the dying declarations. Learned Counsel submits that where there are more than one dying declarations, the same must be tested on the basis of consistency and probability and thus in the facts of the present case, they cannot be relied upon as the sole evidence for conviction. It is also contended that in the absence of any Executive Magistrate to record the statement of the deceased, the said dying declarations cannot be relied upon.

8. Learned Counsel for the appellants also contends that the trustworthiness and credibility of dying declarations should have been dealt with care and proper circumspection. While admitting that the dying declaration can form the sole basis of conviction, learned Counsel for the appellants contends that the dying declarations should be free from any kind of doubt and should be recorded in a manner as provided under law. Dying declaration should generally be recorded by an Executive Magistrate with the certificate of the doctor about the mental fitness of the person, intending to make the statement. In order to show that there is material contradiction in the two dying declarations, learned Counsel for the appellants contends that in the statement made before the doctor, the deceased had mentioned that he found his body wet with kerosene oil and saw his wife light a match stick and set him on fire; and she was accompanied by her brother, whereas in the statement made before the sub-Inspector the deceased had mentioned that his wife was pouring kerosene oil on him and his brother-in-law was standing with her and he was having a match box and he threw a lighted match stick on him. Learned Counsel contends that there is material contradiction in the two statements and they should not be relied upon, more particularly when there is no corroborative evidence.

9. In this case to show that the appellants had poured kerosene oil on the deceased and burnt him to death, learned Counsel submits that the prosecution has not been able to prove their case beyond doubt and none of the witnesses have supported their case. Learned Counsel has also contended that the statements of the witnesses, who were cross-examined by the Additional Public Prosecutor for the State, cannot be looked into at all, as they were declared to be hostile witnesses. It has also been argued that in fact the deceased was sleeping in the room along with the family and there is wrong declaration by the deceased that he was sleeping in the Varanda. He also submits that there is absolutely no evidence on record to show that after deceased-Sunil was doused in kerosene oil and a match stick was ignited to burn him, he shouted for help at any point of time. Learned Counsel for the appellants also contends that the conduct of the appellants would show that they are the ones who had taken the deceased to the hospital and in case they had attempted to kill him, they would have easily escaped from the place of the crime. Even otherwise the appellants were arrested from the house and did not make any attempt to run away.

10. Learned Counsel for the appellants has drawn the attention of the Court to the evidence of the minor son of the deceased, PW-8 to show that the deceased had given him Rs. 20/- and asked him to bring kerosene oil for Rs. 10/-, milk for Rs. 2/- and bread for Rs. 3/-; and after purchasing the same, he had returned the balance amount to his father. This witness has also stated that his father had sent him to bring liquor and on his refusal to do so, his father went out and returned with liquor and he had also consumed the liquor. PW-8 had also stated in his statement that the deceased had told his wife that since she was not giving him money to purchase liquor, he would die some day. In the light of this statement, learned Counsel for the appellants contends that in fact the deceased had planned to commit suicide and for this purpose he had asked his son to purchase kerosene oil. The husband in fact committed suicide and in view of the strained relations with his wife and her brother, the deceased falsely implicated them. Learned Counsel for the appellants also submits that no thumb impression of the deceased was put on the dying declaration and the I.O. had only put the toe impression on the statement, thus making the dying declaration inadmissible in evidence.

11. Per contra, learned Counsel for the State contends that the prosecution has been able to prove their case without any shadow of doubt. She relies upon the evidence of PW-5, the brother of the deceased to show that the husband and wife used to frequently quarrel, she would often leave the house and had often gone to stay with her parents. The bone of contention between the husband and wife was the brother-in-law, appellant No. 1 and sister-in-law, who were residing with the deceased and his wife. Learned Counsel for the State also submits that the seizure memo which was duly witnessed by the landlord, who was an independent witness, would show that the place of occurrence was the varanda and not the room. She has also drawn the attention of the Court to the statement of PW-1, to show that the deceased was in the varanda at the time of the occurrence.

12. Learned Counsel for the State has also relied on the post mortem report to show that the burn injuries were not found on the back or abdomen including buttock nor had patches on the back of chest to show that the appellant at the relevant time must have been lying on his back and therefore, he did not receive burn injuries on his back. Learned Counsel has also relied upon the report of the Central Forensic Science Laboratory where besides other articles a broken match box with unburnt match sticks were also sent for analysis. She submits that the result of the analysis shows that there was no kerosene residue on this match box. According to her in case the deceased had attempted to commit suicide, he would have doused himself with kerosene oil and he would have used the match box and residue of kerosene ought to have come on this match box.

13. To counter the argument of learned Counsel for the appellants with regard to toe impression on the dying declaration, learned APP for the State has relied upon the evidence of PW-8, son of the deceased in the answer to a Court question:

Court question: Whether your maternal Uncle also received injuries while he was trying to extinguish the fire with his hands? A. I am not aware. Avitri and some other persons were also trying to extinguish the fire by pouring water. All the fingers and thumb of both hands of my father also got burnt....

14. We have heard learned Counsel for the parties and given our thoughtful consideration to the matter.

15. The extent on which the evidence of a hostile witness is to be relied upon has been a subject matter of a large number of legal pronouncements; merely because the witness has been cross-examined by the prosecution, it cannot be said, as a general rule, that his evidence is to be rejected completely.

16. In Radha Mohan Singh @ Lal Saheb and Ors. v. State of U.P. , it is held that:

It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found found to be dependable on a careful scrutiny thereof. (See Bhagwan Singh v. State of Haryana ; Rabinder Kumar Dey v. State of Orissa ; Syed Akbar v. State of Karnataka and Khuji @ Surendra Tiwari v. State of Madhya Pradesh ).

17. In the case of Jodhraj Singh v. State of Rajasthan JT 2007(7) SC 118, the Supreme Court has held that the Courts are entitled to rely upon part of the testimony of a witness, who has been permitted to be cross-examined by the prosecution. Relevant portion of the same reads as under:

11. The High Court took up all the appeals together for hearing. The only distinctive fact in the case involving the appellant was Pws 8 and 9 turned hostile, but the same, in out opinion, would not materially alter the prosecution case, as a conviction can even by based on the testimony of a single witness. The courts furthermore are entitled to rely upon a part of the testimony of a witness who has been permitted to be cross-examined by the prosecution.

12. In State of U.P. v. Ramesh Prasad Misra and Anr., this Court opined:

7. The question is whether the first respondent was present at the time of death or was away in the village of DW1, his brother-in-law. It is rather most unfortunate that these witnesses, one of whom was an advocate, having given the statements about the fact within their special knowledge, under Section 161 recorded during investigation, have resoled from correctness of the versions in the statements. They have not given any reason as to why the investigating officer could record statements contrary to what they had disclosed. It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favor of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted.

[See also Gurpreet Singh v. State of Haryana and Gagan Kanola and Anr. v. State of Punjab]

13. Moreover, while recording a judgment of conviction, the court may consider a part of the deposition of a witness who had been permitted to be cross-examined by prosecution having regard to the fact situation obtaining in the said case. How the evidence adduced before it shall be appreciated by the Court would depend on the facts and circumstances of each case.

14. It is trite that only because a witness, for one reason or the other, has, to some extent, resoled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirely. The courts even in such a situation are not powerless. Keeping in view the materials on record, it is permissible for a court of law to rely upon a part of the testimony of the witness who has been declared hostile.

18. Also in the case of Ramkrushna v. State of Maharashtra , Supreme Court has held:

19. It is well-settled that the courts are entitled to rely upon a part of the testimony of a witness who has been permitted to be cross-examined by the prosecution.

20. In State of U.P. v. Ramesh Prasad Misra and Anr., this Court opined:

7. It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favor of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted.

[See also Grupreet Singh v. State of Haryana and Gagan Kanojia and Anr. v. State of Punjab]

19. Reverting back to the fats of the present case, PW-1 in his evidence has stated as under:

It is more than one year, I Along with my family members was sleeping. On hearing the voice thinking that some thief or decoit had entered in the house, I woke up Along with my family members to check the same. Thereafter, my father took a lathi in his defense. We say one of our tenant namely Sunil who was under fire and already been extinguished. And he was at that time in the Varandah and the person who had extinguished the fire was also there. Thereafter, we informed the PCR on 100 number. Then Ambulence also came. Sunil was sent in the Ambulence Along with his Mrs. Manju, who is present today in the Court. All the cloths of Sunil which he was wearing were burnt and were stick to his body. My father cut the cloths of Sunil with a scissor and removed the cloths. I do not know anything else. The photographs of the spot were also taken by the police. The persons who had extinguished the fire were PW Ajeet, Savitri, I do not know anything else.

20. What emerges from this statement is that the deceased was his tenant. He heard voices and thinking that some thief or dacoit had entered the house, he woke up and found his tenant 'under fire' and at that time he was in the varanda. This witness in his cross-examination had denied that the police had seized the empty bottle of kerosene oil, two match boxes and burnt clothes, however, witness was confronted with his earlier statement Ex.PW-1/A at portion 'A to A', where this had been recorded. It has also been recorded in the statement of PW-2, that when he woke up, Sunil (deceased) was found burning in varanda and he was standing near his cot. It is he who raised the alarm and other neighbours also came thereafter. No doubt both these witnesses were termed as hostile witnesses, but while keeping in mind the decisions of the Supreme Court and relying on these statements along with the dying declarations of the deceased, we find that it is established that the deceased was sleeping outside in the varanda.

21. The first statement of the injured (Sunil-deceased) was recorded by the doctor Sushil Kumar Azad (PW-13). As per the evidence of PW-13, Sunil had arrived at the hospital at 3:00 am. on 30.6.2002; he found Sunil was burnt and well oriented dehydration positive, his pulse rate was 100 per minute and respiratory rate was 22 per month; PW-13 had examined deceased Sunil with history of sustaining thermal burn injuries and he had prepared a detailed MLC Ex.PW-13/1. In this MLC he had recorded as under: '...sustain thermal burn injuries, while patient was asleep, suddenly when he woke up he found that his body was wet with kerosene oil and he saw his wife lit a match stick and burnt him. She was accompanied along with her brother....' The second dying declaration was recorded by S.I. Amar Singh (PW-15). He has stated in his evidence that he had collected the MLC of Sunil and thereafter he moved an application for permission to record the statement of the injured to the doctor on duty. The application seeking permission to record the statement has been exhibited as Ex.PW-15/2. The doctor on duty declared the injured fit for making statement and his endorsement is exhibited as Ex.PW-15/3. It is he, who recorded the statement of Sunil, Ex.PW-15/3A.

22. Learned Counsel for the appellants has strongly argued that the Court should be cautious in accepting the dying declaration as a trustworthy piece of evidence (Girdhar Shankar Tawade v. State of Maharashtra) . The dying declaration must inspire full credibility in its truthfulness and correctness as well as where there are more than one dying declaration they must be tested on the basis of consistency and probability (State of Maharashtra v. Sanjay 2004 13 SCC 314. And also that in case the dying declaration is the sole basis of conviction, it should be free from doubt, should have been recorded as per law and should inspire confidence.

23. We are conscious of the proposition of law, as laid down by the Apex Court on which reliance has been placed by learned Counsel for the appellants, however, the judgments are not applicable to the facts of the present case.

24. Supreme Court in Ramilaben Hasmukhbhai Khristi And Anr. v. State of Gujarat, Suleman Yakubbhai Khrishti Parmar v. State of Gujarat and Dahyabhai Ashabhai Khristi Parmar and Ors. v. State of Gujarat has held as under:

Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of such a dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement and in substance if it feels convinced about the trustworthiness of the statement which may inspite confidence such a dying declaration can be acted upon without any corroboration.

25. Supreme Court in Shakuntala v. State of Haryana , has taken into consideration various decisions of the Apex Court and culled out the principles governing dying declarations. It would be useful to reproduce para 9 of the judgment:

9. 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, or 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 assailant. Once the Court is satisfied that the declaration was true and volunatary, 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 as indicated in Smt. Paniben v. State of Gujarat :

i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja and Anr. v. The State of Madhya Pradesh ]

ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. and Ramawati Devi v. State of Bihar ]

iii. The 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 an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor ].

iv. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh ].

v. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P. ]

vi. A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. ].

vii. Merely because a dying declaration does contain the details as to the occurrence. It is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu ]

viii. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. 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 said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh ].

x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. {See State of U.P. v. Madan Mohan and Ors. ]

xi. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. {See Mohanlal Gangaram Gehani v. State of Maharashtra ].

26. Truth sits on the lips of dying man as said by Mathew Arnold: A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. Mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to words of a dying person because a person on verge of death is not likely to tell lies or to concoct a case to implicate an innocent person. [Babu Lal v. State of Madhya Pradesh 2003 (7) Supreme 593.

27. Learned Counsel for the appellants has not been able to show as to why the statement made by the deceased to PW-13, Dr.Sushil Kumar Azad, PW-13, at the time of MLC cannot be treated as the first dying declaration. Nothing has come on record to show that PW-13, was either an interested witness or there was any other reason for him to falsely implicate the appellants. In Lichhamadevi v. State of Rajasthan , the Supreme Court has held that even a verbal statement made to the doctor can be treated as a dying declaration.

28. PW-13, attended upon the injured and was an independent person. He recorded the statement of the injured in the MIC. We find that what was recorded by the doctor, PW-13, is credit-worthy and definitely inspires confidence. In his cross-examination Dr.Ajad has denied the suggestion that the injured Sunil was not fit for making a statement or that he had mentioned history in the MLC at the instance of the Police.

29. We find the evidence of PW-13, reliable in view of the fact that it is he who had at the very first instance examined the injured Sunil while recording in the MLC on the following lines:

Alleged history of sustaning thermal burn injuries while he was asleep, suddenly when he woke up he found that his body was wet with kerosene oil and he saw his wife lighting match stick and she burnt him and she was accompanied with her brother.

PW-13 stated that the history was given by patient himself. He also deposed that the patient was brought by wife Manju. PW-13 deposed that on general examination, he found that patient was well oriented, chest examination was found to be clear, central nerves system and cardio vascular system was examined and nothing abnormal was detected. In cross PW-13 deposed that the patient was conscious.

30. Although he was cross-examined, the witness withstood in the cross- examination by the defense and he could not be shaken. Based on his evidence, we find that the deceased at the time of admission at the hospital was fully conscious and in a fit state of mind. We also find that the statement was made on his own and on free will and there was no effort from anyone to prompt him and it is only later on that the injured succumbed to his injuries. The defense has not been able to establish that PW-13 Dr.Sushil Kumar Azad was either an interested witness or had any reason to implicate the appellants in a false case. We thus find the evidence of PW-13 credible.

31. As far as dying declaration made before S.I. Amar Singh PW-15 is concerned, we find no force in the argument of learned Counsel for the appellants that this statement is not admissible in the evidence as it has neither been signed nor does it bear the thumb impression of the deceased. In response to the Court question, the son of the deceased PW-8 had categorically mentioned that all the fingers and thump of both the hands of his father had got burnt. In such a situation, we find it proper for S.I. Amar Singh to have obtained the left toe impression of the deceased on his statement. No doubt ordinarily thumb impression of the hand should have been taken, but when it was not possible to take the thumb impression, no fault can be found for taking the toe impression on the dying declaration. We also find that it has not been disputed that the left toe mark on Ex.PW-15/3A is that of the deceased. However, what was stated by learned defense counsel was that the impression was taken on a blank paper. We find that S.I. Amar Singh had moved an application Ex.Pw-15/2 to record the statement of the injured Sunil and the doctor in the burn ward gave the certificate on the application itself that the injured was fit for making statement. We also find nothing on record to show that S.I. Amar Singh had demanded Rs. 20,000/- from the appellants and on their refusal to pay falsely implicated them.

32. It has repeatedly been held that a dying declaration recorded before a Police Officer is admissible and can be relied for conviction. It would be useful to reproduce para 7 of Ramawati Devi v. State of Bihar :

7. In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.

33. The second dying declaration was recorded by S.I. Amar Singh and Amar Singh did obtain the endorsement of the doctor with regard to the fitness of the injured to make a statement. As noticed earlier Dr.Ajaz had mentioned that the injured was conscious and in a fit state of mind together with the fact that S.I. Amar Singh made an application Ex.PW-15/2 for permission to record the statement of the injured and an endorsement was made by the doctor, certifying that the injured was fit to make a statement was made on this application itself, however, endorsement could not be proved as it could not be ascertained as to who was the doctor.

34. Keeping in mind the dying declarations as well as other evidence on record, we find that there is no reason for this Court to hold that the dying declarations are not trustworthy. It also stands corroborated by the other evidence on record and fully inspires confidence. The statement was not made as result of tutoring or prompting or a product of imagination. The injured/deceased was in a fit state of mind and his declaration was true and voluntary.

35. We have subjected the dying declarations to close scrutiny. The same were honest and true and the same cannot be rejected merely because in one of the declarations it was mentioned that the match was lit by the wife and in the other declaration that the match was lit by the brother-in-law. It is to be noted that in both the statements it has been mentioned that he was doused with kerosene and both the wife and her brother were present at the appropriate time. While dealing with the dying declaration, the court must ensure that the dying declaration was voluntary; it was recorded correctly and the maker was in a fit state - mentally and physically - to make such declaration. In this case, we find that the dying declaration have passed the test of reliability and to ignore the same would result in miscarriage of justice.

36. The above analysis and the evidence on record leads us to the inevitable conclusion that the appellants are guilty. The judgment/order of learned court below does not warrant interference and the appellants were rightly convicted under Sections302/34 IPC. The appeal therefore has no merits and the same is accordingly dismissed.