REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 194-195 OF 2012

PURSHOTTAM CHOPRA & ANR.                                  …APPELLANT(S)

V.

STATE (GOVT. OF NCT DELHI)                                     …RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari, J.

Preliminary 1. By way of  these appeals,  the appellants have called in question the

judgment and order dated 23.05.2011 in Criminal Appeal No. 121 of 1999 and

Criminal  Appeal  No.  139  of  1999  whereby,  the  High  Court  of  Delhi  has

affirmed the judgment and order dated 30.01.1999 in Sessions Case No. 2 of

1998 by the Additional Sessions Judge, Delhi; and has upheld the conviction

of  the  appellants  for  the  offence  punishable  under  Section  302  read  with

Section 34 of Indian Penal Code (‘IPC’).

2. In a brief outline of the material aspects, it could be noticed that in the

present case, the appellants are accused of causing death of one Sher Singh

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by putting him on fire. There had been no eye-witness to the incident but the

prosecution has relied upon two statements said to have been made by the

deceased after the incident: one when he was admitted to the hospital with

100% burns  and another  when he  was  under  treatment,  respectively  to  a

doctor and to a police officer. The Trial  Court as also the High Court have

accepted  these  statements  as  being  his  dying  declarations  wherein  the

appellants  were  named  as  the  assailants.  Therefore,  the  appellants  stand

convicted essentially on the basis of the dying declarations of the victim. The

reliability of such dying declarations has been assailed in these appeals apart

from other contentions concerning the surrounding factors. The relevant facts

and background aspects of the matter could be noticed, keeping in view of the

points arising for determination in these appeals.  

The relevant facts and background

3. Put in brief, the prosecution case had been that on 18.12.1997, at about

3.00-3.15 p.m., hearing the screams of a person and noticing smoke coming

from plot no. 17 situated near Goverdhan Park, Uttam Nagar, Delhi, a lot of

people gathered at the spot and saw that a man was ablaze with his entire

body covered with fire; and the people so gathered made efforts to put out the

flames by throwing water over the said person. The information as regards this

incident was received in the Police Control Room (‘PCR’) through a phone call

from some unknown person at 3.28 p.m. by Ct. Anju (PW-7), who made an

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entry bearing No. 467 in Form I (Ex. PW-7/A) and passed on the information to

the nearest Police Station. The concerned officers from PCR reached the spot

and shifted the injured person to Safdarjung Hospital for treatment, where Dr.

Sushma (PW-8) prepared the MLC (Ex. PW-8/A). While preparing the MLC,

the injured person identified himself as Sher Singh and gave his address; and

narrated the incident that had led to his current condition while accusing one

Purshottam and another Suresh (telwala),  both residents of  A-block,  Uttam

Nagar, Delhi as his assailants1.  

4. Simultaneously, SI Rajesh Kumar (PW-16) and Ct. Vijay Parkash (PW-

13) reached the site of incident and were apprised that the injured person had

been shifted to the hospital. SI Rajesh Kumar left Ct. Vijay Parkash on the

spot and himself reached the hospital, only to find that the injured person was

admitted in ICU. SI Rajesh Kumar collected the MLC prepared for the injured

person; and moved an application (Ex. PW-16/A) before the concerned doctor

to take the statement of the injured person. When Dr. Rajesh Verma (PW-17)

certified  that  the  patient  was  fit  to  make the  statement,  SI  Rajesh  Kumar

recorded  his  statement  (Ex.  PW-16/B)  wherein  the  injured  person  –  Sher

Singh  –  gave  out  his  name  and  address  and  then  stated  that  he  had

purchased half a bottle of liquor from one Suresh (telwala), who had an oil

depot; that he drank such liquor; that Purshottam also had an oil depot; and

that  while  Suresh  poured  the  kerosene  oil  over  him  and  lit  him  aflame,

Purshottam was present.2  

1 These persons Purshottam and Suresh are the appellants herein. 2 The contents of this statement (Ex. PW-16/B) as also the MLC (Ex. PW-8/A) are taken as the dying  declarations of the victim and shall be referred in detail hereafter later.

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5. Thereafter, the SHO and Additional SHO of Police Station Vikas Puri

reached  the  hospital.  After  recording  the  statement  of  injured,  SI  Rajesh

Kumar left the hospital, only to arrive back at the site of incident and sent Ct.

Vijay Parkash to register a complaint for the offence punishable under Section

307 read with Section 34 IPC and hence, FIR No. 780 of 1997 came to be

registered.  During  this  time,  SI  Rajesh  Kumar  got  the  site  photographed;

prepared the site plan; seized one piece of burnt cloth (white colour), one half

bottle of liquor, one white colour container, one burnt sweater, one match box

which contained match sticks;  prepared seizure memo of  the articles;  and

deposited the same with the Police Station at Vikas Puri. 6. On  the  basis  of  statement  made  by  the  injured  Sher  Singh,  the

appellants  Purshottam  and  Suresh  were  arrested  in  the  night  intervening

18/19.12.1997  from  their  respective  houses.  In  the  morning  hours  of

19.12.1997, the information of Sher Singh’s death was received which resulted

in the case being converted to one under Section 302 read with Section 34

IPC  and  the  investigation  of  the  case  was  taken  over  by  Inspector  Om

Prakash, Additional SHO, Police Station Vikas Puri, who conducted inquest

proceedings over the dead body of  Sher Singh before sending it  for  post-

mortem on 19.12.1997. Dr. Arvind (PW-14) conducted the post-mortem and

opined that the cause of death was due to shock consequent to 100% ante-

mortem flame burns.

7. The investigating officer then prepared a scaled map; sent the articles

seized to office of CFSL, Chandigarh and thereafter collected the report; and

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filed the charge-sheet before the Magistrate, who committed the case to the

Court of Sessions.

The evidence  8. After committal, the case was tried as Sessions Case No. 2 of 1998 in

the Court of Additional Sessions Judge, Delhi. In prosecution evidence, a total

of  19 witnesses were examined namely, PW-1 Raju (brother of  deceased);

PW-2 Paali (brother of deceased); PW-3 Ct. Mahender Singh;  PW-4 Head Ct.

Jagbir  Singh;  PW-5 L/Ct.  Rajesh;  PW-6 Rajesh  (the shop owner  near  the

place  of  incident  who  allegedly  reached  the  spot  and  found  the  victim  in

flames); PW-7 L/Ct. Anju (who received the telephonic information in PCR and

made an entry to that effect);  PW-8 Dr. Sushma (who had been working in

Plastic and Burns Ward in Safdarjang Hospital and who prepared the MLC as

per the alleged version of the victim); PW-9 Dr. H. K. Sharma (who signed the

death summary/discharge slip relating to the  deceased victim); PW-10 Head

Ct. Ved Parkash; PW-11 Gurdeep Kumar (the photographer); PW-12 Inspector

Devender Singh (who prepared the scaled site plan); PW-13 Ct. Vijay Parkash

(who reached the place of incident with SI Rajesh Kumar); PW-14 Dr. Arvind

(who  conducted  post-mortem  over  the  dead  body  of  victim);  PW-15  Ct.

Joginder Singh;  PW-16 SI Rajesh Kumar (who reached the place of incident

with Ct. Vijay Parkash and thereafter reached the hospital and recorded the

dying declaration of the victim); PW-17 Dr. Rajesh Verma (who declared the

victim fit for giving statement); PW-18 Harish Ram (who transported the victim

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to hospital from the place of incident in PCR van); and PW-19 Inspector Om

Parkash (who took over the investigation from SI Rajesh Kumar). 9. Out of the aforesaid witnesses, PW-3 Ct. Mahender Singh; PW-4 Head

Ct. Jagbir Singh; PW-5 L/Ct. Rajesh; PW-10 Head Ct. Ved Parkash; PW-11

Gurdeep Kumar; PW-12 Inspector Devender Singh; and PW-15 Ct. Joginder

Singh had been the formal witnesses related with the process of investigation.

However, in view of the contentions urged and the issues involved, we may

take note of the salient features of the testimonies of other witnesses namely,

the brothers of deceased, the person allegedly reaching the site upon noticing

the incident, the medical officers, and the police personnel.    9.1. PW-1  Raju,  the  elder  brother  of  the  deceased  Sher  Singh,  led  in

evidence,  inter  alia,  to  the effect  that  the appellants  were the residents  of

same locality as that of his brother; that the appellants were having separate

kerosene depots; that they were workers for BJP; and that prior to the murder

of Sher Singh, dispute had taken place between his brother and Purshottam

but no police complaint was filed due to fear. In his cross-examination, this

witness stated that  he came to know about  the quarrels  of  deceased with

Purshottam Chopra from his mother. 9.2. PW-2 Paali, also the brother of Sher Singh, led in evidence to the effect

that he had visited the mortuary to identify the dead body of his brother. This

witness stated that the deceased was living with him in the same premises;

that he was not aware if deceased used to consume liquor but denied the

suggestion that the deceased was a drunkard. 9.3. PW-6 Rajesh, having a shop across the road where the incident had

taken place, in his examination-in-chief deposed that on hearing the screams

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and seeing the smoke,  he rushed to  the  spot;  that  other  people  from the

market had also reached there; that he saw a person burning on fire; that they

threw water from a nearby tap on the burning body of the victim who identified

himself  as  Sher  Singh;  and  that  someone  from the  market  telephoned  at

number 100 whereupon the police reached the spot.  9.3.1.  In his cross-examination carried on behalf of the accused Purshottam,

this witness PW-6 Rajesh deposed that one has to pass from the street in front

of his shop to reach plot No. 17 and there was no other way/gali to reach plot

No. 17 nor there was any other exit.  This witness further stated that upon

hearing the screams, himself as also his neighbourers Daljit Singh and Vicky

from Ravindra Auto and one Rinku rushed to the spot; that he had not seen

any person running or going from the spot. This witness further pointed out

that they threw water on the victim, who stated his name and also gave out his

address. This witness, inter alia, stated,-  “ …..Some public persons had enquired from the victim as to who had put him on fire. He had told them that since he was dropped from the tempo, he had set himself on fire…..”   

This witness further attributed knowledge about some of the facts to one

Daljit  and  alleged  that  Daljit  had  seen  the  victim  carrying  kerosene  oil  in

polythene towards the plot. The witness stated, inter alia, as under: “ …..Daljit had told me in the evening that he had seen the victim carrying the kerosene oil in a polythene towards that plot. (Objected to  by  Ld.  Addl.  P.P.)  Police  had  recorded  my  statement  and  the statement of Rinku and Daljit in the same evening. Volunteered the police had also recorded statement of 10/12 persons. Daljit  Singh and  Rinku  had  not  made  these  statement  to  the  police  in  my presence. After 2/3 days of the incident, the T.V. persons had come at plot no. 17  and  had  prepared  a  cassette.  They  had  enquired  about  the incident from me and Daljit Singh. My interview was taken by City Cables. Interview of Daljit was taken by City Cables. Daljit Singh had

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told city cables in his interview that he had seen the victim carrying kerosene oil in the polythene to that plot. (Objected to by Ld. Addl. P.P.)”

9.3.2. On  being  subjected  to  cross-examination  on  behalf  of  the  accused

Suresh, this witness stated that he was not present at the time when Sher

Singh told the public that he had put himself on fire after being dropped from

the tempo.  The relevant  portion  of  his  statement  in  this  cross-examination

reads as under: “….The victim Sher Singh had not told the public persons in my presence that he had put himself on fire as he was dropped from the tempo. About 100 or 120 persons had gathered at the place of incident within 5 minutes. Police had interrogated Tony and one other person from the same locality in my presence on the next day and had recorded their statements. Tony had stated to the police  in  his  statement  that  victim was  telling  that  he  had  put himself on fire as he was dropped from the tempo. (objected to) Tony had given the statement to police in my presence. ….”

9.4. In all, four medical officers were examined in this matter. PW-9 Dr. H.K.

Sharma had been working in the Burns Ward of Safdarjung Hospital where the

victim  was  admitted  on  18.12.1997  and  expired  in  the  early  hours  of

19.12.1997. He got prepared the death summary/discharge slip (Ex. PW-9/A).

The  statement  made  by  this  witness  in  cross-examination  as  regards  the

critical condition of the victim and preparation of OPD slip have been referred

in the contentions on behalf of the appellants and hence, it would be apposite

to take note of his testimony in the cross-examination that reads as under: “It is correct that the patient was in a very critical condition right from the time of admission. It is correct that the condition of the patient  went  on  deteriorating  since  time of  his  admission.  It  is correct  that  the  patient  remained  admitted  throughout  in  ICU. Death summary Ex.  PW-9/A was prepared on the basis  of  the recording in the patient file. First document prepared at the time of the  patient  was  OPD  slip.  The  name  of  the  informer  was

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mentioned on the opd slip. I mentioned the informant in Ex. PW- 9/A to be ‘police’ from the OPD card.”

9.5. PW-14 Dr. Arvind had conducted post-mortem over the dead body of the

victim Sher Singh. In the external examination recorded by him, it had been

recorded as under: “…Burns injuries: (1) Cut down wound was present on the lower end of right upper arm. (2) Dermo-eprdermai burns superficial to deep  in  nature  were  present  all  over  the  body.  The  total percentage of burns area was about 100%. The area of redness was present on four  (sic) arms and front of chest. The area of blackening of skin was present on face, front of the chest. Peeling of skin was present on dorsome (sic) of hands, Front of legs. Heat split lecerations were present on front of left shoulder....No mark of violence of  leg,  signs of  struggle were present on the body. Smell of kerosene was present in scalp hair.”

9.6. PW-17 Dr. Rajesh Verma deposed that he had declared the patient to

be fit for giving his statement and an endorsement was made by him on the

requisition Ex. PW-16/A provided by the Investigating Officer at mark ‘X’. In his

cross-examination, this witness stated that after admission, the condition of

the  patient  was  continuously  deteriorating;  that  he  was  under  continuous

medical  watch;  and that  he ultimately  died at  4.00 a.m.  This  witness also

stated that the patient was under continuous medical attendance at ICU but

denied the suggestion that the certificate regarding fitness to make statement

was obtained from him by the police in a routine manner. 9.7. PW-8 Dr. Sushma, one of the members of the Plastic and Burns Ward

had attended on the injured Sher Singh when he was admitted to the hospital.

She deposed, in her examination-in-chief, that Sher Singh was initially brought

to the burns causality; that Sher Singh himself gave the alleged history that he

had sustained burn injuries when Purshottam and Suresh (telwala) threatened

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him and then poured kerosene on him and set him on fire. She also stated that

on examination,  the patient  was found conscious and oriented,  though his

general condition was critical, being that the entire surface area of his body

was found with  100% deep burns.  The relevant  contents  of  the statement

made by this witness PW-8 Dr. Sushma in her cross-examination may also be

taken note of in requisite details as under: “I  do not  know if  the  patient  was  removed earlier  to  the  main casuality of Safdarjang hospital. Burns patient are brought directly to  the  casuality  of  burns  ward.  Victim  Sher  Sg.  was  not accompanied by any  relative/attendant.  Police  had brought  the patient in the casuality. Death summary is prepared if the patient expires. Ex. PW-8/A is the first document prepared by me.  I do not remember if the patient was crying in agony when he was brought  at  the casuality. As  soon as the patient  arrives at  the casuality, OPD slip is prepared by the Junior Resident.  On the OPD card it is decided if the patient is to be admitted or to be sent back. MLC is prepared after the preparation of OPD card. OPD card was before me when I prepared the MLC Ex. PW-8/A. I have not recorded the fact in the MLC Ex. PW-8/A that the patient was brought  by  the  police.  I  remember  this  fact  by  memory.  It  is possible that some relations might have accompanied the patient. The OPD card remains in the patient file. It is incorrect to suggest that the patient had not given any alleged history or that later at the suggestion of the police I have prepared this MLC. No mark of identification of the patient was obtained on the MLC Ex. PW-8/A. The whole of the body of the patient including his thumbs were burnt.”

9.8. The testimonies of  five police personnel  related with this  matter also

need to be taken note of. PW-7 L/Ct. Anju deposed that on 18.12.1997, she

received information through a telephone call that some unknown person had

set himself on fire near Uttam Nagar bus stand and thereafter, she filled in the

PCR form regarding this information at Serial No. 467. The statement of this

witness was deferred for want of original record and she was further examined

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alongwith  the  original  proforma of  PCR,  photocopy  whereof  was  taken on

record as Exhibit PW-7/B. 9.9. PW-13 Ct. Vijay Parkash in his examination-in-chief stated that at the

relevant time, he was on emergency duty at  Police Station Vikas Puri  and

reached the spot with SI Rajesh Kumar after receiving information about an

injured person lying at Dal Mill Road, Goverdhan Park; and on reaching the

said spot, they were informed that the injured had already been shifted to the

hospital by PCR Van. Thereafter, SI Rajesh instructed him to remain at the

spot and left for the hospital. Upon his return from the hospital at about 09.50

p.m., SI Rajesh handed him one rukka for registration of an FIR at the police

station whereupon he got recorded FIR at No. 780/97 and returned to the spot

with  a  copy  of  FIR  and  thereafter  assisted  the  Investigating  Officer  to

collect/seize  certain  articles  from the  spot,  which  were  later  sealed  in  an

envelope. In his cross-examination, this witness deposed as under: “…There is a distance of about 1 ½ Km. between the PS and the spot. About 15/20 public persons were already present at the spot when  we  reached  there.  Insp.  Rajesh  had  not  recorded  the statement  of  any  person  on  reaching  at  the  spot.  After  Insp. Rajesh had returned at the spot at 9.50 P.M. from the hospital, he did not record statement of any person in my presence….I.O. had not  called  any  public  person  at  the  time  of  sealing  the  case property….”

9.10. PW-18 ASI Harish Ram stated in his examination-in-chief  that at  the

relevant time on 18.12.1997, he was posted in PCR West Zone when they

received a wireless message at around 3.30 p.m. that a person was in burnt

condition near scooter market, Uttam Nagar and on receiving this information,

they immediately reached the spot in the Van and found one male person in

burnt condition at plot No. 17 Goverdhan Park where about 20-30 persons had

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gathered; that they lifted the burnt person in the PCR Van and removed him to

Safdarjung Hospital; that the name of victim came to be known as Sher Singh;

that no public person accompanied them from the spot in PCR Van; and that

the patient was crying in pain on the way, he did not have any talk with them.

In his initial cross-examination, this witness stated that they did not make any

effort to talk to the burnt person as he was not in a condition to speak; and that

no  relative  of  the  patient  met  them  at  the  hospital.  In  his  further  cross-

examination, the witness admitted the fact that the first message as received

had been about the person having set himself on fire whereupon they reached

the spot. The witness pointed out that it took them about 5-7 minutes to put the

victim in the PCR Van but denied the suggestion that the people present there

informed that the patient put on the fire himself. The witness stated that at the

time of admitting the victim to hospital, he had given the name of victim as

Sher Singh, as was gathered from the persons present there; and repeated

the assertion that  the victim was not in a position to speak so long as he

remained  in  the  hospital  and  that  the  doctor  had  not  enquired  about  the

address of the victim in his presence.  9.11. PW-16 SI Rajesh Kumar, in his examination-in-chief deposed that after

a copy of DD No. 21A was handed over to him, he left with Ct. Vijay Parkash

for carrying out investigation; upon his reaching the site, he was informed that

the injured had been shifted to the hospital in a PCR Van; he then left Ct. Vijay

Parkash at the site and reached the hospital only to find that the injured was

admitted in the ICU and thus had sought permission through requisition Ex.

PW-16/A from the concerned doctor to record the statement of the injured. At

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about 7.50 p.m. the same day, he was informed that the patient was fit for

giving statement whereupon he recorded the statement Ex. PW-16/B verbatim

and obtained the left thumb impression of Sher Singh. It was also stated by

this witness that after recording the statement of Sher Singh, he went back to

the spot to carry out investigation and handed over rukka to Ct. Vijay Parkash

for  registration  of  FIR.  Thereafter,  the  site  plan  was  drawn,  the  site  was

photographed and certain articles were seized and sealed. He further stated

that he had effected arrest of the two accused persons named by Sher Singh

in the night intervening 18/19.12.1997; and that after receiving information that

Sher Singh had passed away in the morning of 19.12.1997, the investigation

was handed over to the Inspector Om Parkash, Additional SHO. 9.11.1. In his cross-examination, this witness stated that  when he had

gone to arrest  the accused persons in the night  and apprised them of  the

statement made by Sher Singh, the accused persons denied any involvement

in the commission of the said offence. He also deposed as under: “…On reaching at  the spot,  I  did not make any investigation regarding  the  information  recorded  in  DD No.  21A that  one person had set himself on fire. I did not investigate this fact till the investigation remained with me. *** *** *** …I had made enquires from the public persons present there during my stay for about 20 or 25 minutes at the spot. At that time, no evidence had come to show that injured Sher Singh had put on fire by someone.”

9.11.2. PW-16 also stated that on reaching the hospital at about 5.45 to 6

p.m., he collected the MLC of Sher Singh and came to know that Sher Singh

had held  Purshottam and  Suresh  responsible  for  his  condition;  he  started

recording the statement of the patient at about 8 p.m. and that no other doctor

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or nurse was with them at the time of recording the statement. Though PW-16

stated that he did not put in any efforts to call for SDM or MM to record the

statement  of  Sher  Singh,  yet  he  volunteered  to  state  that  he  had  sought

opinion of the concerned doctor that if he could summon SDM or MM to record

the  statement  but  the  doctor  stated  that  the  condition  of  the  injured  had

become critical.   He  also  stated  that  the  injured  Sher  Singh  had stopped

talking by that time. 9.11.3. More specifically, in the cross-examination conducted on behalf of

the accused Suresh, PW-16 stated that the whole body of Sher Singh was

wrapped  in  bandages  except  his  eyes,  nose  and  mouth.  He  denied  the

suggestion that the thumb impression on the statement was forged and that

the  deceased  was  not  in  a  position  to  put  his  thumb  impression  on  the

statement recorded. The relevant part of his testimony in this regard could also

be usefully taken note of as under: “The patient came out of the ICU at about 7.45 P.M. of 8 P.M.…. When I  had moved an application for  recording statement  of  the patient, one doctor and one nurse were present beside the patient. I had not requested the doctor and nurse in writing to remain present at the time of recording dying declaration of the patient. (Volunteered I had requested them orally). ….. I had not informed the doctor and nurse  about  the  consequences  for  not  joining  the  investigation. (Volunteered at  that time I was not aware that the patient will  be dying). When the patient was brought out of ICU I had seen him burnt all over the body.  The whole body of the patient excluding eyes, nose and mouth was wrapped  with  bandages.  The  ears  were  also  not  wrapped  with bandage. It is incorrect to suggest that Patient Sher Singh did not make any dying declaration and I had forged and created falsely the dying declaration Ex. PW-16/B to be that of deceased Sher Singh. It is incorrect to suggest that the thumb impression at point A on Ex. PW-16/B has been forged afterwards and deceased was not in a condition to put his thumb impression. It is also incorrect to suggest that deceased Sher Singh had died in the ICU itself and was dead when brought out of ICU.”

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9.11.4. PW-16  also  stated  that  he  did  not  get  the  statement  of  other

witnesses from the spot or the nearby residential  houses nor did he make

efforts to find out as to who had called the police to inform about the incident.  9.12. PW-19  Inspector  Om  Prakash  had  been  the  Additional  SHO,

Police Station Vikas Puri who took over the case from SI Rajesh Kumar on

19.12.1997. He prepared the inquest report in the presence of the brothers of

the deceased and sent the dead body for post-mortem and after post-mortem

handed over the same to his family members. This witness further pointed out

that  he  recorded  the  statement  of  Rajesh  at  the  spot  and  made  further

enquiries but  no other person gave the statement.  This  witness,  inter  alia,

stated that on 18.12.1997, he along with SHO Police Station Vikas Puri had

reached the hospital on getting the information about the critical condition of

victim and SI Rajesh Kumar met them; at that time the victim was lying in

adjoining  room  of  ICU.  The  witness  further  stated  that  when  the  doctor

concerned  was  asked  to  attest  the  statement  of  injured  Sher  Singh  as

recorded by SI Rajesh Kumar, the doctor pointed out that the facts had already

been mentioned in the MLC and there was no need to attest the statement

recorded by SI Rajesh Kumar. In cross-examination the witness admitted the

fact that in the related DD entry, the information recorded had been that one

person had put  himself  on fire.  In the other part  of  cross-examination, this

witness was given the suggestions that when he was in-charge PP Matiala,

hot words were exchanged with accused persons and further hot words were

exchanged with them when he was in-charge PP East Uttam Nagar regarding

15

some demonstration of workers. It was yet further suggested that one week

prior  to the incident,  he had an altercation with the accused persons.  The

witness, of course, denied such suggestions. 10. As noticed, the contents of two documents, namely, the MLC report said

to have been prepared by PW-8 Dr. Sushma (Ex. PW-8/A) and the statement

said to have been recorded by PW-16 SI Rajesh Kumar (Ex. PW-16/B), form

the core of this case inasmuch as the prosecution has relied upon them as

being the last statements made by Sher Singh after the incident and few hours

before his demise. Hence, the contents of these documents also need to be

taken note of.  10.1. In  the  MLC  Ex.  PW-8/A,  said  to  have  been  prepared  by  PW-8  Dr.

Sushma at 4.35 p.m. on 18.12.1997, the particulars of the patient were stated

as  Sher Singh son of Ganpat Ram age 23 years M and address as  H-603,

Pankha Rd. N. Delhi. While stating that the time of burning was approximately

3.30 p.m. and time of admission was 4.35 p.m., it was also stated therein that

the informant was the patient himself. The doctor noticed that the patient was

‘conscious, oriented’ and that he had suffered ‘burn injuries involving whole of

the body surface area-100% deep burn’.  On the significant part,  the doctor

stated the information given by the patient in the following terms: “Alleged to have sustained burn injury when some Purshottam & Suresh (telwala)3 threatened him & then poured kerosene on him & set him on fire.”

10.2. The statement of the injured Sher Singh (Ex. PW-16/B) is said to

have been recorded by PW-16 SI Rajesh Kumar in the hospital in Hindi

3 In Ex.PW-8/A, the expression ‘telwala’ is placed in parenthesis and is written in Hindi, though other  contents are in English.

16

language. Its approximately accurate translation, as adopted by the High

Court, reads as under: “Statement  of  Sher  Singh,  S/o  Ganpat  Ram,  R/o  A-603,  Pankha Road, J.J.Colony, Uttam Nagar, Delhi aged 23/24 years. I reside with my mother and I am employed as a helper in vehicle No. DL-IL-0382 Tata 407 owned by Raghunath who resides opposite Chaddha Hotel, J.J.Colony, Uttam Nagar the drivers of which vehicle are Natthu and Raju. Suresh who runs an oil depot on Hastal Road gave me half bottle of liquor which I drank. Suresh and Purshottam who have an oil depot at Jeevan Park and Suresh resides at 795, J.J.Colony  and  Purshottam  resides  at  686,  J.J.Colony,  Pankha Road. Suresh poured kerosene oil on me and Purshottam was with him. Suresh thereafter set me on fire by lighting a match.”

10.3. Another relevant document for the present purpose is the PCR form (Ex.

PW-7/B) wherein it was recorded in Part-I that the information was received

that  ‘near  scooter  market,  Prem Nagar  Bus  Stand,  Dall  Mill  Road,  Uttam

Nagar, one person has put himself on fire’. In Part-II, the information recorded

had been that the victim was found to have suffered 100% burn injuries; he

was being taken to the hospital; and was identified as ‘Sher Singh s/o Ganpat

Ram age 23/24 years R/o 603 Pankha Road, Uttam Nagar’.  In Part III, it was

recorded that the patient was admitted in the hospital in 100% burn condition

and he was not saying anything. However, in the last part of this document, it

came to be recorded that as per the patient’s statement to the doctor, ‘Suresh

and  Purshottam  threatened  him  and  then  put  him  on  fire  after  pouring

kerosene oil’.  11. In their statements under Section 313 of the Code of Criminal Procedure

(‘CrPC’), both the appellants denied their involvement in the commission of the

offence i.e., putting Sher Singh on fire. 11.1. The  relevant  portions  of  appellant  Purshottam’s  statement  read  as

under:

17

“Q.3  It  is  further  in  evidence  against  you  that  you  are  active worker of BJP. On two or three occasions, prior to the incident quarrels/ disputes had taken place of yours with deceased Sher Singh. No report was got lodged with the police about the quarrels due to fear. What have you to say? Ans. It is correct that I am an active member of BJP. Second part is incorrect. *** *** *** Q.20 It is further in evidence against you that patient Sher Singh (since deceased) had further stated in his statement to PW-16 SI Rajesh Kumar that co-accused Suresh had put him on fire with match  stick  and  both  of  you  were  residing  at  A Block,  Uttam Nagar. What have you to say? Ans. It is correct that I am residing at A Block, Uttam Nagar. Rest is denied.

*** *** *** Q.43 Do you want to say anything else?

Ans.  That  being  politically  known person,  I  have  been  falsely implicated by certain persons adversely interested against me.”

11.2. The accused Suresh also submitted that he had been falsely implicated

in the case and that the evidence led in against him was false. He gave out his

version in the following:- “Q.42 Do you want to say anything else? Ans. I am innocent. I am running a business of hardware under the name and style of “M/S NEW DELUX PANTS and at no point time I have kerosene oil depot. The police has implicated me in this case falsely and I was picked up from my residence by the police of PS Vikas Puri on the false pretext that certain enquiries are to be made and they assured me to release on the same day. But after taking me forcely from my residence the police involved me in this case. I do not know the deceased.”

The Trial Court found the appellants guilty 12. After conclusion of the trial and after having heard the parties, the Trial

Court  proceeded  to  determine  the  questions  involved  in  the  matter  in  its

impugned judgment dated 30.01.1999. The Trial Court found that there was no

direct  evidence  about  the  commission  of  offence;  and  that  the  entire

18

prosecution case was hinging upon the two dying declarations said to have

been made by the deceased Sher Singh.  12.1. The Trial Court accepted the genuineness of the evidence led in by PW-

8 Dr. Sushma that the victim Sher Singh himself had informed her the reason

and cause behind his injuries; that she had found the victim to be conscious

and oriented though his general condition was critical; and that the veracity of

the MLC Ex. PW8/A prepared by her could not be doubted. The Trial Court,

inter alia, observed and held as under:

“16.  From the entire testimony of  PW-8 Dr. Sushma, I  am of  the considered view that she has fully proved the contents of MLC Ex. PW-8/A  prepared  by  her.  PW-8  Dr.  Sushma  was  a  responsible officer and was not expected to fabricate the vital piece of evidence against  the accused persons  with  whom no ill-will  or  enmity  has been alleged.  No motive can be imputed to PW-8 Dr. Sushma to fabricate the dying declaration at the instance of the police.  I have gone through the MLC Ex.PW-8/A which is in the handwriting of PW- 8 Dr. Sushma.  Same bears her sign at point A.  The preparation of MLC by Dr. Sushma and examination of the deceased at the time has not been challenged in the cross-examination.  There is no merit in the argument of the Ld. Defence counsel that since OPD card was not produced on merit, the MLC prepared by Dr. Sushma cannot be considered.  Nothing has come on record about the contents of the OPD card.  If the OPD card was so material or relevant in the case to  falsify  the  MLC  Ex.PW-8/A,  there  was  no  obstruction  for  the accused persons to summon the OPD card in their defence or at the time of cross-examination of PW-8 Dr. Sushma.  Since OPD card is not on the file and the contents of the same are not known to the court, no adverse inference can be drawn against the prosecution and by no stretch of imagination, the veracity of MLC prepared by PW-8 Dr. Sushma can be doubted.  Dr. Sushma had no axe to grind to falsely record the alleged history given by the deceased himself. Nothing has come on record to show if Dr. Sushma was known to the deceased or any of his family members to favour them.….. PW-9 Dr. H. K. Sharma, PW-17 Dr. Rajesh Verma both from Safdarjang hospital have been examined by the prosecution. The MLC prepared by Dr. Sushma Ex.PW-8/A has not been challenged in their cross- examination also.  So I am of this view that there is no doubt about

19

the preparation of the MLC Ex.PW8/A by Dr. Sushma and in view the same has been proved on record beyond reasonable doubt.”

12.2. The Trial Court also accepted the testimony of PW-16 SI Rajesh and the

statement  of  the  victim  said  to  have  been  recorded  by  him  as  the  dying

declaration with the findings as under:

“18. Perusal of the above said testimony of PW-16 SI Rajesh Kumar reveals that statement of the injured (subsequently treated as dying declaration)  was  recorded  by  PW-16  SI  Rajesh  Kumar.   The presence of SI Rajesh at the hospital has not been denied by the accused persons.   PW-13 Ct.  Vijay Parkash in his testimony has corroborated the version of PW-16 SI Rajesh that on receipt of DD, he alongwith SI Rajesh had reached at the spot at 3.15 P.M. and there  they  had come to  know that  the  injured  had already  been removed by PCR van to the hospital.  Insp. Rajesh had left him at the spot and he himself had left for the hospital.  No suggestion was put by the accused persons to PW-8 Dr. Sushma, PW-9 Dr. H. K. Sharma and PW-17 Dr. Rajesh that SI Rajesh was not present at the hospital  or that he had not recorded any statement of the injured Sher Singh.  PW-16 SI Rajesh has proved on record the application Ex.PW-16/A moved by him before the doctor to record the statement of injured Sher Singh.  Endorsement of PW-17 Dr. Rajesh Verma declaring the patient to be fit for statement at 7.50 P.M. appears at portion A on Ex.PW-16/A.  Dr. Rajesh appearing before the court as PW-17 has also deposed that he had declared the patient to be fit for  statement  on  the  application  of  the  IO  Ex.PW-16/A.   No suggestion was put to this witness in the cross-examination by the accused persons that no such application was moved by the IO at that time.  PW-17 Dr. Rajesh Verma working as a doctor was having no motive to falsely make his endorsement at portion A on Ex.PW- 16/A.   The  application  Ex.PW-16/A  categorically  proves  the presence of PW-16 SI Rajesh at the hospital at 7.50 P.M. Once the permission was obtained by SI Rajesh to record the statement of Sher Singh at 7.50 P.M. from PW-17 Dr. Rajesh he was supposed to right (sic) the statement of the injured and it does not lie in the mouth of the accused persons to state that the statement of  the injured Sher Singh was fabricated afterwards by the IO.  No suggestion was put to PW-17 in the cross-examination by the accused persons that even after endorsement made by him on Ex.PW-16/A, the IO had not record the statement of injured Sher Singh.…..

20

19.  Nothing  has  come  on  record  to  show  if  any  relative  of  the deceased was present  at  the time when injured Sher  Singh was brought at hospital  or when his MLC Ex.PW-8/A was prepared or when statement Ex.PW-16/B was recorded by PW-16 SI Rajesh.  No motive has been imputed by the prosecution to this witness to falsely fabricate the statement of the deceased.  At the time of recording the statement Ex.PW-16/B, there was nothing in the mind of SI Rajesh to show that injured Sher Singh would expire soon.  SI Rajesh got recorded the case u/s 307/34 IPC against both the accused persons. Rukka was sent from the spot at 9.55 P.M.  The FIR was registered thereafter at 10.20 P.M.  The names of both the accused persons were mentioned in the MLC Ex.PW-8/A and in the statement Ex.PW- 16/B.  The death of  injured Sher Singh had not occurred by that time.  So it cannot be imagined that SI Rajesh Kumar would get the case registered giving the names of  the accused persons at  that time.  The case had been registered on 18.12.97.  The intimation about the death of injured Sher Singh was received at PS Vikas Puri on 19.12.97 in the morning.  The accused persons admittedly were arrested on the intervening night of 18/19.12.97 from their respective houses  even  before  the  death  of  the  deceased.  All  these  facts clearly rule out the possibility of any manipulations or fabrications….”

12.3. The Trial Court also did not find any adversity in the situation that no

statement was made to PW-18 ASI Harish by Sher Singh when he was being

transported to the hospital. The Trial Court also rejected the other contentions

urged on behalf of the accused appellant and held that even if the victim had

suffered 100% burn injuries, the dying declaration made by him was not to be

rejected as there was nothing to show that the mental condition of injured Sher

Singh was such that he was unable to speak and, inter alia, held as under:

“25……… I am of the view that despite suffering 100% burns, injured Sher Singh was mentally fit to make dying declaration. The  certificate  issued  to  that  effect  by  PW-17,  Dr.  Rajesh clinches the entire issue.

26. ….Moreover, mere for the negligence of the IO to get record the dying declaration from the SDM, the dying declaration Ex. PW-8/A and  Ex.  PW-16/B  cannot  be  rejected  on  that  score

21

alone. It is not always mandatory for the police to get record the dying  declaration  from  the  SDM  or  Ld.  M.M.  though  the recording of the dying declaration by these officers do expire (sic) much confidence….”

  12.4. One of the principal submissions on behalf of the accused persons had

been that as per the testimony of PW-6 Rajesh, the victim had at the first point

of time made the statement to the effect that he had put himself on fire. The

Trial Court rejected this part of the statement made by PW-6 Rajesh in his

cross-examination while observing as under:

“29……The  testimony  of  PW-6  before  the  court  is  somewhat contradictory  on  many  aspects.   In  the  examination-in-chief,  the witness merely stated that the victim had told his name to be Sher Singh.  In the cross-examination, he has further disclosed that the victim  had  also  given  his  home  address  i.e.  A-603,  J.J.  Colony, Uttam  Nagar.   In  the  examination-in-chief,  this  witness  did  not depose that the victim had told to some public persons that since he was dropped from the tempo, he (Sher Singh) had set himself on fire.  Again in the examination-in-chief, the witness did not state that the Daljit and Rinku were present at the spot and Daljit had told him in the evening that he had seen the victim carrying kerosene oil in a polythene towards that plot.  Similarly, this witness did not depose about preparation of cassette by T.V. persons after 2/3 days after incident  and  about  the  disclosure  of  Daljit  Singh  to  them  in  his interview about the victim carrying kerosene oil in the polythene to that  plot.  The  witness  did  not  disclose  all  these  facts  in  the examination-in-chief  to  give  an  opportunity  to  the  prosecution  to confront him on the facts recorded in his statement u/s 161 Cr.P.C. The testimony of  this  witness on all  these facts  does not  inspire confidence  and  does  not  shatter  the  dying  declaration  recorded subsequently by PW-8 and PW-16.  In view of above discussion, I am fully of the view that dying declarations Ex.PW-8/A and Ex.PW- 16/B were duly made by the deceased Sher Singh and the same were  duly  recorded by  PW-8 Dr.  Sushma and PW-16 SI  Rajesh respectively.”

12.5.   The  Trial  Court  found  that  the  two  dying  declarations  inspired

confidence and were worthy of reliance while observing that the same were

22

recorded at the earliest; that none of the relatives of the victim were present at

that  time;  and  that  there  was  nothing  to  suggest  if  the  deceased  was

influenced by any consideration to falsely name the accused persons while

letting the real culprits go scot free.  

12.6. The  Trial  Court,  though  found  that  the  prosecution  had  failed  to

establish the motive of the accused persons for setting the deceased Sher

Singh  on  fire,  but  observed  that  merely  for  want  of  proof  of  motive,  the

prosecution case could not be discarded and said as under:

“42. Though the prosecution has failed to prove specifically motive of the accused persons to put the deceased on fire, yet the same is not fatal to be prosecution case.  SI Rajesh Kumar has deposed that he has made efforts to enquire the motive of the accused persons from the deceased but he had stopped talking by that time.  However, it has come on record that the deceased was known to the accused persons. The deceased and the accused persons were the residents in the same locality.  PW-1 Raju has categorically deposed that on 2/3 occasions earlier also dispute had taken place of the deceased with accused Purshotam.  They had not lodged any report with the police about the quarrels due to fear.  In the cross-examination the testimony of the witness regarding the quarrels to have taken place earlier  with  the  accused  Purshotam  has  not  been  controverted. Nothing  has  been  suggested  by  the  accused  persons  about  the cause  of  quarrel  with  the  deceased.   It  is  very  difficult  for  the prosecution to establish motive in the absence of the victim.  The motive remains locked in the heart of the accused and in view of the categorically allegations in the dying declaration against them, the failure of the prosecution to prove the motive positively pales into insignificance….”

12.7. The Trial  Court  also referred to the contention that no overt  act  was

attributed to the accused appellant Purshottam but opined that in the proven

circumstances, he could not escape liability while observing as under:

23

“50. From the law laid down by the Hon’ble Supreme Court in the above judgment, it is clear that accused Purshotam cannot escape the consequence simply because no overt act was attributed to him by deceased Sher Singh in his second dying declaration Ex.PW- 16/B.   Reading  the  substrum of  both  the  dying  declaration  as  a whole, I am of the view that the deceased has implicated both the accused persons for the offence committed by them.  It was accused Purshotam who was having previous quarrels with the deceased. So  all  these  proved  circumstances  on  record  clearly  proved  the involvement of both the accused persons in the commission of the offence.”

12.8. In the ultimate analysis, the Trial Court found proved the prosecution

case beyond reasonable doubt and hence, convicted the accused-appellants

for  the  offence  under  Section  302/34  IPC  and  sentenced  them  to  life

imprisonment.  

The High Court affirmed the conviction and sentence

13. Assailing  the  order  of  conviction,  the  accused  persons  preferred

separate appeals, being Criminal Appeal Nos. 121 of 1999 and 139 of 1999

before the High Court of Delhi.  The High Court reappreciated the evidence

and  concurred  with  the  decision  of  the  Trial  Court  while  holding  that  the

statement  made by  the  deceased  Sher  Singh  to  Dr. Sushma (PW-8)  and

recorded by her in the MLC (Ex. PW-8/A) as also the statement made by him

to SI Rajesh Kumar (PW-16) in Ex. PW-16/B,  which were considered to be

the  dying  declarations,  clearly  established  the  crime  alleged  against  the

appellants.  

13.1. The High Court particularly referred to the fact that in the PCR Form

(Ex.  PW-7/A) the entries came to be made by PW-7 Ct.  Anju not  only  as

24

regards the information received at the initial stage but further to that about the

nature  of  injuries  as  also  the  particulars  of  the  victim  with  his  name and

address and the fact that he was admitted to the hospital. The High Court, in a

comprehension of the material on record, found that PW-18 ASI Harish had

not been truthful in his assertion that the victim did not say anything to him

because the subsequent  entries in the PCR Form (Ex.  PW-7/A)  could not

have been made by PW-7 Ct. Anju but for the information passed on to her by

PW-18 ASI Harish, who, in turn, ought to have gathered all such particulars

from the victim only. The High Court, inter alia, observed as under:

“11…..To a  person with  ordinary  commonsense  and requiring  no great process of  reasoning, it  would be apparent that Anju would write the name, the parentage, the age, the address, the 100% burnt condition of Sher Singh, kerosene oil being used to burn him and he being removed to Safdarjung Hospital only through the mouth of ASI Harish, who had dared to stare into the eyes of the judicial process and falsely state that on the way to the hospital he had no talk with the deceased……”

13.2. The High Court further proceeded to analyse the description appearing

in MLC Ex. PW-8/A and found that such entries were obviously made by PW-8

Dr. Sushma on the information divulged by the victim himself. The High Court

said,-

“14. Dr.Sushma has contemporaneously recorded that Sher Singh told  her  that  Purshottam and  Suresh  have  set  him  on  fire  after pouring  kerosene  oil  on  him.   How would  Dr.Sushma  know  two names i.e.  Purshottam and Suresh unless somebody told her so. Obviously it is Sher Singh who gave said names to her.”

13.3. The High Court also referred to the contents of the dying declaration

Ex.PW-16/B and observed as under:

25

“21. That in the dying declaration Ex.PW-16/B not only the names but the avocation and even the residential address of the accused has  been  given  with  lethal  precision  lends  assurance  to  the truthfulness  of  the  dying  declaration  so  recorded  and  this  dying declaration is upon proof of Sher Singh being fit when he made the statement, notwithstanding his condition being critical for the reason a person may be in a critical medical state but may be mentally fully conscious.”

13.4. After  rejecting  the  contention  urged  on  behalf  of  the  appellants  as

regards the reliability of the dying declarations recorded by PW-8 Dr.Sushma

and PW-16 SI Rajesh Kumar, the High Court accepted the case of prosecution

while observing as under:

“30.  The  settled  legal  position  is  that  a  dying  declaration  which inspires confidence needs no corroboration to sustain itself and in the instant case we have already discussed that there is sufficient evidence to bring luminance of gold to the two dying declarations made by Sher Singh and we do not find the same to be copper and that there is intrinsic evidence of truthfulness in the same for how could  Dr.Sushma  and  SI  Rajesh  Kumar  note  the  name,  the parentage,  the  age and the address  of  the deceased unless the deceased  told  them  so.   How  could  SI  Rajesh  Kumar  note  the names  of  the  accused,  their  avocation  and  their  residential addresses  unless  the  deceased  told  him  so.  These  are  tell  tale pointers leading in the direction of the truthfulness of the two dying declarations made by Sher Singh and we have no evidence that Dr.Sushma has contrived a writing on the MLC.  Why should she do so?  There is no evidence why SI Rajesh Kumar would contrive a document? There is no evidence of any such contrivance on the part of the two.  Though critical, but in a state of mind fit enough to make a  statement  is  the  evidence  which  has  surfaced  through  the testimony of  Dr.Rajesh Verma and he is  the third person against whom no evidence of contrivance has emerged.

31…as per the post-mortem report Ex. PW-14/A the deceased died due  to  shock  consequent  upon  100%  ante-mortem  flame burns….The state of the hands of the deceased i.e., skin peeling on the dorsum of the hands shows the extent of the burn injuries on the hands on the dorsa side i.e. not the palm but the outer portion of the hand and therefrom there is an indication that kerosene was doused on the deceased by somebody else and not the deceased himself for if  the deceased had poured kerosene oil  on himself the same

26

could not fall  on the dorsum of  the hands and if  this was so we would have not found peeling of the skin on the dorsum of the hand and  this  is  an  additional  piece  of  evidence  wherefrom it  can  be inferred that  somebody else doused the deceased with  kerosene and not the deceased self doused himself with kerosene.”

13.5. While rejecting the contentions urged on behalf of the appellants that the

statement allegedly made by the victim Sher Singh to PW-6 Rajesh that for

being dropped from the tempo he had set himself on fire may be accepted as

the first dying declaration and, while approving the findings of the Trial Court in

paragraphs 29 of the impugned judgment, the High Court said,-

“28.  The contention that  Rajesh PW-6 has  categorically  deposed that when he was near Sher Singh soon after Sher Singh was seen by him engulfed in flames, somebody in the crowd asked him as to how  he  had  caught  fire,  Sher  Singh  replied  that  since  he  was dropped from the tempo he had set himself on fire and this is the first point of time on which Sher Singh made a dying declaration and thus the same had to be accepted is a plea which was raised before the learned Trial Judge and has been rightly rejected and for which we accept the reasoning of the learned Trial Judge in para 29 of the impugned order and since each and every reasoning of the learned Trial Judge is accepted by us, we need not burden our decision by re-penning  the  same  and  would  comment  that  para  29  of  the impugned  judgment  be  read  as  an  integral  part  of  our  present opinion.”

13.6. Therefore,  the  High  Court,  rather  in  its  independent  analysis  of  the

evidence on record, concurred with the conclusion of guilt of the appellants

and dismissed the appeals.   

Rival Contentions

14. Assailing the conviction and sentencing in the impugned judgment,  it

has been contended on behalf of appellant No. 1 that the conviction of this

appellant is based only on speculations and the prosecution had even failed to

27

prove his identity. As regards value and worth of the alleged dying declarations

of the deceased, learned counsel would argue that such dying declarations

are  not  reliable  for  various  reasons  and  counts.  The  learned  counsel  has

elaborated that the assertion occurring in the dying declaration Ex. PW-16/B

that the deceased had consumed liquor is falsified by the post-mortem report

Ex. PW-14/A stating that there were no traces of alcohol in the body of the

deceased. Learned counsel has also argued that as per PW-8 Dr. Sushma,

the deceased was suffering 100% deep burns involving whole of the body and

the nature of the injury was grievous; and she had also testified that thumbs of

the deceased were burnt. Thus, according to the learned counsel, in the given

status  of  burns,  including  the  thumbs,  assertion  of  PW-16  about  having

obtained the thumb impressions of the deceased is clearly falsified; and dying

declaration alleged to have been recorded by PW-16 appears to be a doctored

and manipulated document. It has also been argued that PW-16 had ample

opportunity to call for a Magistrate for recording the dying declaration as he

was  allegedly  declared  fit  by  the  Doctor,  but  PW-16  did  not  do  so  and

purportedly recorded the dying declaration himself that further casts serious

doubt on the correctness of such alleged dying declaration. Learned counsel

has referred to Chapter 13-A of the Delhi High Court Rules to submit that as

per the requirements therein, PW-16 ought to have requested the Magistrate

to record such dying declaration and in any case, ought to have taken the

attestation from medical or para-medical staff in attendance but he did not do

so,  and  this  creates  further  doubt  on  the  correctness  of  such  statement.

28

Learned counsel has argued that for various infirmities and inconsistencies as

also for want of corroboration, the alleged dying declarations cannot be relied

upon; and that being the sole basis of conviction, the impugned judgments

deserve to be set aside. The learned counsel has,  inter alia, referred to and

relied upon the decisions in  State of Punjab v. Gian Kaur and Anr.:  AIR

1998 SC 2809, Uka Ram v. State of Rajasthan: JT 2001 (4) SC 472, Dalip

Singh and Ors. v. State of Punjab: AIR 1979 SC 1173, Gopal Singh and

Anr.  v.  State  of  Madhya  Pradesh  and  Anr.:  AIR  1972  SC  1557  and

Thurukanni Pompiah and Anr. v. State of Mysore: AIR 1965 SC 939.

14.1. The learned counsel has further argued that there being no eye-witness

and  the  entire  matter  resting  upon  circumstantial  evidence,  the  appellants

could not have been held guilty before establishment of the entire chain of

circumstances  and  cogent  corroboration  of  the  alleged  dying  declarations.

The learned counsel has contended that the place of incident was a crowded

market and there were many shops in the area; and then, there was only one

exit from the place of incident. Thus, according to the learned counsel, it was

impossible  for  the  accused  to  escape  the  place  of  incident  without  being

spotted by any of the shopkeepers or people in the market; and they having

not being spotted so, the prosecution case cannot be relied upon.  

14.2. The  learned  counsel  has  further  relied  upon  the  testimony  of  PW-6

Rajesh to submit that in the very first instance, the victim made the statement

to the effect that he was dropped from the tempo he was working with and had

set himself on fire. The learned counsel would contend that PW-6 having not

29

been declared hostile, the statement made by the deceased to PW-6 ought to

be considered as the first dying declaration and therein, the cause of incident

having been stated by the deceased as self-immolation, the prosecution case

ought to fail on this count alone. The learned counsel has also contended that

the prosecution has failed to examine the other persons Rinku and Daljeet

whose names have occurred in the testimony of PW-6 and who were present

at the site when the deceased made his statement about self-immolation.

14.3. The learned counsel has also referred to the fact that as per PW-18,

who took the  deceased in  his  PCR Van from the place  of  incident  to  the

hospital, the deceased was crying the whole way and was unable to speak

and this version, according to the learned counsel, contradicts the testimony of

PW-16 that the deceased was in a fit state of mind and was conscious to give

his statement.

14.4. It has also been contended that the prosecution proved only Part I of the

document Ex. PW-7/A but not Parts II, III and IV thereof and such other parts

appear to be doctored and manipulated. The learned counsel has also argued

that the prosecution has failed to prove any motive on part of appellant No. 1

to commit the alleged offence and the hearsay testimony of PW-1 about his

having heard from his mother about the quarrel between appellant No. 1 and

the deceased is not of any value or substance. Learned counsel would also

contend that deceased himself had nowhere mentioned in any of the alleged

dying declarations about the motive behind the crime; and the prosecution

also having failed to prove any such motive, the prosecution case cannot be

30

said to have been established beyond reasonable doubts. It has also been

argued that the appellant No. 1 being shorter in height than the deceased,

there  was  no  likelihood  of  him  throwing  kerosene  on  the  head  of  the

deceased.

14.5. Lastly, with reference to the decision in Sharad Birdhi Chand Sarda v.

State of Maharashtra: (1984) 4 SCC 116,  learned counsel has contended

that when two views are possible on evidence, one pointing to the guilt of the

accused and another to his innocence, the accused is entitled to the benefit of

the one which is favourable to him.

15. While assailing the conviction and sentencing, learned counsel for the

appellant No. 2 has argued that the alleged dying declarations are not reliable

and conviction could not have been based thereupon. It has been contended

that the dying declarations are unreliable for various reasons that: (a) the OPD

Card which was the first document prepared by the Hospital was not produced

on record; (b) the tone and tenor of the language used in Ex. PW-8/A shows

that it could not have been the statement of the deceased since he was in

critical condition; (c) that the document Ex. PW-16/B, recorded almost three

hours after the alleged first statement could not have been more detailed when

the condition of deceased was critical and as per the treating Doctor PW-9, the

condition of the deceased was continuously deteriorating; (d) that the thumb

impression of the deceased on the dying declarations is entirely doubtful when

he had suffered 100% burns all over the body; (e) that there were no indication

of liquor consumption in MLC or post-mortem report; (f) that if the deceased

31

had consumed half bottle of liquor, his making long narrative with intelligible

and coherent statement remains doubtful; (g) and that no effort was made to

requisition the services of Magistrate for the purpose of recording the dying

declarations. Thus, according to the learned counsel, the dying declarations

do not pass through the test of truthfulness and reliability and cannot be acted

upon.   

15.1. The learned counsel for appellant No. 2 has also strongly relied upon

the  testimony  of  PW-6  Rajesh  who  was  not  declared  hostile;  and  has

contended that the entire prosecution case fails when it  is noticed that his

version  about  self-immolation  by  the  deceased  is  in  sharp  contrast  to  the

contents of the alleged dying declarations.  

15.2. The learned counsel for the appellant No. 2 has further contended that

the prosecution has failed to establish any motive for commission of crime by

this  appellant  and,  with  reference  to  the  decision  in  Kalabai  v.  State  of

Madhya Pradesh: 2019 SCC ONLINE SC 621, has argued that motive having

not been proved, conviction under Section 302 IPC is not sustainable.

15.3. Learned counsel has also urged in the alternative that in the given set of

facts and circumstances, even if the conviction of the appellant No. 2 is to be

maintained, the same may be altered to the one under Part II of Section 304

IPC.

16. Per  contra,  the  learned  senior  counsel  for  the  respondent  has

strenuously argued that the prosecution case clearly stands established by the

two dying declarations independently recorded, one by PW-8 Dr.Sushma and

32

another by PW-16 SI Rajesh. Learned counsel has referred to the Constitution

Bench decision of this Court in the case of Laxman v. State of Maharashtra:

(2002) 6 SCC 710 as also other decisions of this Court in  State of Madhya

Pradesh v. Dal  Singh:  (2013)  14 SCC 159 and in  Bhagwan v. State of

Maharashtra: (2019) 8 SCC 95 to submit that on the settled principles relating

to acceptability of a dying declaration, the contentions urged on behalf of the

appellants deserve to be rejected. The learned counsel would submit that the

two dying declaration are consistent on material points and features and the

same have rightly been accepted by the Trial Court as also by the High Court.

The learned counsel would also submit that at the time of recording of Ex. PW-

8/A, no relative or acquaintance of the victim was present and any possibility

of tutoring is totally ruled out. According to the learned counsel, there was no

occasion for PW-8 Dr.Sushma to record the particulars of the deceased and

other information of her own imagination; and such particulars and information

could have occurred in Ex. PW-8/A only when divulged by the victim himself.

Learned counsel  further  submitted that  even the question regarding thumb

impression pales into insignificance when it is noticed that there is no such

thumb impression on Ex. PW-8/A.

16.1. In regard to the thumb impression on Ex. PW-16/B, the learned senior

counsel has contended that even if the victim had allegedly suffered 100%

burns, the evidence is not to the fact that inner side of the hand/palm was also

burnt to the extent that the victim could not have put his thumb impression;

and post-mortem report would also show that dorsum of the hand was burnt

33

and therefore, taking of thumb impression on Ex. PW-16/B is not ruled out.

The learned counsel has contended that, again, there was no occasion for

PW-16, to record all the particulars of the victim as also the offenders including

their addresses, unless given out by the victim himself; and there is no reason

to discard this dying declaration Ex. PW-16/B either.  

16.2. As regards the possibility of the victim having set himself on fire and the

want of evidence of other persons named by PW-6, the learned senior counsel

has contended that such theory of self-immolation as also the names of other

persons essentially came to be introduced in the cross-examination of PW-6

Rajesh and therefore, the burden was on the accused persons to establish

such theory  and to  examine such alleged persons;  and no  fault  could  be

fastened on prosecution if such persons were not examined. According to the

learned counsel,  the  defence having  failed  to  establish  the  theory  of  self-

immolation, the contentions urged on behalf of the appellants deserve to be

rejected.

16.3. The  learned  senior  counsel  has  further  argued  that  so  far  as  the

question of motive is concerned, though the possibility of motive has come on

record in the testimony of PW-1 Raju but in any case, even if the prosecution

has not been able to lead cogent evidence as regards motive, the accusations

against the appellants do not fail, particularly in view of the facts occurring in

the two dying declarations.

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16.4. Thus, according to the learned counsel for the respondent, the dying

declarations have rightly been accepted in this case and the conviction of the

appellants on that basis calls for no interference.  

17. Having  given  thoughtful  consideration  to  the  rival  submissions  and

having examined the record, we find no reason to consider interference in the

conviction of the appellants and, in our view, these appeals must fail.

Admission and acceptability of dying declaration: the principles  

18.  The principles relating to admission and acceptability of the statement

made by a victim representing the cause of death, usually referred to as a

dying declaration, are well settled and a few doubts as regards pre-requisites

for acceptability of a dying declaration were also put at rest by the Constitution

Bench of this Court in the case of Laxman v. State of Maharashtra: (2002) 6

SCC 710.  

18.1.  In the said case of  Laxman, conviction of the appellant was based on

dying  declaration  of  the  deceased  which  was  recorded  by  the  Judicial

Magistrate.  The  Session  Judge  and  the  High  Court  found  such  dying

declaration to be truthful, voluntary and trustworthy; and recorded conviction

on  that  basis.  In  appeal  to  this  Court,  it  was  urged with  reference  to  the

decision in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh:

1999 CriLJ 4321 that the dying declaration could not have been accepted by

the Court to form the sole basis of conviction since certification of the doctor

was not to the effect that the patient was in a fit state of mind to make the

statement.  On the other hand, it was contended on behalf of the State, with

35

reference to the decision in Koli Chunilal Savji and Anr. v. State of Gujarat:

1999 CriLJ 4582, that the material on record indicated that the deceased was

fully  conscious  and  was  capable  of  making  a  statement;  and  his  dying

declaration cannot be ignored merely because the doctor had not made the

endorsement about  his fit  state of  mind to make the statement.  In view of

these  somewhat  discordant  notes,  the  matter  came  to  be  referred  to  the

Larger Bench. The Constitution Bench summed up the principles applicable as

regards the acceptability of dying declaration in the following:-

“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.  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

36

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 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.”

18.2.  The Constitution Bench affirmed the view in Koli Chunilal Savji (supra)

while holding that Paparambaka Rosamma (supra), was not correctly decided.

The Court said,-

“5…….It is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in  Paparambaka Rosamma v. State of A.P.(1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat (1999) 9 SCC 562.”

19.  In the case of Dal Singh (supra), this Court has pointed out that the law

does  not  provide  as  to  who could  record  dying  declaration  nor  is  there  a

prescribed format or procedure for the same. All that is required is the person

recording dying declaration must be satisfied that the maker is in a fit state of

37

mind and is capable of making such a statement. This Court also pointed out

that  as  to  whether  in  a  given  burn  case,  the  skin  of  thumb  had  been

completely  burnt  or  if  some part  of  it  will  remain  intact,  would  also  be  a

question of fact.  This Court said,-

“20. 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. 21. 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. 22. 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.”

19.1.   In  the  case  of  Bhagwan  (supra),  this  Court  accepted  the  dying

declaration made by a person having suffered 92% burn injury and whose

continued consciousness was certified by the doctor. This Court referred to the

decision in Vijay Pal v. State (Government of NCT of Delhi): (2015) 4 SCC

749, where the statement made by the victim having suffered 100% burn injury

was also accepted. This Court said :-

“ 23…..(B). Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration?  

38

24. This question is also no longer res integra. In Vijay Pal v. State (NCT  of  Delhi):  2015  (4)  SCC  749,  we  notice  the  following discussion: (SCC p. 759, paras 23-24)

‘23.  It  is  contended by the learned counsel  for  the appellant  that  when  the  deceased  sustained  100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat: (1992) 4 SCC 69 wherein it has been held that  a  person suffering  99% burn  injuries  could  be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the  case,  the  dying  declaration  was  found  to  be worthy of reliance.

24. In State of M.P. v. Dal Singh: (2013) 14 SCC 159, a  two-Judge  Bench  placed  reliance  on  the  dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.’

25.  Therefore,  the  mere  fact  that  the  patient  suffered  92% burn injuries as in this case would not stand in the way of patient giving a dying  declaration  which  otherwise  inspires  the  confidence  of  the Court and is free from tutoring, and can be found reliable.”

20.  In the case of Gian Kaur (supra), the dying declaration was disbelieved

on the ground that though as per medical evidence the deceased had 100%

burn injuries but the thumb mark appearing on the dying declaration had clear

ridges and curves. The benefit of doubt extended by the High Court was found

to  be  not  unreasonable  and  hence,  this  Court  declined  to  interfere  while

observing as under:-

“5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found the evidence of

39

Dr Ajay Sahni-PW 1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body  and  both  the  thumbs  of  Rita  were  burnt.  In  view  of  such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view.”

20.1.   In the case of  Gopal  Singh (supra),  the Court  found that  the dying

declaration did not contain complete names and addresses of  the persons

charged with the offence and it was found that conviction could not be based

on  such  dying  declaration  alone  without  corroboration.  Essentially,  for  the

infirmity carried by such dying declaration, this Court found lesser justification

for the High Court’s interference with the order of acquittal while observing as

under:-

“8.  But  even  if  we  assume  that  the  High  Court  was  right  in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without  corroboration.  It  is  settled  law that  a  court  is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required……”

20.2.  In the case of Dalip Singh (supra), the alleged dying declaration turned

out to be doubtful for it contained such facts which could not have been in the

knowledge of the deceased and hence, this Court found it unsafe to rely on

the same while observing as under: -

“9.…..The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is,

40

therefore,  safe  to  leave  out  of  consideration  this  dying declaration….”

20.3.  In the case of Thurukanni Pompiah (supra), this Court held that while a

truthful and reliable dying declaration may form the sole basis of conviction,

even  without  corroboration  but  the  Court  must  be  satisfied  about  its

truthfulness and reliability;  and if  the Court  finds that the declaration is not

wholly  reliable  and  a  material  portion  of  the  deceased’s  version  of  the

occurrence is untrue, the Court may, in the circumstances of a given case,

may consider it unsafe to convict the accused on the basis of the declaration

alone without further corroboration. This Court observed, inter alia, as under:-

“10. Under  clause (1)  of  Section 32 of  the  Indian  Evidence Act, 1872, a statement made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that person’s death comes into question, and such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of  the proceeding in which the cause of  his  death comes into question. The dying declaration of Eranna is therefore relevant and material evidence in the case. A truthful and reliable dying declaration may form the sole basis of conviction, even though it  is  not  corroborated.  But  the  Court  must  be  satisfied  that  the declaration  is  truthful.  The reliability  of  the  declaration  should  be subjected to a close scrutiny, considering that ‘it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased’s version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration.”

20.4. In the case of  Uka Ram (supra), this Court again emphasised on the

requirement that the Court  should be satisfied about  trustworthiness of  the

41

dying declaration, its voluntary nature and fitness of the mind of the deceased

and it was held that:

“6. ….Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.”

20.4.1. In the said case of  Uka Ram, however, the Court found that the

deceased  was  a  mental  patient  and  there  existed  a  doubt  about  mental

condition of the deceased at the time of making the dying declaration. In the

given circumstances, this Court found that to be a fit case to extend the benefit

of doubt to the accused.

21. For what has been noticed hereinabove, some of the principles relating

to recording of dying declaration and its admissibility and reliability could be

usefully summed up as under:-

i)  A dying  declaration  could  be  the  sole  basis  of  conviction  even  without

corroboration, if it inspires confidence of the Court.

ii) The Court should be satisfied that the declarant was in a fit state of mind at

the time of making the statement; and that it was a voluntary statement, which

was not the result of tutoring, prompting or imagination.

iii) Where a dying declaration is suspicious or is suffering from any infirmity

such as want of fit state of mind of the declarant or of like nature, it should not

be acted upon without corroborative evidence.

iv)  When the eye-witnesses  affirm that  the  deceased was not  in  a  fit  and

conscious state to make the statement, the medical opinion cannot prevail.

42

v)  The law does not provide as to who could record dying declaration nor

there  is  any  prescribed  format  or  procedure  for  the  same but  the  person

recording dying declaration must be satisfied that the maker is in a fit state of

mind and is capable of making the statement

vi)  Although  presence  of  a  Magistrate  is  not  absolutely  necessary  for

recording of a dying declaration but to ensure authenticity and credibility, it is

expected  that  a  Magistrate  be  requested  to  record  such  dying  declaration

and/or  attestation  be  obtained  from  other  persons  present  at  the  time  of

recording the dying declaration.

vii)  As regards a burns case, the percentage and degree of burns would not,

by itself, be decisive of the credibility of dying declaration; and the decisive

factor would be the quality of evidence about the fit and conscious state of the

declarant to make the statement.

viii)  If  after  careful  scrutiny, the Court  finds the statement  placed as dying

declaration to be voluntary and also finds it coherent and consistent, there is

no  legal  impediment  in  recording  conviction  on  its  basis  even  without

corroboration.   

22. Applying the relevant  principles to  the facts of  the present  case,  we

have not an iota of doubt that the appellants have rightly been convicted on

the basis of the statements of the victim Sher Singh, as recorded by PW-8 Dr.

Sushma and PW-16 SI Rajesh Kumar.  

Testimony of PW-8 and the contents of Ex. PW-8/A

43

23. As noticed, it is clearly established on record that the victim Sher Singh,

when found engulfed in fire,  information was received in PCR and its Van

reached the place of incident within minutes of incident; and the victim was

immediately placed in the Van and was taken to Safdarjung Hospital. Though

it appears from the testimony of PW-9 Dr. H.K. Sharma as also of PW-8 Dr.

Sushma that  the  first  document  prepared  at  the  time  of  admission  of  the

patient is OPD slip; and such OPD slip in this matter has not been produced

on record. However, such omission of the prosecution, in our view, has no

bearing on the substance of the matter because immediately after preparation

of the OPD slip, the victim was taken to the Burns Ward and detailed Medico-

Legal  Case Report  was prepared by  PW-8 Dr. Sushma.  The incident  had

taken place at about 3.00-3.15 p.m. and the MLC report (Ex. PW-8/A) was

prepared by Dr. Sushma at 4.35 p.m. There had not been unnecessary time

gap between the occurrence and the preparation of  MLC particularly when

major part of time was spent in the process of transportation.  

23.1. The significant feature of the case is that in the said MLC report (Ex.

PW-8/A), PW-8 specifically mentioned the particulars and information as given

out by the victim himself. As noticed, in the information particulars, this doctor

clearly stated the version of the victim that he sustained burn injury ‘when

some Purshottam & Suresh (telwala) threatened him & then poured kerosene

on him & set him on fire’. It is noticed that in Ex. PW-8/A the  word ‘telwala’

came  to  be  mentioned  within  brackets  and  was  written  in  Hindi  (being

vernacular expression), although other contents of this document were filled

44

up in English. PW-8 had been categorical in her assertion that the patient had

himself  informed  her  about  the  alleged  history  behind  his  sustaining  burn

injuries. There is absolutely nothing on record to disbelieve or even doubt the

statement  of  PW-8  Dr.  Sushma.  On  the  contrary,  such  recording  of  the

expressions verbatim by the doctor lends credence to her testimony and the

document  prepared  by  her.  In  our  view, with  this  testimony  of  PW-8  it  is

established beyond doubt that in his first  version in the hospital,  the victim

Sher Singh asserted that Purshottam and Suresh poured kerosene oil on him

and set him on fire. It is also established that Suresh was identified by the

victim as ‘telwala’ and it has not been doubted that in the slang expressions,

the reference had been to the one dealing in some kind of oil business. These

are the first traces with names and slight particulars of the assailants. As shall

be noticed hereafter, in the sequence of circumstances, the expressions have

rightly been fastened on the appellants.

23.2. It  is  also  noteworthy  that  in  Ex.  PW-8/A,  the  doctor  PW-8  Sushma

mentioned all other features relating to the medical condition of the patient and

recorded  that  he  had  suffered  ‘burn  injuries  involving  whole  of  the  body

surface area-100% deep burn’.  However and even while mentioning that the

general condition of the patient was ‘critical’, it was also recorded in Ex. PW-

8/A that the patient was ‘conscious, oriented’. It is but clear from the contents

of  Ex. PW-8/A  about the condition of the victim Sher Singh  that though the

doctor found him to be in critical condition with 100% deep burns yet, he was

conscious  and  oriented.  In  other  words,  he  was  neither  unconscious  nor

45

disoriented. In yet other words, he was neither insensate nor confused. Such

significant noting about the mental faculties of the victim at the time of giving

out the narratives to the doctor makes it clear that even when he was suffering

from the agony of 100% deep burns, he was not in an unfit state of mind; and

there appears no reason to disbelieve his first version as recorded in Ex. PW-

8/A.

Testimony of PW-16 and the contents of Ex. PW-16/B

24. The statement (Ex.PW-16/B) said to have been made by the victim Sher

Singh to PW-16 SI Rakesh Kumar, as recorded in hospital in Hindi language,

has in fact been the pivot of the prosecution case. This statement as also the

testimony of PW-16 SI Rakesh Kumar has undergone thorough scrutiny by the

Trial Court as also by the High Court, as noticed in the extraction hereinbefore.

We have yet again examined the testimony of PW-16 as also the contents of

Ex. PW-16/B and find no reason to take any view different. The presence of

PW-16 in that hospital at the relevant point of time has not been questioned

and it is clearly established on record that before recording the statement of

the  victim,  he  moved  the  application  Ex.  PW-16/A whereupon  PW-17  Dr.

Rajesh Verma declared the patient fit for making statement. Thereafter, PW-16

proceeded to record the statement of victim and it has not been shown on

record if anyone related with deceased was present at the time of recording of

his statement by PW-16. Any possibility of tutoring or prompting is totally ruled

out.  As  noticed,  in  the  statement,  the  victim  even  stated  the  registration

number  of  the  vehicle  he  was  employed  and  gave  out  the  names  and

46

addresses of the appellants while stating their respective roles in the incident

in question. At the time of making the said statement, the victim Sher Singh

was suffering from 100% deep burn injuries and was in a critical condition. In

the given state, elaboration on the motive etc., was least expected from him.

PW-16 appears to have recorded whatever was given out by the victim; and

there appears nothing of any manipulation by him.     

The two statements Ex. PW-8/A and Ex. PW-16/B are dying declarations

25. For what has been observed hereinabove, it is but clear that in his first

version  before  the  doctor,  the  victim  Sher  Singh  named  Purshottam  and

Suresh as his assailants and particulars of these persons were fully described

by him in the statement made to PW-16 only a few hours before his demise. It

has not been disputed that particulars and addresses as stated by the victim in

his  statement  Ex.  PW-16/B  had  been  of  the  appellants  only. It,  therefore,

emerges that the victim, before his demise, alleged that the appellant No. 2

had  put  him  on  fire  and  the  appellant  No.  1  was  his  accomplice.  While

recording his version in Ex. PW-8/A, the doctor PW-8 mentioned that he was

conscious and oriented. On the other hand, before recording the statement of

the victim (Ex.  PW-16/B),  PW-16 obtained the certification from PW-17 Dr.

Rajesh Verma that the patient was fit to give his statement. In the given set of

circumstances, we find no infirmity that the Trial  Court  and the High Court

accepted that the victim was in a fit state of mind to give the statement. It has

also not been established on record that the statements of the victim were an

outcome of tutoring or figment of imagination. In other words, the statements

47

appear to be voluntary and were given in a fit state of mind. In the given set of

circumstances, the statements so made by the victim could be acted upon as

dying declarations. However, before reaching to the conclusion on the basis of

these statements, it would be appropriate to deal with the criticism offered on

behalf of the appellants.

25.1. It  has  been  contended  that  the  statement  Ex.  PW-16/B  cannot  be

accepted for the same having not been recorded by or in the presence of

Magistrate nor any attestation having been obtained. Chapter 13-A of Delhi

High Court Rules has also been referred. In our view, the said rules as regards

the expected manner of recording of dying declaration, by their very nature,

could  only  be considered directly  and it  cannot  be laid  down that  want  of

compliance of any of the expectation therein would result in discarding of a

recorded dying declaration. The expectations in the said rules that the dying

declaration be recorded by a Judicial Magistrate; the fitness of the declarant

be examined; the statement be in the form of simple narrative; signature or

thumb impression of the declarant be obtained etc. are all, obviously, intended

to  ensure  that  the  dying  declaration  is  recorded  in  the  manner  that  its

credence  does  not  remain  questionable.  However,  a  particular  statement,

when being offered as dying declaration and satisfies all the requirements of

judicial scrutiny, cannot be discarded merely because it has not been recorded

by a Magistrate  or  that  the police officer  did  not  obtain  attestation by any

person present at the time of making of the statement. Even in this regard, the

witness PW-19 Inspector Om Prakash has pointed out that when asked to

48

attest the statement of Sher Singh as recorded by SI Rajesh Kumar, the doctor

pointed out that the facts had already been mentioned in the MLC and there

was no need to attest the statement. Taking an overall view of the matter, we

find no reason that the statement Ex. PW-16/B be discarded only for want of

its recording by a Magistrate or for want of attestation.

25.2. Another emphasis laid on behalf of the appellants is on the fact that the

victim Sher Singh had suffered 100% burns and he was already in critical

condition and further to that,  his condition was regularly deteriorating. It  is,

therefore,  contended  that  in  such a  critical  and  deteriorating  condition,  he

could  not  have  made  proper,  coherent  and  intelligible  statement.  The

submissions do not make out a case for interference. As laid down in  Vijay

Pal’s case  and  reiterated  in  Bhagwan’s case  (supra),  the  extent  of  burn

injuries – going beyond 92% and even to 100% - would not, by itself, lead to a

conclusion that victim of such burn injuries may not be in a position to make

the statement. Irrespective of the extent and gravity of burn injuries, when the

doctor had certified him to be in fit state of mind to make the statement; and

the person recording the statement  was also satisfied about  his fitness for

making  such statement;  and when there does not  appear  any inherent  or

apparent  defect,  in  our  view,  the  dying  declaration  cannot  be  discarded.

Contra to what has been argued on behalf of the appellants, we are of the

view that the juristic theory regarding acceptability of statement made by a

person who is at the point of death has its fundamentals in the recognition that

at the terminal point of life, every motive to falsehood is removed or silenced.

49

To a fire victim like that of present case, the gravity of injuries is an obvious

indicator  towards  the  diminishing  hope  of  life  in  the  victim;  and  on  the

accepted  principles,  acceleration  of  diminishing  of  hope  of  life  could  only

obliterate the likelihood of falsehood or improper motive. Of course, it may not

lead to the principle that gravity of injury would itself lead to trustworthiness of

the dying declaration. As noticed, there could still be some inherent defect4  for

which a statement,  even if  recorded as dying declaration, cannot be relied

upon without corroboration. Suffice would be to observe to present purpose

that  merely  for  100% burn  injuries,  it  cannot  be  said  that  the  victim  was

incapable  to  make  a  statement  which  could  be  acted  upon  as  dying

declaration.  

25.3. The suggestions have also been made that  the victim was in 100%

burnt condition and therefore, the alleged statements Ex. PW-8/A and PW-

16/B are manipulated and manufactured. We find nothing of substance in such

suggestions  for  there  had  not  been  shown  any  reason  for  which  PW-8

Dr.Sushma  and  PW-16  SI  Rajesh  Kumar  would  manufacture  any  such

document. Interestingly, certain suggestions were made to PW-19 Inspector

Om Prakash in  his  cross-examination  about  his  previous  exchange of  hot

words or altercation with the accused persons. However, there was no such

suggestion to PW-16 or to PW-8. For the same reason, the doubts sought to

be  suggested  about  availability  of  thumb  impression  of  the  victim  on  the

statement  Ex.  PW-16/B  deserve  to  be  rejected.  In  the  case  of  Dal  Singh

(supra), this Court has pointed out that in the case of burns, the skin of a small

4  As had been in Dalip Singh’s case (supra).

50

part of the body like thumb may remain intact; and it is essentially a question

of fact as to whether skin of thumb had also been burnt completely. In this

regard, it is also noticeable that even when the victim was carrying 100% deep

burns, as per the post-mortem report, peeling of skin was noticed on dorsum

of hands and therefore, taking of thumb impression on Ex. PW-16/B is not

ruled out.  The concurrent findings of  the Trial  Court  and the High Court  in

accepting the thumb impression on Ex. PW-16/B do not appear calling for any

interference. It gets, perforce, reiterated that there appears no reason for PW-

16 to  go to  the  extent  of  manufacturing the document  with  a  false  thumb

impression.  

25.4. Another contention urged on behalf of the appellants has been that the

victim,  as  per  his  statement,  had  allegedly  consumed half  bottle  of  liquor

before being put on fire but, as per post-mortem report, no such liquor was

found in the dead body. This apart, if he had consumed liquor, there was less

probability of his talking coherently.  We find these contentions also lacking in

substance. It had been a case of fire injury and as per the post-mortem report,

the liver, spleen, kidney and other body-parts were found congested. In such

fire injury case, no adverse conclusion can be drawn against the statement

made  by  the  victim  about  his  having  consumed  some  liquor  and  for  this

reason,  the  reliability  of  all  other  facts  stated  in  his  statement  cannot  be

doubted. As noticed, he had given his complete particulars including address

at the time of admission to the hospital  and it has not been shown if such

particulars were narrated by anyone else.  He had stated in his statement Ex.

51

PW-16/B even the vehicle registration number on which he was employed and

then had given the names and addresses of both the appellants while stating

that  appellant  No.  2 Suresh poured kerosene on him and appellant  No.  1

Pushottam was also there; and the appellant No. 2 set him on fire by lighting

of match. It is difficult to say that victim was unable to make the statement

coherently.

25.5. For what has been discussed hereinabove, we are clearly of the view

that  the  two  statements  Ex.  PW-8/A  and  Ex.  PW-16/B  have  rightly  been

accepted as dying declarations of Sher Singh, as made few hours before his

demise and there is no reason to discard the same. In the given set of facts

and circumstances, where these two dying declarations inspire confidence, we

are clearly of the view that they could be relied and acted upon even without

corroboration.      

Testimony of PW-6

26. A great deal of emphasis has been made in this case with reference to

the testimony of PW-6 Rajesh and it has been contended on behalf of the

appellants that as per this testimony, the victim had at the first point of time

made the statement about self-immolation for the reason of  himself  having

been dropped from tempo. It is contended that such statement by the victim

ought to be taken as his first dying declaration.  Having closely scrutinized the

testimony of this witness PW-6 Rajesh, we are satisfied that the version as

attempted  to  be  given  by  him  in  the  cross-examination  has  rightly  been

rejected by the Trial Court and by the High Court.  

52

26.1. Noticeable  it  is  that  this  witness  PW-6,  in  the  examination-in-chief

deposed that on hearing the screams and having seen the smoke, he reached

the spot; that other people from market also reached the spot; that he saw a

person burning on fire; that water was thrown on the burning body of the victim

from a nearby tap and the victim identified himself as Sher Singh; and that

someone from the market telephoned at number 100 whereupon the police

reached the spot. This witness did not state anything in his examination-in-

chief about the victim having told anyone about self-immolation and therefore,

there  was  no  occasion  for  the  prosecution  to  declare  him  hostile  and  to

confront him with his previous statement. Moreover, though the story about the

victim having asserted that he had set himself on fire came to be introduced by

this witness in his cross-examination on behalf of the appellant No. 1 but the

value and worth of such suggestion was effectively demolished by this witness

himself in his further statement in cross-examination on behalf of the appellant

No. 2 where he categorically stated that  “victim Sher Singh has not told the

people present in my presence that he had put himself on fire”. In this cross-

examination,  the  witness  attempted  to  impute  the  knowledge  about  such

statement to one Tony. Obviously, the suggestion as occurring in the statement

of PW-6 about self-immolation by the victim had been of a remote hearsay and

is not of any worth at all.

26.2.  In  the  same  sequence,  the  contentions  urged  on  behalf  of  the

appellants about want of examination of other persons named by PW-6 falls to

the ground because such names and their roles came to be introduced only in

53

the statement made by PW-6 in his cross-examination. In the given context, it

has rightly been contended on behalf of the respondent that the theory of self-

immolation as also the names of the other persons, who allegedly reached the

spot, having come up by way of cross-examination of PW-6, the burden was

on the accused persons to establish such theory by cogent evidence. No such

attempt was made on behalf of the accused-appellants to prove any such fact

or to examine any such named person.  

26.3. As noticed, the appellant No. 1 attempted to suggest in his statement

under  Section  313 CrPC that  he  was a  politically  known person and was

falsely  implicated by certain persons ‘adversely  interested’ against  him.  No

such evidence is placed on record as to who were such persons and as to why

they would be falsely implicating him in a murder case. Thus, the incomplete

and  uncertain  defence  theory  has  rightly  been  rejected  and  we  have  no

hesitation in endorsing the findings recorded in the impugned judgments in

that regard.   

Other Contentions

27. Although we have found that the two statements made by the victim and

recorded in Ex. PW-8/A and Ex. PW-16/B could be relied upon as his dying

declarations  and  thereby  the  complicity  of  appellants  in  the  crime  is

established; and we have also rejected the contentions urged with reference to

the  testimony  of  PW-6  yet,  the  other  contentions  urged  on  behalf  of  the

appellants need to be examined before reaching to a final conclusion.  

54

27.1. It has been argued that the prosecution has not been able to establish

the identity of assailants in this crime.  The submission has no substance when

the particulars as occurring in the two statements Ex. PW-8/A and Ex. PW-

16/B are examined and analysed, wherein occupation of at least one of the

assailant and then the names and addresses of both the appellants came to be

mentioned. For this very reason, the other contention that the incident took

place in a crowded market place and the appellants were not seen by anyone

also pales into insignificance.  

27.2. The  submission  that  prosecution  has  not  been  able  to  establish  the

motive for crime is also of no effect because, in the first place, in a death case,

the motive remains essentially known to the deceased and to the offender; and

a prosecution case cannot fail only for want of proof of motive. This apart, in

the present case, the indications of an existing dispute of the deceased with

appellant No. 1 do appear in the testimony of the brother of the deceased, PW-

1 Raju. It is also noticed that the deceased and the accused persons were the

residents of the same locality.  

27.3. The contention that only Part I of the PCR is proved and not the other

parts is also not correct. It is noticed from the record that PW-7 Ct. Anju was

examined on 12.08.1998 when her statement was deferred for summoning the

concerned record and then, her statement was further recorded on 31.08.1998

when she brought the original proforma of PCR and the photocopy of the same

was taken on record as Ex. PW-7/B. In our view, the High Court has rightly

relied upon the information reflected in Parts II, III and IV of PCR form, which

55

clearly show that not only the initial information was recorded about the victim

being on fire but further information were recorded from time to time during the

course of transporting and admitting the victim to hospital, where not only his

address came to be mentioned but the names of the assailants also surfaced.

The  said  document  having  been  produced  before  the  Court  and  its  copy

having been taken on record, with PW-7 having proved that same, it would not

be justified to discard the same.  

27.4. A substantial deal of argument had been with reference to the statement

of PW-18 ASI Harish who asserted that the victim, while being taken to hospital

in PCR Van and even in hospital, did not speak to him and was only crying in

pain. The High Court has made scathing remarks about this witness PW-18.

Some of the remarks appear justified, particularly when PW-18 attempted to

say that  he came to know the name of  the victim in the hospital  from the

persons present there. No such persons were otherwise shown on record and

from the testimony of PW-8 Dr. Sushma, it is established that the particulars in

MLC report came to be mentioned by her as per the information divulged by

the victim himself. For the reasons best known to him, PW-18, who had taken

the victim to hospital, attempted to say that the victim was not in a condition to

speak and thereby, attempted to disown whatever information that was given

by the victim during the process of transportation. However, this aspect does

not require further dilation for the other facts established on record, including

the fact that the victim was conscious and oriented at the time of admission to

the hospital and made the statements in a fit state of mind.  

56

27.5. Another contention urged on behalf of the appellants about converting

the present case to that under Section 304 Part II for the offence of culpable

homicide not amounting to murder has only been noted to be rejected. The act

of pouring kerosene over a person and then putting him on fire by lighting a

match has all the ingredients of doing an act with the intention of causing death

of a person in a gruesome manner. The conviction of the appellants for the

offence of murder appears justified and we find no reason to convert the same

into any offence of lesser degree. Therefore, the submissions made on behalf

of the appellants with reference to the decisions in Sharad Birdhi Chand Sarda

and Kalabai (supra) also deserve to be, and are, rejected.

27.6. Another suggestion on behalf of the appellant No. 1 that in any case, he

has not been assigned the role of pouring the kerosene or lighting the fire also

deserves to be rejected for the facts and circumstances noticed above and

particularly when it has come on record that he was with the appellant No. 2

when the victim was threatened and was put on fire. The conviction of this

appellant under Section 302/34 IPC remains unexceptionable.  For what has

been noticed hereinabove, the suggestion of no likelihood of appellant No. 1

throwing  kerosene  on  the  head  of  the  deceased  deserves  to  be  rejected

without much dilation.  

Conclusion

28. For what has been discussed hereinabove, we are clearly of the view

that the appellants have rightly been held guilty of causing death of Sher Singh

57

by putting him on fire and have also rightly been convicted for the offence

under Section 302/34 IPC. No case for interference is made out.

29. Accordingly,  and  in  view  of  the  above,  these  appeals  fail  and  are,

therefore, dismissed.  

……………………………….J. (A.M. KHANWILKAR)

……………………………....J. (DINESH MAHESHWARI)

New Delhi Date: 07th January, 2020

58