Madhya Pradesh High Court
Ram Lal vs State Of M.P. on 13 December, 2021
Author: Gurpal Singh Ahluwalia
1
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No.522/2010
Ram Lal and others
Vs.
State of M.P.
Shri Anoop Nigam, Counsel for the appellant.
Shri R.K. Awasthi, Counsel for State.
Date of Hearing : 09-12-2021
Date of Judgment : 13 - Dec.-2021
Approved for Reporting :
Judgment
13th -Dec. -2021
Per G.S. Ahluwalia J.
1. This Criminal Appeal under Section 374 of Cr.P.C. has been
filed against the judgment and sentence dated 28/5/2010 passed by
Sessions Judge, District Vidisha in Sessions Trial No.266/2009, by
which the appellant-Ramlal has been convicted under Section 302 of
IPC and sentenced to undergo life imprisonment and a fine of
Rs.10,000/- with default imprisonment of two years rigorous
imprisonment.
2. It is not out of place to mention here that co-accused
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
Ramprasad and Smt. Ganeshibai were also convicted under Section
302/34 of IPC, however, both of them have expired during pendency
of this appeal and accordingly, by orders dated 31/7/2014 and
11/3/2015 the appeals filed by Ramprasad and Smt. Ganeshibai were
dismissed as abated.
3. The necessary facts for disposal of the present appeal in short
are that the deceased - Sakhibai was the wife of appellant - Ramlal,
whereas the co-accused Ramprasad and Smt. Ganeshibai were the
father-in-law and mother-in-law of the deceased. The deceased -
Sakhibai died on 10/8/2009 due to burn injuries.
4. On 30/7/2009 the Community Health Center, Kurwai, District
Vidisha sent an information to the police, Ex. P/5, that the wife of the
appellant, namely, Smt. Sakhibai has been brought in a burnt
condition, therefore, necessary action be taken. The said information
was entered into Rojnamchasanha No.1378 and ASI, H.S. Chauhan
was sent for enquiry. Dehati Nalishi, Ex. P/4, was lodged by the
injured Smt. Sakhibai and accordingly, the FIR was lodged. The
dying declaration of the injured - Sakhibai was recorded by Naib
Tahsildar Devendra Narayan Rishishwar. The statements of Late
Sakhibai and other witnesses were recorded and prima facie it was
found that on 30/7/2009 at about 8:30 in the night, the appellant came
in a drunken condition and started quarreling with the deceased and
picked up a container of kerosene oil and poured the kerosene on the
deceased and set her on fire. It was alleged that co-accused
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
Ramprasad instigated the appellant to kill her by setting her on fire
and similar instigation was given by the co-accused Smt. Ganeshibai.
It was also found that the appellant was in the habit of making
allegation that his wife is a thief and a prostitute and, therefore, he set
her on fire. Later on, the deceased died on 10/8/2009 and accordingly,
the police after completing investigation filed the charge-sheet under
Section 302 against the appellant and under Section 302/34 of IPC
against co-accused persons.
4. The appellant abjured his guilt and pleaded not guilty.
5. The prosecution in order to prove its case examined Kallu
(PW-1), Ganpat (PW-2), Dr. Pawan Kumar Jain (PW-3), Dr. R.L.
Singh (PW-4), Anandilal (PW-5), Lal Bahadur Singh (PW-6), Suresh
Kumar Sharma (PW-7), Bharat Singh Thakur (PW-8), Mohanlal Sahu
(PW-9), Devendra Narayan Rishishwar (PW-10), H.S. Chauhan (PW-
11), Shakil Mohammad alias Manni (PW-12).
6. The appellant did not examine any witness in support of his
defence.
7. By the impugned judgment and sentence passed by the Trial
Court, the appellant has been convicted and sentenced for the
offences mentioned above.
8. Challenging the conviction of the appellant, it is submitted by
the counsel for the appellant that all the witnesses have turned
hostile. The deceased was seriously burnt and she was not in a
position to give dying declaration. The appellant is an innocent
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
person and has been falsely implicated. It is further submitted that the
appellant himself had taken the deceased to the hospital, therefore, it
cannot be said that he had burnt her by pouring kerosene oil on her.
9. Per contra, it is submitted by the counsel for the State that if
the dying declaration is found to be reliable, then it can be the sole
ground for conviction. The counsel for the State has also supported
the findings recorded by the Trial Court.
10. Heard learned counsel for the parties.
11. Before adverting to the facts of the case, this Court would like
to find out as to whether the death of the deceased Sakhibai was
homicidal in nature or not?
12. The Deceased Sakhibai was taken to hospital by the appellant
himself and on medical examination, following condition was found:
"Blackening of part present. Smell of kerosene present.
Burn is patchy.
(1) Face burnt.
(2) Both upper limbs are burnt.
(3) Neck is burnt.
(4) Chest also burnt.
(5) Both thighs are burnt.
(6) Knee of both side burnt with upper of leg.
(7) Back is also burnt.
Burnt clothes were not brought alongwith the patient and
the duration of injuries was 12 hours and were dangerous to
life.
The Pre-MLC is Ex. P.6.
13. Dr. Pawan Kumar Jain (P.W.3) was cross-examined. In cross-
examination, this witness stated that the deceased was brought to the
hospital without any requisition from the police station. In Pre-MLC,
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
Ex. P.6, the extent of burns has not been mentioned. She was in full
senses, otherwise, he would have mentioned in the report. He further
stated that the deceased was brought by the appellant and other
persons.
14. Thereafter, the deceased died on 10-8-2009 and accordingly
intimation to police was given by District Hospital Vidisha by
requisition, Ex. P.11, and Merg intimation is Ex. P.12.
15. The post-mortem of the dead body of the deceased Sakhibai
was conducted by Dr. R. L. Singh (P.W. 4) and his team,who found
the following injuries :
Burn present over face, neck, both upper limb, hands,
chest, whole back, abdomen, patchy burns are present over
the left thigh, left leg, anterior and posterior surface, left
knee, left leg.
Infected burns over neck, chest, whole back, arm,
pus discharge. Total percentage of burn about 100%.
The cause of death was cardio-respiratory arrest as a
result of burn and its complication i.e., septicemia.
The post-mortem report is Ex. P. 8.
16. This witness was cross-examined. In cross-examination, this
witness has stated that the deceased had suffered 100% burns. He
further clarified that it is not necessary that every patient would
become unconscious. He denied that the mental condition of a
patient with 100% burns would not be good and would not be in a
position to speak. He further stated that he donot recollect as to
whether the thumb or finger of the dead body had any mark of ink or
not. He was also not in a position to say as to whether the skin of
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
thumb was burnt or not? The cause of death was septicemia.
17. Thus, from the evidence of Dr. Pawan Kumar Jain (P.W.3) and
Dr. R.L. Singh (P.W. 4), it is clear that the cause of death was burn
injuries and at the time of admission, the smell of kerosene oil was
also coming.
18. Now the next question for consideration is that whether the
death of the deceased Sakhibai was homicidal, suicidal or accidental.
19. All the witnesses have turned hostile. Now the case is based on
the solitary evidence of dying declarations. It is undisputed fact that
the deceased was taken to hospital by the appellant himself, as it is
evident from the pre - MLC, Ex. P/6, in which it is mentioned that the
patient was brought by Ramlal (Appellant), husband of deceased -
Sakhibai, and other persons. However, it is also mentioned that as
per statement, she was burnt by her husband, father-in-law and
mother-in-law. Thus, it is clear that when the deceased - Sakhibai
was taken to the hospital by the appellant, then she immediately
disclosed to the doctor that she has been burnt by her husband, father-
in-law and mother-in-law.
20. Thereafter, the CHC, Kurvai, District Vidisha sent a requisition
Ex.P/15 to the police station, thereby informing that the injured
Sakhibai has been brought in a burnt condition and accordingly, H.S.
Chauhan (PW-11) went to the hospital and recorded the Dehati
Nalishi, Ex.P/14. The Dehati Nalishi was lodged at 22:05 hours and it
was disclosed by the deceased that she is the resident of Phriganj and
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
is a house lady and her parental home is in village Barkheda. On
30/7/2009 at about 8:30 in the night, her husband the appellant, came
in a drunken condition and started quarreling with her and when she
tried to pacify him, he did not listen to her and picked up a container
of kerosene oil and poured on her and set her on fire. The co-accused
Ramprasad also instigated that she should be set on fire and the co-
accused Smt. Ganeshibai was abusing her and also instigated that the
appellant should kill her. It was further alleged that the appellant used
to allege that the deceased is a thief and a prostitute and that is why
he set her on fire. The doors of the house were closed and when she
raised an alarm, then Ganpat Bhai and Kallu Bhai etc. came on the
spot and the entire incident was narrated to them. This witness
obtained the thumb impression of the deceased on the Dehati Nalishi.
Thereafter, this witness also recorded the statement of the deceased
under Section 161 of Cr.P.C., Ex.P/16 and similar allegations were
made by the deceased-Sakhibai. Thereafter, Devendra Narayan
Rishishwar (PW-10), who was posted on the post of Naib Tahsildar,
recorded the dying declaration of the deceased after obtaining the
fitness certificate from the doctor. The dying declaration is Ex.P/7
and the fitness certificate is at A to A. In the dying declaration, she
stated that she was burnt by her husband. The dying declaration,
Ex.P/7, reads as under:-
uke & l[kh ckbZ
ifr dk uke & jkeyky
mez & 25 o"kZ yxHkx
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
fuoklh & Qzhxat lhgksjk
rg & dqjokbZ
tkfr & HkkssbZ
e`~R;q iwoZ dFku
1- vkidk ckbZ D;k uke gS& l[kks ckbZ
2- dgkWa dh jgus okyh gks & mukjlh cj[ksMk
3- ;gkWa D;ksa vkbZ & vkx yxk nkh Fkh blfy,
4- vkx fdlus yxkbZ & jke yky us
5- dkSu gS jkeyky & esjs ifr gSA
6- D;ksa yxknh & nk: ih ds yM+ jgs FksA
7- D;ksa yM+kbZ gqbZ & ,sls gh yM+rs jgrs gS nk: ih dsA
8- dgkWa ij vkx yxkbZ & ?kj ij Qzhxat lhgksjkA Qzhxat lhgksjk
esa esjh llqjky gSA
9- fdrus cts Hkh ckr gS & vkt yxHkx lk<s+ vkB cts lka; dh
10- vkx fdlls yxkbZ & feV~Vh dk rsy Mkydj vkx yxk nh
11- rqEgkjh 'kknh dc gqbZ Fkh & nks& rhu c"kZ iwoZA
12- rqEgkjs fdrus cPps gS & ,d yM+dk gSA
13- fdlus tyk;k & ifr us tyk;k jkeyky usA
(i) dFku ysrs le; dksbZ ifjokj dk lnL; uk;c rglhynkj dqjokbZ
ugh FkkA lkeqnkf;d LokLF; dsUnz
(ii) dFku ysrs le; iqfyl dk dksbZ deZpkjh dqjokbZ ¼fofn'kk½
ekStwn ugha jgkA
The thumb impression of the deceased was also obtained.
21. Devendra Narayan Rishishwar (P.W.10) was cross-examined
and stated the written requisition received by him was not attached
with dying declaration, Ex. P.7. He denied that the dying declaration,
Ex. P.7 is not in his handwriting. When this witness reached to the
hospital, the deceased was hospitalized and was under treatment. As
per his knowledge, She was in General Ward. He further stated that
he had obtained the fitness certificate from the Doctor. He denied
that the deceased was not in a position to speak. He denied that he
has falsely prepared the dying declaration, Ex. P.7. He denied that the
deceased was not conscious. He denied that the deceased had not put
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
her thumb impression. He took about 20-25 minutes to complete the
proceedings. He further admitted that the timing of recording of
dying declaration has not been mentioned.
22. Dr. Pawan Kumar Jain (P.W. 3) who was posted as Doctor and
had medically examined the patient/deceased has stated that after the
Pre-MLC was prepared, the Tahsildar came on the spot and recorded
the dying declaration of the deceased. Before recording of her dying
declaration, he had given the fitness certificate, which is at A to A and
his signatures are at B to B on the dying declaration, Ex. P.7. He had
also given his fitness certificate after the conclusion of dying
declaration, which is at C to C and his signatures are at D to D. In
cross-examination, this witness has admitted that he had not
mentioned the extent of burns, however, the patient/deceased was in
senses. He admitted that he had not mentioned the pulse rate. He
denied that the patient/deceased had not informed that She was burnt
by the appellant and her parents-in-law. He admitted that he has not
mentioned the timing of starting and conclusion of dying declaration.
He denied that She was not in a fit state of mind. At the time of
recording of statements, the police personals were standing at a
distant place. Before the dying declaration, Ex.P.7 was recorded, the
police had also recorded the statement of the deceased. This witness
was on duty on the said day. He was sitting by the side of Naib-
Tashildar at the time of recording of Dying Declaration. He denied
that the dying declaration was recorded in his absence.
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
23. H.S. Chauhan (P.W. 11) is the investigating officer. He had
recorded the Dehati Nalishi, Ex. P.14 on the information given by the
deceased Smt. Sakhibai. Thereafter, he also recorded the statement of
the patient/deceased Sakhibai, under Section 161 of Cr.P.C., Ex. P.16.
The spot map, Ex. P.2 was prepared. On the same day, he seized one
green-black coloured semi burnt blanket, semi burnt piece of red-
black Saree, semi burnt piece of curtain, burnt pieces of cloths lying
on the floor, one plastic container containing 100 gms of Kerosene
Oil, one match box, burnt earth and plain earth vide seizure memo
Ex. P. 9. In cross-examination, this witness stated that the police
station is situated at a distance of 1 Km. from the hospital. The
requisition sent by hospital was handed over to him by Head
Constable (Male). The requisition was sent at 9:30 P.M. and it was
registered at 9:45 P.M. The Dehati Nalishi,Ex. P. 14 was sent to
police station for registration purposes and immediately after
recording the Dehati Nalishi, Ex. P.14, he had recorded the statement
of the patient/deceased, Ex. P. 16. He denied that he had reproduced
the dying declaration of the patient in her statement under Section
161 of Cr.P.C. This witness did not ask for fitness certificate before
recording her statement under Section 161 of Cr.P.C., because the
patient was responding clearly. Lot of persons had gathered in the
police station, but since, all of them were spectators, therefore, he did
not interrogate any one. He refused that the portion mark as "A to A"
in Dehati Nalishi, Ex. P. 14 was added subsequently. In Police
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
Statement, Ex. P.16, the patient/deceased had disclosed that the
marriage had taken place about 3-4 years back. He denied that the
police statement was written by him out of his own imagination. He
further stated that Dehati Nalishi, Ex. P. 14 contains the thumb
impression of the patient/deceased. He admitted that the thumb
impression is in two parts, but clarified on his own, that although it is
a single thumb impression, but due to improper ink, the entire thumb
impression could not be taken. When he reached on the spot, the door
of the room were closed from outside but was not locked. The semi
burnt pieces of cloths were seized from the spot. However, he
clarified that the semi burnt cloths have not been mentioned in spot
map Ex. P.2. He admitted that the spot map was prepared at 10:30
A.M., whereas the seizure was made at 10.55 A.M. In seizure
memo,Ex. P.9, by bonafide mistake, the date has been mentioned as
30-7-2009 in place of 31-7-2009. He denied that since, the articles
were not lying on the spot, therefore, they were not mentioned in the
spot map,Ex. P.2. He denied that in order to falsely implicate the
applicant, the seizure of articles was wrongly prepared. He denied
that the witnesses of spot map, Ex. P.2 and seizure memo Ex. P.9 are
common, but on his own clarified that they are different. He denied
that the proceedings were not done in the presence of the witnesses.
He admitted that in the spot map, Ex. P.2, the height of the room has
not been mentioned. However, he also expressed his inability to
disclose the height of the room. The statements of only those
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
witnesses were taken, who were available on the spot. He denied that
he did not go to the spot and prepared the spot map in the police
station itself. He denied that Dehati Nalishi, and police statement,
Ex. P. 16 were not given by the patient/deceased.
24. Thus, it is clear that the present case is based on Four dying
declarations of the deceased, i.e.,Dehati Nalishi, Ex. P.14, Police
Statement, Ex. P.16, Written Dying Declaration, Ex. P.7 and the oral
dying declaration given to Dr. Pawan Kumar Jain (P.W.3) which is
mentioned in Pre-M.L.C., Ex. P.6.
25. It is submitted by the Counsel for the appellant that since, the
deceased had suffered 100% burns therefore, She was not in a
position to speak.
26. Considered the submissions made by the Counsel for the
appellant.
27. The Supreme Court in the case of Purshottam Chopra v.
State (NCT of Delhi), reported in (2020) 11 SCC 489 has held as
under :
18. The principles relating to admission and acceptability of
the statement made by a victim representing the cause of
death, usually referred to as a dying declaration, are well
settled and a few doubts as regards pre-requisites for
acceptability of a dying declaration were also put at rest by
the Constitution Bench of this Court in Laxman v. State of
Maharashtra.
18.1. In the said case of Laxman, conviction of the
appellant was based on dying declaration of the deceased
which was recorded by the Judicial Magistrate. The Session
Judge and the High Court found such dying declaration to
be truthful, voluntary and trustworthy; and recorded
conviction on that basis. In appeal to this Court, it was
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
urged with reference to the decision in Paparambaka
Rosamma v. State of A.P. that the dying declaration could
not have been accepted by the Court to form the sole basis
of conviction since certification of the doctor was not to the
effect that the patient was in a fit state of mind to make the
statement. On the other hand, it was contended on behalf of
the State, with reference to the decision in Koli Chunilal
Savji v. State of Gujarat, that the material on record
indicated that the deceased was fully conscious and was
capable of making a statement; and his dying declaration
cannot be ignored merely because the doctor had not made
the endorsement about his fit state of mind to make the
statement. In view of these somewhat discordant notes, the
matter came to be referred to the larger Bench.
18.2. The Constitution Bench in Laxman summed up the
principles applicable as regards the acceptability of dying
declaration in the following: (Laxman case, SCC pp. 713-
14, para 3)
"3. 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 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 the deathbed 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 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 court, however, has
always to be on guard to see that the statement of the
deceased was not as a result of either tutoring or prompting
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 looks 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
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Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
declarant, the dying declaration is not acceptable. A 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. 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 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."
18.3. The Constitution Bench affirmed the view in Koli
Chunilal Savji while holding that Paparambaka Rosamma,
was not correctly decided. The Court said: (Laxman case,
SCC p. 715, para 5)
"5. ... It is indeed a hypertechnical view that the
certification of the doctor was to the effect that the patient
is conscious and there was no certification that the patient
was in a fit state of mind especially when the Magistrate
categorically stated in his evidence indicating the questions
he had put to the patient and from the answers elicited was
satisfied that the patient was in a fit state of mind
whereafter he recorded the dying declaration. Therefore, the
judgment of this Court in Paparambaka Rosamma v. State
of A.P. must be held to be not correctly decided and we
affirm the law laid down by this Court in Koli Chunilal
Savji v. State of Gujarat."
19. In Dal Singh case, this Court has pointed out that the
law does not provide as to who could record dying
declaration nor is there a prescribed format or procedure for
15
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
the same. All that is required is the person recording dying
declaration must be satisfied that the maker is in a fit state
of mind and is capable of making such a statement. This
Court also pointed out that as to whether in a given burn
case, the skin of thumb had been completely burnt or if
some part of it will remain intact, would also be a question
of fact. This Court said: (SCC p. 167, paras 20-22)
"20. The law on the issue can be summarised to the effect
that law does not provide who can record a dying
declaration, nor is there any prescribed form, format, or
procedure for the same. The person who records a dying
declaration must be satisfied that the maker is in a fit state
of mind and is capable of making such a statement.
Moreover, the requirement of a certificate provided by a
doctor in respect of such state of the deceased, is not
essential in every case.
21. Undoubtedly, the subject of the evidentiary value and
acceptability of a dying declaration, must be approached
with caution for the reason that the maker of such a
statement cannot be subjected to cross-examination.
However, the court may not look for corroboration of a
dying declaration, unless the declaration suffers from any
infirmity.
22. So far as the question of thumb impression is
concerned, the same depends upon facts, as regards whether
the skin of the thumb that was placed upon the dying
declaration was also burnt. Even in case of such burns in
the body, the skin of a small part of the body i.e. of the
thumb, may remain intact. Therefore, it is a question of fact
regarding whether the skin of the thumb had in fact
been completely burnt, and if not, whether the ridges and
curves had remained intact."
19.1. In Bhagwan, this Court accepted the dying declaration
made by a person having suffered 92% burn injury and
whose continued consciousness was certified by the doctor.
This Court referred to the decision in Vijay Pal v. State
(NCT of Delhi), where the statement made by the victim
having suffered 100% burn injury was also accepted. This
Court said: (Bhagwan case, SCC pp. 106-107, paras 24-25)
"(B) Can a person who has suffered 92% burn injuries be
in a condition to give a dying declaration?
24. This question is also no longer res integra. In Vijay Pal
v. State (NCT of Delhi), we notice the following discussion:
(SCC p. 759, paras 23-24)
'23. It is contended by the learned counsel for the appellant
that when the deceased sustained 100% burn injuries, she
16
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
could not have made any statement to her brother. In this
regard, we may profitably refer to the decision in Mafabhai
Nagarbhai Raval v. State of Gujarat wherein it has been
held that a person suffering 99% burn injuries could be
deemed capable enough for the purpose of making a dying
declaration. The Court in the said case opined that unless
there existed some inherent and apparent defect, the trial
court should not have substituted its opinion for that of the
doctor. In the light of the facts of the case, the dying
declaration was found to be worthy of reliance.
24. In State of M.P. v. Dal Singh, a two-Judge Bench placed
reliance on the dying declaration of the deceased who had
suffered 100% burn injuries on the ground that the dying
declaration was found to be credible.'
25. Therefore, the mere fact that the patient suffered 92%
burn injuries as in this case would not stand in the way of
patient giving a dying declaration which otherwise inspires
the confidence of the Court and is free from tutoring, and
can be found reliable."
20. In Gian Kaur, the dying declaration was disbelieved on
the ground that though as per medical evidence the
deceased had 100% burn injuries but the thumb mark
appearing on the dying declaration had clear ridges and
curves. The benefit of doubt extended by the High Court
was found to be not unreasonable and hence, this Court
declined to interfere while observing as under: (Gian Kaur
case, SCC p. 943, para 5)
"5. The High Court disbelieved the dying declaration on the
ground that even though according to the medical evidence
Rita had 100% burns, the thumb mark of Rita appearing on
the dying declaration had clear ridges and curves. The High
Court found the evidence of Dr Ajay Sahni-PW 1 not
reliable as he failed to satisfactorily explain how such a
thumb mark could appear on the dying declaration when
Rita had 100% burns over her body. The High Court relied
upon the deposition of Doctor Aneja, who had performed
the post-mortem and who has categorically stated that there
were 100% burns over her body and both the thumbs of
Rita were burnt. In view of such inconsistent evidence, the
High Court was right in giving benefit of doubt to the
respondents. It cannot be said in this case that the High
Court has taken an unreasonable view."
20.1. In Gopalsingh, the Court found that the dying
declaration did not contain complete names and addresses
of the persons charged with the offence and it was found
that conviction could not be based on such dying
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
declaration alone without corroboration. Essentially, for the
infirmity carried by such dying declaration, this Court
found lesser justification for the High Court's interference
with the order of acquittal while observing as under: (SCC
p. 272, para 8)
"8. But even if we assume that the High Court was right in
concluding that the dying declaration established the
identity of the appellants, it was certainly not of that
character as would warrant its acceptance without
corroboration. It is settled law that a court is entitled to
convict on the sole basis of a dying declaration if it is such
that in the circumstances of the case it can be regarded as
truthful. On the other hand if on account of an infirmity, it
cannot be held to be entirely reliable, corroboration would
be required."
20.2. In Dalip Singh, the alleged dying declaration turned
out to be doubtful for it contained such facts which could
not have been in the knowledge of the deceased and hence,
this Court found it unsafe to rely on the same while
observing as under: (SCC p. 335, para 9)
"9. ... The dying declaration seems to be otherwise truthful
but for the fact that it could not be within the knowledge or
vision of Teja Singh that Jetha Singh was murdered by the
appellants. His saying so in the dying declaration makes his
statement a bit doubtful. It is, therefore, safe to leave out of
consideration this dying declaration."
20.3. In Thurukanni Pompiah, this Court held that while a
truthful and reliable dying declaration may form the sole
basis of conviction, even without corroboration but the
Court must be satisfied about its truthfulness and reliability;
and if the Court finds that the declaration is not wholly
reliable and a material portion of the deceased's version of
the occurrence is untrue, the Court may, in the
circumstances of a given case, may consider it unsafe to
convict the accused on the basis of the declaration alone
without further corroboration. This Court observed, inter
alia, as under: (AIR p. 941, para 9)
"9. Under clause (1) of Section 32 of the Evidence Act,
1872, a statement 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 is a relevant fact in
cases in which the cause of that person's death comes into
question, and such a statement is relevant whether the
person who made it was or was not, at the time when it was
made, under expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
comes into question. The dying declaration of Eranna is,
therefore, relevant and material evidence in the case. A
truthful and reliable dying declaration may form the sole
basis of conviction, even though it is not corroborated. But
the Court must be satisfied that the declaration is truthful.
The reliability of the declaration should be subjected to a
close scrutiny, considering that it was made in the absence
of the accused who had no opportunity to test its veracity
by cross-examination. If the Court finds that the declaration
is not wholly reliable and a material and integral portion of
the deceased's version of the entire occurrence is untrue,
the Court may, in all the circumstances of the case, consider
it unsafe to convict the accused on the basis of the
declaration alone without further corroboration."
20.4. In Uka Ram, this Court again emphasised on the
requirement that the Court should be satisfied about
trustworthiness of the dying declaration, its voluntary
nature and fitness of the mind of the deceased and it was
held that: (SCC p. 257, para 6)
"6. ... Once the court is satisfied that the dying declaration
was true, voluntary and not influenced by any extraneous
consideration, it can base its conviction without any further
corroboration as a rule requiring corroboration is not a rule
of law but only a rule of prudence."
20.4.1. In the said case of Uka Ram, however, the Court
found that the deceased was a mental patient and there
existed a doubt about mental condition of the deceased at
the time of making the dying declaration. In the given
circumstances, this Court found that to be a fit case to
extend the benefit of doubt to the accused.
21. For what has been noticed hereinabove, some of the
principles relating to recording of dying declaration and its
admissibility and reliability could be usefully summed up as
under:
21.1. A dying declaration could be the sole basis of
conviction even without corroboration, if it inspires
confidence of the court.
21.2. The court should be satisfied that the declarant was in
a fit state of mind at the time of making the statement; and
that it was a voluntary statement, which was not the result
of tutoring, prompting or imagination.
21.3. Where a dying declaration is suspicious or is suffering
from any infirmity such as want of fit state of mind of the
declarant or of like nature, it should not be acted upon
without corroborative evidence.
21.4. When the eyewitnesses affirm that the deceased was
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
not in a fit and conscious state to make the statement, the
medical opinion cannot prevail.
21.5. The law does not provide as to who could record
dying declaration nor there is any prescribed format or
procedure for the same but the person recording dying
declaration must be satisfied that the maker is in a fit state
of mind and is capable of making the statement.
21.6. Although presence of a Magistrate is not absolutely
necessary for recording of a dying declaration but to ensure
authenticity and credibility, it is expected that a Magistrate
be requested to record such dying declaration and/or
attestation be obtained from other persons present at the
time of recording the dying declaration.
21.7. As regards a burns case, the percentage and degree of
burns would not, by itself, be decisive of the credibility of
dying declaration; and the decisive factor would be the
quality of evidence about the fit and conscious state of the
declarant to make the statement.
* * * *
25.2. Another emphasis laid on behalf of the appellants is
on the fact that the victim Sher Singh had suffered 100%
burns and he was already in critical condition and further to
that, his condition was regularly deteriorating. It is,
therefore, contended that in such a critical and deteriorating
condition, he could not have made proper, coherent and
intelligible statement. The submissions do not make out a
case for interference. As laid down in Vijay Pal case and
reiterated in Bhagwan case, the extent of burn injuries --
going beyond 92% and even to 100% -- would not, by
itself, lead to a conclusion that victim of such burn injuries
may not be in a position to make the statement. Irrespective
of the extent and gravity of burn injuries, when the doctor
had certified him to be in fit state of mind to make the
statement; and the person recording the statement was also
satisfied about his fitness for making such statement; and
when there does not appear any inherent or apparent defect,
in our view, the dying declaration cannot be discarded.
25.3. Contra to what has been argued on behalf of the
appellants, we are of the view that the juristic theory
regarding acceptability of statement made by a person who
is at the point of death has its fundamentals in the
recognition that at the terminal point of life, every motive to
falsehood is removed or silenced. To a fire victim like that
of present case, the gravity of injuries is an obvious
indicator towards the diminishing hope of life in the victim;
and on the accepted principles, acceleration of diminishing
of hope of life could only obliterate the likelihood of
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
falsehood or improper motive. Of course, it may not lead to
the principle that gravity of injury would itself lead to
trustworthiness of the dying declaration. As noticed, there
could still be some inherent defect for which a statement,
even if recorded as dying declaration, cannot be relied upon
without corroboration. Suffice would be to observe to
present purpose that merely for 100% burn injuries, it
cannot be said that the victim was incapable to make a
statement which could be acted upon as dying declaration.
25.4. The suggestions have also been made that the victim
was in 100% burnt condition and therefore, the alleged
statements Exts. PW-8/A and PW-16/B are manipulated and
manufactured. We find nothing of substance in such
suggestions for there had not been shown any reason for
which PW 8 Dr Sushma and PW 16 SI Rajesh Kumar would
manufacture any such document. Interestingly, certain
suggestions were made to PW 19 Inspector Om Prakash in
his cross-examination about his previous exchange of hot
words or altercation with the accused persons. However,
there was no such suggestion to PW 16 or to PW 8. For the
same reason, the doubts sought to be suggested about
availability of thumb impression of the victim on the
statement Ext. PW-16/B deserve to be rejected. In Dal
Singh, this Court has pointed out that in the case of burns,
the skin of a small part of the body like thumb may remain
intact; and it is essentially a question of fact as to whether
skin of thumb had also been burnt completely. In this
regard, it is also noticeable that even when the victim was
carrying 100% deep burns, as per the post-mortem report,
peeling off of skin was noticed on dorsum of hands and
therefore, taking of thumb impression on Ext. PW-16/B is
not ruled out. The concurrent findings of the trial court and
the High Court in accepting the thumb impression on Ext.
PW-16/B do not appear calling for any interference. It gets,
perforce, reiterated that there appears no reason for PW 16
to go to the extent of manufacturing the document with a
false thumb impression.
21.8. If after careful scrutiny, the court finds the statement
placed as dying declaration to be voluntary and also finds it
coherent and consistent, there is no legal impediment in
recording conviction on its basis even without
corroboration.
28. As per Modi's Medical Jurisprudence, 1st degree burn mark is
also known as epidermal burn. First Degree burns consists of
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
eythema or simple redness of the skin caused by the momentary
application of flame or hot solids, or liquids much below boiling
point. It can also be produced by mild irritants. The erythema
marked with superficial inflammation usually disappear in few hours,
but may last for several days, when the upper layer of the skin peels
off but leaves no scars. They disappear after death due to the
gravitation of blood to the dependent parts. Second degree burns
comprise acute inflammation and blisters produced by prolonged
application of a flame, liquids at boiling point or solids much above
the boiling point of water. The third and fourth degree burns are also
known as Dermo-Epidermal burns. The third degree burn refers to
the destruction of the cuticle and part of the true skin which appears
horny and dark, owing to it having been charred and shrivelled.
Exposure of nerve endings gives rise to much pain. Whereas in
Fourth degree burn, the whole skin is destroyed. The fifth and sixth
degree burns are also known as Deep burns. Fifth degree burn
includes penetration of the deep fascia and implications of the
muscles, and results in great scarring and deformity whereas sixth
degree burn involves charring of the whole limb including the bones
and ends in inflammation of the subjacent tissues and organs, if death
is not the immediate result. Thus, it is clear that it is not the extent of
superficial burn which effects the state of mind of the patient, but it is
the degree of burn which effects the state of mind of the patient.
Further, the Pre-MLC, Ex. P.6, according to which the smell of
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
kerosene oil was present, also corroborates the dying declarations as
well as seizure of kerosene oil from the spot.
29. The Supreme Court in the case of Madan Vs. State of
Maharashtra reported in (2019) 13 SCC 464 has held as under :
11. We are aware of the fact that the physical or mental
weakness consequent upon the approach of death, a desire
of self-vindication, or a disposition to impute the
responsibility for a wrong to another, as well as the fact that
the declarations are made in the absence of the accused, and
often in response to leading questions and direct
suggestions, and with no opportunity for cross-
examination: all these considerations conspire to render
such declarations a dangerous kind of evidence. In order to
ameliorate such concerns, this Court has cautioned in
umpteen number of cases to have a cautious approach when
considering a conviction solely based on dying declaration.
Although there is no absolute rule of law that the dying
declaration cannot form the sole basis for conviction unless
it is corroborated, the courts must be cautious and must rely
on the same if it inspires confidence in the mind of the
Court [see: Ram Bihari Yadav v. State of Bihar and Suresh
Chandra Jana v. State of W.B.].
12. Moreover, this Court has consistently laid down that a
dying declaration can form basis of conviction, if in the
opinion of the Court, it inspires confidence that the
deceased at the time of making such declaration, was in a fit
state of mind and there was no tutoring or prompting. If the
dying declaration creates any suspicion in the mind of
Court as to its correctness and genuineness, it should not be
acted upon without corroborative evidence [see also: Atbir
v. Govt. (NCT of Delhi), Paniben v. State of Gujarat and
Panneerselvam v. State of T.N.].
30. The Supreme Court in the case of Mukesh Vs. State (NCT of
Delhi) reported in (2017) 6 SCC 1 has held as under :
174. A dying declaration is an important piece of evidence
which, if found veracious and voluntary by the court, could
be the sole basis for conviction. If a dying declaration is
found to be voluntary and made in a fit mental condition, it
can be relied upon even without any corroboration.
However, the court, while admitting a dying declaration,
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
must be vigilant towards the need for "compos mentis
certificate" from a doctor as well as the absence of any kind
of tutoring.
175. In Laxman v. State of Maharashtra, the law relating to
dying declaration was succinctly put in the following
words: (SCC pp. 713-14, para 3)
"3. ... A 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. 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 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."
176. The legal position regarding the admissibility of a
dying declaration is settled by this Court in several
judgments. This Court in Atbir v. Govt. (NCT of Delhi),
taking into consideration the earlier judgment of this Court
in Paniben v. State of Gujarat and another judgment of this
Court in Panneerselvam v. State of T.N., has exhaustively
laid down the following guidelines with respect to the
admissibility of dying declaration: (Atbir case, SCC pp. 8-9,
para 22)
"22. (i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a
fit state of mind at the time of making the statement and that
it was not the result of tutoring, prompting or imagination.
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
(iii) Where the court is satisfied that the declaration is true
and voluntary, it can base its conviction without any further
corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not
be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such
as the deceased was unconscious and could never make any
statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all
the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not
in a fit and conscious state to make the dying declaration,
medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is
true and free from any effort to induce the deceased to make
a false statement and if it is coherent and consistent, there
shall be no legal impediment to make it the basis of
conviction, even if there is no corroboration."
177. It is well settled that dying declaration can form the
sole basis of conviction provided that it is free from
infirmities and satisfies various other tests. In a case where
there are more than one dying declaration, if some
inconsistencies are noticed between one and the other, the
court has to examine the nature of inconsistencies as to
whether they are material or not. The court has to examine
the contents of the dying declarations in the light of the
various surrounding facts and circumstances.
31. The Supreme Court in the case of Laltu Ghosh Vs. State of
W.B. reported in (2019) 15 SCC 344 has held as under :
19. It cannot be laid down as an absolute rule of law that a
dying declaration cannot form the sole basis of conviction
unless it is corroborated by other evidence. A dying
declaration, if found reliable, and if it is not an attempt by
the deceased to cover the truth or to falsely implicate the
accused, can be safely relied upon by the courts and can
form the basis of conviction. More so, where the version
given by the deceased as the dying declaration is supported
and corroborated by other prosecution evidence, there is no
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
reason for the courts to doubt the truthfulness of such dying
declaration. The doctor PW 18, who recorded the statement
of the deceased which was ultimately treated as his dying
declaration, has fully supported the case of the prosecution
by deposing about recording the dying declaration. He also
deposed that the victim was in a fit state of mind while
making the said declaration. We also do not find any
material to show that the victim was tutored or prompted by
anybody so as to create suspicion in the mind of the court.
Moreover, in this case the evidence of the eyewitnesses,
which is fully reliable, is corroborated by the dying
declaration in all material particulars. The High Court, on
reappreciation of the entire evidence before it, has come to
an independent and just conclusion by setting aside the
judgment of acquittal passed by the trial court.
32. Thus, it is clear that if the dying declaration inspires
confidence, then it can be the sole basis for conviction.
33. In the present case, all the four dying declarations, i.e., the
history disclosed by the deceased Sakhibai to Dr. Pawan Kumar Jain
(P.W. 3) at the time of admission, Dehati Nalishi, Ex. P.14, Police
Statement, Ex. P.16 and written dying declaration, Ex. P.7 are
identical. The patient was well oriented at the time of recording of
dying declaration, Ex. P.7. Dr. Pawan Kumar Jain (P.W. 3) had given
the fitness certificate, before and after recording of dying declaration,
Ex. P.7. Further, the deceased died after 10 days of the incident.
Thus, all the four dying declarations are held to be reliable and
trustworthy. Merely because all other witnesses have turned hostile,
the dying declarations made by the deceased on four occasions
cannot be disbelieved, accordingly, it is held that the appellant
Ramlal is guilty of committing murder of his wife Smt. Sakhi bai by
setting her on fire after pouring kerosene oil on her.
Ram Lal and others Vs. State of M.P. (Cr.A. No.522/2010)
34. Accordingly, his conviction recorded by the Trial Court for
offence under Section 302 of I.P.C. is upheld.
35. So far as the question of sentence is concerned, the minimum
sentence for offence under Section 302 of I.P.C. is Life
Imprisonment, therefore, the sentence of Life Imprisonment awarded
by the Trial Court doesnot call for any interference.
36. Ex Consequenti, the judgment and sentence dated 28/5/2010
passed by Sessions Judge, District Vidisha in Sessions Trial
No.266/2009 is hereby affirmed.
37. The appellant Ramlal is in jail. He shall undergo the
remaining jail sentence.
38. Let a copy of this judgment be immediately provided to the
Appellant, free of cost.
39. The record of the Trial Court be returned back along with a
copy of this judgment for necessary information and compliance.
40. Accordingly, the Criminal Appeal filed by Ramlal is
Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
Arun*
ARUN KUMAR MISHRA
2021.12.13 16:12:17
+05'30'
