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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 9th 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 7th 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  2nd  

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  

12th 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 17th 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 9th  

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 30th September,  

1995 while she died on 17th 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 12th 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 12th 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

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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