Madhya Pradesh High Court
Munna vs State Of M.P. on 5 October, 2021
Author: Gurpal Singh Ahluwalia
1
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 881/2009
Munna & Anr.
Vs.
State of M.P.
Shri Madhukar Kulshrestha, Counsel for the appellants.
Shri C.P. Singh, Panel Lawyer for the respondent/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.
This Criminal Appeal under Section 374 of Cr.P.C. has been
filed against the judgment and sentence dated 18-11-2009 passed by
Sessions Judge, Sheopur, in S.T. No.26/2009, by which the appellants
have been convicted and sentenced for the following offences :
Conviction under Section Sentence
366/34 of IPC 5 years R.I. and fine of Rs.5000/- in
default 6 months R.I.
376/511 of IPC 1 year R.I. and fine of Rs.1000/- in
default 1 month R.I.
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
302/34 of IPC Life Imprisonment and fine of Rs.5000/-
in default 6 months R.I.
(All sentences to run concurrently)
2. The prosecution story in short is that on 13-2-2009, the
deceased "a", along with her father "b", mother "c" and brother "d",
lodged an F.I.R. in Police Station Sesaipura, that day before
yesterday, she had come to her parental home. She was sleeping in
the courtyard. Her brother and sister-in-law (Bhabhi) were sleeping in
the room. At about 4:30 A.M., the appellants who are residents of
village Ranipura came and gagged her mouth and took her to the
fields of Hariram and tried to commit rape on her. When she objected
to it, then they set her on fire after pouring kerosene oil on her. When
she raised an alarm, then both of them ran away. Thereafter, She came
in a burnt condition and fell down near her parental home. Her
brother "d" and Bhabhi "e" picked her up and then she narrated the
incident to her parents and brother and her bhabhi.
3. On the above information, the police registered the crime no.
3/2009 for offence under Sections 366, 376/511 and 307/34 of I.P.C.
4. The injured was sent for medical examination and her MLC
was obtained. The Executive Magistrate also recorded her dying
declaration. Thereafter, the injured died in the hospital. The
statements of the witnesses were recorded. The post-mortem of the
deceased was got done. The appellants were arrested and after
completing the investigation, the police filed the charge sheet for
offence under Sections 366, 376/511, 302/34 of I.P.C.
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
5. The Trial Court by order dated 8-7-2009 framed charges under
Sections 366, in the alternative 366/34, 376/511, 302, or in the
alternative 302/34 of I.P.C.
6. The appellants abjured their guilt an pleaded not guilty.
7. The prosecution, in order to prove its case, examined mother of
the deceased "c" (P.W.1), father of the deceased "b" (P.W.2), bhabhi
of deceased "e" (P.W.3), brother of the deceased "d" (P.W.4), Dr. A.K.
Singh (P.W. 5), Dr. S.N. Bindal (P.W.6), and Dr. M.Y. Qureshi
(P.W.7).
8. The appellants examined Morpal (D.W. 1) in their defence.
9. The Trial Court by the impugned judgment and sentence has
convicted and sentenced the appellants for the offences mentioned
above.
10. Challenging the judgment and sentence passed by the Court
below, it is submitted by the Counsel for the appellants, that the
deceased had suffered 80% or 90-92% burns, therefore, She was not
in a position to speak. All the other witnesses have turned hostile.
11. Per contra, the Counsel for the State has supported the
findings recorded by the Court below.
12. Heard the learned Counsel for the parties.
13. Dr. S.N. Bindal (P.W.6) has conducted the post-mortem of the
dead body of the deceased and found the following injuries :
Dead body female, lying supine position, body is cold,
burnt, both upper limb flexed at elbow and wrist joint, both
lower limb partially flexed at knee and hip joint. Both eyes
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
closed, pupils dilated and fixed. Corneas are hazy. Mouth
closed. Tongue well inside the oral cavity. Blood mixed
froth coming from both nostrils. Body is naked except small
piece of blouse over right upper arm is burnt sealed and
handed over to P.C. Smell of kerosene oil present in the
scalp hair, bunch of hair taken, sealed and handed over to
P.C. For further examination. Burn wound present all over
the body except both sole and front of the face, scalp area
wound are red in colour with blackish charred skin. In
between blisters are present over perineal area, both medial
aspect of thigh line of redness present with piece of skin at
the junction of burnt and un-burnt area over right face
excised and sealed for further examination. Rigormortis
present and maintained over the body except eyes.
Chest wall was found burnt all over the sides trachea,
larynx, bronchials contained slightly blood mix froth, both
lungs were conjusted. Abdominal wall was burnt all over
side and mouth was closed tongue well inside the oral
cavity.
The Mode of death was syncopal shock and asphyxia, and
cause of death was extensive antemortem burn ( I - IV)90-
92 % burn all over the body except front of face, both sides
and scalp area leads to shock and death.
14. The post-mortem report is Ex. P.8.
15. This witness was cross-examined and he expressed that he is
not in a position to say as to whether the patient was in a position to
speak or not?
16. Dr. A.K. Singh (P.W.5) had medically examined the injured. He
found following injuries on her body :
(i) Anterior trunk 18% whole anterior trunk is burnt
below the neck. There is peeling of skin and whole skin
thickness is burnt.
(ii) Posterior trunk 18% whole of posterior trunk is burnt
upto post part of neck. Whole skin thickness is burnt.
(iii) Right Lower Extremity 15% whole limb is burnt
except sole and some part of anterior foot and lower leg part
of leg.
(iv) Left Lower Extremity 15% whole limb is burnt
except sole and some part of anterior foot and lower part of
leg.
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
(v) Right Upper Extremity 7% whole limb is burnt except
hands anterior part.
(vi) Left Upper Extremity 7% whole limb burnt except
hands anterior part.
(vii) Head and face not burnt and anterior part of neck also
not burnt but there is blackening of skin of face and neck.
The hairs are not burnt but some hairs are singed near the
neck.
The patient is in severe pain, extremities are cold, pulse is
feeble. She is very thirsty demanding water to drink
showing shock. The patient is conscious and understand
and reply. Her dying declaration is recorded by Sub-
Divisional Magistrate, Dr. Qureshi Naib Tahsildar in my
presence. She is being referred to J.A. Hospital,Gwalior as
her G.C. is very poor due to severe shock.
Opinion : These burns can be caused by flame of Kerosene
fire on body and cloths. The Duration of burn is within 24
hours. These burns are of dangerous in nature as 80% of
body is burnt and she is in severe shock. Hence, she is being
referred to J.A. Hospital Gwalior in Ambulance after giving
IV fluids and medicines for further management. The
M.L.C. report is Ex. P.5.
17. This witness was cross-examined. He denied that the patient
was not in pains and was not demanding water. He further denied
that he had wrongly mentioned that the patient is conscious and is in
position to reply. He denied that no dying declaration was recorded.
He denied that the patient was unconscious. He further stated that at
the time of recording of dying declaration, apart from him, Dr.
Qureshi and the patient, no other person was present. He admitted
that although the parents and brother of the patient were in the
hospital, but clarified that at the time of recording of her dying
declaration, they were not called. He denied that the mother of the
deceased was along with the deceased for all the time. He further
denied that in the condition of shock, a patient would lose the
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
capacity of understanding the things. He further stated that at the time
of preparation of M.L.C., the B.P. Of the patient was not recordable
but denied that a person in such a condition would not be in a
position to speak. The patient was brought in the hospital at 1:00
P.M. and Naib-Tahsildar was called by the Police. The injured was
brought by Police Constable Kaushlendra Singh. The police had
already informed the Naib-Tahsildar, before sending the patient to the
hospital. The Naib-Tahsildar had come just after the patient was
medically examined by this witness.
18. Thus, from the plain reading of the M.L.C. report, Ex. P.5, it is
clear that although the patient was sinking, but She was conscious
and was in a position to understand and reply.
19. Thus, it is clear from the M.L.C. report, Ex. P.5 and Post-
mortem report, Ex. P.8, the deceased had died on account of burn
injuries.
20. Whether the burn injuries were homicidal, suicidal or
accidental would be decided after considering the evidence.
21. The mother of the deceased (P.W.1), father of the deceased
(P.W.2), Bhabhi of the deceased (P.W.3) and brother of the deceased
(P.W.4) have turned hostile and they have not supported the
prosecution case.
22. The most unfortunate part of this trial is that the investigating
officer, who had also recorded the F.I.R. lodged by the deceased
herself, which was also a dying declaration, did not appear before the
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
Trial Court, in spite of service of summons. Accordingly, the Trial
Court had closed the right of the prosecution to lead further evidence.
It is really unfortunate, that the police officers, after concluding the
investigation, think that their duty has come to an end. In the present
case, the investigating officer, did not show any interest or zeal for
justice and decided not to respond to the summons. Be that as it may.
It is for the prosecution agency to look into the matter and to correct
its attitude towards the Trial.
23. Since, the F.I.R., lodged by the deceased has remained un-
exhibited and the mother, father, brother and bhabhi of the deceased
also did not support the prosecution case, therefore, the entire
prosecution story hinges around the dying declaration, Ex. P.6
recorded by Dr. Qureshi, Naib-Tahsildar (P.W.7).
24. Dr. M.Y. Qureshi, Naib-Tahsildar (P.W.7) has stated that he had
recorded the dying declaration of the deceased, Ex.P.6, after
obtaining fitness certificate from the Doctor. The patient had
informed that at about 4:30A.M., She was alone in her house. The
appellants came there and started talking Ant Shunt. They also asked
for sexual intercourse. When She did not accept that, then both of
them took her outside the house and set her on fire after pouring
kerosene oil on her. She further clarified that no other person is
responsible. She also stated that she is not in the pressure of anyone.
Thereafter, he obtained the thumb impression of the patient on the
dying declaration, Ex. P.6. Thereafter, the Doctor also certified that
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
the patient was in a fit state of mind during the recording of dying
declaration.
25. In cross-examination, this witness clarified that on earlier
occasions also, he had recorded dying declarations. He was informed
by the police by sending a letter. He further stated that he started
recording dying declaration within 5 minutes after reaching hospital.
The certificate at "A to A" was given prior to recording of dying
declaration. He stated that prior to recording of dying declaration, the
family members of the patient were there but at the time of recording
of dying declaration, they were sent out. He further stated that he has
been taught that at the time of recording of dying declaration, no
family member should be there. He denied that the patient was
unconscious and was not in a position to give statement. He further
denied that the mother of the patient had not left the patient alone
even for a minute. He further denied that the father and mother of the
patient were present at the time of recording of dying declaration. He
denied that the dying declaration Ex. P.6 was not given. He denied
that he was not informed by the police to record dying declaration.
26. It is submitted by the Counsel for the appellants that according
to Dr. A.K. Singh (P.W.5), the patient had suffered 80% burns,
whereas according to Dr. S.N. Bindal (P.W.6), the deceased had
suffered 90-92% burns, therefore, it is clear that She was not in a
position to speak.
27. Considered the submissions made by the Counsel for the
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
appellants.
28. The deceased had suffered 1st to 4th degree burns. The burns
have been classified in Modi's Medical Jurisprudence and first degree
burns are known as Epidermal Burns whereas third and fourth degree
burns are known as Dermo-Epidermal burns.
Epidermal Burns :
(i) First Degree - 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.
(ii) Second Degree - 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. Blisters can be produced by the application of strong
irritants of vesicants, such as cantharides. Blisters may also be
produced on those parts of the body which are exposed to
decomposing fluid, such as urine or faeces, and subject to warmth, as
seen in old bed-ridden patients. In deeply comatose persons, bullae
may occur over pressure areas. If burns are caused by flame or a
heated solid substance, the skin is blackened, and the hair signed at
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
the seat of lesion, which assumes the character of the substance used.
No scar results as only the superficial layers of the epithelium are
destroyed. However, subsequently, some slight staining of the skin
may remain.
Dermo-Epidermal Burns:
(iii) Third Degree - 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. This leaves a scar, but no
contraction, as the scar contains all the elements of the true skin.
(iv) Fourth Degree - In fourth degree burns, the whole skin is
destroyed. The sloughs which form are yellowish-brown and
parchment-like, and separate from the fourth to the sixth day, leaving
an ulcerated surface, which heals slowly forming a scar of dense
fibrous tissue with consequent contraction and deformity of the
affected parts. The burns are not very painful as the never endings
are completely destroyed.
29. Thus, it is clear that since, the deceased had suffered 1 st to 4th
degree burns, therefore, at some part of the body of the deceased, the
entire skin was destroyed and at some part of the body of the
deceased, superficial burns were found.
30. It is the contention of the Counsel for the appellants that since,
the deceased had suffered 80% burns, as stated by Dr. A.K. Singh
(P.W.5) or 90-92% burns as stated by Dr. S.N. Bindal (P.W.6),
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
therefore, She was not in a fit state of mind.
31. To estimate the extent of area affected by second or third
degree burns in percentage, the body is divided into different areas,
which is also known as Rule of Nine percent. Therefore, it cannot be
said that since, the deceased had suffered 90-92% burns, thus, by no
stretch of imagination, it can be said that the patient would not be in a
position to speak. In the present case, the face of the patient was not
burnt. The Supreme Court in the case of Purshottam Chopra v.
State (NCT of Delhi), reported in (2020) 11 SCC 489 has held as
under :
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
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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
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.
In the case of Purshottam Chopra (Supra) it has also been
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
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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 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
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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 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
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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 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."
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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
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
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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,
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
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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 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
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
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
declarant to make the statement.
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.
32. Thus, if the evidence of Dr. A.K. Singh (P.W. 5) and Dr. M.Y.
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
Qureshi, Naib-Tahsildar (P.W.7) are considered in the light of the
above mentioned judgment passed by the Supreme Court, then it is
clear that the deceased was conscious and well oriented and was able
to understand the things and was giving reply. It is clear from the
record, that although the condition of the patient was deteriorating
but since, the dying declaration, Ex. P.6 was recorded with
promptness as well as timely, therefore, it is held that the dying
declaration, Ex. P.6, recorded by Dr. M.Y. Qureshi (P.W.7) in the
presence of Dr. A.K. Singh (P.W.5) is a trustworthy and reliable
document, and therefore, this sole circumstance is sufficient to record
conviction of the appellants.
33. It is next contended by the Counsel for the appellants, that
since, the parents, brother and bhabhi of the deceased have turned
hostile and they have not supported the prosecution case, therefore,
the dying declaration, Ex. P.6 may not be relied upon.
34. Considered the submissions made by the Counsel for the
appellants.
35. The Supreme Court in the case of Krishan Vs. State of
Haryana reported in (2013) 3 SCC 280 has held as under :
27. The judgment of this Court in Bhajju can usefully be
referred again as it has some similarity on facts. There also
two witnesses had turned hostile and a dying declaration
was involved. Considering the cumulative effect of hostile
witnesses and the reliability of a dying declaration, the
Court held as under: (SCC pp. 340-42, paras 33-37)
"33. As already noticed, none of the witnesses or the
authorities involved in the recording of the dying
declaration had turned hostile. On the contrary, they have
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
fully supported the case of the prosecution and have,
beyond reasonable doubt, proved that the dying declaration
is reliable, truthful and was voluntarily made by the
deceased. We may also notice that this very judgment,
Munnu Raja relied upon by the accused itself clearly says
that the dying declaration can be acted upon without
corroboration and can be made the basis of conviction.
34. Para 6 of the said judgment reads as under: (Munnu
Raja case, SCC pp. 106-07)
'6. ... It is well settled that though a dying declaration must
be approached with caution for the reason that the maker of
the statement cannot be subject to cross-examination, there
is neither a rule of law nor a rule of prudence which has
hardened into a rule of law that a dying declaration cannot
be acted upon unless it is corroborated (see Khushal Rao v.
State of Bombay). The High Court, it is true, has held that
the evidence of the two eyewitnesses corroborated the
dying declarations but it did not come to the conclusion that
the dying declarations suffered from any infirmity by
reason of which it was necessary to look out for
corroboration.'
35. Now, we shall discuss the effect of hostile witnesses as
well as the worth of the defence put forward on behalf of
the appellant-accused. Normally, when a witness deposes
contrary to the stand of the prosecution and his own
statement recorded under Section 161 CrPC, the prosecutor,
with the permission of the court, can pray to the court for
declaring that witness hostile and for granting leave to
cross-examine the said witness. If such a permission is
granted by the court then the witness is subjected to cross-
examination by the prosecutor as well as an opportunity is
provided to the defence to cross-examine such witnesses, if
he so desires. In other words, there is a limited
examination-in-chief, cross-examination by the prosecutor
and cross-examination by the counsel for the accused. It is
admissible to use the examination-in-chief as well as the
cross-examination of the said witness insofar as it supports
the case of the prosecution.
36. It is settled law that the evidence of hostile witnesses
can also be relied upon by the prosecution to the extent to
which it supports the prosecution version of the incident.
The evidence of such witnesses cannot be treated as washed
off the records, it remains admissible in trial and there is no
legal bar to base the conviction of the accused upon such
testimony, if corroborated by other reliable evidence.
Section 154 of the Evidence Act enables the court, in its
discretion, to permit the person, who calls a witness, to put
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
any question to him which might be put in cross-
examination by the adverse party.
37. The view that the evidence of the witness who has been
called and cross-examined by the party with the leave of the
court, cannot be believed or disbelieved in part and has to
be excluded altogether, is not the correct exposition of law.
The courts may rely upon so much of the testimony which
supports the case of the prosecution and is corroborated by
other evidence. It is also now a settled canon of criminal
jurisprudence that the part which has been allowed to be
cross-examined can also be relied upon by the prosecution.
These principles have been encompassed in the judgments
of this Court in the following cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat,
(b) Prithi v. State of Haryana,
(c) Manu Sharma v. State (NCT of Delhi), and
(d) Ramkrushna v. State of Maharashtra."
28. Even in Mrinal Das v. State of Tripura this Court held
as under: (SCC p. 506, paras 68-69)
"68. In our case, the eyewitnesses including the hostile
witnesses, firmly established the prosecution version. Five
eyewitnesses, namely, PW 1, PW 4, PW 6, PW 7 and PW 8
clearly identified two convicts, appellants Tapan Das (A-5)
and Gautam Das (A-11). PWs 1, 4, 7 and 8 identified
accused Pradip Das (A-9). PWs 1 and 7 identified accused
Somesh Das (A-7). PWs 1 and 4 identified Mrinal Das (A-
4). PWs 4 and 8 identified Anil Das (A-1). It is clear that 6
accused persons including two convicts/appellants had been
identified by more than one eyewitnesses. It is also clear
that 6 accused could have been identified by the
eyewitnesses though all of them could not have been
identified by the same assailants. However, it is clear that
two or more than two eyewitnesses could identify one or
more than one assailants. The general principle of
appreciating evidence of eyewitnesses in such a case is that
where a large number of offenders are involved, it is
necessary for the court to seek corroboration, at least, from
two or more witnesses as a measure of caution. Likewise, it
is the quality and not the quantity of evidence to be the rule
for conviction even where the number of eyewitnesses is
less than two.
69. It is well settled that in a criminal trial, credible
evidence of even hostile witnesses can form the basis for
conviction. In other words, in the matter of appreciation of
evidence of witnesses, it is not the number of witnesses but
quality of their evidence."
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
(emphasis supplied)
36. Thus, even if the witnesses have turned hostile but all the
witnesses who are connected with dying declaration have supported
the prosecution case, then the dying declaration cannot be discarded
merely on the ground that other witnesses either eye-witnesses or
witnesses of other circumstances have turned hostile.
37. Thus, from appreciation of evidence, it is held that the death of
the deceased was homicidal in nature and not suicidal or accidental.
38. No other argument is advanced by the Counsel for the
appellants.
39. Accordingly, the appellants are held guilty of committing
offence under Sections 366/34, 376/511 and 302/34 of I.P.C.
40. 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.
41. Ex consequenti, the judgment and sentence dated 18-11-2009
passed by Sessions Judge, Sheopur, in S.T. No.26/2009 is hereby
Affirmed.
42. The appellants are in jail. They shall undergo the remaining
jail sentence.
43. Let a copy of this judgment be provided to the appellants
immediately, free of cost.
44. The Registry is directed to immediately send the record along
with copy of judgment to the Trial Court for necessary information
Munna & Anr. Vs. State of M.P. (Cr.A. No.881/ 2009)
and compliance.
45. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.10.05 17:14:55 +05'30'
