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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.301 OF 2008

Bhajju @ Karan Singh … Appellant

Versus

State of M.P. … Respondent

J U D G M E N T

Swatanter Kumar, J.

1.The present appeal is directed against the judgment of

conviction and order of sentence dated 9

th

February, 1998 passed

by the Court of Sessions Judge, Tikamgarh and affirmed by the

High Court of Madhya Pradesh, Bench at Jabalpur, vide its

judgment dated 7

th

August, 2007.

2.The facts giving rise to the present appeal fall within a very

narrow compass and are being stated at the very outset. Bhajju @

Karan Singh, the appellant herein, was married to Medabai, the

deceased, and was living in Niwadi, District Tikamgarh, Madhya

Pradesh. Bhajju had doubts about the chastity of his wife and

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often used to accuse her of having illicit relations with one

Ramdas. According to the appellant, she also had a lose temper

and on one occasion, she had left their one month old child on a

platform and had gone to her parental house along with her son,

Harendra, aged about four years. It is stated that he had even

reported this incident at the Police Station, Niwadi, on 2

nd

September, 1995. On the other hand, the prosecution has alleged

that besides accusing the deceased of having illicit relations, he

used to ill-treat her and even question the paternity of the

children born out of the wedlock. In fact, on the evening before

the incident in question, he had beaten his wife with slipper. On

12

th

September, 1995, at about 7.00 a.m., when she was cleaning

the kitchen, Bhajju poured kerosene oil on her and set her ablaze

with the help of a match stick. She raised hue and cry. Ayub

(PW3) and Pratap (PW2) from the neighbourhood reached the spot.

They took her to the hospital in the taxi where she was examined

by Dr. Suresh Sharma (PW9), vide report Exhibit 14. Dehati

Nalishi, Exhibit P16 was recorded on the basis of which FIR

Exhibit P14 was recorded and a case was registered under Section

307 of the Indian Penal Code, 1860 (IPC). She was admitted to

the hospital and was found to be having 60 per cent burn injuries

and her blouse was smelling of kerosene oil at that time. Her

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dying declaration was recorded by the Executive Magistrate-cum-

Tehsildar at about 9.10 a.m. vide Exhibit P4. She succumbed to

the burn injuries and died on 17

th

October, 1995. A case under

Section 302 IPC was registered against the appellant-accused.

After registration of the case, the Investigating Officer prepared the

inquest report. Post mortem was performed and the cause of

death was opined to be extensive burn injuries. During the

investigation, statements of other witnesses including Pratap,

Ayub and Lakhanpal (PW-1) were recorded and the site plan was

prepared. Certain items were recovered from the site like broken

bangles, match box, half burnt match sticks, clothes of the

deceased, kerosene oil container, etc. Based on the ocular and

documentary evidence, the Investigating Officer filed the charge-

sheet before the court of competent jurisdiction. The appellant-

accused was committed to the Court of Sessions where he was

tried. The appellant put up the defence that because of her illicit

relationship with Ramdas, their neighbor, and her arrogant

attitude, the deceased was a difficult person to live with. However,

on 12.9.1995, she accidentally caught fire and got burnt while she

was preparing the food. As a result, she died and the accused was

innocent. Disbelieving the defence of the accused and forming an

opinion that the prosecution has been able to prove its case

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beyond reasonable doubt, the learned Sessions Judge convicted

the accused for the offence under Section 302 IPC and awarded

him rigorous imprisonment for life vide his judgment dated 9

th

February, 1998. This was challenged before the High Court. The

High Court affirmed the judgment of conviction and order of

sentence passed by the learned trial court and dismissed the

appeal of the appellant/accused, giving rise to the present appeal.

3.Not only the facts of this case but also the legal issues

involved herein fall in a narrow compass. It is for the reason that

the incident in question is not disputed. Pratab (PW-2), Ayub

(PW-3) and Lakhanpal (PW-1) , who were later declared hostile by

the prosecution and subjected to cross-examination had stated

that the deceased had got burnt accidentally while she was

cooking food. They have denied any involvement of the

appellant/accused as well as the fact that the deceased had told

them that the appellant/accused had burnt her by pouring

kerosene oil on her. Furthermore, Exhibit D1 is the affidavit

stated to have been sworn by the deceased on 30

th

September,

1995 while she died on 17

th

October, 1995. In this affidavit, which

is the backbone of the defence, a similar stand has been taken by

the deceased, Medabai. In this affidavit, it was stated that at the

time of swearing-in of the affidavit in the Medical College, she was

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more or less healthy in all respects. The appellant/accused in his

statement under Section 313 of the Criminal Procedure Code,

1973 (for short ‘Cr.P.C.’) has given the usual reply that he knows

nothing and that he was not present at his residence at the time of

the occurrence.

4.Before we comment upon this defence and the evidentiary

value of Exhibit D1, it will be appropriate to examine the case of

the prosecution. The FIR, Ext P-17 itself was registered on the

basis of a statement made by the deceased referred as Dehati

Nalishi, Exhibit P-16, and a case was registered under Section 307

IPC. It is a matter of common prudence that a person who had

been burnt and was having 60 per cent burn injuries would not be

able to go to the hospital on her own and somebody must have

taken her to the hospital. According to the prosecution, PW3 and

PW2, had reached the spot and had taken the deceased to the

hospital. Thus, they were the first persons whom the deceased

met and as per the case of the prosecution, she had told them that

Bhajju had poured kerosene on her and set her ablaze. At the

hospital, she was examined by Dr. Suresh Sharma, PW9, who in

his statement had recorded that he has examined the deceased

and she had as many as 10 injuries on her body and that some

wounds on her body which were bleeding. According to the said

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doctor, these injuries could have been caused by a Kada or some

sharp object. The burn injuries were found to be 60 per cent. The

person was burnt with kerosene oil. Lower parts of her body were

burnt. Her left hand was burnt, right hand and arm were also

burnt. He further stated that the statement of the deceased was

recorded by the Tehsildar, on which she had put her thumb

impression and that the dying declaration also had been written

by the doctor declaring that she was in full senses to make the

statement. In his cross-examination, this witness clearly stated

that the blouse that Medabai was wearing was smelling of

kerosene oil. Thus, the doctor is a witness to the dying

declaration as well as to the condition and cause of death of the

deceased.

5.PW5, Vijay Kumar is the Tehsildar who recorded the dying

declaration of the deceased. When he appeared as a witness, he

admitted to having recorded the dying declaration of the deceased,

which bore his signatures at A to A of Exhibit P4 and recording

was in his hand-writing of what was stated by Medabai and that

he added or subtracted nothing from what she had stated.

Nothing material could be brought out during the lengthy cross-

examination of this witness. Thus, the dying declaration had been

recorded by the competent officer of the executive, duly attested

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by the doctor and the cross-examination of both these witnesses

did not bring out any legal or substantial infirmity in the dying

declaration of the deceased, which could render it inadmissible or

unreliable.

6.The post mortem of the body of the deceased was performed

by Dr. S.K. Khare, PW10, and his report is Exhibit P15 which

confirms the burn injuries and the death being due to these

injuries. There is evidence which clearly shows that she tried to

fight before she succumbed to the burn assault by the

appellant/accused. In that process, her bangles were broken

which were recovered vide Exhibit P6 from the site and she also

suffered injuries which, as already noticed, were bleeding when

she was examined by Dr. Suresh Sharma, PW9. Other recoveries

were also made from the site, which evidences that the occurrence

took place in the manner as stated by the deceased. It is a

common behaviour that if a person is pouring kerosene on herself

then the maximum kerosene will be poured on the head, face and

upper parts of the body and lesser amount will reach the lower

parts of the body and clothes. Contrary to this, the lower half of

the body of the deceased had received more burn injuries than her

upper part and, in fact, if one has to even remotely believe that

Exhibit D1 could be executed by her, then on the photograph

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annexed to it, not even a single burn injury on her face and upper

part of the body is visible. If this photograph is of a date prior to

the incident then there was no occasion for the appellant/accused

or the Oath Commissioner attesting the affidavit to affix this

photograph on this affidavit. This document, thus, appears to

have been created and is, thus, incapable of being relied upon by

the Court.

7.Besides recording of Exhibit P4, two other statements of the

deceased were also recorded. Both of them were recorded by the

Police Officers on different occasions. Firstly, as already noted,

Exhibit P16 was the statement recorded immediately after the

occurrence on 12

th

September, 1995, on the basis of which FIR,

Ext. P-17, was registered and thereafter Exhibit P18, the

statement of the deceased under Section 161 of the Cr. P.C. was

recorded, that too, on 12

th

September, 1995. Exhibit P16 and P18

may, by themselves, not carry much evidentiary value but they

definitely have the same version as was recorded by PW11, the

Tehsildar in Exhibit P4, the dying declaration, which is not only

admissible in evidence but is reliable, coherent and in conformity

with the requirements of law.

8.The primary contention raised on behalf of the accused is

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that the dying declaration, Ex. P4 being the sole piece of evidence,

cannot be relied upon by the courts. There is no evidence

corroborating Ex.P4. As such, the concurrent judgments of

conviction are unsustainable.

9.Firstly, we must notice that this is not a case where the

dying declaration, Ex.P4, is the only evidence against the

appellant/accused or that whatever is stated in it, is not partially

or otherwise supported by other evidence given the fact that there

is no dispute to the occurrence in question, the statements of the

doctor, PW9 and the Investigating Officer, PW10 and the Exhibits

including the site plan, post-mortem report etc., which are

admissible pieces of substantive evidence, fully corroborate the

dying declaration. If the deceased had poured kerosene oil on

herself, then in the normal course; a) there could not be bleeding

wounds on her body, b) broken bangles could not have been

recovered from the site, in question and c) she could not have

suffered injuries on her hands and arms. All these factors show

struggle before death and this indication is further strengthened

by the fact that lower part of her body had suffered greater burn

injury, than the upper part. Had that been the case, then alone

the case of the defence could be considered by this Court, even as

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a remote probability. That certainly is not the situation in the

present case.

10.The law is very clear that if the dying declaration has been

recorded in accordance with law, is reliable and gives a cogent and

possible explanation of the occurrence of the events, then the

dying declaration can certainly be relied upon by the Court and

could form the sole piece of evidence resulting in the conviction of

the accused. This Court has clearly stated the principle that

Section 32 of the Indian Evidence Act, 1872 (for short ‘the Act’) is

an exception to the general rule against the admissibility of

hearsay evidence. Clause (1) of Section 32 makes the statement of

the deceased admissible, which is generally described as a ‘dying

declaration’. The ‘dying declaration’ essentially means the

statement made by a person as to the cause of his death or as to

the circumstances of the transaction resulting into his death. The

admissibility of the dying declaration is based on the principle

that the sense of impending death produces in a man’s mind, the

same feeling as that the conscientious and virtuous man under

oath. The dying declaration is admissible upon the consideration

that the declaration was made in extremity, when the maker is at

the point of death and when every hope of this world is gone,

when every motive to file a false suit is silenced in the mind and

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the person deposing is induced by the most powerful

considerations to speak the truth. Once the Court is satisfied that

the declaration was true and voluntary, it undoubtedly can base

its conviction on the dying declaration, without requiring any

further corroboration. It cannot be laid down as an absolute rule

of law that the dying declaration cannot form the sole basis of

conviction unless it is corroborated by other evidence.

11.There is a clear distinction between the principles governing

the evaluation of a dying declaration under the English law and

the Indian law. Under the English law, credence and relevancy of

a dying declaration is only when the person making such a

statement is in hopeless condition and expecting an imminent

death. So under the English law, for its admissibility, the

declaration should have been made when in the actual danger of

death and that the declarant should have had a full apprehension

that his death would ensue. However, under the Indian law, the

dying declaration is relevant, whether the person who makes it

was or was not under expectation of death at the time of such

declaration. The dying declaration is admissible not only in the

case of homicide but also in civil suits. The admissibility of a

dying declaration rests upon the principle of nemo meritorious

praesumuntur mentiri (a man will not meet his maker with a lie in

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his mouth).

12.The law is well-settled that a dying declaration is admissible

in evidence and the admissibility is founded on the principle of

necessity. A dying declaration, if found reliable, can form the

basis of a conviction. A Court of facts is not excluded from acting

upon an uncorroborated dying declaration for finding conviction.

The dying declaration, as a piece of evidence, stands on the same

footing as any other piece of evidence. It has to be judged and

appreciated in light of the surrounding circumstances and its

weight determined by reference to the principle governing the

weighing of evidence. If in a given case a particular dying

declaration suffers from any infirmity, either of its own or as

disclosed by the other evidence adduced in the case or the

circumstances coming to its notice, the Court may, as a rule of

prudence, look for corroboration and if the infirmities are such as

would render a dying declaration so infirm that it pricks the

conscience of the Court, the same may be refused to be accepted

as forming basis of the conviction.

13.Another consideration that may weigh with the Court, of

course with reference to the facts of a given case, is whether the

dying declaration has been able to bring a confidence thereupon

or not, is it trust-worthy or is merely an attempt to cover up the

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latches of investigation. It must allure the satisfaction of the

Court that reliance ought to be placed thereon rather than

distrust.

14.In regard to the above stated principles, we may refer to the

judgments of this Court in the cases of Ravikumar @ Kutti Ravi v.

State of Tamil Nadu (2006) 9 SCC 240, Vikas and Others v. State of

Maharashtra (2008) 2 SCC 516, Kishan Lal v. State of Rajasthan

(2000) 1 SCC 310, Laxmi (Smt.) v. Om Prakash & Ors. (2001) 6

SCC 118, Panchdeo Singh v. State of Bihar (2002) 1 SCC 577.

15.In the case of Jaishree Anant Khandekar v. State of

Maharashtra (2009) 11 SCC 647, discussing the contours of the

American Law in relation to the ‘dying declaration’ and its

applicability to the Indian law, this Court held as under: -

“24. Apart from an implicit faith in the intrinsic

truthfulness of human character at the dying moments

of one's life, admissibility of dying declaration is also

based on the doctrine of necessity. In many cases victim

is the only eyewitness to a crime on him/her and in such

situations exclusion of the dying declaration, on hearsay

principle, would tend to defeat the ends of justice.

25. American law on dying declaration also proceeds on

the twin postulates of certainty of death leading to an

intrinsic faith in truthfulness of human character and

the necessity principle. On certainty of death, the same

strict test of English law has been applied in American

jurisprudence. The test has been variously expressed as

“no hope of recovery”, “a settled expectation of death”.

The core concept is that the expectation of death must

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be absolute and not susceptible to doubts and there

should be no chance of operation of worldly motives.”

16.It will also be of some help to refer to the judgment of this

Court in the case of Muthu Kutty and Another v. State by Inspector

of Police, T.N., (2005) 9 SCC 113 where the Court, in paragraph

15, held as under:-

“15. Though a dying declaration is entitled to great

weight, it is worthwhile to note that the accused has no

power of cross-examination. Such a power is essential

for eliciting the truth as an obligation of oath could be.

This is the reason the court also insists that the dying

declaration should be of such a nature as to inspire full

confidence of the court in its correctness. The court has

to be on guard that the statement of the deceased was

not as a result of either tutoring, or prompting or a

product of imagination. The court must be further

satisfied that the deceased was in a fit state of mind

after a clear opportunity to observe and identify the

assailant. Once the court is satisfied that the

declaration was true and voluntary, undoubtedly, it can

base its conviction without any further corroboration. It

cannot be laid down as an absolute rule of law that the

dying declaration cannot form the sole basis of

conviction unless it is corroborated. The rule requiring

corroboration is merely a rule of prudence. This Court

has laid down in several judgments the principles

governing dying declaration, which could be summed up

as under as indicated in Paniben v. State of Gujarat

[(1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC

1817] (SCC pp. 480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that

dying declaration cannot be acted upon without

corroboration. (See Munnu Raja v. State of M.P.)

(ii) If the Court is satisfied that the dying declaration is

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true and voluntary it can base conviction on it, without

corroboration. (See State of U.P. v. Ram Sagar Yadav

and Ramawati Devi v. State of Bihar.)

(iii) The Court has to scrutinise the dying declaration

carefully and must ensure that the declaration is not

the result of tutoring, prompting or imagination. The

deceased had an opportunity to observe and identify

the assailants and was in a fit state to make the

declaration. (See K. Ramachandra Reddy v. Public

Prosecutor)

(iv) Where dying declaration is suspicious, it should

not be acted upon without corroborative evidence. (See

Rasheed Beg v. State of M.P.)

(v) Where the deceased was unconscious and could

never make any dying declaration the evidence with

regard to it is to be rejected. (See Kake Singh v. State of

M.P.)

(vi) A dying declaration which suffers from infirmity

cannot form the basis of conviction. (See Ram

Manorath v. State of U.P.)

(vii) Merely because a dying declaration does not

contain the details as to the occurrence, it is not to be

rejected. (See State of Maharashtra v. Krishnamurti

Laxmipati Naidu.)

(viii) Equally, merely because it is a brief statement, it

is not to be discarded. On the contrary, the shortness

of the statement itself guarantees truth. (See Surajdeo

Ojha v. State of Bihar.)

(ix) Normally the Court in order to satisfy whether

deceased was in a fit mental condition to make the

dying declaration look up to the medical opinion. But

where the eyewitness said that the deceased was in a

fit and conscious state to make the dying declaration,

the medical opinion cannot prevail. (See Nanhau Ram

v. State of M.P.)

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(x) Where the prosecution version differs from the

version as given in the dying declaration, the said

declaration cannot be acted upon. (See State of U.P. v.

Madan Mohan.)

(xi) Where there are more than one statement in the

nature of dying declaration, one first in point of time

must be preferred. Of course, if the plurality of dying

declaration could be held to be trustworthy and

reliable, it has to be accepted. (See Mohanlal

Gangaram Gehani v. State of Maharashtra.)”

17.Learned counsel for the parties have relied upon the

judgments in the case of Ravikumar @ Kutti Ravi (supra), Kishan

Lal (supra); Laxmi (Smt.) (supra),; Panchdeo Singh (supra). These

judgments do not set any other principle than what we have

already spelt above. The first attempt of the court has to be, to

rely upon the dying declaration, whether corroborated or not,

unless it suffers from certain infirmities, is not voluntary and has

been produced to overcome the latches in the investigation of the

case. There has to be a very serious doubt or infirmity in the

dying declaration for the courts to not rely upon the same. Of

course, if it falls in that class of cases, we have no doubt in our

minds that the dying declaration cannot form the sole basis of

conviction. However, that is not the case here.

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18.Then, it was also vehemently argued that the two main

witnesses PW2 and PW3 as well as the brother of the deceased

PW4, had turned hostile and, therefore, the case of the

prosecution has no legs to stand, much less that they have proved

their case beyond any reasonable doubt. This submission looks to

be attractive at the first glance but when examined in depth, is

without any merit. Firstly, there is no witness to the dying

declaration who has turned hostile. None of the witnesses, i.e.

PW2 to PW4, were witnesses to or were even remotely involved in

the recording of the three different dying declarations, i.e. Ex.P4,

P16 and P18. Reliance by the learned counsel appearing for the

appellant/accused upon the judgment of this Court in the case of

Munnu Raja and Another v. The State of Madhya Pradesh (1976) 3

SCC 104 to contend that a dying declaration cannot be

corroborated by the testimony of hostile witnesses is hardly of any

help. 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 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 relied

upon by the accused itself clearly says that the dying declaration

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can be acted upon without corroboration and can be made the

basis of conviction. Paragraph 6 of the said judgment reads as

under:-

“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.”

19.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 of the Cr.P.C., 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

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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 in so far as it supports the case of the

prosecution. 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 Act enables the Court,

in its discretion, to permit the person, who calls a witness, to put

any question to him which might be put in cross-examination by

the adverse party. 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 cannon 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 cases :

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a.Koli Lakhmanbhai Chanabhai v. State of Gujarat

(1999) 8 SCC 624

b.Prithi v. State of Haryana

(2010) 8 SCC 536

c.Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)

(2010) 6 SCC 1

d.Ramkrushna v. State of Maharashtra

(2007) 13 SCC 525

20.PW2 and PW3 were the persons who had met the deceased

first after she was put on fire. They were not the eye-witnesses to

the occurrence. It is an admitted case that they were the first

persons to meet the deceased after she suffered the burn injuries

and had taken her to the hospital. This was their consistent

version when stated before the police and even before the court.

Contrary to their statement made to the Investigating Agency, in

the Court, they made a statement that the deceased had told them

that she had caught fire by chimney and her burn injuries were

accidental. This was totally contrary to their version given to the

police where they had stated that she had told them that Bhajju

had poured kerosene on her and put her on fire. To the extent

that their earlier version is consistent with the story of the

prosecution, it can safely be relied upon by the prosecution and

court. The later part of their statement, in cross-examination

done either by the accused or by the prosecution, would not be of

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any advantage to the case of the prosecution. However, the

accused may refer thereto. But the court will always have to take

a very cautious decision while referring to the statements of such

witnesses who turn hostile or go back from their earlier

statements recorded, particularly, under Section 164 of the

Cr.P.C. What value should be attached and how much reliance

can be placed on such statement is a matter to be examined by

the Courts with reference to the facts of a given case.

21.PW4, brother of the deceased, is another witness who has

made an attempt to help the accused. He stated that Medabai

had died and Bhajju was his brother-in-law and she got burnt

while cooking food and that Medabai had told him that Bhajju

used to keep her nicely. Firstly, we must notice that all these

witnesses who had turned hostile or attempted to support the

accused are the neighbours or close relations of the deceased and

also that of the appellant/accused. Their somersault appears to

be founded on the consideration of saving a relation from receiving

punishment at the hands of justice. They appear to have lied

before this Court, more out of sympathy for the

appellant/accused. The very opening part of the statement of

PW4, where he says “Medabai mari ja chuki hai” and “Medabai ko

khana pakate samay aag lagi thi” is sufficient indicator of his

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sympathy and the fact that his sister has already died and that he

would not like to lose his brother-in-law and secondly, that it is

also not clear from his statement as to who told him that Medabai

had caught fire while cooking.

22.These are matters of serious consequences and render the

statement of all these three witnesses unreliable and

undependable. Thus, these statements we would refer and rely

(examination-in-chief) only to the extent they support the case of

the prosecution and are duly corroborated, not only by other

witnesses but even by the dying declaration and the medical

evidence.

23.Coming to the credibility of the defence witnesses, we have

already noticed that Ex.D1 is a document created by the defence

just to escape the punishment under law. If that is what the

deceased wanted to say, she had a number of opportunities to say

so, freely and voluntarily. However, in presence of the Tehsildar

and twice in presence of the Police, she made the same statement

implicating her husband Bhajju of pouring kerosene oil on her

and putting her on fire. Where was the necessity of typing an

affidavit and getting the same thumb-marked by the deceased

when she was suffering 60% burn injuries. If the version given in

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this affidavit was true, we see no reason why the deceased should

have stated before the police and the Tehsildar what she did. The

two defence witnesses, namely Prabhat Kumar Sharma, DW1 and

Laxmi Prasad Yadav, DW2, were examined by the defence to prove

its innocence. DW1, the Notary Public, does not state as to where,

when and at whose instance the affidavit was typed. This witness

has completely failed to explain as to why the photograph of the

deceased was fixed on the affidavit. If it was the requirement of

law, then why the photograph of a date prior to the date on which

the affidavit was sworn and attested, was affixed on the affidavit.

This witness also admitted in his cross-examination that he knew

that the affidavit was being sworn for belying a statement made

earlier, but he made no enquiries from the deceased or from any

other proper quarters to find out what was the previous statement

of the deceased. It will not be safe for the Court to rely on the

statement of this witness. DW2, is the person who had typed the

affidavit, Ex.D1. He knew Medabai. According to this witness, the

contents were typed on the basis of what Medabai had stated.

There are contradictions between the statements of DW1 and

DW2. We do not think that these witnesses are reliable and their

statements are trustworthy. We would expect a Notary Public to

maintain better professional standards rather than act at the

24

behest of a particular party.

24.For these reasons, we find no ground to interfere in the

concurrent judgments of conviction and order of sentence. The

appeal is without merit and is dismissed accordingly.

……………………………. ,J.

[A.K. Patnaik]

……………………………. ,J.

[Swatanter Kumar]

New Delhi;

March 15, 2012