12. The argument of the learned counsel for the appellants
is that witnesses who are the parents have turned hostile to
the prosecution case. They supported the version that the
deceased caught fire accidentally while boiling milk. Further,
the deceased and the appellants lived peacefully and there
were no quarrels. P.W.4/independent witness is neighbor,
who also stated that accidental burns were received by the
deceased.
13. Learned counsel further argued that dying declaration
given to the Magistrate and also the Constable/P.W.12 is a
result of tutoring. The said tutored version cannot form basis
to convict when there is no independent corroboration. The
case sheets of either Vikarabad Hospital or Gandhi Hospital
were not produced by the prosecution for which an adverse
inference has to be drawn.
14. Counsel relied on judgment of the Hon'ble Supreme
Court in Irfan @ Naka vs. The State of Uttar Pradesh 1. The
relevant portion reads as under:-
"60. Since time immemorial, despite a general consensus
of presuming that the dying declaration is true, they
have not been stricto-sensu accepted, rather the general
course of action has been that judge decides whether the
2023 Livelaw (SC) 698
essentials of a dying declaration are met and if it can be
admissible, once done, it is upon the duty of the court to
see the extent to which the dying declaration is entitled
to credit.
61. In India too, a similar pattern is followed, where the
Courts are first required to satisfy themselves that the
dying declaration in question is reliable and truthful
before placing any reliance upon it. Thus, dying
declaration while carrying a presumption of being true
must be wholly reliable and inspire confidence. Where
there is any suspicion over the veracity of the same or
the evidence on record shows that the dying declaration
is not true it will only be considered as a piece of
evidence but cannot be the basis for conviction alone.
62. There is no hard and fast rule for determining when
a dying declaration should be accepted; the duty of the
Court is to decide this question in the facts and
surrounding circumstances of the case and be fully
convinced of the truthfulness of the same. Certain
factors below reproduced can be considered to determine
the same, however, they will only affect the weight of the
dying declaration and not its admissibility: -
(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the
earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe
the dying declaration was put in the mouth of the dying
person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of police
or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to
clearly observe the incident?
(vii) Whether, the dying declaration has been consistent
throughout?
(viii) Whether, the dying declaration in itself is a
manifestation / fiction of the dying person's imagination
of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the
first one inspires truth and consistent with the other
dying declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying declaration?
63. It is the duty of the prosecution to establish the
charge against the accused beyond the reasonable
doubt. The benefit of doubt must always go in favour of
the accused. It is true that dying declaration is a
substantive piece of evidence to be relied on provided it
is proved that the same was voluntary and truthful and
the victim was in a fit state of mind. It is just not enough
for the court to say that the dying declaration is reliable
as the accused is named in the dying declaration as the
assailant."
15. On the other hand, learned Additional Public
Prosecutor, would submit that the deceased has explained
the circumstances under which she initially stated about
receiving burn injuries while boiling milk. It was stated by
the deceased before the Magistrate that the appellants caught
hold of her and set her on fire. The said version is believable
and was correctly relied on to record conviction. Since a
dying person would not lie, the statement made by the
deceased to the Magistrate has to be believed.
16. The deceased received burns on 29.01.2012 and on the
same day, she was taken to the hospital at Vikarabad. In
cases, where any person receives burn injuries, it would be
treated as a Medico Legal Case (MLC). A case sheet would be
opened on the basis of MLC number. It is admitted that the
deceased was initially treated at hospital in Vikarabad,
however, neither MLC, nor case sheet pertaining to the
deceased was produced by the prosecution. The same is the
case at Gandhi Hospital. The case sheet of Gandhi Hospital
is also not produced. Further, the deceased was taken and
treated at Indus Hospital, Kothapet. The case sheet of
Kothapet Hospital was also not filed. No reasons are given as
to why the said documents which are prior in time to the two
dying declarations were not produced. The hospital case
sheet would reflect the history of the incident.
17. The witnesses who are the parents/P.Ws.1 and 2 have
turned hostile to the prosecution case. They stated that the
deceased was tutored to speak against the appellants. The
statement to the Magistrate was given nearly 2 days after the
incident had taken place. Though the Police/P.W.12 and
other Police men accompanied the deceased from Vikarabad
Hospital to Gandhi Hospital, neither the statement of
deceased or the relatives was recorded, nor any information
was given in the Police Station about deceased receiving burn
injuries. Involvement of the appellants as the persons
responsible for causing burns to the deceased or otherwise
could be inferred from the documents executed at the earliest
point of time and also the initial information given to the
Police.
18. The deceased in her statement to Magistrate stated that
the appellants had forced her to state that she received burn
injuries while boiling milk. Further, her statement was also
recorded in a cell phone. The said cell phone was not seized
during the course of investigation. Further, the deceased
stated that she had stated to other persons out of fear that
she received burn injuries. However, not a single witness,
either the Police or the Doctors have stated about what the
deceased informed at the earliest point of time when she was
taken to the hospital at Vikarabad and from there to Gandhi
Hospital. The suppression of the documents which are the
MLC and case sheets maintained in the hospitals creates any
amount of doubt. The parents themselves admitted that the
deceased was tutored by relatives to speak against the
appellants.
19. The version given in the dying declaration to the
Magistrate is that A-4/sister-in-law poured kerosene on her.
A-1 and A-2 caught hold of her and A-4 set fire to her with a
match stick. The detailed version stated to the Magistrate
was not stated to the Police/P.W.12, who recorded Ex.P.10.
The deceased stated that all four accused have poured
kerosene and set her on fire. The said discrepant statement
of the deceased and prosecution suppressing the documents,
further the statement made by the deceased in the first 40
hours before recording the dying declaration, gives rise to any
amount of suspicion regarding correctness of statements
made by the deceased under Ex.P.12 and Ex.P14.
20. The deceased died nearly 10 days after the incident.
After the statement was recorded on 31.01.2012, no attempts
were made to record the statement of the deceased while
undergoing treatment for 10 days. Though no corroboration
is required if the dying declaration is found to be truthful,
however, in the present facts and circumstances, considering
what all transpired for nearly 40 hours prior to the statement
given to the Magistrate, the version given by the deceased
requires corroboration from independent sources regarding
any kind of harassment that was meted out to the deceased.
21. In view of the discrepant and hostile evidence, the
suppression of the events that transpired for nearly 40 hours
before statement of deceased was recorded and further the
records of the hospitals being suppressed, benefit of doubt is
extended to the appellants.
22. Accordingly, the Criminal Appeal is allowed.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 28.01.2025
dv
