Vs. State of (N.C.T. Delhi)  INSC 370 (27 September 1999)
D.P.Mohapatra D. P. MOHAPATRA . J .
this appeal filed by the accused Jai Karan the judgment of the learned
Additional Sessions Judge, Delhi in Sessions case No. 16/91 holding him guilty
of the charge under section 302 IPC for the murder of his wife Wanti Devi
(hereinafter referred. to as 'deceased') and the order sentencing him to R.I.
for life whicn was confirmed by the High Court of Delhi incriminal Appeal
No.91/94, is under challenge. , ' The genes is of the case is that the
relationship between the appellant and the deceased was not cordial. The
deceased had gone to the Court with a claim for maintenance against the
appellant. On the intervention of their relations and will-wisher's the
differences were patched-up and she withdrew she case. Thereafter the deceased
returned to her marital home and started living with appellant This happened
about 7-8 months before the fateful incident.
intervening night of 25/26.9.90 the deceased was admitted to the Jai Prakash Narain
Hospital Delhi (LNJPN) with extensive burn injuries on her body. On being
informed about it by the duty constable, S.I. Balej Singh (PW 19) arrived at thehoepital
and obtained the medico- legal certificate of the deceased in which it was
stated inter-alia that the story given by the patient was to the effect that
she was burnt by her husband by pouring kerosene oil after a fight between the
two. On such information a formal FIR under section 307 IPC was registered.
Later in the day at about 9.45 a.m. on
receiving the information that Wanti Devl expired at 8.35 a.m. the case was converted into one under section 302
IPC. After investigation charge-sheet under section 302 IPC was filed against
denied the charge the appellant faced trial.
his case that the injuries sustained by the deceased were accidental and the
incident occurred when she was trying to light the kerosene stove.
prosecution examined in all 19 witnesses including three Doctors. Or. Anil Kurmar
Aggarwal (PW 2), who conducted the post mortem examination of the deceased; Dr.
P.S. Bhandari (PW 3), who was the head of the unit of the LNJPN Hospital, Delhi
in which, injured Wanti Devi was admitted; Dr. Gaurav Nijhara (PW 11), who is
said to have recorded the dying declaration of the deceased (Ex.PW 11/A);
Ram (PW 4) and Joginder Singh (PW 5) neighbours of the parties; Hari Singh (PW
10) father of the deceased;
Devi (PW 17) mother of the deceased; Prem Singh (PW 16) a nephew of the
deceased and Baltej Singh (PW 19), Sub- Inspector of Police, the Investigating
Officer. Neither the neighbourers nor the relations of the deceased supported
the prosecution case and they were cross-examined by the public prosecutor with
permiss Ion of the Court.
(DW 1) daughter of the deceased was the sole witness for the defence.
learned trial judge, as appears from the discussion in the judment, believed
the procecution case that it was the accused who poured kerosene on his wife
and lit the match-stick on account of which she suffered the fatal injuries,
relying mainly on the dying declaration (Exh. 11/A) and accordingly passed the
order of conviction and sentence.
High Court on perusal of the oral and documentary evidence came to the
conclusion that the dying declaration was & reliable piece of evidence on
which the order of conviction could be based and accordingly confirmed the
judgment and order of the trial court.
short Question that arises is whether the dying declaration said to have been
made by the deceased (Exh. 11/A) is believable and acceotable and conviction
can be based on the same.
dying declaration is admissible in evidence on the principle of necessity and
can form the basis for conviction if it is found to be reliable. While it is in
the nature' of an exception to the general rule forbidding hearsay evidence, it
is admitted on the premiss that ordinarily a dying person will not falsely
implicate an innocent person in the commission of a serious crimee. It is this premiss
which is considered strong enough to set off the need that the maker of the
statement should state so on oath and be cross examined by the person who is
sought to be implicated. In order that a dying declaration may form the sole
basis for conviction without the need for independent corroboration it must be
shown that the person making It had the opportunity of identifying the person
implicated and is thoroughly reliable and free from blemish. If. in the facts
and circumstances of the case, it is found that the maker of the statement was
in a fit state of mind and had voluntarily made the statement on the basis of'
personal knowledge without being influenced by others and the court on strict
scrutiny finds it to be reliable, there is no rule of law or even of prudence
that such a reliable piece of evidence cannot be acted upon unless it 1s
corroborated. A dying declaration is an independent piece of evidence like any
other piece of evidence - neither extra strong nor weak and can be acted upon
without corroboration if it is found to be otherwise, true and reliable. (1991
(1) SCO 744 8).
1975 SC 1519 (Jayarj V. State of Tamil Nadu) this Court made the followin observations
the deponent (while making his dying declaration) was in severe bodily oain
(because of stabbing injuries in abdomen), and words were scarce, his natural
impulse would be to tell the Magistrate, without wasting his breath on details,
as to who had stabbed him. The very brevity of dying declaration, in the
circumstances of the case, far from being a suspicious circumstance, was an
index of its being true and free from the taint of tutoring, more so when the
substratum of the dying declaration was fully consistent with the ocular
account given by the eye- witnesses." SC 22) this Court laid down the
following propositions of law relating to the test of reliability of dying declaration
That it cannot be laid own as an absolute rule of law that a dying declaration
cannot form the sole basis of conviction unless it is corroborated;
That each case must be determined on its own facts keeping in view the
circumstances in which the dy'ing declaration was made;
That 1't cannot be laid down as a general proposition that a .dying declaration
is a weaker kind of evidence than other piece of evidence.
That a dying .declaration stands on the same footing as another .piece of
evidence and has to be judged in the light of surrounding circumstances and
with reference to the pririciples governing the weighing of evidence;
That a dying declaration which has been recorded by a competent Magistrate in
the proper manner, that 1s to say, in the form of Questions and answers, and,
as far as practicable, in the words of the maker of the declaration which depends
-upon oral testimony. wich may suffer from all the infirmities of human memory ana
human character; ana (6) That in order to test the reliability of a dying
declaration; the Court has to keep in view, the circumstances like the
opportunity of the dying man for observation, for example, whether there was
sufficient light if the crime was committed at night; whether the capacity of
the man to remember the facts stated, had not been impaired at the time he was
making the statement, by circumstances beyond his control; that thestatement
has been consistent throughout if he had several opportunities of making a
dying declaration apart from the official record of it; and- that the statement
had been made at the earliest opportunity and was not the result of tutor ing
by interested parties.
case of Paniben V. State of Gujarat 1992 (2) SCO 474 this Court summed up the
principles of dying declaration with the following observation (para 18):
a dying declaration is en itled 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 daceased was not as a result of either tutor-ing,
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 1s 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.
Court has laid down .n several judgments the principles governing dying.
which could be summed up as under:
There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration (Munnu Raja V. State of M.P. 1976 (3) SCC 104;
If the-Court is satisfied that the dying declaration "is true and
voluntary "it can base conviction on it; without corroboration. (State of U.P. v. Ram Sagar Yadav (1985 (1) SCC 552 and Ramawati Devi
V. State of Bihar (1983) 1 SCC 211);.
THIS Court has to scrutinise the dying declaration carefully and must ensure
that the. declaration is not the result of tutoring, prompting or imagination.
deceased had opportunity to observe and identify the assailants and was in a
fit state of make the declaration 618); .- (iv)' Where dying declaration is
suspicious it should not be acted acted without corroborative evidence (Rasheed
Beg v. State of M.P.(1974(4) SCC 264);
Where the deceased was unconscious and could never make any dying declaration
the evidence with regard to it is to be rejected. (Kake Singh V. State of M.P.
1981 (Supp) SCC 25);
dying dec}aration which suffers from infirmity of U.P.(1981 (2) SCC 654);
Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be Laxmipati Naidu, 1980 (Supp).SCC 455) (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, Surajdeo Oza
vs. State of Bihar (1980 Supp. SCC 769);
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 eye
witness has said that the deceased was in a fit and conscious state to make
this dying declaration, the medical opinion cannot prevail. (Nanahau (x) Where
the prosecution version differs from the version as given in the dying
declaration, the-said declaration cannot be acted upon. (State of U.P. V. Madan
Mohan (1989) 3 SCC 390)." Testing the case- in hand on the touchstone of
the principles laid down in the decisions.; noted above the position that
emerges is that the prosecution evidence rests solely on the dying declaration
said to have been made by the deceased since the parents, other relations and neighbours
did not support its case.' From the evidence of Dr. Bhandari (PW 3), it appears
that he had produced the case sheets pertaining to injured Wanti Devi in the
Court and with reference to those papers he stated that the injured was
admitted in the burns ward of the hospital on 26.9.90 at 1.00 a.m. with 95%
burns; that she was seen by Dr. Rajender Prasad Singh, the then medic. I
officer on duty .in the ward and that the case sheets were written by Dr. Rajender
Prasad Singh. From the evidence of this witness it is older that though he was
the head of the unit in which the patient was admitted ha had not personally
attended the patient nor had any knowledge about the statement made by her. The
witness could not say where Dr. Gaurav Nijhara was on duty on that day, even
after seeing records. Dr.Gaurav Nijhara (PW11) in his testimony has stated that
he was posted as ffiedica.l officer in L.N.J.P. hosoital on 26.9.90 and on that
day injured Wanti Devi wife of Jai Karan was brought to the hospital by her
husband. It is also in his evidence that the injured 'cold the witness that
after a fight with her husband he (huobarid) poured kerosene on her and lit the
fire; that on examining the injured he found her haying 90% burns; that she was
conscious, cooperative and oriented regarding time place and person. The
witness claim that he admitted her in the burns ward and prepared her MLC No.
89766 and he signed the document Ex.PW 11/A. The witness also examined the
accuse' when he brought his wife. and gave the history of burning both his
hands while "burning his wife with kerosene". This history was also
written by the witness (Ex.PW 11/B). The witness has also stated that the
injured persons (deceased and accused) made the statement in Hindi while he
recorded it in English, that he had not read over and explained the contents of
the document to the injured. He had also hot taken her signature or thumb
impression on the document. No other person had. attested the statement alleged
to have been made by the injured Wanti Devi before the witness.
at the document Ex.PW 11/A clearly brings out that an endorsement had been'
made by Dr. Rajender Prasad Singh at 1.10 a.w. that the injured Warti Devi was
not in a fit condition for making statement. This endorsement also gains
support from the evidence of the Police Officer (PW IS) who stated that on
getting the information about the incident when he reached the hospitat he was
told that the-injured is .not in a fit condition for making any statement and
he returned without recording any statement.
closer look at the document also shows that a portion of it staling "after
fight between the two" was written in a different manner (words written in
smaller letters) giving an Impression that it was not-written at the time of
making the rest of the endorsements.
the statement of Or. Bhandar' it is clear that Dr.Gaurav Nijhara was not
allotted duty in the unit in which the deceased Wanti Devi was admitted. It is
his categorical statement that he could not say where Dr. Nijhara was allotted
duty in the hospital. This .statement by the head of the unit is very Important.
The statement raises a serious doubt whether Dr. Gaurav Nijhara was at all on
duty In the burns ward at the time when the injured was admitted.
from the endorsement made by Dr. Rajender Prasad Singh who was the medical
officer in charge of the ward the injured was not in a fit condition for making
is no statement made by Dr. Nijhara or any other witness when her condition
improved and she became fit for making the statement. Unfortunately, Dr. Rajender
Prssad Singh has not been exa.mined by the prosecution-.
facts and circumstances of the-case.
from the evidence on record as discussed in the foregoing paragraphs, we find
it difficult to raly on the alleged dying declaration as sole basis for
conviction, On perusal of the records and on giving our anxious considerations
to the entire entire we are of the view that it will not be safe to convict the
appellant solely on the basis of the dying declaration made by the deceased.
The learned Courts below erred in passing the judgment and order of conviction
against the appellant on that basis.
appeal is allowed. The impugned Judgment of the High Court of Delhi in Criminal
Appeal No. 91 of 1994 confirming the .judgment of the Additional Sessions
Judge, Delhi in Sessions Case No .16 of 1991 is
set aside and the appellant is acquitted of the charges framed against him.