Madhya Pradesh High Court
Bheekham Singh vs State Of M.P. on 5 October, 2021
Author: Gurpal Singh Ahluwalia
1
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No.853/2009
Bheekham Singh
Vs.
State of M.P.
Cr.A. No.18/2010
Suresh
Vs.
State Of M.P.
Shri Ashok Kumar Jain, Counsel for the appellants.
Shri C.P. Singh, Counsel for the State.
Date of Hearing : 29-9-2021
Date of Judgment : 05-Oct.-2021
Approved for Reporting :
Judgment
05-Oct.-2021
Per G.S. Ahluwalia J.
By this common judgment, the Cr.A. No.853/2009 filed by
Bheekham Singh and Cr.A. No.18/2010 filed by Suresh shall be
decided.
2. Both the Criminal Appeals have been filed under Section 374
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Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
of Cr.P.C. against the judgment and sentence dated 16-11-2009
passed by 14th Additional Sessions Judge, Gwalior in S.T.
No.120/2009 by which the appellants have been convicted under
Section 302 of I.P.C. and have been sentenced to undergo the Life
Imprisonment and a fine of Rs.100/-, in default 1 year R.I.
3. The prosecution story in short is that on 10-10-2008 at about
12:30, the injured Lata lodged a Dehati Nalishi alleging that She is
the wife of appellant Suresh Tyagi and is issueless. Her husband was
inclined to give his house to his elder brother Bhikam and on this
issue, a dispute took place on 9-10-2008. On 10-10-2008 at 10:45,
the appellants Bhikam and Suresh came inside the room, and started
throwing belongings. When She objected to it, then both the
appellants poured kerosene oil on her and set her on fire. The
statement of the injured Lata was also recorded by Y.S. Tomar. The
dying declaration of the deceased was also recorded by Mamta
Shakya, Naib-Tahsildar. Later on 11-10-2008, the deceased died. The
information was sent to Police Station Gwalior and F.I.R. was lodged.
The statements of the witnesses were recorded. The appellants were
arrested and after completing the investigation, the police filed the
charge sheet for offence under Section 302/34 of I.P.C.
4. The Trial Court by order dated 22/4/2009 framed charge under
Section 302 of I.P.C.
5. The appellants abjured their guilt and pleaded not guilty.
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Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
6. The prosecution, in order to prove its case, examined Rajendra
Kumar Sharma (P.W.1), Roop Singh (P.W. 2), Dr. A.K. Bohre (P.W.3),
Dr. B.S. Tomar (P.W. 4), Mamta Shakya (P.W.5), Sadhu Singh
(P.W.6), Harinarayan (P.W.7), S.N. Singh Sengar (P.W.8), Y.S.Tomar
(P.W. 9), Rajendra (P.W.10), and Dr. Kamal Mandloi (P.W.11).
7. The appellants did not examine any witness in their defence.
8. The Trial Court by the impugned judgment and sentence, has
convicted and sentenced the appellants for the offence mentioned
above.
9. Challenging the conviction and sentence, it is submitted by the
Counsel for the appellants that all the material witnesses have turned
hostile. The dying declarations of the deceased are not trustworthy.
The tongue of the deceased was burnt, therefore, She was not in a
position to speak and the dying declaration cannot be a sole criteria
for recording conviction.
10. Per contra, the Counsel for the State has supported the
findings recorded by the Trial Court.
11. Heard the learned Counsel for the parties.
12. Before adverting to the merits of the case, this Court thinks it
apposite to find out as to whether the death of the deceased was
homidical, accidental or suicidal?
13. Dr. B.S. Tomar (P.W. 4) has conducted the post-mortem of the
dead body of deceased Lata and found the following injuries on her
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Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
body :
(i) 2nd and 3rd degree burn. Face and around the neck with signing
of scalp hairs. 2nd and 3rd degree burn present over the chest and
breasts, thorax and upper limbs anterior. 2 nd and 3rd degree burn over
the posterior aspect of thorax, abdomen, and lower limb upto the
upper part of both legs present. Only anterior part of abdomen and
upper thigh are healthy.
The death was caused by cardio-respiratory failure due to burn
and its complications within 3 to 24 hours of Post-mortem
examination. The post-mortem report is Ex. P.5.
14. In cross-examination, this witness admitted that there were 1 st
degree burns inside the mouth and the tongue also had 1 st degree burn
marks.
15. The deceased was medically examined by Dr. A.K. Bohre
(P.W.3) on 10-10-2008 and found the following injuries on her body :
Superficial to deep burns around the head, face, neck, chest,
abdomen. Both upper limb (Anterior and posterior), Back,
both lower limb (Anterior and Posterior)
Total burns about 90% caused by Hot Flame.
The M.L.C. report is Ex. P.4.
16. This witness was cross-examined, who explained that 90%
burns means burn from head to leg (Posterior and Anterior) with 10%
healthy body parts. Police Constable Sanjay Singh, had brought the
requisition for medical examination of the patient. He further
clarified that the lips etc of the patient were burnt, but clarified that
5
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
he had not seen the tongue of the patient. He had not given any
dressing to the patient, however, had given pain killers. The starting
point of effect of pain killers would depend upon the body buildup of
the patient. He further clarified that the patient had not disclosed
about the incident to him. Her both hands including her fingers and
thumbs were burnt.
17. Thus, from the evidence of Dr. A.K. Bohre (P.W. 3) and Dr.
B.S. Tomar (P.W. 4), it is clear that the deceased Lata had died due to
burn injuries.
18. Whether the burn injuries were homicidal, suicidal or
accidental shall be decided after considering the evidence on merits.
19. Rajendra Kumar Sharma (P.W.1), Roop Singh (P.W. 2), Sadhu
Singh (P.W.6) have turned hostile.
20. Now the entire prosecution story hinges around Dying
Declaration, Ex. P.6 and Dehati Nalishi, Ex. P.13.
21. Mamta Shakya (P.W.5) was working on the post of Naib-
Tahsildar and had recorded the dying declaration. She has stated that
on 10-10-2008, she had received a requisition from Police Station
Gwalior for recording the dying declaration of the patient Lata. She
reached Kamla Raja Hospital at 12:45 in the dressing room. The
fitness certificate was given by the Doctor and accordingly, She
recorded her dying declaration. The patient had informed her that she
was burnt by Bhikam and her husband Suresh. She further stated that
6
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
the quarrel took place on the issue of house as her husband was
inclined to give it to Bhikam whereas She was not ready for the same.
The quarrel was going on for the last 1-2 years and therefore, she was
burnt by both the persons. She also informed that the incident took
place on 10-10-2008 at 11:30. She further stated that the daughters
of Bhikam were also involved. She further disclosed that her
husband, Bhikam and his two daughters are residing in the house.
Thereafter, She went to Quila Gate Police Station who took her to
hospital. The dying declaration was read over to the patient, and
obtained her thumb impression on the same. The dying declaration is
Ex. P.6. It has also been stated by this witness, that the patient was
well oriented during the recording of dying declaration. The medical
certificate was also given by the Doctor in this regard.
22. This witness was cross-examined. It is stated that she had
received the requisition at about 12:00. The requisition letter is in her
office. She further stated that nothing is mentioned in the dying
declaration that who had identified the patient. She had requested the
Doctor to give her fitness certificate. The heart rate is not mentioned
in the dying declaration. It is not necessary that the dying declaration
should be attested by any independent witness. She took about 30
minutes to record the dying declaration. She further admitted that it
is not mentioned that whether the thumb impression is of right hand
or right leg. It is also not mentioned as to whether the thumb
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Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
impression is of leg or hand. She further admitted that the copy of
the F.I.R. was not given to her. She denied that the thumb impression
is not that of patient Lata. She denied that the patient was not
conscious and was not in a position to speak. She had kept the dying
declaration in a sealed envelop. She had sent the dying declaration to
the Court on 22-10-2008.
23. Thus, from the evidence of Mamta Shakya (P.W. 5), the patient,
Lata was well oriented and was conscious. The fitness certificates
were also given by Doctor. The dying declaration was read over to
the patient. The patient had informed, that the appellants Bhikam and
Suresh had set her on fire.
24. Dr. Kamal Mandloi (P.W. 11) had given the medical fitness
certificate. He has stated that Mamta Shakya, Magistrate had
recorded the dying declaration at 12:40 and he had given the fitness
certificate. The maker of the dying declaration was fully conscious
and he was present during the recording of dying declaration.
25. In cross-examination, this witness has stated that on 10-10-
2008 he was posted as resident Doctor. This witness had informed
the police that the patient had died at 2:00 A.M. and the information
was given at 9:00 A.M. The bed head ticket of the injured Lata is
Ex.D.1 according to which, when the patient was examined for the
first time, her general condition was poor, Pulse was not palpable,
B.P. was not recordable. At the time of repeat examination, her B.P.
8
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
and pulse rates were not recordable. However, he clarified that the
patient was not unconscious. He denied that no dying declaration was
recorded in his presence. He also denied that he had not given any
fitness certificate.
26. Challenging the dying declaration, Ex. P.6, it is submitted by
the Counsel for the appellant, that it is clear from the evidence of Dr.
B.S. Tomar (P.W.4) that the tongue of the deceased had first degree
burn marks, therefore, She was not in a position to speak.
27. Considered the submissions made by the Counsel for the
appellants.
28. As per Modi's Medical Jurisprudence, the 1 st degree burn mark
is also known as epidermal burn which means First Degree burns
consists of erythema 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. Thus, even if it is held
that the tongue of the deceased had 1 st degree burn marks, then it
would not mean that her tongue was completely charred. Therefore,
it cannot be said that a person with 1 st degree burn marks on her/his
tongue would not be in a position to speak.
9
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
29. It is next contended by the Counsel for the appellants, that
since, the deceased had suffered 90% burns, therefore, She was not in
a position to speak.
30. 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
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
10
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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
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
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Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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
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
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Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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
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
13
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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
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,
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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."
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
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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
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
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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
which PW 8 Dr Sushma and PW 16 SI Rajesh Kumar would
manufacture any such document. Interestingly, certain
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
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.
31. Thus, considering the Dying Declaration, Ex. P.6 recorded by
Mamta Shakya (P.W.5) duly certified by Dr. Kamal Mandloi (P.W.11),
it is held that the dying declaration, Ex. P.6 is a reliable document and
is trustworthy.
32. Y. S. Tomar (P.W. 9) recorded the Dehati Nalishi (Ex. P.13) on
the instructions of deceased Lata. Thereafter, the dying declaration of
the deceased was recorded by the Naib-Tahsildar. Thereafter, this
witness also recorded the statement of the deceased Lata under
Section 161 of Cr.P.C., however, for the reasons best known to the
Public Prosecutor, the statement of the deceased recorded under
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
Section 161 of Cr.P.C. was not exhibited, although it was filed along
with the charge sheet and is contained in file "B" of record of Trial
Court. Since, the statement of the deceased recorded under Section
161 Cr.P.C. remained unexhibited, therefore, it cannot be used against
the appellants. Thereafter, this witness prepared the spot map,
Ex.P.14. On 10-10-2008 itself, he seized 11 broken glass bangles, one
match, one plastic container containing half liter of Kerosene Oil, and
one burnt match from the spot vide seizure memo Ex. P.9. Thereafter,
the investigation was handed over to S.I. Sengar. In cross-
examination, this witness has stated that he had received the
information from Quila Gate Police Outpost on Wireless and
thereafter, this witness went to Kamla Raja Hospital, although he
could not tell that exactly at what time, he had received the
information. However, stated that he had received the information
prior to 12:00 P.M. This witness also stated that without looking at
the Rojnamcha, he cannot say that at what time, he returned to the
Police Station. He further admitted that he did not get the Dehati
Nalishi attested by the Doctor and also clarified that it is never get
attested. He further stated that Dr. had identified the patient. He
denied that she was not in a position to speak. He also denied that
the Dehati Nalishi does not contain her thumb impression. He further
clarified that he had sent a requisition to Naib-Tahsildar at 12:00
P.M., through constable Awadh Mathur. He admitted that copy of
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
that requisition has not been filed but clarified that it must be in the
Case diary.
33. Thus, from the evidence of Y.S. Tomar (P.W.9), it is clear that
nothing could be elicited from his evidence, which could suggest that
the patient was not in a fit state of mind and was not in a position to
speak. Thus, it is clear that the Dehati Nalishi, Ex. P.13 was written
on the instructions of deceased Lata. As the Dehati Nalishi, Ex. P.13
has disclosed the cause of death, therefore, it can be placed under the
category of Dying Declaration under Section 32 of Evidence Act.
34. Accordingly, it is held that the prosecution has succeeded in
proving the Dehati Nalishi, Ex. P.13 beyond reasonable doubt.
35. Harinaryan (P.W. 7) had recorded F.I.R., Ex. P.11 on the basis
of Dehati Nalishi, Ex. P.13.
36. It is next contended by the Counsel for the appellants that Dr.
B.S. Tomar (P.W.4) has admitted that he had found liquor in trachea,
therefore, it is clear that the deceased might have got burnt
accidentally.
37. Considered the submissions made by the Counsel for the
appellants.
38. The deceased got burnt on 10-10-2008 and She died on 11-10-
2008 at 2:00 A.M. and her post-mortem was conducted on 12-10-
2008. Then how liquor can be found in the Trachea? Be that as it
may. One thing is clear that presence of liquor in the trachea even
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
after more than 48 hours of incident is not possible. Furthermore, in
postmortem report it is nowhere mentioned that the liquor was found
present in trachea, on the contrary "secretion in trachea" was
mentioned, which cannot be said to be liquor.
39. Thus, considering the Dying Declaration, Ex. P.6 and Dehati
Nalishi, Ex. P.13, it is held that the prosecution has established the
guilt of the appellants beyond reasonable doubt and accordingly, both
of the them are held guilty of committing murder of the deceased
Lata by burning her after pouring Kerosene oil on her.
40. Accordingly, their conviction under Section 302 of I.P.C. is
upheld.
41. Since, the minimum sentence for offence under Section 302 of
I.P.C. is Life Imprisonment, therefore, the sentence awarded by the
Trial Court does not call for any interference.
42. Ex Consequenti, the judgment and sentence dated 16-11-2009
passed by 14th Additional Sessions Judge, Gwalior in S.T.
No.120/2009 is hereby affirmed.
43. By order dated 24-5-2021, the appellant Bhikam was granted
temporary bail for a period of 90 days. However, it is not known as
to whether he has surrendered or not? Accordingly, it is directed that
if Bhikam has surrendered, then he shall undergo the remaining jail
sentence. If he has not surrendered after the completion of 90 days,
then the Court below shall immediately issue perpetual warrant of
Bheekham Singh. Vs. State of M.P. (Cr.A. No.853/2009)
Suresh Vs. State of M.P. (Cr.A. No.18/2010)
arrest for undergoing the remaining jail sentence.
44. The appellant Suresh is in jail. He shall undergo the remaining
jail sentence.
45. The office is directed to immediately send a copy of this
judgment to the appellants, free of cost.
46. The record of the Trial Court be immediately sent back to the
Trial Court along with a copy of this judgment for necessary
information and compliance.
47. The appeals fail and are hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.10.05 17:14:27 +05'30'
