Madhya Pradesh High Court
Kalla @ Kallu vs State Of M.P. on 26 November, 2021
Author: Gurpal Singh Ahluwalia
1
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 478 of 2010
Kalla @ Kallu and another
Vs.
State of M.P.
Shri R.K. Shrivastava, Counsel for the Appellant
Shri Naval Gupta Counsel for the State
Date of Hearing : 23-11-2021
Date of Judgment : 26-11-2021
Approved for Reporting : Yes
Judgment
26- November -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 19-5-2010 passed by 1 st
Additional Sessions Judge, Shivpuri in S.T. No. 209 of 2009 by
which the appellant no.1 has been convicted under Section 302 of
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
I.P.C., whereas the appellant No. 2 Kaliya has been convicted under
Section 302/34 of I.P.C. and have been sentenced to undergo the Life
Imprisonment and a fine of Rs. 1,000/- with default imprisonment of
3 months R.I.
2. The prosecution story in short is that on 3-6-2009, Pran Singh
along with his mother Kasia, brought the injured Rajkumari to
C.H.C., Kolaras in a burnt condition. On examination, her condition
was found to be critical, therefore, She was referred to District
Hospital, Shivpuri. An information was given to the police. The
injured Rajkumari was attended by Dr. A.L. Sharma in District
Hospital, Shivpuri. Accordingly, he requested the police authorities
to arrange for recording the dying declaration of the injured. Naib-
Tahsildar Lokendra Shrivastava, recorded the dying declaration. The
deceased Rajkumari succumbed to the burn injuries. The body was
sent for post-mortem. The statements of the witnesses were recorded.
The spot map was prepared. Burnt pieces of Saree, broken pieces of
bangles etc. were seized from the spot. F.S.L. report was obtained.
The police after completing the investigation, filed the charge sheet
for offence under Sections 302/34 of I.P.C., against the appellants as
well as against Nandu @ Nandulal and Sheela.
3. The Trial Court by order dated 4-9-2009 framed charge under
Section 302 of I.P.C. against the appellant no.1 Kallu, whereas charge
under Section 302/34 of I.P.C. was framed against the appellant no. 2
and Nandu @ Nandulal and Sheela.
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
4. The appellants and co-accused persons abjured their guilt and
pleaded not guilty.
5. The prosecution examined Pran Singh (P.W.1), Guddibai
(P.W.2), Dr. V.C. Goyal (P.W.3), Dr. M.L. Kasera (P.W.4), C.L. Uikey
(P.W.5), Ramlakhan (P.W.6), Dr. O.P. Sharma (P.W.7), Lokendra
Shrivastava (P.W.8), Dr. A.L. Sharma (P.W.9), Ramesh Chandra
Sharma (P.W.10) and Dilip Singh (P.W.11).
6. The appellants and co-accused persons, did not examine any
witness in their defence.
7. The Trial Court by the impugned judgment has convicted and
sentenced the appellants for the above mentioned offence. However,
the co-accused Nandu @ Nandulal and Sheela were acquitted.
8. It is submitted by the Counsel for the State that the acquittal of
Nandu @ Nandulal and Sheela was not challenged. Thus, the
acquittal of Nandu @ Nandulal and Sheela has attained finality.
9. Challenging the conviction, it is submitted by the Counsel for
the appellants, that all the material witnesses have turned hostile. The
deceased had suffered 98% burns, therefore, She was not in a fit state
of mind to make dying declaration. On the similar set of allegations,
the co-accused Nandu @ Nandulal and Sheela have been acquitted,
therefore, the appellant no.2 Kaliya should also have been acquitted.
10. Per contra, the Counsel for the State has supported the
prosecution case.
11. Heard the learned Counsel for the parties.
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
12. Before adverting to the facts of the case, this Court thinks it
apposite to consider as to whether the death of Rajkumari was
homicidal, suicidal or accidental.
13. Dr. M.L. Kasera (P.W.4) has stated that on 3-6-2009, he was
posted in C.H.C., Kolaras. The injured Rajkumari was brought in a
burnt condition by Pran Singh and his mother. Since, the injured had
suffered burn injuries due to pouring of kerosene oil, therefore, her
treatment was not possible in C.H.C., Kolaras, accordingly, She was
referred to District Hospital, Shivpuri. An information was also
given to Police Station Kolaras. In cross-examination, this witness
has stated that he had not written any M.L.C. separately. The injured
was unconscious and was not in a position to speak.
14. Dr. A.L.Sharma (P.W. 9) had examined the injured Rajkumari
in District Hospital Shivpuri. Since, the injured was in a serious
condition, therefore, requisition was sent to Police Outpost, Ex. P.19
for recording her dying declaration. On medical examination, the
smell of kerosene oil was present. He scalp hairs were burnt. Her
face, neck, chest, both upper limbs and both lower limbs were burnt.
She had suffered 98% burn. She was in a critical condition. The
M.L.C. is Ex. P.20. This witness was cross-examined.
15. In cross-examination, he stated that the entire skin of the
patient was burnt. However, he denied that the blood veins had
become inactive. He further stated that it is not necessary that a
person with 98% burn would necessarily become unconscious.
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
Since, nothing is mentioned in M.L.C., Ex. P.20, therefore, he cannot
say as to whether he had enquired anything from the patient or not?
The patient was treated by a surgeon. He denied the suggestion that
the patient was not in a position to make dying declaration. He
further clarified that since, he had asked the police to get her dying
declaration recorded, therefore, it means that she was in a position to
speak. He further admitted that in a case of emergency, the dying
declaration can also be recorded by the Doctor.
16. The post-mortem of the body of deceased was conducted by
Dr. V.C. Goyal (P.W. 3). In post-mortem, he found that the deceased
had sustained 90% burns. All the internal organs were normal and
congested. Semi digested food was found. The cause of death was
shock due to burn injuries. The post-mortem report is Ex. P.8. This
witness was cross-examined.
17. In cross-examination, it is stated by this witness that after
sustaining burn injuries, the patient cannot intake solid food. The
semi digested food may be milk, water etc. He further stated that the
marks of drip were found on her body. He further stated that it is not
necessary that the person suffering 90% burn marks would certainly
fell unconscious.
18. Thus, it is clear that the deceased Rajkumari had died on
account of shock due to burn injuries.
19. Whether the death of the deceased Rajkumari was homicidal,
suicidal or accidental shall be decided after considering the
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
surrounding circumstances.
20. Pran Singh (P.W. 1) is the husband of the deceased. He has
stated that his wife had committed suicide by burning herself. He
took her to the hospital and thereafter, to Distt. Hosptial Shivpuri. His
wife had requested him to call her parents, therefore, he also went to
Piroth to take her parents. When he returned back, his wife had
already died. He stated that no writing work was done by the police,
however, admitted his signatures on Naksha Panchayatnama, Ex. P.2.
He also admitted his signatures on Safina form, Ex. P.1. The police
had gone to his house and has inspected the place of incident. The
spot map is Ex. P.3. He doesnot know as to whether, the police had
seized any thing or not. However, he admitted his signatures on Ex.
P.4. The dead body was handed over to him and panchnama is Ex.
P.5. He expressed his ignorance about the reasons of death.
Accordingly, this witness was declared hostile. Nothing could be
elicited from his cross-examination, which may support the
prosecution case. However, this witness was cross-examined by the
defence, and he admitted that his wife used to say that since, She is
issueless therefore, her life is useless.
21. Guddibai (P.W. 2) has also turned hostile. In cross-
examination, this witness has admitted that Pran Singh was residing
separately along with his wife.
22. C.L. Uike (P.W. 5) has conducted partial investigation. It is
stated by him that he had received letter on 7-6-2009 from the office
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
of S.D.O.(P) Kolaras and accordingly, he started investigation. He
registered the F.I.R. for offence under Section 302/34 of I.P.C. He
also arrested the appellant no.2 and recorded the statements of Pran
Singh and Guddibai. In cross-examination, this witness has stated
that he had tried to record the statements of the residents of adjoining
area, but none of them were available. Thereafter, he handed over the
investigation to T.I., Kolaras.
23. Ramlakhan Singh (P.W. 6) had conducted the merg enquiry. He
went to the spot, and vide seizure memo Ex. P.4, seized burnt pieces
of red coloured saree, 5 broken pieces of bangles. He also recorded
the statements of the witnesses and accordingly found that offence
under Section 302/34 of IPC has been committed by the appellants
and Nandu @ Nandulal and Sheela. Accordingly sent his report,
Ex.P.10. The seized articles were sent to F.S.L. Sagar, through S.P.,
Shivpuri. The draft is Ex. P.16 and the F.S.L. report is Ex. P.17. This
witness was cross-examined.
24. In cross-examination, this witness has clarified that he had
tried to talk to the neighbourers, but no body was ready to speak.
25. Ramesh Chandra Sharma (P.W.10) has stated that on 3-6-2009,
he was posted in police outpost, District Hospital, Shivpuri. A
requisition was sent by Dr. A.L. Sharma for recording dying
declaration and accordingly, he got the dying declaration recorded.
On 4-6-2009, Dr.V.C. Goyal, had sent the information of death of the
injured. Accordingly, merg no. 94/2009, Ex. P.21 was registered. An
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
application for conducting post-mortem was prepared, Ex. P.7.
26. Thus, it is clear that two witnesses, namely Pran Singh (P.W.1)
and Guddibai (P.W.2) have turned hostile. The entire prosecution case
hinges around the dying declaration of the deceased.
27. Dr. O.P. Sharma (P.W. 7) had examined the patient and had
given a certificate that the patient is in a fit state of mind to give
dying declaration and a similar certificate was also given after the
dying declaration was recorded. This witness clearly stated that the
patient was in fit state of mind, during the recording of dying
declaration.
28. Lokendra Shrivastava (P.W. 8) is the Naib-Tahsildar, who had
recorded the dying declaration. This witness has stated that the
patient had given the dying declaration which is Ex. P.18. He further
stated that the patient had informed that her elder brother-in-law
(Jeth) Kalyan had set her fire and Jethani Kaliya has got her burnt.
Her another elder-brother-in-law Nandu was also there. This witness
was cross-examined.
29. In cross-examination, this witness has stated that he had
received the information about 10:30 in the morning. Dr. O.P.
Sharma (P.W.7) was on duty. No police personal was present at the
time of recording of dying declaration. The patient had disclosed her
name as Rajkumari. In the dying declaration, he has not mentioned
the bed no. of the patient. When he went to record the dying
declaration, nobody was there. When he reached the hospital, the
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
patient was not talking to anybody. There was no attender near the
patient. He did not ask any body about the identity of the patient. He
denied that the patient was not in a position to speak. He denied that
nothing was disclosed by the patient. He also denied that he has
written a false dying declaration on the instructions of the father of
the deceased.
30. Thus, if the evidence of Dr. O.P. Sharma (P.W.7) and Lokendra
Shrivastava (P.W. 8) is read conjointly, then it is clear that the patient
was in a fit state of mind and was well oriented even during recording
of dying declaration. Dying declaration, Ex. P.18 reads as under :
iz- D;k gqvk
m- vkx yxkbZ gS
iz- fdlus yxkbZ gS
m- vkx tsB dYyk us yxkbZ gS ftBkuh dfy;k us yxokbZ gS nwljk
tsB uUuw Hkh lkFk es Fkk
iz- D;ks yxkbZ vkx
m- nksuks tsB /kj es /kqlrs Fks eS euk djrh Fkh rks muus vkx yxk nh
iz- ifr dgka Fkk
m- etnwjh djus x;k Fkk
iz- vkx yxkbZ rc dkSu dkSu Fkk rqEgkjs ikl
m- dfy;k tsBkuh- tsB dYyk nwljk tsB uUu o ftBkuh 'khyk ekStnw Fks
pkjks dh lykg ls eq> es vkx yxkbZ
iz- fdlh us cpkus dh dksf'k'k ugh dh
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
m- lkl dfl;k ,o ,d vU; ftBkuh xqM~Mh dks irk pyk rc os vkbZ vkSj
eq>s cpkus dh dksf'k'k dh
iz- vkSj dqN dguk gS
m- vkSj dqN ugh dguk gsS
iz- vkx dSls yxkbZ
m- dYyk us vius /kj ls feV~Vh ds rsy dh dV~Vh ykdj esjs mij Mkyh vkSj
ekfpl ls vkx yxkbZ
31. It is submitted that although in the dying declaration, it was
stated by the patient (deceased) all the four persons were present and
had discussed together, but the Trial Court has acquitted Nandu @
Nandulal and Sheela therefore, same benefit of doubt should have
been given to appellant no. 2 Kaliya.
32. Considered the submissions made by the Counsel for the
appellants.
33. The Trial Court has acquitted Nandu @ Nandulal and Sheela
on the ground that there is nothing on record to show that what was
discussed by the above mentioned accused persons. The appellants
are husband and wife. The deceased had stated that both the elder-
brother-in-laws (Jeth) were in habit of coming inside the house,
which was being objected by her, therefore, the appellant no.1 burnt
her after pouring kerosene oil and the appellant no.2 has got her
burnt. According to Guddibai (P.W.2), Pran Singh (P.W.1) was
residing separately along with his wife, deceased Rajkumari. The
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
house of Kalla is at a different place, as is evident from the spot map,
Ex. P. 3. The spot map, Ex. P.3 was prepared on the instructions of
Pran Singh (P.W.1) who has admitted that spot map was prepared. At
the time of incident, the appellant no.2 was also present on the spot. It
was alleged in the dying declaration that the appellant no.1 Kalla
brought a container of kerosene oil from his house and set her on fire
after pouring kerosene oil on her. The allegation that the appellant
no.2 had got her burnt is clear from the fact, that when the appellant
no.1 was going to the house of the deceased along with kerosene oil
and set her on fire, even then the appellant no.2 did not make any
attempt to stop the appellant no. 1 or to extinguish the fire. This
conduct of the appellant no. 2 Kaliya, clearly shows the meeting of
mind with appellant no.1. The fire was extinguished by Kasia and
Guddi bai. If the intention of the patient (Deceased) was to falsely
implicate her in-laws, then She would have falsely implicated her
mother-in-law and Guddibai also. Thus, it clear that the appellant
no.2 was actively and intentionally involved in burning of the
deceased by appellant no.1. Thus, it is held that She was sharing
common intention. Merely because the Trial Court has acquitted
some of the co-accused persons, is not sufficient to acquit the
appellant no.2 Kaliya also as there is an additional allegation against
her.
34. It is next contended by the Counsel for the appellants, that
since, the deceased had suffered 98% burns, therefore, She was not in
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
fit state of mind or to speak to give dying declaration. Considered the
submissions made by the Counsel for the appellant.
35. Pran Singh (P.W.1) has stated that after the deceased
Rajkumari was shifted to Distt. Hospital, Shivpuri, She had requested
to call her parents, and therefore, he went to call her parents. Thus, it
is clear that the deceased was in a position to speak. Further, Dr. O.P.
Sharma (P.W.7) has given fitness certificates i.e., prior to and after
the recording of dying declaration.
36. 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
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
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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
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
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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
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
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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
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
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Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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
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
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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
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."
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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
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
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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
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
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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.
37. As per Modi's Medical Jurisprudence, 1 st degree burn mark is
also known as epidermal burn. First Degree burns consists of
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
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
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.
Dr. V.C. Goyal (P.W. 3) who had conducted the post-mortem, had
found that all the internal organs were normal and congested. Thus,
it is clear that the deceased had not suffered Dermo-Epidermal or
deep burns. Therefore, it cannot be said that She was not in a fit state
of mind.
38. As per the F.S.L. report, Ex. P.17, kerosene oil was found in
plastic container, semi burnt pieces of saree and broken pieces of
bangles. Further more, as per the M.L.C., Ex. P.40, smell of kerosene
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
oil was coming from the body. Thus, the dying declaration is further
corroborated by the medical as well as forensic evidence.
39. 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.].
40. 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,
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 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.
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
(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.
(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.
41. Thus, it is clear that if the dying declaration inspires
confidence, then it can be the sole basis for conviction.
42. Further, it was stated by Pran Singh (P.W.1) that at the request
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
of his wife, he went to call her parents and when he returned back, he
found that his wife was already dead. Thus, it is clear that the parents
of the deceased had reached the hospital after her death. Thus, there
is no question or possibility of tutoring by anybody.
43. Considering the totality of the facts and circumstances of the
case, this Court is of the considered opinion, that the prosecution has
proved the dying declaration beyond reasonable doubt. Accordingly,
it is held that the appellant no.1 Kalla burnt the deceased Rajkumari
after pouring kerosene oil on her and the appellant no.2 Kaliya was
sharing common intention and has got the deceased burnt by her
husband i.e., appellant no.1 Kalla. Accordingly, the appellant no.1
Kalla @ Kallu is held guilty of offence under Section 302 of I.P.C.
and the appellant no.2 Kaliya is held guilty of offence under Section
302/34 of I.P.C. Accordingly, their conviction by the Trial Court is
Upheld.
44. 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, it doesnot require any interference.
45. Ex-Consequenti, the judgment and sentence dated 19-5-2010
passed by 1st Additional Sessions Judge, Shivpuri in S.T. No. 209 of
2009 is hereby affirmed.
46. The appellant no. 1 Kalla @ Kallu is in jail. He shall undergo
the remaining jail sentence.
47. The appellant no. 2 Kaliya is on bail. Her bail bonds are
Kalla @ Kallu & Anr Vs. State (Cr.A. No. 478 of 2010)
cancelled. She is directed to immediately surrender before the Trial
Court for undergoing the remaining jail sentence.
48. A copy of this judgment be provided to the appellants free of
cost.
49. The record of this case be send back to the Trial Court along
with the copy of the judgment for necessary information and
compliance.
50. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.11.26 17:36:19 +05'30'
