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REPORTABLE

IN THE SUPREME COURT OF  INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.228 OF 2008

Kaliya                                   ...Appellant   

Versus

State of Madhya Pradesh                                 ...Respondent

J U D G M E N T

 Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated  6.12.2005,  passed  by  the  High  Court  of  Madhya  Pradesh  

(Gwalior  Bench)  in Criminal  Appeal  No.23 of  1992,  affirming the  

judgment and order dated 10.1.1992 passed by Additional Sessions  

Judge,  Morena  in  Sessions  Trial  No.5  of  1985.  By  this  order  the  

appellant had been convicted under Section 302 of the Indian Penal  

Code, 1860 (hereinafter referred to as the ‘IPC’) and sentenced to life

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imprisonment and a fine of Rs.500/- had also been imposed, and in  

default of payment of fine to undergo RI for three months.

2. Facts and circumstances giving rise to this appeal are:

A. That  on  18.6.1984,  Guddi,  daughter-in-law  of  the  present  

appellant  Smt.  Kaliya was admitted to  J.A.  Hospital,  Gwalior  in  a  

burnt condition.  Her dying  declaration was recorded and she died of  

the burn injuries  on the same day.   Information from hospital  was  

given to Police Station, Jhansi Road, Gwalior.  Her dead body was  

sent for post-mortem and all formalities were properly completed.

B. An  FIR  was  lodged  and  after  the  completion  of  the  

investigation,  a chargesheet was filed against the appellant alongwith  

her  husband  and son  under  Section  498-A IPC,  the  appellant  was  

additionally charged under Section 302 IPC.

C. The  prosecution  examined  a  large  number  of  witnesses  

including Dr. Nirmal Kumar Gupta (PW.18) who recorded the dying  

declaration,  Merry Kutti  Michael  (PW.5),  the staff  Nurse who was  

present  at  the time of  recording the dying  declaration.   After  the  

conclusion of the trial, the appellant was convicted under Section 302  

IPC  and  sentenced  as  mentioned  hereinabove,  though,  other  co-

accused Amar Singh (son of the appellant) and Bheema (husband of  

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the  appellant)  stood  convicted  under  Section  498-A  IPC  and  

sentenced to undergo RI for 3 years.

D. The appellant  as  well  as  the other  co-accused filed Criminal  

Appeal  Nos.  23  and  17  of  1992,  respectively  before  the  Madhya  

Pradesh High Court.   The High Court  dismissed the appeal  of  the  

present appellant vide impugned judgment and order dated 6.12.2005  

but allowed the appeal of the other co-accused acquitting them of the  

said charges.   

Hence, this appeal.

3. We have heard Shri S.K. Dubey, learned Senior counsel for the  

appellant  and  Ms.  Vibha  Datta  Makhija,  learned  counsel  for  the  

respondent-State.   

4. The Trial Court as well as the High Court relied mainly upon  

the  dying  declaration  made  by  Guddi,  deceased  wherein  she  had  

stated  that  she  was  subjected  to  harassment  by  her  mother-in-law,  

present appellant, her father-in-law and her husband.  So far as the  

incident dated 18.6.1984 was concerned, Guddi suffered 100 per cent  

burn injuries at her house. After hearing commotion, some neighbours  

reached the place of occurrence and extinguished the fire by pouring  

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water on her body and took her to the hospital.  In the hospital her  

dying  declaration was recorded wherein she had specifically stated “I  

was lying on the cot then my mother-in-law by pouring kerosene oil  

and setting fire in my silk saree ran away”.  Dr. (Miss.) Bharti Kanned  

who was on duty and Merry Kutti Michael, Staff Nurse (PW.5) were  

witnesses to the dying  declaration recorded by Dr.  Nirmal Kumar  

Gupta  (PW.18).  In  the  FIR  there  is  a  full  reference  of  the  dying  

declaration recorded by Dr. Nirmal Kumar Gupta (PW.18).  After the  

death, the post-mortem was conducted wherein it was opined that she  

died of burn injuries.  If she had been admitted in the hospital with  

100% burns she would not be in a state to get her dying  declaration  

recorded.  The  whole  emphasis  before  the  courts  below as  well  as  

before this Court has been that the dying declaration cannot be relied  

upon  since  the  original  of  the  same  had  not  been  filed  by  the  

prosecution and the carbon copy could not have been exhibited and  

taken on record.  It has been further contended that even if the carbon  

copy  could  be  relied  upon  it  may  have  been  tampered  with  as  is  

evident from many interpolations and cuttings.  

5. There is ample evidence on record particularly, the statement of  

Dr.  B.L.  Jain  (PW.16)  and  F.A.  Khan  (PW.17)  to  the  effect  that  

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Guddi,  deceased  was  admitted  to  J.A.  Hospital  on  18.6.1984.  

However, her case sheet could not be deposited by the Clerk working  

in the hospital.  Dr. Nirmal Kumar Gupta (PW.18) supported the case  

of  the  prosecution  with  respect  to  the  admission  of  Guddi  in  the  

hospital and further that he recorded her dying  declaration wherein  

she had stated that when she was lying on the bed,  her mother-in-law  

poured kerosene oil  on her  and set  her  on fire and ran away.  He  

further  deposed that  Guddi appended her  thumb impression on the  

dying  declaration.  He also deposed that before recording her dying  

declaration, Guddi was in a fit mental condition.  His statement stands  

fully corroborated by the evidence of Merry Kutty Michael, the staff  

nurse,  (PW.5) who was present  at  the time of recording her dying  

declaration.  The  testimony  of  both  these  witnesses,  namely,  Dr.  

Nirmal  Kumar  Gupta  (PW.18)  and  Merry  Kutty  Michael  (PW.5)  

remained  unimpeached.  Dr.  Nirmal  Kumar  Gupta  (PW.18)  in  his  

cross-examination explained that Ex.P.4 was the carbon copy of the  

original.  Dr.  B.L.  Jain  (PW.16)  and  F.A.  Khan  (PW.17)  clearly  

deposed that even after conducting an extensive search, the original  

dying declaration could not be traced.   

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In view of the provisions of Sections 63 and 65 of the Indian  

Evidence Act 1872 (hereinafter referred to as the ‘Act 1872’),  such a  

course of action is permissible.  

6. The original record reveal that as the original dying  declaration  

was not traceable/available, the prosecution was permitted to adduce  

secondary evidence.   In this regard,  the Trial  Court  passed several  

orders from time to time as is evident from the orders dated 4.9.1990,  

15.10.1990,  7.11.1990,  8.12.1990,  26.12.1990,  25.2.1991  and  

14.3.1991.  And ultimately, on 13.4.1991, on being satisfied that the  

original dying declaration was not traceable, the Trial Court granted  

permission to the prosecution for adducing the secondary evidence.  

7. This  Court  has  examined  the  issue  of  putting  a  thumb  

impression on the dying  declaration by 100% burnt person in State of  

Madhya Pradesh v. Dal Singh & Ors. AIR 2013 SC 2059, and after  

considering a large number of cases including Mafabhai Nagarbhai  

Raval  v.  State  of  Gujarat,  AIR  1992  SC  2186;  Laxmi  v.  Om  

Prakash & Ors., AIR 2001 SC 2383; and  Govindappa & Ors. v.  

State of Karnataka,  (2010) 6 SCC 533 came to the conclusion as  

under:-

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“The law on the issue can be summarised to the effect   that  law  does  not  provide  who  can  record  a  dying   declaration, nor is there any prescribed form, format, or   procedure for the same.  The person who records a dying   declaration must be satisfied that the maker is in a fit   state of mind and is capable of making such a statement.   Moreover, the requirement of a certificate provided by a   Doctor in respect  of such state of the deceased,  is not   essential in every case.

Undoubtedly, the subject of the evidentiary value   and  acceptability  of  a  dying   declaration,  must  be   approached with caution for the reason that the maker of   such  a  statement  cannot  be  subjected  to  cross- examination.   However,  the  court  may  not  look  for   corroboration  of  a  dying   declaration,  unless  the   declaration suffers from any infirmity.   

So  far  as  the  question  of  thumb  impression  is   concerned,  the  same  depends  upon  facts,  as  regards   whether the skin of the thumb that was placed upon the   dying  declaration was also burnt. Even in case of such   burns in the body, the skin of a small part of the body,   i.e. of the thumb, may remain intact. Therefore, it is a   question of fact regarding whether the skin of the thumb  had in fact been completely burnt, and if not, whether the   ridges and curves had remained intact.”

8.       In State of Rajasthan v. Kishore, AIR 1996 SC 3035, in an  

identical case, this Court placed reliance on the dying  declaration and  

upheld the conviction.  

9. Shri S.K. Dubey has placed much reliance on the judgment of  

this Court in Narain Singh & Anr. v. State of Haryana, AIR 2004  

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SC 1616, wherein the court acquitted the accused persons only on the  

ground that the dying  declaration itself was not proved and, therefore  

the  question  of  acting  on it  could  not  arise.  The  ratio  of  the  said  

judgment  has  no  application  in  the  instant  case  as  mentioned  

hereinabove.  In  the  instant  case,  the  Trial  Court  had  granted  

permission  to  lead  secondary  evidence  and  the  same  had  been  

adduced strictly in accordance with law and accepted by the courts  

below.

10. Section 65(c) of the Act 1872 provides that secondary evidence  

can be adduced relating to a document when the original  has been  

destroyed or lost, or when the party offering evidence of its contents  

cannot,  for  any other  reason,  not  arising  from his  own default,  or  

neglect,  produce   it  in  reasonable  time.  The  court  is  obliged  to  

examine the probative value of  documents produced in court or their  

contents and decide the question of admissibility of a document in  

secondary  evidence.  (Vide:  H.  Siddiqui (dead)  by  Lrs.  v.  A.  

Ramalingam, AIR  2011  SC  1492;  and  Rasiklal  Manikchand  

Dhariwal  & Anr.  v.  M.S.S.  Food Products, (2012)  2 SCC 196).  

However,  the  secondary  evidence  of  an  ordinary  document  is  

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admissible only and only when the party desirous of admitting it has  

proved before the court that it was not in his possession or control of it  

and  further,  that  he  has  done  what  could  be  done  to  procure  the  

production of it. Thus, the party has to account for the non-production  

in one of the ways indicated in the section. The party further has to lay  

down the factual foundation to establish the right to give secondary  

evidence where the original document cannot be produced. When the  

party gives in evidence a certified copy/secondary evidence without  

proving the circumstances entitling him to give secondary evidence,  

the opposite party must raise an objection at the time of admission. In  

case, an objection is not raised at that point of time, it is precluded  

from being raised at  a belated stage.  Further,  mere admission of  a  

document  in  evidence  does  not  amount  to  its  proof.  Nor,  mere  

marking of exhibit on a document does not dispense with its proof,  

which is otherwise required to be done in accordance with law. (Vide:  

The Roman Catholic Mission v. The State of Madras, AIR 1966  

SC  1457;  Marwari  Khumhar  &  Ors.  v.  Bhagwanpuri  Guru  

Ganeshpuri  &  Anr.,  AIR  2000  SC  2629;  R.V.E.  Venkatachala  

Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr.,  

AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004  

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SC  4082;  and  Life  Insurance  Corporation  of  India  &  Anr.  v.  

Rampal Singh Bisen, (2010) 4 SCC 491).  

11. In  M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC  

712, this Court considered this aspect in detail and held as under:  

“We do not agree with the reasoning of the High Court.   It  is  true  that  a  party  who  wishes  to  rely  upon  the   contents of a document must adduce primary evidence of   the  contents,  and  only  in  the  exceptional  cases  will   secondary  evidence  be  admissible.  However,  if   secondary evidence is admissible, it may be adduced in   any  form  in  which  it  may  be  available,  whether  by   production of a copy, duplicate copy of a copy, by oral   evidence  of  the  contents  or  in  another  form.  The   secondary  evidence  must  be  authenticated  by   foundational evidence that the alleged copy is in fact a   true copy of the original. It should be emphasised that   the exceptions to the rule requiring primary evidence are   designed  to  provide  relief  in  a  case  where  a  party  is   genuinely  unable  to  produce  the  original  through  no   fault of that party.”

A  similar  view  has  been  re-iterated  in  J.  Yashoda  v.  K.  

Shobha Rani, AIR 2007 SC 1721.

12. Dr. Nirmal Kumar Gupta (PW.18), deposed that  100% burnt  

patient  can  also  be  in  a  fit  mental  and  physical  condition  to  give  

statement.  Dr.  V.K.  Deewan  (PW.14),  who  performed  the  post-

mortem of deceased Guddi, deposed that she was completely burnt  

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and  the  burn  injuries  were  anti-mortem.   She  had  died  due  to  

Asphyxia, due to burn injuries, her death was homicidal.     

In view thereof, both the courts below were of the considered  

opinion that  the appellant  was responsible for  causing the death of  

Guddi, deceased.

13. The defence taken by the appellant that she had gone out of her  

house  to  provide  water  to  the buffalo has  been disbelieved by the  

Court.  As the incident occurred in the house of the appellant, and she  

was present therein at the relevant time, she could have furnished the  

explanation as to how and under what circumstances Guddi died.  The  

matter was within her special knowledge.

14. In view of the above, the appeal lacks merit and is accordingly  

dismissed.  

…..………………….........J.                                                               ( Dr. B.S. CHAUHAN )

  ……………………….........J.

                                                   ( S.A. BOBDE ) New Delhi, July 23, 2013   

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