Court No.48

Criminal Appeal No. 2834 of 1988

1. Mushtkim @ Pappu

….......Appellant

Vs

State of U.P. …........Respondent

For Appellant : Sri M.F. Ansari and Sri Ajay Kumar

Pandey, Advocates.

For Respondent : Sri Amit Sinha, AGA

Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J

(15.10.2019)

1. This appeal arises out of impugned order and judgment dated

09.12.1988 passed by VIIth Additional Sessions Judge, Meerut in Sessions

Trial No. 96 of 1988 convicting the appellant under Section 302 and 498A of

IPC and sentencing him to undergo rigorous life imprisonment under Section

302 and one year rigorous imprisonment under Section 498A, with a

direction that both the sentences shall run concurrently.

2. In the present case, name of the deceased is Khalida Begum wife of

the accused-appellant. Their marriage was solomnised on 01.04.1985 and

she died in her matrimonial house on 09.11.1987 after suffering 95% burn

injuries. On 31.10.1987 itself, on the basis of written report Ex.Ka-1 lodged

2

by PW-1, Nisar Ahmad, father of the deceased, FIR Ex.Ka-4 was registered

against the accused-appellant and two acquitted accused under Sections 307

and 498A of IPC. On 31.10.1987 itself, dying declaration of the deceased

Ex.Ka-3 was recorded by PW-5, Mukesh Kumar Gupta, Executive

Magistrate wherein she has categorically stated that she was burnt by the

appellant. On 01.11.1987, case diary statement Ex.Ka-14 of the deceased

was recorded in which also she named the appellant to be the accused.

Likewise, on 02.11.1987, in another diary statement of the deceased Ex.Ka-

15, she has stated that she was burnt by the appellant. Deceased also made

oral dying declaration before PW-4, Shajda Begum implicating the appellant

as the main accused.

3.After the death of the deceased, inquest on her dead body was

conducted on 9.11.1987 vide Ex.Ka-16 and the body was sent for post-

mortem which was conducted on 10.11.1987 by PW-3, Dr. S.C. Gupta vide

Ex.Ka-2.

4.As per Autopsy Surgeon, following ante-mortem injuries were found

on the body of deceased:

(I)superficial to deep burn present on whole body except

lower part of abdomen, genatal region and a small portion

of back i.e. inter scapula region of left side into supra

scapula region of left side.

(II)cut open mark present on right leg inner and lower one

third.

The cause of death of the deceased was due to shock as a result of

extensive burn.

5. While framing charge, the trial judge has framed charge against

accused-appellant under Sections 302, 304B and 498A of IPC whereas

against two acquitted accused namely Mohd. Mohsin and Smt. Amna,

charges were framed under Sections 304B/34 and 498A/34 of IPC.

6. So as to hold accused persons guilty, prosecution has examined nine

3

witnesses, whereas three defence witnesses have also been examined.

Statements of accused persons were recorded under Section 313 of Cr.P.C. in

which they pleaded their innocence and false implication.

7. By the impugned judgment, the trial judge has acquitted co-accused

Mohsin and Smt. Amna of all the offences, whereas appellant has been

convicted under Section 302 and 498A of IPC. Hence this appeal.

8. Learned counsel for the appellant submits:-

(I)that on the same set of evidence, once co-accused has been

acquitted, the trial court was not justified in convicting the

appellant.

(II)that dying declaration of the deceased Ex.Ka-3 recorded by

the Executive Magistrate is not reliable as at the time of

making the said statement, the deceased was not in a fit state

of mind. Learned counsel submits that endorsement made by

the Doctor in dying declaration has been obtained after it was

recorded and, therefore, it has no legal sanctity.

(III)that diary statements Ex.Ka-14 and Ex.Ka-15 of the deceased

are nothing but concocted piece of evidence.

(IV)that deceased died an accidental death but unfortunately

appellant has been made escape goat just because he happens

to be the husband of the deceased.

(V)that it is the appellant, who hospitalized the deceased and,

therefore, even assuming that any such incident had taken

place, case of the appellant would not fall under Section 302

of IPC.

9. On the other hand, supporting the impugned judgment, it has been

argued by the State Counsel:

(I)that conviction of the appellant is in accordance with law and

there is no infirmity in the same.

4

(II)that there is no reason for this Court to disbelieve the dying

declaration Ex.Ka-3 of the deceased recorded by PW-5,

Mukesh Kumar Gupta, Executive Magistrate. He submits that

161 Cr.P.C. statements of the deceased Ex.Ka-14 and Ex.Ka-

15 are to be treated as her dying declaration after her death.

(III)that the oral dying declaration was also made by the deceased

before PW-4, Shajda Begum and that also supports the

prosecution case.

(IV)that the mere fact that the appellant hospitalized the deceased,

will not give him any leniency because after the incident, the

appellant may have felt fear in his mind of being punished by

the police and that is why, he hospitalized the deceased. In any

case, the heinous act of the appellant cannot be diluted just

because he hospitalized the deceased.

10.We have heard learned counsel for the parties and perused the record.

11. PW-1, Nisar Ahmad is a father of the deceased and the informant, has

stated that marriage of the deceased was solemnized with the appellant on

01.04.1985 and in the marriage, sufficient dowry was given by him. Since

beginning, accused persons used to harass the deceased for demand of

various articles like fridge and motorcycle. On 31.12.1987, he came to know

about the incident and then he lodged the report.

12. PW-2, Bharat Singh, Constable, took the body for postmortem.

13. PW-3, Dr. S.C. Gupta, conducted postmortem on the body of the

deceased and noticed 90% to 95% burn injuries on the body of the deceased.

14. PW-4, Shajda Begum, is the mother of the deceased, states that since

the date of marriage, the deceased was subjected to cruelty for demand of

dowry and various articles were given to her. She further states that the

deceased made oral dying declaration before her as to the manner in which

she was burnt. In cross-examination, this witness was subjected to various

questions including tricky ones but she remained firm and has reiterated as

5

to the manner in which the deceased discloses her about the incident and the

ill-treatment meted to her.

15. PW-5, Mukesh Kumar Gupta, is the Executive Magistrate, who

recorded the dying declaration of the deceased. He has stated that before

recording the dying declaration of the deceased, he obtained medical

certificate of the deceased from the Doctor and only after due certification,

he recorded the statement in which the deceased had disclosed that she was

burnt by the accused-appellant. He has duly proved the dying declaration Ex.

Ka-3.

16. PW-6, Bhagat Singh Visth, has recorded the FIR.

17. PW-7, Ahsan Ilahi, is a maternal uncle of the deceased, has stated that

he saw accused-appellant burning the deceased and that after the incident

deceased was crying and shouting by saying that she was burnt by other two

accused persons.

18. PW-8, G.S. Verma, is an Investigating Officer. He also recorded the

diary statement of the deceased Ex.Ka-14 and Ex.Ka-15, wherein deceased

has stated as to the manner in which she was burnt by the appellant.

19. PW-9, Dr. V.P. Goel, medically examined the deceased when she was

first admitted in Chaurasiya Nursing Home and he has also proved the injury

report of the deceased Ex.Ka-25. This witness has also proved the fitness

certificate of the deceased given by him at the time of recording the dying

declaration by the Executive Magistrate.

20. DW-1, Hafizuddin, has stated that in the marriage of appellant and the

deceased, no dowry was settled and that the couple was living happily.

21. DW-2, Matin has stated that it is the appellant, who extinguish the

fire.

22. DW-3, Dr. S.K. Singh, has stated that after injecting pathedrin and

calmpose, patient would be semi-conscious. He, however, has stated that

even in the case of 100% burn injury, at times, patient can speak and can

6

also keep quiet.

23.Before we appreciate the evidence adduced by the prosecution, we

feel it appropriate to refer certain judgments of the Apex Court governing

the law of the dying declaration.

24.In State of Gujarat v. Jayrajbhai Punjabhai Varu

1

, the Supreme

Court held as under:

"15. The courts below have to be extremely careful when they

deal with a dying declaration as the maker thereof is not

available for the cross- examination which poses a great

difficulty to the accused person. A mechanical approach in

relying upon a dying declaration just because it is there is

extremely dangerous. The court has to examine a dying

declaration scrupulously with a microscopic eye to find out

whether the dying declaration is voluntary, truthful, made in a

conscious state of mind and without being influenced by the

relatives present or by the investigating agency who may be

interested in the success of investigation or which may be

negligent while recording the dying declaration.

16.In the case on hand, there are two sets of evidence, one is

the statement/declaration made before the police officer and the

Executive Magistrate and the other is the oral dying declaration

made by the deceased before her father who was examined as

PW-1. On a careful scrutiny of the materials on record, it cannot

be said that there were contradictions in the statements made

before the police officer and the Executive Magistrate as to the

role of the respondent herein in the commission of the offence

and in such circumstances, one set of evidence which is more

consistent and reliable, which in the present case being one in

favour of the respondent herein, requires to be accepted and

conviction could not be placed on the sole testimony of PW-1.

1(2016) 14 SCC 151

7

17.A number of times the relatives influence the investigating

agency and bring about a dying declaration. The dying

declarations recorded by the investigating agencies have to be

very scrupulously examined and the court must remain alive to

all the attendant circumstances at the time when the dying

declaration comes into being. In case of more than one dying

declaration, the intrinsic contradictions in those dying

declarations are extremely important. It cannot be that a dying

declaration which supports the prosecution alone can be

accepted while the other innocent dying declarations have to be

rejected. Such a trend will be extremely dangerous. However, the

courts below are fully entitled to act on the dying declarations

and make them the basis of conviction, where the dying

declarations pass all the above tests.

18. The court has to weigh all the attendant circumstances and

come to the independent finding whether the dying declaration

was properly recorded and whether it was voluntary and truthful.

Once the court is convinced that the dying declaration is so

recorded, it may be acted upon and can be made a basis of

conviction. The courts must bear in mind that each criminal trial

is an individual aspect. It may differ from the other trials in some

or the other respect and, therefore, a mechanical approach to the

law of dying declaration has to be shunned.

19. On appreciation of evidence on record, we are of the

considered view that the dying declarations of the deceased

recorded by the police officer as well as the Executive Magistrate

are fully corroborated and there is no inconsistency as regards

the role of the respondent herein in the commission of offence.

From a perusal of the statement recorded by Bhiku Karsanbhai,

P.S.O., the thumb impression of Rekhaben (since deceased)

which had been identified by her father-Sri Vala Jaskubhai

8

Suragbhai as also his cross-examination in which he admitted

that police had already come there and he had identified her

thumb impression and Mamlatdar had gone inside to record

statement, there is no reason as to why Rekhaben would give

names of her husband and her in- laws in the alleged statement

given to her father. A dying declaration is entitled to great

weight. The conviction basing reliance upon the oral dying

declaration made to the father of the deceased is not reliable and

such a declaration can be a result of afterthought. 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

deceased was not as a result of tutoring, 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 assailants. 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.

20. The burden of proof in criminal law is beyond all

reasonable doubt. The prosecution has to prove the guilt of the

accused beyond all reasonable doubt and it is also the rule of

justice in criminal law that if two views are possible on the

evidence adduced in the case, one pointing to the guilt of the

accused and the other towards his innocence, the view which is

favourable to the accused should be adopted."

25. In Gaffar Badshaha Pathan v. State of Maharashtra

2

,it was held as

2(2004) 10 SCC 589

9

under:

"5. Dr. A.U. Masurkar was the Chief Medical Officer of the

hospital at the relevant time. The High Court has held that the

recording of the dying declaration and story stated therein

apparently appears to be false and concocted for the various

reasons noticed in the impugned judgment. It has to be borne in

mind that the fact whether the dying declaration is false and

concocted has to be established by the prosecution. It is not for

the accused to prove conclusively that the dying declaration was

correct and the story therein was not concocted. The fact that the

statement of the deceased was recorded at about 9.00 p.m. by the

Head Constable cannot be doubted though an attempt to the

contrary seems to have been made by the prosecution. The

statements of the prosecution witnesses (PW 5 and PW 11) also

show that the statement was recorded by the Head Constable.

According to PW 5, it was only a show made by the Head

Constable of recording statement, since according to the said

witness, the deceased was not in a position to speak at that time.

Even PW 11, a doctor in the hospital, has deposed about the

recording of the statement by the Head Constable though he has

not formally proved the dying declaration but has certified the

correctness of the endorsement of Dr. A.U. Masurkar on the

dying declaration. PW 11 was shown the dying declaration. He

has deposed that the certificate recorded on the dying

declaration is in the handwriting of Dr. Masurkar, Chief Medical

Officer of the hospital. He has further deposed that Dr.

Masurkar is in the hospital since the last 12 to 15 years and that

he had degree in MS and was estimated to be an honest and

expert surgeon of the area. One of the reasons which had

strongly weighed with the High Court in rejecting the dying

declaration is that the endorsement of the doctor is only about

10

the deceased lady being conscious and not that she was in a fit

condition to make the statement. The High Court went into

distinction between consciousness and fitness to make statement.

On the facts of the present case, we are unable to sustain the

approach adopted by the High Court. It is one thing for an

accused to attack a dying declaration in a case where the

prosecution seeks to rely on a dying declaration against an

accused but it is altogether different where an accused relies

upon a dying declaration in support of the defence of accidental

death. The burden on the accused is much lighter. He has only to

prove reasonable probability. Under these circumstances, the

dying declaration could not have been rejected on the ground

that it does not contain the endorsement of the doctor of the

fitness of the lady to make the statement as the certificate of the

doctor only shows that she was in a conscious state. The

endorsement of the doctor aforequoted is not only about the

conscious state of the lady but is that she made the statement in a

conscious state."

26.In P. Mani v State of Tamilnadu

3

, while considering the suspicious dying

declaration, it has been held by the Apex Court that the conviction can be based

solely on the basis of dying declaration alone, but the same must be wholly

reliable and trustworthy. Para 14 of the said judgment reads thus:

"14. Indisputably conviction can be recorded on the basis of

dying declaration alone but therefore the same must be wholly

reliable. In a case where suspicion can be raised as regard the

correctness of the dying declaration, the court before convicting

an accused on the basis thereof would look for some

corroborative evidence. Suspicion, it is trite, is no substitute for

proof. If evidence brought on records suggests that such dying

declaration does not reveal the entire truth, it may be

32006 (3) SCC 161

11

considered only as a piece of evidence in which event

conviction may not be rested only on the basis thereof. The

question as to whether a dying declaration is of impeccable

character would depend upon several factors; physical and

mental condition of the deceased is one of them. In this case the

circumstances which have been brought on records clearly

point out that what might have been stated in the dying

declaration may not be correct. If the deceased had been

nurturing a grudge against her husband for a long time, she

while committing suicide herself may try to implicate him so as

to make his life miserable. In the present case where the

Appellant has been charged under Section 302 of the Indian

Penal Code, the presumption in terms of Section 113A of the

Evidence Act is not available. In absence of such a

presumption, the conviction and sentence of the accused must

be based on cogent and reliable evidence brought on record by

the prosecution. In this case, we find that the evidences are not

such which point out only to the guilt of the accused."

27.In Lakhan v. State of MP

4

, the Supreme Court after discussing number of

judgments on the point of dying declarations summarized the law in this regard, as

under:

"20.In view of the above, the law on the issue of dying

declaration can be summarized to the effect that in case, the

Court comes to the conclusion that the dying declaration is true

and reliable, has been recorded by a person at a time when the

deceased was fit physically and mentally to make the

declaration and it has not been made under any

tutoring/duress/prompting; it can be the sole basis for

recording conviction. In such an eventuality no corroboration is

required. In case, there are multiple dying declarations and

4(2010) 8 SCC 514

12

there are inconsistencies between them, generally, the dying

declaration recorded by the higher officer like a Magistrate can

be relied upon, provided that there is no circumstance giving

rise to any suspicion about its truthfulness. In case, there are

circumstances wherein the declaration had been made, not

voluntarily and even otherwise, it is not supported by the other

evidence, the Court has to scrutinize the facts of an individual

case very carefully and take a decision as to which of the

declarations is worth reliance."

28.In Shudhakar v. State of MP

5

, the Supreme Court held as under:

"18.In the case of Laxman (supra), the Court while dealing

with the argument that the dying declaration must be recorded

by a Magistrate and the certificate of fitness was an essential

feature, made the following observations. The court answered

both these questions as follows:

“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.

5(2012) 7 SCC 569

13

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

14

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.”

29.In Ramakant Mishra v. State of UP

6

, the Supreme Court observed as

under:

"9.Definition of this legal concept found in Black's Law

Dictionary (5th Edition) justifies reproduction:

"Dying Declarations - Statements made by a person who is

lying at the point of death, and is conscious of his approaching

death, in reference to the manner in which he received the

injuries of which he is dying, or other immediate cause of his

death, and in reference to the person who inflicted such injuries

or the connection with such injuries of a person who is charged

6(2015) 8 SCC 299

15

or suspected of having committed them; which statements are

admissible in evidence in a trial for homicide (and

occasionally, at least in some jurisdictions, in other cases)

where the killing of the declarant is the crime charged to the

defendant. Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78

L.Ed. 196.

Generally, the admissibility of such declarations is limited to

use in prosecutions for homicide; but is admissible on behalf of

accused as well as for prosecution. In a prosecution for

homicide or in a civil action or proceeding, a statement made

by a declarant while believing that his death was imminent,

concerning the cause or circumstances of what he believed to

be his impending death is not excluded by the hearsay rule.

Fed. Evid.R. 804 (b) (2).

10.When a person makes a statement while being aware of

the prospect that his death is imminent and proximate, such a

statement assumes a probative value which is almost

unassailable, unlike other statements which he may have made

earlier, when death was not lurking around, indicating the

cause of his death. That is to say that a person might be quite

willing to implicate an innocent person but would not do so

when death is knocking at his door. That is why a Dying

Declaration, to conform to this unique specie, should have been

made when death was in the contemplation of the person

making the statement/declaration."

24. In the present case, the dying declaration of the deceased Ex.Ka-3

recorded by PW-5, Executive Magistrate reads as under:-

" Fkkuk/;{k dksrokyh dh lwpuk ij eSa eqds'k dqekj xqIrk flVh eftLVz~sV esjB

pkSjfl;k uflZxa gkse ij jksxh Jherh [kkfynk dk c;ku ysus igqaWpkA ekSds ij

16

mifLFkr Mk0 dh jk; ij fd jksxh c;ku nsus esa ekufld o 'kkjhfjd :i ls

LoLFk gS jksxh dk c;ku ysuk izkjEHk fd;kA jksxh ls iz'u iwNs x;s ftlds mRrj

fuEu gSaA

iz'u 1& eSa eftLVz~sV c;ku ysus vk;k gwW D;k vki le> jgh gSaA

mRrj& gkaW

iz'u & vkids lkFk D;k ?kVuk ?kfVr gqbZ \

mRrj& vkt djhc 1 1@2 &2 cts tc esjs ?kj ij esjs vkneh ds vykok dksbZ

ugha Fkk] esjs ifr us esjs mij feV~Vh dk rsy fNM+d fn;k rFkk vkx yxk nhA

vkx yxkus ds ckn eSusa 'kksj epk;k] ekSgYys okys yksx vk x;sA mlds mijkUr

esjs ifr gh eq>s bl uflZax gkse esa yk;sA

iz'u & vki viuk c;ku lksp le>dj ns jgh gks\

mRrj& eSa c;ku lksp le>dj ns jgh gwWA esjs ifr us gh eq>s tyk;k gSA

iz'u& ifr us rqEgsa D;ksa tyk;k \

mRrj& eSa [kpsZ ds fy, iSls ekaxrh FkhA blh dkj.k ls esjs ifr us eq>s tyk

fn;kA 7%15

g0 viBuh;

31-10-87

City Magistrate

Meerut "

25. The above dying declaration has been recorded by the PW-5, Mukesh

Kumar Gupta, Executive Magistrate and has been duly endorsed by PW-9,

Dr. V.P. Goel. In the Court, PW-5, Executive Magistrate has categorically

stated that it is he, who recorded the dying declaration after obtaining the

certificate from the Doctor and likewise PW-9, V.P. Goel, who gave the

certificate, has also affirmed this fact that after his certificate, dying

declaration was recorded by the Executive Magistrate. Considering the

evidence available on record, we have absolutely no doubt about the

authenticity of the dying declaration recorded by PW-5, Mukesh Kumar

Gupta, Executive Magistrate.

17

26. From the contents of the dying declaration, it is apparent that it is the

appellant who burnt the deceased after pouring kerosene oil on her. Apart

from the above dying declaration, the investigating officer recorded two

diary statements of the deceased on 1.11.1987 and 2.11.1987 vide Ex. Ka-

14 and Ex.Ka-15. These two documents have been duly proved by the

investigating officer. It is a settled proposition of law that after the death of

the deceased, her statement recorded under Section 161 Cr.P.C. can be

treated as her dying declaration.

In the present case, diary statements of the deceased were recorded on

01.11.1987 and 2.11.1987 and she died on 09.11.1987. After the death of the

deceased, these two statements made by the deceased becomes her dying

declaration. Law in this respect is well settled.

30.In Rafique alias Rauf and Ors. Vs. State of Uttar Pradesh

7

,

the Apex Court held as under:

"16.The important question for consideration, therefore, is whether

the said statement made by the deceased can be taken as a dying

declaration and reliance can be placed upon the same.

17.The High Court while relying upon the said statement has

noted certain circumstances, namely, the evidence of P.W.6,

Investigating Officer, who deposed that the deceased was fully

conscious when he was brought to the police station with injuries on

his face, chest and other parts of the body and that he recorded his

statement. It was also noted that after recording his statement the

Investigating Officer referred him to the hospital for medical

examination and treatment. The High Court, thereafter, noted the

evidence of P.W.5 the postmortem doctor who categorically stated in

his cross-examination that the injured was also in a position to speak

and that it was not necessary that in all cases after sustaining injury

in the brain a person cannot retain his conscience or will not be in a

position to speak. The High Court noted the further statement of the

doctor that it is not necessary that in every such case the patient

would immediately go to a coma stage.

18.The High Court, therefore, reached a conclusion that the

deceased Zahiruddin, was in a position to speak and that the

7(2013) 12 SCC 121

18

statement under Ext.Ka-9 was given by him who expired on the next

day evening. It further stated that since it was the last statement of the

deceased to the Investigating Officer it can very well be treated as a

dying declaration. The High Court was conscious of the fact that the

trial Court did not place any reliance on the said statement which in

the opinion of the High Court was erroneous.

19.In this context when we make reference to the statutory

provisions concerning the extent of reliance that can be placed upon

the dying declaration and also the implication of Section 162(2)

Cr.P.C. vis-à-vis Section 32(1) of the Evidence Act, 1872, we feel that

it will be appropriate to make a reference to the decision of this Court

reported in Khushal Rao vs. State of Bombay - AIR 1958 SC 22.

Justice Sinha speaking for the Bench after making further reference to

a Full Bench decision of the High Court of Madras headed by Sir

Lionel Leach, C.J., a decision of the Judicial Committee of the Privy

Council and ‘Phipson on Evidence’ – 9th Ed., formulated certain

principles to be applied to place any reliance upon such statements.

We feel that the substance of the principles stated in the Full Bench

decision and the Judicial Committee of the Privy Council and the

author Phipson’s view point on accepting a statement as dying

declaration can also be noted in order to understand the principles

ultimately laid down by this Court in paragraph 16.

20.The Full Bench of the Madras High Court in Guruswami Tevar

- AIR 1940 Mad 196 in its unanimous opinion stated that no hard-

and-fast rule can be laid down as to when a dying declaration should

be accepted, except stating that each case must be decided in the light

of its own facts and other circumstances. What all the Court has to

ultimately conclude is whether the Court is convinced of the

truthfulness of the statement, notwithstanding that there was no

corroboration in the true sense. The thrust was to the position that the

Court must be fully convinced of the truth of the statement and that it

should not give any scope for suspicion as to its credibility. This

Court noted that the High Court of Patna and Nagpur also expressed

the same view in the decisions reported in Mohd. Arif v. Emperor –

AIR 1941 Pat. 409 and Gulabrao Krishnajee v. Emperor – AIR 1945

Nag. 153.

26.In a recent decision of this Court reported in Sri Bhagwan v.

State of U.P. – (2013) 12 SCC 137, to which one of us was a party, the

Court dealt with more or less an identical situation and held as under

in paras 21 and 22:

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“21. As far as the implication of 162(2) CrPC is

concerned, as a proposition of law, unlike the excepted

circumstances under which 161 statement could be relied

upon, as rightly contended by learned Senior Counsel for

the respondent, once the said statement though recorded

under Section 161 CrPC assumes the character of dying

declaration falling within the four corners of Section

32(1) of Evidence Act, then whatever credence that would

apply to a declaration governed by Section 32(1) should

automatically deemed to apply in all force to such a

statement though was once recorded under Section 161

CrPC. The above statement of law would result in a

position that a purported recorded statement under

Section 161 of a victim having regard to the subsequent

event of the death of the person making the statement who

was a victim would enable the prosecuting authority to

rely upon the said statement having regard to the nature

and content of the said statement as one of dying

declaration as deeming it and falling under Section

32(1) of Evidence Act and thereby commend all the

credence that would be applicable to a dying declaration

recorded and claimed as such.

Keeping the above principle in mind, it can be stated without any

scope for contradiction that when we examine the claim made on the

statement recorded by PW-4 of the deceased by applying Section 162(2), we

have no hesitation in holding that the said statement as relied upon by the

trial Court as an acceptable dying declaration in all force was perfectly

justified. We say so because no other conflicting circumstance was either

pointed out or demonstrated before the trial Court or the High Court or

before us in order to exclude the said document from being relied upon as a

dying declaration of the deceased. We reiterate that having regard to the

manner in which the said statement was recorded at the time when the crime

was registered originally under Section 326 IPC within the shortest time

possible within which it could be recorded by PW-4 in order to provide

proper medical treatment to the deceased by sending him to the hospital,

with no other intention pointed out at the instance of the appellant to

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discredit contents of the said statement, we hold that the reliance placed

upon the said statement as the dying declaration of the deceased was

perfectly justified. Having regard to our above conclusion, the said

submission of the learned counsel for the appellant also stands

rejected.”…..................

27. Apart from the above three dying declarations, the deceased also

made oral dying declaration before PW-4 and the said witness has also

proved the oral dying declaration.

28. Taking the cumulative effect of the evidence, we have no reason to

disbelieve the dying declarations of the deceased which have been duly

proved by the witnesses. The mere fact that certain medicines were given to

treat the deceased does not mean that she was not in a fit state of mind to

make the dying declaration. There is enough evidence on record to suggest

that from 31.10.1987 to 09.11.1987, deceased was in a position to speak and

at least she was in a fit state of mind on 31.10.1987, 01.11.1987 and

02.11.1987 to make her statement.

29. Considering all these aspects of the case, the complicity of the

appellant in committing the murder of the deceased, has been duly proved.

30. We find no substance in the argument of the defence that as the

appellant hospitalized the deceased, some leniency be shown to him. The

appellant might have hospitalized the deceased because of fear in his mind

but that does not entitle him for any leniency. The trial court was fully

justified in convicting the appellant.

31. The appeal has no substance and the same is, accordingly, dismissed.

32. Accused-appellant is reported to be on bail. His bail bond stands

cancelled and he be taken into custody immediately for serving the

remaining sentence.

33. We appreciate the assistance rendered by Sri Ajay, Amicus and we

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direct the State Government to pay Rs. 5,000/- towards his remuneration.

Date: 15.10.2019

AKK/Vikram

(Raj Beer Singh, J) (Pritinker Diwaker, J)