Yadav Vs. State of Bihar & Ors  INSC 237 (21 April 1998)
Mukherjee, Syed Shah Mohammed Quadri Quadri, J.
October 8, 1987, the learned VII Additional Sessions Judge, Dhanbad Convicted
the appellant, in S.C. No. 80 of 1986, for an offence punishable under Section
302, IPC for committing the murder of his wife, Smt. Shivratri Devi, by causing
burn injuries and sentenced him to imprisonment for life after trying him for
offences under Section 377 IPC, for committing sodomy with PW-2, and under
Section 302, IPC for intentionally causing death of his wife on November 13,
1985. The conviction of the appellant was upheld by the Division bench of Patna
High Court in Criminal Appeal No.207 of 1987 (R) on August 5, 1988. Against that judgment of the High Court, he filed this
appeal by special leave.
appellant was working as the officer-in-charge, Tisra P.S. in November, 1985
but was residing with his family in the quarters allotted to him at his former
place of posting within the compound of Jharia, P.S. He had a servant, Narsingh
Kumar (PW-2), aged about 16 years, with whom he was indulging in carnal
intercourse which led to strained relations between him and his wife. At about 8.00 A.M., on November 13, 1985,
after throwing kerosene oil on her person, he set fire to her and thus caused
burn injuries. Thereafter, he went to the house of Dr. Mohan Kanaujiya (PW-8)
who was residing behind the Jharia P.S. and informed him that his wife had
suffered burn injuries. Dr. Kanaujiya proceeded to his house. Hearing about
this, the neighbors, Tribhuban Jha (PW-3) and Anirudh Prasad Singh (PW-4) also
came to the quarters of the appellant. PW-3 and PW-4, found among other things,
the main gate of the quarters locked and when PW-6 could not get the keys from
the appellant, the door of the house was broken and they entered the house.
After securing the car of S.I. Kanhaiya Updhyay (PW-6), they sent her for
treatment to Sadar Hospital, Dhanbad, where she was admitted as an in-patient.
16.11.1985, the Inspector P.N. Ram (PW-11) could find PW- 2 to record his
statement and F.I.R. was got lodged through him. On the same day, PW-11
requested Sub-Divisional Judicial magistrate, Dhanbad, to record the statement
of Smt. Shivratri Devi. At about 1.00 P.M. , on that day, Shri L.K. Sharma , II class Judicial Magistrate (PW-7)
went to the Sadar hospital and recorded her dying declaration (Exh.2) wherein
she stated that her husband had burnt her.
following day she succumbed to the injuries. Dr. Roy Sudhir Prasad (PW-5)
assisted by Dr. D.K. Dhiraj (PW-9) conducted postmortem examination on her dead
body. PW-5 has stated that the scalp hair of the deceased was burnt upto the
roots in both parietal areas in 6" * 3- 1/2" and faint smell of
kerosene oil was present on the scalp. He opined that the burn injuries were of
first degree and were cause of her death and that the death was homicidal but
not accidental. He issued postmortem report (Exh. 1). PWs. 2 and 6, however,
turned hostile at the trial of the appellant.
was on of denial; however, he took the plea that when Shivratri Devi went for
igniting the oven insides the kitchen, she caught fire accidentally. He
examined three witnesses, DWs.1 to 3. Paridhan Yadav (DW-1) is the appellant's
father-in-law and Rajnath Yadav (DW-2) is appellant's brother-in-law . DW-1
spoke that the relation between the deceased and the appellant were cordial.
DW-2 also said about their cordial relations and added that he and the
appellant poured water on the body of the deceased when she caught fire.
D.D. Thakur, the learned senior counsel and Shri Kalra, appearing for the
appellant, have contended that there are no eye-witnesses to the occurrence and
that the conviction was based solely on the dying declaration of the deceased (Exh.
2) by both the courts and when the deceased had given two dying declarations
the first being Exh.5/4, recorded by Shri R.B. Singh, A.S.I. and the second
being Exh.2, recorded by the learned II Class Judicial Magistrate, Dhanbad (PW-7)-
which are inconsistent Exh.2 should not have been relied upon; further Exh.2
should not have been relied upon; further Exh.2 is not in the fore of question-
answers and that it has not been certified by the doctor as to the mental
capacity of the victim to give the declaration; the trainee nurse who attested
was not examined; and that it is not corroborated by any independent evidence.
above contentions, the short question that arises for consideration is whether
the courts below are justified in convicting the appellant on the basis of
Exh.2, the dying declaration of the deceased.
law relating to dying declaration - the relevancy, admissibility and its
probative value- is fairly settled.
often the expressions 'relevancy and admissibility' are used as synonyms but
their legal implications are distinct and different for more often than not
facts which are relevant are not admissible; so also facts which are admissible
may not be relevant, for example, questions permitted to be put in cross-examination
to test the veracity or impeach the credit of witnesses, though not relevant
are admissible. The probative value of the evidence is the weight to be given
to it which has to be judged having regard to the facts and circumstances of
each case. in this case, the thrust of the submission relates not to relevancy
or admissibility but to the value to be given to Exh.2. A dying declaration
made by a person who is dead as to cause of his death or as to any of the
circumstances of the transaction which resulted in his death, in cases in which
cause of his death comes in question, is relevant under Section 32 of the
Evidence Act and is also admissible in evidence. Though dying declaration is
indirect evidence being a specie of hearsay, yet it is an exception to the rule
against admissibility of hearsay evidence. Indeed, it is substantive evidence
and like any other substantive evidence requires no corroboration for forming
basis of conviction of an accused. But then the question as to how much weight
can be attached to a dying declaration is a question of fact and has to be
determined on the facts of each case.
strenuously contended that the deceased made two dying declarations, Exh.2
should not have been taken into consideration. According to the learned counsel
the first dying declaration is Exh. 5/4. The original of Exh.5/4 is not to be
found on record. Shri R.B. Singh, A.S.I.
said to have recorded the original of Exh. 5/4 has not to be found on record. Shri
R.B. Singh, A.S.I. who is said to have recorded the original of Exh. 5/4 has
not been examined. Assertions in documents produced in Court, when no witness
is testifying are inadmissible as evidence of that which is asserted. As such Exh.
5/4 is not admissible in evidence. It is, however, suggested that on the basis
of the original of Exh. 5/4 entry in the case diary, GD 517 is made so it could
be treated as the original. We are afraid we cannot accept this contention as
well. 3D entry only keeps a copy of the dying declaration. The Station House
Officer who made that entry has not come into the witness box. PW 11,
investigating officer, who is said to have signed that entry did not prove the
same. It follows that neither Exh. 5/4 nor GD 517 can be taken as the evidence
of the first dying declaration of Smt. Shivrati Devi. Thus, Exh. 2, is the only
dying declaration which remains and was rightly relied up for convicting the
learned counsel next relied up the observations of the Court in Khushal Rao vs.
The state of Bombay (1958) SCR 552 and State (Delhi
Administration vs. Laxman Kumar & Ors. (1985) 4 SCC 476, and argued the Exh.
2, not being in the form of question answer and not having been certified by
the doctor should not have been accepted by the courts below to convicts the
appellant. In Kushal Rao's case, this Court has laid down, inter alia, that a
dying declaration which was recorded by a competent magistrate in the proper
manner, that is to say, in the form of questions and answers, and as far as
practicable, in the words of the maker of the declaration stands on a much
higher footing than a dying declaration which depends upon oral testimony which
may suffer from all the infirmities of human memory and human character. In
that case, three dying declarations were recorded within two and a half hours
of the occurrence; the first by the doctor attending on the victim; the second
by the police officer and the third by the learned Magistrate.
High Court took the view that corroboration of the dying declaration, was necessary
and on the question whether the conduct of the accused in absconding and being
arrested in suspicious circumstances, would be enough to corroborate the dying
declarations, certificate under Article 134(1) (c) was granted by the Bombay
High Court. This court held that the said circumstances could not afford
corroboration if corroboration was necessary and that there was no absolute
rule of law, not even rule of prudence that had ripened into a rule of law that
a dying declaration in order that it might sustain an order of conviction must
be corroborated by other independent evidence.
Kumar's case (supra), then housewife was admitted to the hospital with burn
injuries. Her dying declaration was recorded by the police officer but if was
not in question-answer form and it was not certified by the doctor to the
effect that she was in a fit condition to give the statement though it was not
certified by the doctor to the effect that she was in a fit condition to give
the statement though it was merely attested by him. It contained partial
impression of finger tip of the deceased. The Trial Court pointed out various
suspicious factors for not accepting the dying declaration for resting
conviction thereon. The High Court, however, relied upon the dying declaration
and convicted the accused. On appeal, this Court endorsed the suspicious
circumstances indicated by the Trial Court, which included that under the
relevant Rules applicable to the accused, the investing officer was not to
scribe the dying declaration; that it was not in question- answer form and that
there was no positive evidence that the palms or left hand thumb of the victim
had been so badly affected that she was not in a position to use thumb or any
of the fingers and concluded that the dying declaration was not acceptable.
This Court did not lay down, in any of the aforementioned cases that unless the
dying declaration is in question-answer form it could not be accepted. Having
regard to the sanctity attached to a dying declaration as it comes from the
mouth of a dying person though, unlike the principle of English law he needn't
be under apprehension of death, it should be in the actual words of the maker
of the declaration. Generally, the dying declaration ought to be recorded in
the form of questions-answers but if a dying declaration is not elaborate but
consists of only a few sentences and is in the actual words of the maker the
mere fact that it is not in questions-answer form cannot be a ground against
its acceptability or reliability. The mental condition of the maker of the
declaration, alertness of mind, memory and understanding of what he is saying,
are matters which can be observed by any person. But to lend assurance to those
factors having regard to the importance of the dying declaration, the
certificate or a medically trained person is insisted upon. in the absence of
availability of a doctor to certify the above mentioned factors, if there is
other evidence to show that the recorder of the statement has satisfied,
himself about those requirements before recording the dying declaration there
is no reason as to why the dying declaration should not be accepted. However,
it is pointed out by Shri Kalra that in a recent case in State of Orissa vs. Parsuram
Naik (1997) 11 SCC 15, this court has declined to rely upon the dying
declaration as it was not certified by the doctor that the maker of the
declaration was full senses and was medically fit to make a statement. There
the accused was charged with committing the murder of his wife by burning her
at her parental house. The dying declaration was recorded by the doctor who,
however, did not certify that she was in full senses and was medically fit to
make a statement. The maker of the declaration died within fifteen minutes of
the recording of the statement. On the facts of that case, the High Court did
not consider it safe to rely upon the dying declaration and acquitted the
accused. This Court, in the appeal against acquittal having regard to the fact
that she had sustained extensive burn injuries and died within fifteen minutes
of the recording of the statement, took the view that she might not be in a
proper and fit condition to make a statement as regards her cause of death and
agreed with the High Court that exclusive reliance could not be placed on such
a dying declaration to hold the husband guilty or committing her murder.
light of the above discussion we shall read here Exh. 2 which reads thus;
Mujhe mere pati ne jala diya.
nahin kyon jalaya.
nahin kah sakti hoon Kyon ke bahut pyass lagi hai."
learned II Class Judicial Magistrate (PW -7) stated that pursuant to the order
of Sub-Divisional Judicial Magistrate, on November 16, 1985 he recorded the dying declaration
of Smt. Shivratri Devi in Sadar Hospital and signed the same; as both the hands
of Smt. Shivratri Devi in Sadar Hospital and signed the same; as both the
hands of smt. Shivratri Devi were badly burnt, he took impression of her left
toe on the declaration and certified accordingly. He further stated that he put
certain questions to Smt. Shivratri Devi with a view to test her memory but he
did not record this fact in the statement and that she was conscious while
giving her statement; he added, he got the doctor searched but no doctor was
available at 1.00 P.M. when the statement was recorded by him; trainee nurse
was attending upon her and he got her signature on the statement. He also
stated that the ASI who was with him identified the lady and after making
enquiries from the lady, he satisfied himself about her identity.
plain reading of Exh.2 as well as the statement of PW 7, it is clear that the
learned magistrate has satisfied himself about the identity of Smt. Shivratri Devi;
questions to her and satisfied himself about her condition that she was fit
enough to make the statement. The statement itself consists of two sentence.
Having regard to all the facts and circumstances both the courts below have
relied upon the dying declaration and we find no cogent reason to take a
different view of the matter. Having found that the dying declaration is true
and acceptable there is no escape from the conclusion that the appellant was
responsible for intentionally causing burn injuries to his wife Smt. Shivratri Devi,
which resulted in her death.
no corroboration of dying declaration as such is necessary to convict the
accused a principle which has been laid down in Khushal rao's case (supra),
however, in this case, there is circumstantial evidence which corroborates the
dying declaration, viz., the statements of PWs 3 and 4 that they found the
victim in her room where the smell of kerosene was present, the statement of
PW-5, the doctor who conducted the postmortem examination after four days of
the accident noticed smell of kerosene from the scale of the deceased,
statements of PWs 4 and 6 who rushed to the house of the appellant immediately
after hearing of the incident and found that the house was locked from inside
and the appellant was delaying in opening the lock on one pretext or the other;
the plea of the appellant that she died of accident while igniting the oven and
that the appellant and DW-2 put water on her was belied from the evidence on
record as no sign of water was found in the kitchen and that the ash in the oven
was found in tact.
facts corroborate and lend assurance to the truth of the declaration of the
deceased "mere pati ne mujhe jala diya hai" .
parting with this case we consider it appropriate to observe that though the
prosecution has to prove the case against the accused in the manner stated by
it and that any act or omission on the part of the prosecution giving rise to
any reasonable doubt would go in favour of the accused, yet in a case like the
present one where the record shows that investigating officers created a mess
by bringing on record Exh. 5/4 and GD Entry 517 and have exhibited remiss
and/or deliberately omitted to do what they ought to have done to bail out the
appellant who was a member of the police force or for any extraneous reason,
the interest of justice demands that such acts or omissions of the officers of
the prosecution should not be taken in favour of the accused, for that would
amount to giving premium for the wrongs of the prosecution designedly committed
to favour the appellant. In such cases, the story of the prosecution will have
to be examined de hors such omissions and contaminated conduct of the officials
otherwise the mischief which was deliberately done would be perpetuated and
justice would be denied to the complainant party and this would obviously shake
the confidence of the people not merely in the law enforcing agency but also in
the administration of justice.
the above reasons, we are of the view that the Trial Court as well as the High
Court has rightly based the conviction on Exh. 2, the dying declaration. We
find no merit in the appeal ad accordingly dismiss the same. The appellant, who
is on bail, will now surrender to his bail bonds to serve out the sentence
imposed upon him.