Wilson vs State
2013 Latest Caselaw 5136 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: November 11, 2013

+      CRL.A. 634/1999
       WILSON                                            ..... Appellant
                         Through:    Ms. Jaspreet Gogia, Advocate
                         versus
       STATE                                        ..... Respondent
                         Through:    Mr.Sunil Sharma, APP for the
                                     State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

                             JUDGMENT

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 374 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as Cr.P.C), the appellant herein

seeks to challenge the judgment and order dated 30.09.1999 and 01.10.99

respectively passed by the Court of Ld. Additional Sessions Judge,

Shahdara, Delhi, thereby convicting the appellant for committing an

offence under Section 302 of India Penal Code, 1860 (hereinafter

referred to as IPC) and sentencing him to undergo imprisonment for life

together with fine of Rs. 2,000/- and in default thereof to undergo further

rigorous imprisonment for a period of one year.

2. Crime against women is not just a crime against an individual but

against humanity that makes one lose its faith in humans and

relationships. These days it has become a routine affair. Not even a day

passes when unspeakable crimes like rape, murder, bride burning etc are

not committed against women. This violence is not just restricted to the

streets or alleys; but it often travels through the walls and into one's

house. There is no empathy left even towards a women living with a man

after marriage for several years under the same roof.

3. The case in hand also relates to one such unfortunate woman who

became a victim of the aggression of her drunkard husband, who under

the influence of alcohol went on to commit such horrendous act of

burning his own wife. In the present case deceased was just 30 years of

age and had a boy child of fourteen years from her first husband. She was

attacked by accused when he came back home in a drunk condition. The

exact prosecution story as it unfolds in the charge-sheet is as under:-

"On 28.11.1987 at 5:50 p.m. an information was received from an unknown person through telephone PCR vide DD No. 41-B

that a lady has been burnt by pouring kerosene oil at 1?485, Khichripur colony, some officer be sent. On this information, after recording report of the same was sent to SI Dharmender Kumar through constable Om Prakash, who went to the spot and said SI was told at the spot that the lady Smt. Harjeet has been taken to hospital, SI tried to ascertain the hospital and in the meantime, at 07:25 p.m. vide DD No.15, constable Jai Prakash was informed from safdurjung hospital on telephone that Smt. Harjeet has been admitted in the hospital in the burnt condition. On this S.I reached safdurjung hospital and received MLC No.69629 pertaining to injured Smt. Harjeet. The SI seeing the condition took the SDM, Shadhra, Shri Parimal Rai and reached the hospital. A separate permission to record the statement of the victim was sought by the police vide application dated 28.11.1987 on which the doctor made the endorsement to the effect "patient is fit to give statement" allegedly at 08:30 p.m. in the dying declaration made to the SDM, the victim named her husband as offender. On the statement of the victim a case was registered under Section 307 IPC."

4. After supplying the copies of the charge sheet to the accused as per

law, case was committed to the Court of Sessions. Arguments on the

point of charge were heard and charge under section 302 IPC was framed

against the accused, to which he pleaded not guilty and claimed trial. To

prove its case, the prosecution had examined 25 witnesses. The statement

of accused was recorded by the learned Trial Court under Section 313

Cr.P.C. and the accused pleaded his innocence and false implication.

5. Addressing arguments on behalf of the appellant, Ms. Jaspreet

Gogia, Advocate, vehemently contended that the appellant has been

falsely implicated in the present case based on an uncorroborated and

unreliable dying declaration of the deceased. Counsel for the appellant

also argued that the appellant who is presently 45 years of age was 19

years of age, at the time of commission of the offence while Smt. Harjeet

was 30 years of age at the time of her death with a child of 14 years of

age from her previous marriage. The contention raised by the counsel for

the appellant was that the appellant was maintaining very cordial and

affectionate relationship with the deceased Harjeet and there could not

have been any reason for the appellant to have killed her. Counsel for the

appellant also argued that at the time of the incident even the appellant

was not present at the house and therefore, also the appellant could not

have committed the said crime. Making a serious challenge on the

credibility of the alleged dying declaration made by the deceased, the

counsel for the appellant contended that as per the MLC proved on

record, the deceased had suffered 85% burn injuries over whole of her

body and even her both the lips and hands were also burnt and therefore,

such a condition of the deceased could not have permitted her to give

such a lengthy statement to the SDM or to affix thumb mark on the dying

declaration. Counsel for the appellant also argued that even the SDM did

not satisfy himself before recording the statement as to whether she was

in a sound condition to give her statement or not. Counsel for the

appellant further submitted that even no fitness certificate was obtained

from the doctor certifying that the deceased remained conscious, oriented

and mentally alert till the end of recording of her statement.

6. Placing reliance on a judgment of the Apex Court in the case of

Surender Kumar v. State of Haryana reported in 2011 (10) SCC 173,

counsel for the appellant submitted that ratio of this judgment is squarely

applicable to the facts of the present case, as in the facts of the said case

also, the dying declaration made by the deceased did not carry a

certificate by the Executive Magistrate to the effect that it was a voluntary

statement made by the deceased and that he had read over the statement

to her. The said dying declaration was also not attested by the doctor, and

the Hon'ble Supreme Court took a view that such a dying declaration

without corroboration cannot form the basis of conviction.

7. The next submission made by the counsel for the appellant was that

there was no eye witness to the incident of the crime and all the three

prime witnesses produced by the prosecution, i.e., PW-4, PW-6 and PW-

12 turned hostile. Inviting the attention of this Court to the deposition of

PW4-Dharmender who is son of the deceased from her previous

marriage, counsel for the appellant submitted that this witness in his

examination-in-chief clearly stated that the appellant was having cordial

relationship with his mother and no quarrel took place between his

mother and the accused. He also deposed that he did not witness any

incident of quarrel or threatening by accused to his mother. He also

deposed that when he returned to the house he did not see the accused

Wilson present at the house. The contention raised by the counsel for the

appellant was that this witness was the son of the deceased from her

previous marriage and had the accused been involved in the commission

of the said crime then at least this witness would have strongly supported

the prosecution case instead of coming to the rescue of the appellant.

Counsel for the appellant also apprised the Court that the appellant had

already undergone more than 7 years of incarceration for an offence

which he had never committed and is presently leading a happy married

life with his wife along with three children. Counsel for the appellant also

submitted that the wife of the appellant who is about 38 years of age is

suffering from Cancer, Carcinoma Cervix III B and presently she is

undergoing Chemo Therapy involving huge expenses and besides his

ailing wife, the appellant has also to look after his old aged mother. Based

on the above submissions, counsel for the appellant prayed for acquittal

of the appellant.

8. Mr. Sunil Sharma, learned APP for the State, on the other hand

fully supported the reasoning given by the learned Trial Court in

convicting the appellant under Section 302 IPC and as per him, the same

does not warrant any interference by this Court in exercise of its appellate

powers. Learned APP for the State submitted that the dying declaration in

the present case was recorded by the Magistrate and there is no reason to

challenge the credibility and independence of the Magistrate, in truthfully

and correctly recording the last statement of the deceased. Learned APP

for the State also submitted that the dying declaration of the deceased was

recorded by the Magistrate after she was declared medically fit by Dr.

V.P. Arya who was examined by the prosecution as PW-19. Learned

APP for the State also argued that in the post mortem report of the

deceased, proved on record as Ex.PW-20/A, there is no mention about the

hands of the deceased being affected by any burn injuries, and therefore,

the deceased could have easily affixed her thumb mark on the dying

declaration proved on record as Ex.PW-15/A. Learned APP for the State

also argued that even the appellant had also received burn injuries on the

back side of his right hand, and therefore, he cannot set up the plea of

alibi that he was not present at the time of the commission of the crime.

Learned APP for the State has drawn attention of this Court to the MLC

of the appellant proved on record as Ex.PW-19/A. Based on the above

submissions, learned APP for the State prayed for upholding the order of

conviction and sentence passed by the learned Trial Court.

9. We have heard learned counsel for the parties at a considerable

length. We have also gone through the Trial Court record before taking a

final view in the matter.

10. In the present case, deceased Smt. Harjeet was unsuccessful in her

first marriage, which had taken place about 15 years ago with one Mr.

Ram Narain. A son, namely, Dharmender was born out of her first

wedlock and she was devoting her life in the upbringing of her son. The

present accused entered in her life and without formally marrying the

deceased as per their customs and traditions, they started living together

as husband and wife. On the evening of 28th November, 1987, she was

allegedly burnt by the present accused after some quarrel had taken place

between them. The deceased was rushed to Safdarjung hospital in the

burnt condition where her dying declaration was recorded by the Sub

Divisional Magistrate and on 30.11.1987 she succumbed to burn injuries

.The text of the said dying declaration is reproduced as under:-

"My husband Wilson had returned back in the drunken condition, immediately thereafter he started quarrelling. He asked me to go away from the house, at which, I retorted that it is you only who repeatedly moves out of the house and why I should leave. He had vigorously fought with me and thereafter angrily he had poured kerosene oil on me and said that if I do not leave then he will eliminate me. He thereafter with the help of match box ignited fire. Wilson is resident of Jallandhar. This was my second marriage. About 15-16 years have passed after my first marriage. His name was Ram Narain. He left me about 12-13 years back from today. Since for the past 4 years I started living with Wilson. I did not marry him as per customs and tradition. My son, who is from my previous husband, is about 16 years of age. Wilson used to beat me. Earlier I used to

reside at Jahangir Puri. Wilson wanted to get rid of me. Even about two weeks back, Wilson had made an attempt to burn me after pouring kerosene oil on me as well as on him and today also he threatened to put an end to my life. It has happened in the evening. He burnt me with the intention to kill me. He should be apprehended and not allowed to run away. He is resident of Jallandhar and his House number is 122. The said dying declaration was recorded by the Sub Divisional Magistrate at about 08:45 p.m. in the Safdarjung hospital.

11. As per the MLC report of Safdarjung hospital, the deceased was

admitted in the hospital at 6.30 p.m. on 28th November, 1987. The MLC

also records the name of Mrs. Bohti, mother of the deceased, who had

accompanied the deceased at the time of her admission in the hospital.

The history of assault as is recorded in the MLC would also be relevant

and the same is reproduced as under:-

"Alleged history of sustaining burns at about 4.30 p.m. on 28.11.1987 at her house in Block No.9, Khichripur, New Delhi, when her husband came home drunk and started abusing her. Then he allegedly poured kerosene oil over her and set her on fire with a matchstick. She rushed out of the house shouting when her neighbour came and poured water over her and brought to hospital.

O/E GC critical, smell of kerosene oil. sh Patient fully conscious, oriented.

Pulse not palpable

Heart rate - 40/ min Resp. rate - 28/ min Tough dug, week veins, collapsed, capitrany ratio poor dehydration & Rest crs & Resp. system NAB L/E Fresh superficial to deep burns over whole of the body except back of head, both treada Part of both lower limbs & groin 85% burns"

12. The MLC also records that the patient was fully conscious and

oriented. It further records that the burn injuries suffered by the victim

were over 85% and also that the general condition of the victim was

critical and smell of kerosene oil was coming from her body. The said

MLC was proved on record as Ex. PW-21/A in the testimony of PW-21,

Mr. J.B. Bhardwaj, Medical Record Technician of Safdarjung hospital.

PW-20, Dr. L.T. Ramani, Lok Nayak hospital, Delhi, had conducted the

post mortem of the deceased. As per the post mortem report proved on

record as Ex.PW-20/A, the deceased had suffered the following burn

injuries on her person:

"There are 2nd degree deep burns (... over the face), 3rd degree burn over neck all around, chest & abdomen all around except back of the left forearm, all around the right thighs, portem medical aspect of left thighs and back of both legs. ....all around

both upper .mere is ___________________ cut open on the left __________ and evidence of vital reaction. Scalp hair show signing at margins. No smell of kerosene oil is directed in the scalp hair. There is no other mark of violence on the body"

13. In the present case, the counsel for the appellant first challenged

the credibility and truthfulness of the said dying declaration made by the

deceased. The Counsel for the appellant contended that the dying

declaration made by the deceased is uncorroborated and unreliable and

therefore the conviction of the accused cannot be made solely on the basis

of said dying declaration. Apparently, the deceased was admitted in the

hospital at 07:25 p.m. on 28th November. 1987. At 08:30 p.m. the police

officer made an application to the Doctor, requesting him to allow the

recording of statement of the victim. The said application made by the

police officer is proved on record as Ex.PW-24/A. On the application

made by the police officer, Dr. Ankur Sarkar made an endorsement

(Ex.PW-25/F), stating that the victim is fit to make the statement.

Thereafter, the SDM recorded the statement of the victim, which

concluded at 08:45 p.m. PW-15, Shri Parimal Rai in his court deposition

fully supported the said facts. He deposed that before recording the

statement of Harjeet, police had obtained the opinion of doctor as to

whether Harjeet was fit to make statement or not and on which doctor

opined her to be fit to make statement at about 8.30 PM. He further

deposed that he finished recording the statement of the victim at about

8.45 PM. The evidence of this witness remained uncontroverted as he

was not cross-examined by the defence. From the above factual matrix, it

is clear that the dying declaration was recorded immediately after the

victim was admitted in the hospital and after the fitness certificate was

obtained from the concerned doctor. Thus the chances of it being

embellished or tutored do not arise. Further a dying declaration made by a

person on the verge of his death has a special sanctity as at that solemn

moment a person is most unlikely to make any untrue statement. The

shadow of impending death is by itself guarantee of the truth of the

statement of the deceased regarding circumstances leading to his death.

14. It shall also be noted that the SDM is an independent and an

impartial witness. It will be useful here to refer the judgment of the

Hon'ble Apex Court in Harjit Kaur V. State of Punjab , 1999 (3) RCR

(Cri) 700, wherein the Court took a view that Sub Divisional Magistrate,

being an independent witness holding high position had no reason to do

anything which was not proper and therefore genuineness of dying

declaration recorded by him could not be easily doubted and conviction

recorded on that basis could not be faulted with. The germane portion of

the judgment is extracted below:

5. It was submitted by the learned counsel for the appellants that about hundred persons had approached the District Magistrate for getting the Dying Declaration of Parminder Kaur recorded and that some of the relative of the deceased had even accompanied the S.D.M. (P.W.-7) while he was going to the hospital for recording her Dying Declaration. He also submitted that the evidence of this witness discloses that three to four persons were present in the room where Parminder Kaur was kept. According to the learned counsel these two circumstances clearly indicate that P.W. 7 had recorded the Dying Declaration under pressure and in presence of those persons who were interested in Parminder Kaur. We do not find any substance in this contention because this witness has categorically stated in his Examination-in-Chief that when he was recording her statement, nobody was present in the room and even the Nurse attending on her was asked to get out of that room. What he has stated in cross examination is that when he had reached that place, three or four persons were seen sitting in the room. Therefore, it is not correct to say that the Dying Declaration was recorded in presence of some relatives of the deceased. The other circumstances that there was an agitation by the relatives of Parminder Kaur for recording her statement cannot lead to an inference that P.W.-7, who was an I.A.S. Officer and holding high position of Sub-Divisional Magistrate had recorded it under pressure and as desired by the relatives of the deceased. There was no reason for him to do so. As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the Dying Declaration itself but on the application, that would not render the Dying Declaration

suspicious in any manner. The said endorsement made by the Doctor was produced by him and it has become evidence in the case.

6. It was further submitted by the learned counsel that the statement of Parminder Kaur was not recorded by the witness in question and answers form. The evidence of the witness is that she narrated the incident and therefore the Dying Declaration is not in the question-answer form. It was then contended by the learned counsel that the Dying Declaration bears her thumb mark but according to the medical evidence, the skin over the two thumbs was burnt and, therefore, the S.D.M. could not have obtained her thumb impression on it. Whatever impression could be taken was taken by the S.D.M. The medical evidence in this case does not disclose that she could not have put her thumb mark on the Dying Declaration. We fail to appreciate how this circumstance can create any doubt regarding the evidence of this witness or genuineness of the Dying Declaration. P.W. 7 was an independent witness and was holding a high position and had no reason to do anything which was not proper or correct. Except a bare suggestion made to him that the Dying Declaration was manufactured by him after her death, we do not find anything in his cross- examination as would create any doubt regarding truthfulness of what this witness has deposed. We fully agree with the finding recorded by the courts below that the Dying Declaration was voluntarily made by Parminder Kaur and that it was correctly recorded by P.W.-7."

15. It is also fairly well settled legal position that once the Court is

satisfied that dying declaration made by the victim was true and voluntary

without being tutored or prompted by any interested person, the

conviction of the accused undoubtedly can be based on such a dying

declaration without any further corroboration. The rule requiring

corroboration is merely a rule of prudence. The principles governing the

dying declaration were eloquently summed up long back by the Hon'ble

Apex Court in the matter of Paniben vs. State of Gujarat reported in AIR

1992 SC 1817. The same are reproduced as under:-

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(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 opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(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.

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where the eye-witness has said that the deceased was in a fit conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(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."

16. In the background of the aforesaid legal position, we do not find

any force in the contention raised by the counsel for the appellant that the

dying declaration made by the deceased is untrustworthy and does not

inspire confidence and therefore conviction cannot be based on the same.

17. The other contention raised by the learned counsel for the appellant

was that the deceased had suffered 85% burn injuries over whole of her

body and even both of her lips and hands were burnt and therefore in such

a condition, the deceased could not have been in a position to give such a

lengthy statement to the Sub Divisional Magistrate and she could not

have affixed her thumb impression on the dying declaration. This

contention of the learned counsel for the appellant is also devoid of any

force and is totally unsupported by the medical evidence on record.

Neither in the MLC of the deceased nor in the post mortem report there is

any specific mention of the lips or the hands of the deceased affected by

the burn injuries rendering her incapable to give her statement and affix

her thumb mark on the dying declaration. Even otherwise, impartiality

and independence of the Sub Divisional Magistrate in recording the

statement of the victim cannot be questioned unless the defence is able to

place on record such material evidence clearly demonstrating some

personal interest of the Sub Divisional Magistrate or that for some other

extraneous reasons he would go to the extent of fabricating such an

important piece of evidence. As already stated above, the testimony of

PW-15 remained uncontroverted and unrebutted and the same is the

position with the medical evidence proved on record. Therefore, we do

not find any force in the said argument raised by learned counsel for the

appellant that the deceased was not in a position to record her such a

lengthy statement and affix her thumb mark at the end of the dying

declaration.

18. On the judgment of the Apex Court in the case of Surender Kumar

(supra), where the court took a view that where the dying declaration is

suspicious, it could not be acted upon without corroborating evidence.

The court also held that where the deceased was unconscious and could

not make any declaration, the evidence with regard to it has to be

rejected. There can hardly be any dispute with the legal principles as

discussed in the said judgment and in fact there is only a reiteration of the

legal principles, settled by the Apex Court in a catena of judgments. The

facts of the case before the Apex Court were also clearly distinguishable

as in the said case the deceased had suffered 97% burn injuries and she

was under constant sedatives and in such a situation, the court found that

she could not be expected to make a statement at a stretch. The court also

found that the dying declaration made by the deceased in the said case

was totally in conflict with the version of the prosecution and in such a

situation, dying declaration was found totally unacceptable and

untrustworthy. In the facts of the present case, we do not find any such

infirmity in the dying declaration, made by the deceased, which is fully

supported by the medical evidence and the evidence of PW-15, SDM.

19. Another contention raised by learned counsel for the appellant was

that the SDM did not satisfy himself before recording the statement as to

whether the victim was in a sound condition to give the statement or not.

In the present case at 08:30 p.m. the police officer made an application to

the Doctor, requesting him to allow the recording of statement of the

victim. The said application made by the police officer is proved on

record as Ex.PW-24/A. On the application made by the police officer,

Dr. Ankur Sarkar made an endorsement (Ex.PW-25/F) stating that the

victim is fit to make the statement. Thereafter the SDM recorded the

statement of the victim which was concluded at 8.45 PM. Thus before

recording the statement of the victim, she was declared fit for making the

statement by the concerned doctor and therefore, it was not required that

once again the SDM would obtain the fitness certificate from the doctor

despite the fact that the same has already been obtained by the police

officer in his presence. Further during the examination-in-chief, the SDM

was categorical that before he recorded the statement of the victim, the

police got an endorsement from the concerned doctor that the victim is fit

to make the statement. However, it is pertinent to mention that the

accused brazenly failed to cross-examine PW-15- SDM on this fact.

Thus, through the unimpeachable testimony of the SDM the prosecution

sufficiently proved on record that the victim was fit to make statement.

20. It will also be significant to refer to decision of the Constitution

Bench of the Apex Court in the case of Laxman V. State of

Maharashtra, 2002 Crl.L.J. 4095 wherein also the Hon'ble Apex Court

had an occasion to consider the similar aspect regarding veracity of dying

declaration, where doctor certification regarding the fitness of a victim

had not been taken and the Court took a view that if a person recording

the statement is satisfied that the person was fit then the veracity of the

declaration will not be questioned. The Court further held that dying

declaration can be oral or in writing and any adequate method of

communication whether by words or by signs or otherwise will suffice

provided the indication is positive and definite. The Court also took a

view that there is no requirement of law that the dying declaration must

necessarily be made to a Magistrate and when such statement is recorded

by the Magistrate there is no specified statutory form for such recording.

The Court also held that a certification by the doctor is essentially a rule

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

can be established otherwise. The relevant para of the said judgment is

reproduced as under:-

"3. The justice 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, 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 their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with.

Since the accused has no power of cross-examination, the court 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 court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, 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 the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. 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. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. 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. 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. 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."

21. Reiterating the same principles the Apex Court in Sher Snigh and

Anr. Vs. State of Punjab 2008 AIR 2008 SC 1426 also took a view that

certification by the doctor is essentially a rule of caution and, therefore,

the voluntary and truthful nature of the declaration can be established

otherwise. Relevant para of this judgment is reproduced as under:-

"Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would 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 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 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."

22. Thus in the view of the above legal position and the factual matrix

of this case, we are not persuaded by the contention of the counsel for the

appellant that the SDM did not satisfy himself about the state of mind of

the deceased before recording the statement.

23. Next contention raised by the counsel for the appellant was that at

the time of the incident even the appellant was not present at the house

and therefore, also the appellant could not have committed the said crime.

It is a settled legal position that the plea of alibi postulates the physical

impossibility of the presence of the accused at the scene of offence by

reason of his presence at another place. The plea therefore succeeds only

if it is shown that the accused was so far away at the relevant time that he

could not be present at the place where the crime was committed.

Apparently, the accused has not placed anything on the record to show

that at the time of the alleged incident he was not present at the place of

the incident or that he was present at some other place so far away from

the place of the incident that he could not be present at the place of

incident at the same time. Apart from this, the evidence placed on record

clearly show the presence of the accused at the place of incident, at the

alleged time, as history of assault as is recorded in the MLC of the

accused (Ex.PW-19/A) is "alleged injury sustained in saving his wife on

28.11.1987". We therefore, do not find any merit in the argument of the

Ld. Counsel for the appellant that at the time of the incident even the

appellant was not present at the house.

24. Another contention raised by learned counsel for the appellant was

that that neither there was any eye witness of the alleged incident nor the

three prime witnesses produced by the prosecution i.e. PW-4, 6, and 12

supported the case of the prosecution. Learned counsel for the appellant

also submitted that PW-4, Dharmender who was the son of the deceased

form her previous marriage also took a stand that the appellant was

having cordial relations with his mother. Undoubtedly, these witnesses

did not stand firm in their court depositions and spoke contrary to their

initial statements made under Section 161 of Cr.P.C. However it is a

matter of common knowledge that the relationship between husband and

wife is totally a private affair and sometime it may happen that the other

family members may not even come to know about the exact relationship.

Further it is pertinent to note that none of these witnesses were present on

the spot at the relevant time, thus they cannot state any fact as to what

would have had happened at the time when the accused burnt his own

wife and had these witnesses not turned hostile, the evidence of all these

witnesses, at its best, could have supported the case of prosecution only to

the extent that it could prove the relation between the accused and the

deceased. Thus even if these witnesses have turned hostile, their evidence

will in no way affect the prosecution version that on the alleged day, the

accused had burnt his own wife.

25. In the light of the aforesaid discussion we find ourselves fully

satisfied that the said dying declaration was made by the deceased

voluntarily and truthfully, free from any kind of tutoring or prompting,

and it was duly recorded by the SDM.

26. There lies no merit in the present appeal. The learned Trial Court

has rightly convicted the appellant for the offence committed by him

under Section 302 IPC. Hence, the order on conviction and sentence

dated 30.09.1999 and 01.10.99 respectively passed by the learned

Sessions Judge is upheld. The present appeal accordingly stands

dismissed.

27. A copy of this order be sent to the concerned Jail Superintendent

for information and necessary compliance.

KAILASH GAMBHIR, J.

INDERMEET KAUR, J.

NOVEMBER 11, 2013 v