Madhya Pradesh High Court
Charanjeet vs The State Of Madhya Pradesh on 16 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:12193
1 Cr.A. No. 649/2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE PUSHPENDRA YADAV
CRIMINAL APPEAL No. 649 of 2016
CHARANJEET
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Deependra Singh Raghuwanshi, Advocate for the appellant
Dr. Anjali Gyanani, Public Prosecutor for the respondent/State.
Reserved on : 09/04/2026
Pronounced on : 16/04/2026
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
This Criminal Appeal, under Section 374 of Cr.P.C, has been filed
against the judgment and sentence dated 26.05.2016 passed by First
Additional Sessions Judge, Dabra, District Gwalior in Sessions Trial No.
248/2014, by which the appellant has been convicted for offence under
Section 302 of Indian Penal Code and has been sentenced to undergo life
imprisonment with a fine of ₹500 with default imprisonment of 3 months‟
R.I..
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2. The facts necessary for disposal of the present appeal, in short, are
that on 04.12.2013, an information was received from Civil Hospital
Dabra, to the effect that Smt. Priya Dhanuk has been brought by her Jeth
Virendra Dhanuk in a burnt condition. She was immediately referred from
Civil Hospital, Dabra to Gwalior. On 04.12.2013 itself, at about 11.20
p.m., the Dying Declaration of injured Priya Dhanuk, was recorded, who
stated that on 04.12.2013 at about 08.00 P.M., her husband/appellant has
set her on fire after pouring kerosene oil on her. On 4-12-2013 itself, spot
map was prepared. On 05.12.2013 from 11.01 A.M. to 11.15 A.M.,
another Dying Declaration of deceased Smt. Priya Dhanuk was recorded
by Tahsildar, Morar District, Gwalior, to the effect “that on 04.12.2013 at
about 08.00 P.M., her husband has set her on fire after pouring kerosene
oil on her. At the time of incident, she and her husband were in the house.
It was also stated by the deceased that her parents-in-law also reside with
them, however, on the date of incident, they had gone to attend some
marriage. Her husband is an alcoholic and without any issue, he always
picks up quarrel with her.” The medical certificate from the doctor was
also obtained by the Tahsildar. On 09.12.2013, another information was
received from Ayushman Hospital Trauma Centre, Gwalior, to the effect
that Smt Priya Dhanuk, who was brought in a burnt condition on
04.12.2013, has expired. Accordingly, Merg No. 113/2013 under Section
174 of CrPC was registered. The post mortem of dead body of deceased
was got done. Crime detail form was prepared on 13.12.2013 at 12.30
P.M. The statements of the witnesses were recorded. The appellant was
arrested. The seized articles were sent to F.S.L. The police after recording
statements and collecting evidence filed a charge sheet against the
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appellant under Section 302 of IPC. The FSL report was also received
during the pendency of the trial.
3. The Trial Court, by Order dated 2-5-2014, framed charge under
Section 302 of IPC. Charge was abjured by appellant. (It is not out of
place to mention here that a factual mistake was committed by the trial
Court and it was mentioned in the charge that the appellant has killed his
wife on 09.12.2013 by pouring kerosene oil on her. In fact the deceased
was set on fire on 04.12.2013 and she died on 09.12.2013. However it is
made clear that no objection with regard to the vagueness in the charge or
any sort of prejudice was ever raised by the appellant).
4. The prosecution in order to prove its case, examined Meena (PW1),
Hukum Singh (PW2), Shugar Singh (PW3), Dr. J.N. Soni (PW4),
Chandan Singh (PW5), K. K. Dixit (PW6), Sunny Jatav (PW7), Sharda
Pathak (PW8), Uttam Singh (PW9), Fateh Singh (PW10), Suresh chand
(PW11), Pratigya Dhengula (PW12), Vijay Singh Kushwaha (PW13),
Dinesh Singh Chauhan (PW14), Dr. Vikrant Singh (PW15), Jitendra
Singh (PW16) and Hukum Singh (PW17).
5. The appellant examined Lakshmi (DW1), Virendra Dhanuk (DW2)
and Gauri Shankar (DW3) in his defence.
6. The Trial Court, after hearing both the parties, convicted the
appellant under Section 302 of IPC and sentenced him to undergo the jail
sentence of life imprisonment and a fine of ₹500 with default
imprisonment of 3 months‟ rigorous imprisonment.
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7. Challenging the judgment and sentence passed by the Trial Court, it
is submitted by counsel for appellant that the parents of the deceased
namely Meena (PW1), and Hukum Singh (PW2) as well as Shugar Singh
(P.W.3) and Sunny Jatav (P.W.7) have turned hostile and they did not
support the prosecution case. It is submitted that the case is primarily
based on two Dying Declarations of the deceased. Once the parents of the
deceased have specifically stated that the deceased was never maltreated
by her in-laws, then it is clear that her Dying Declarations have become
doubtful. Furthermore, from the spot, a kerosene stove in a burst condition
was recovered, which clearly shows that the deceased died on account of
accident and not on account of burn injuries due to pouring of kerosene
oil by the appellant. It is further submitted that since, the deceased had
suffered 80-90% burn injuries, therefore, She was not in a position to
speak.
8. Per contra, the appeal is vehemently opposed by counsel for the
State. It is submitted that in fact the Dying Declarations of the deceased
are trustworthy and reliable. The stove was found broken and not burst. It
is well established principle of law that if the Dying Declaration is found
reliable and trustworthy, then conviction can be recorded on the basis of
the same. The trial court did not commit any mistake by convicting the
appellant.
9. Heard, learned counsel for the parties.
10. The case in hand is based on the following circumstantial
evidences:
First : Homicidal Death
Second : Dying Declaration.
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Third : Presence of the deceased on the spot.
Fourth : Conduct of the deceased post incident.
Fifth : FSL report.
Whether the death of the deceased Smt. Priya Dhanuk was homicidal
or accidental
11. Dr. J.N. Soni (PW4) is the autopsy surgeon. He had conducted the
post mortem of the deceased along with Dr. Ajay Gupta. As per post
mortem report, dead body of an average-built female aged about 20 years
was lying on post mortem table in supine condition. The autopsy surgeons
found first to third degree ante mortem 4 to 6 days old, infected, foul-
smelling burns and wounds.
(i) Anteriorly burn present over face, neck, right arm, chest,
abdomen and both lower limbs;
(ii) Posterior burn present over both upper limbs, back and trunk
in patches, Neck and back of both lower limbs;
(iii) Burn wound involves 90% of the body’s surface area and
sufficient to cause death in ordinary course of nature.
The cause of death was due to cardiorespiratory failure as a
result of burn and its complications. The duration of death was
within 24 hours since post mortem examination and nature of
death was opined to be decided on the basis of circumstantial
evidences collected. The post mortem report is Ex. P7.
12. Dr. J.N. Soni (P.W.4) was cross examined in short and he stated
that a person who has suffered 90% burn injuries can always speak and he
stated that thumbs of both the hands were containing the Ink and he also
admitted that he cannot give an opinion as to whether the death of the
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deceased was suicidal or homicidal and therefore they had given an
advice that the said aspect should be decided after considering the
surrounding circumstances.
13. Thus it is clear that the deceased had died on account of first to
third degree burns. However, whether the death of the deceased was
suicidal or homicidal, can be decided only after considering the other
circumstances. This aspect shall be dealt with at a later part of this
Judgment.
Dying Declaration
14. Before considering the facts of the case, this Court would like to
consider the law related to the Dying Declaration.
15. The Supreme Court in the case of Ramesh v. State of Haryana,
reported in (2017) 1 SCC 529 has held as under :
31. Law on the admissibility of the dying declarations is well
settled. In Jai Karan v. State (NCT of Delhi), this Court
explained that a dying declaration is admissible in evidence on
the principle of necessity and can form the basis of conviction if
it is found to be reliable. In order that a dying declaration may
form the sole basis for conviction without the need for
independent corroboration it must be shown that the person
making it had the opportunity of identifying the person
implicated and is thoroughly reliable and free from blemish. If,
in the facts and circumstances of the case, it is found that the
maker of the statement was in a fit state of mind and had
voluntarily made the statement on the basis of personal
knowledge without being influenced by others and the court on
strict scrutiny finds it to be reliable, there is no rule of law or
even of prudence that such a reliable piece of evidence cannot
be acted upon unless it is corroborated. A dying declaration is an
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neither extra strong or weak, and can be acted upon without
corroboration if it is found to be otherwise true and reliable.
There is no hard-and-fast rule of universal application as to
whether percentage of burns suffered is determinative factor to
affect credibility of dying declaration and improbability of its
recording. Much depends upon the nature of the burn, part of the
body affected by the burn, impact of the burn on the faculties to
think and convey the idea or facts coming to mind and other
relevant factors. Percentage of burns alone would not determine
the probability or otherwise of making dying declaration.
Physical state or injuries on the declarant do not by themselves
become determinative of mental fitness of the declarant to make
the statement (see Rambai v. State of Chhattisgarh).
32. It is immaterial to whom the declaration is made. The
declaration may be made to a Magistrate, to a police officer, a
public servant or a private person. It may be made before the
doctor; indeed, he would be the best person to opine about the
fitness of the dying man to make the statement, and to record the
statement, where he found that life was fast ebbing out of the
dying man and there was no time to call the police or the
Magistrate. In such a situation the doctor would be justified,
rather duty-bound, to record the dying declaration of the dying
man. At the same time, it also needs to be emphasised that in the
instant case, dying declaration is recorded by a competent
Magistrate who was having no animus with the accused persons.
As held in Khushal Rao v. State of Bombay, this kind of dying
declaration would stand on a much higher footing. After all, a
competent Magistrate has no axe to grind against the person
named in the dying declaration of the victim and in the absence
of circumstances showing anything to the contrary, he should
not be disbelieved by the court (see Vikas v. State of
Maharashtra).
33. No doubt, the victim has been brought with 100% burn
injuries. Notwithstanding, the doctor found that she was in a
conscious state of mind and was competent to give her
statement. Thus, the Magistrate had taken due precautions and,
in fact, the medical officer remained present when the dying
declaration was being recorded. Therefore, this dying
declaration cannot be discarded merely going by the extent of
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burns with which she was suffering, particularly, when the
defence has not been able to elicit anything from the cross-
examination of the doctor that her mental faculties had totally
impaired rendering her incapable of giving a statement.
16. The Supreme Court in the case of Purshottam Chopra v. State
(NCT of Delhi), reported in (2020) 11 SCC 489 has held as under :
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 Laxman v. State of Maharashtra.
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 v. State of A.P. 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 reference to the decision in Koli
Chunilal Savji v. State of Gujarat, 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.
18.2. The Constitution Bench in Laxman summed up the
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declaration in the following: (Laxman case, SCC pp. 713-14,
para 3)
“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 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
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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.”
18.3. The Constitution Bench affirmed the view in Koli Chunilal
Savji while holding that Paparambaka Rosamma, was not
correctly decided. The Court said: (Laxman case, SCC p. 715,
para 5)
“5. … It is indeed a hypertechnical 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. 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.”
19. In Dal Singh case, 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 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
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also be a question of fact. This Court said: (SCC p. 167, paras
20-22)
“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 Bhagwan, 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 (NCT of Delhi),
where the statement made by the victim having suffered 100%
burn injury was also accepted. This Court said: (Bhagwan case,
SCC pp. 106-107, paras 24-25)
“(B) Can a person who has suffered 92% burn injuries be in a
condition to give a dying declaration?
24. This question is also no longer res integra. In Vijay Pal v.
State (NCT of Delhi), 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
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profitably refer to the decision in Mafabhai Nagarbhai Raval v.
State of Gujarat 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, 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 Gian Kaur, 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: (Gian Kaur case, SCC p. 943, para 5)
“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 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.”
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20.1. In Gopalsingh, 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: (SCC p. 272, para 8)
“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 Dalip Singh, 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:
(SCC p. 335, para 9)
“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, therefore, safe to leave out of consideration this
dying declaration.”
20.3. In Thurukanni Pompiah, 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
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“9. Under clause (1) of Section 32 of the 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 Uka Ram, this Court again emphasised on the
requirement that the Court should be satisfied about
trustworthiness of the dying declaration, its voluntary nature and
fitness of the mind of the deceased and it was held that: (SCC p.
257, para 6)
“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 a 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
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admissibility and reliability could be usefully summed up as
under:
21.1. A dying declaration could be the sole basis of conviction
even without corroboration, if it inspires confidence of the court.
21.2. 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.
21.3. 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.
21.4. When the eyewitnesses affirm that the deceased was not in
a fit and conscious state to make the statement, the medical
opinion cannot prevail.
21.5. 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.
21.6. 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.
21.7. 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.
21.8. 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.
* * * *
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, hisSignature Not Verified
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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 case and reiterated in Bhagwan case, 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.
* * * *
25.4. The suggestions have also been made that the victim was
in 100% burnt condition and therefore, the alleged statements
Exts. 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
Ext. PW-16/B deserve to be rejected. In Dal Singh, this Court
has pointed out that in the case of burns, the skin of a small 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 off of skin was noticed on dorsum of
hands and therefore, taking of thumb impression on Ext. PW-
16/B is not ruled out. The concurrent findings of the trial court
and the High Court in accepting the thumb impression on Ext.
PW-16/B do not appear calling for any interference. It gets,
perforce, reiterated that there appears no reason for PW 16 to go
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to the extent of manufacturing the document with a false thumb
impression.
17. As per Modi’s Medical Jurisprudence, 1st degree burn mark is also
known as epidermal burn. First Degree burns consists of erythema or
simple redness of the skin caused by the momentary application of flame
or hot solids, or liquids much below boiling point. It can also be produced
by mild irritants. The erythema marked with superficial inflammation
usually disappear in few hours, but may last for several days, when the
upper layer of the skin peels off but leaves no scars. They disappear after
death due to the gravitation of blood to the dependent parts. Second
degree burns comprise acute inflammation and blisters produced by
prolonged application of a flame, liquids at boiling point or solids much
above the boiling point of water. The third and fourth degree burns are
also known as Dermo-Epidermal burns. The third degree burn refers to
the destruction of the cuticle and part of the true skin which appears horny
and dark, owing to it having been charred and shrivelled. Exposure of
nerve endings gives rise to much pain. Whereas in Fourth degree burn, the
whole skin is destroyed. The fifth and sixth degree burns are also known
as Deep burns. Fifth degree burn includes penetration of the deep fascia
and implications of the muscles, and results in great scarring and
deformity whereas sixth degree burn involves charring of the whole limb
including the bones and ends in inflammation of the subjacent tissues and
organs, if death is not the immediate result. Thus, it is clear that it is not
the extent of superficial burn which effects the state of mind of the
patient, but it is the degree of burn which effects the state of mind of the
patient. Thus, merely because the patient had suffered 100% burns would
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not mean that he/she was reduced to ashes. Therefore, it cannot be held
that merely because a person has sustained 100% burn injuries, therefore,
he cannot make a Dying Declaration.
18. The Supreme Court in the case of Laxman v. State of
Maharashtra, reported in (2002) 6 SCC 710 has held as under :
5. The Court also in the aforesaid case relied upon the decision
of this Court in Harjit Kaur v. State of Punjab wherein the
Magistrate in his evidence had stated that he had ascertained
from the doctor whether she was in a fit condition to make a
statement and obtained an endorsement to that effect and merely
because an endorsement was made not on the declaration but on
the application would not render the Dying Declaration
suspicious in any manner. For the reasons already indicated
earlier, we have no hesitation in coming to the conclusion that
the observations of this Court in Paparambaka Rosamma v.
State of A.P. (at SCC p. 701, para 8) to the effect that
“in the absence of a medical certification that the injured
was in a fit state of mind at the time of making the
declaration, it would be very much risky to accept the
subjective satisfaction of a Magistrate who opined that the
injured was in a fit state of mind at the time of making a
declaration”
has been too broadly stated and is not the correct enunciation of
law. It is indeed a hypertechnical 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. 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.
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19. The Supreme Court in the case of Govindappa v. State of
Karnataka, reported in (2010) 6 SCC 533 has held as under :
24…….What is essentially required is that the person who
recorded the Dying Declaration must be satisfied that the
deceased was in a fit state of mind. The certification by the
doctor is essentially a rule of caution and, therefore, the
voluntary and truthful nature of the declaration can be
established otherwise
20. The Supreme Court in the case of Jagbir Singh v. State (NCT of
Delhi), reported in (2019) 8 SCC 779 has held as under :
39. We can proceed on the basis that even absence of the
certificate by a doctor is not fatal to act upon a Dying
Declaration. However, the requirement remains that the person
who records the Dying Declaration must ensure that the patient
was in a fit condition, both mentally and physically, to give the
declaration.
21. Thus, it is clear that obtaining fitness certificate is merely by way of
caution, but if the person recording Dying Declaration is satisfied that the
maker of the Dying Declaration is in fit state of mind, then such
satisfaction is sufficient for recording the Dying Declaration.
22. Further, the Dying Declaration, can be a sole basis for conviction,
provided the same is found to be reliable. The Supreme Court in the case
of Ravi Kumar v. State of T.N., reported in (2006) 9 SCC 240 has held
as under :
5. Section 32 of the Evidence Act, 1872 is an exception to the
general rule against hearsay. Sub-section (1) of Section 32
makes the statement of the deceased admissible which is
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Declaration essentially means statements made by the person as
to the cause of his death or as to the circumstances of the
transaction resulting in his death. The admissibility of the Dying
Declaration is based upon the principle that the sense of
impending death produces in man‟s mind the same feeling as
that of a conscientious and virtuous man under oath. The Dying
Declaration is admissible upon consideration that the declarant
has made it in extremity, when the maker is at the point of death
and when every hope of this world is gone, when every motive
to the falsehood is silenced and the mind is induced by the most
powerful consideration to speak the truth. Notwithstanding the
same, care and caution must be exercised in considering the
weight to be given to these species of evidence on account of the
existence of many circumstances which may affect their truth.
The court has always to be on guard to see that the statement of
the deceased was not the result of either tutoring or prompting
or a product of imagination. The court has also to see and ensure
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 itself that the deceased
was in fit mental condition to make the Dying Declaration, has
to look for the medical opinion. Once the court is satisfied that
the declaration was true and voluntary, it undoubtedly, can base
its conviction on the Dying Declaration without any further
corroboration. It cannot be laid down as an absolute rule of law
that the Dying Declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring
corroboration is merely the rule of prudence. These well-settled
principles have been recognised and reiterated by this Court in
Paniben v. State of Gujarat; Uka Ram v. State of Rajasthan;
Laxman v. State of Maharashtra; P.V. Radhakrishna v. State of
Karnataka; State of Maharashtra v. Sanjay; Muthu Kutty v. State
23. The Supreme Court in the case of Laltu Ghosh Vs. State of W.B.
reported in (2019) 15 SCC 344 has held as under :
18. The courts cannot expect a victim like the deceased herein to
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the crime, inasmuch as it would be very difficult for such a
victim, who has suffered multiple grievous injuries, to state all
the details of the incident meticulously and that too in a parrot-
like manner. The trial court assumed that the investigating
officer in collusion with the doctor wilfully fabricated the Dying
Declaration. It is needless to state that the investigating officer
and the doctor are independent public servants and are not
related either to the accused or the deceased. It is not open for
the trial court to cast aspersions on the said public officers in
relation to the Dying Declaration, more particularly when there
is no supporting evidence to show such fabrication. 19. It cannot
be laid down as an absolute rule of law that a Dying Declaration
cannot form the sole basis of conviction unless it is corroborated
by other evidence. A Dying Declaration, if found reliable, and if
it is not an attempt by the deceased to cover the truth or to
falsely implicate the accused, can be safely relied upon by the
courts and can form the basis of conviction. More so, where the
version given by the deceased as the Dying Declaration is
supported and corroborated by other prosecution evidence, there
is no reason for the courts to doubt the truthfulness of such
Dying Declaration.
24. The Supreme Court in the case of Kalawati Vs. State of
Maharashtra, reported in (2009) 4 SCC 37 has held as under :
14. “12. Though a Dying Declaration is entitled to great weight,
it is worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth as
an obligation of oath could be. This is the reason the court also
insists that the Dying Declaration should be of such a nature as
to inspire full confidence of the court in its correctness. The
court has to be on guard that the statement of the deceased was
not as a result of either tutoring, or prompting or a product of
imagination. The court must be further satisfied that the
deceased was in a fit state of mind after a clear opportunity to
observe and identify the assailant. Once the court is satisfied
that the declaration was true and voluntary, undoubtedly, it can
base its conviction without any further corroboration. It cannot
be laid down as an absolute rule of law that the Dying
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Declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule
of prudence. This Court has laid down in several judgments the
principles governing Dying Declaration, which could be
summed up as under as indicated in Paniben v. State of Gujarat
: (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that Dying
Declaration cannot be acted upon without corroboration.
(See Munnu Raja v. State of M.P.)
(ii) If the court is satisfied that the Dying Declaration is
true and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar Yadav and
Ramawati Devi v. State of Bihar.)
(iii) The court has to scrutinise the Dying Declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants
and was in a fit state to make the declaration. (See K.
Ramachandra Reddy v. Public Prosecutor.)
(iv) Where a Dying Declaration is suspicious, it should not
be acted upon without corroborative evidence. (See
Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never
make any Dying Declaration, the evidence with regard to it
is to be rejected. (See Kake Singh v. State of M.P.)
(vi) A Dying Declaration which suffers from infirmity
cannot form the basis of conviction. (See Ram Manorath v.
State of U.P.)
(vii) Merely because a Dying Declaration does not contain
the details as to the occurrence, it is not to be rejected. (See
State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
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(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. (See Surajdeo Ojha v.
State of Bihar.)
(ix) Normally, the court in order to satisfy whether the
deceased was in a fit mental condition to make the Dying
Declaration looks up to the medical opinion. But where the
eyewitness said that the deceased was in a fit and conscious
state to make the Dying Declaration, the medical opinion
cannot prevail. (See Nanhau Ram v. State of M.P)
(x) Where the prosecution version differs from the version
as given in the Dying Declaration, the said declaration
cannot be acted upon. (See State of U.P. v. Madan Mohan.)
(xi) Where there are more than one statements in the nature
of Dying Declaration, the one first in point of time must be
preferred of course, if the plurality of the Dying
Declaration could be held to be trustworthy and reliable, it
has to be accepted. (See Mohanlal Gangaram Gehani v.
State of Maharashtra.)”
See also Mohan Lal v. State of Haryana, at SCC pp. 153-
55, para 10.
25. The Supreme Court in the case of Ramilaben Hasmukhbhai
Khristi v. State of Gujarat, reported in (2002) 7 SCC 56 has held as
under :
28. Under the law, Dying Declaration can form the sole basis of
conviction, if it is free from any kind of doubt and it has been
recorded in the manner as provided under the law. It may not be
necessary to look for corroboration of the Dying Declaration. As
envisaged, a Dying Declaration is generally to be recorded by an
Executive Magistrate with the certificate of a medical doctor
about the mental fitness of the declarant to make the statement.
It may be in the form of question and answer and the answers be
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written in the words of the person making the declaration. But
the court cannot be too technical and in substance if it feels
convinced about the trustworthiness of the statement which may
inspire confidence such a Dying Declaration can be acted upon
without any corroboration.
26. Now, the Dying Declarations relied upon by prosecution shall be
considered. The prosecution has relied upon two Dying Declarations of
the deceased, Priya Dhanuk; (i) Dying Declaration Ex. P.18C, recorded by
Dr. Vikrant Singh (PW15), (ii) Dying Declaration Ex. P.11, recorded by
Tahsildar Sharda Pathak (PW8).
Dying Declaration Ex. P.18C recorded by Dr.Vikrant Singh (P.W.15)
27. The deceased Priya Dhanuk was brought to Civil Hospital, Dabra
on 04.12.2013. An information was received by police from Civil Hospital
Dabra that Priya has been brought in a burnt condition who has suffered
burn injuries to the extent of 80 to 90%, and she has been referred to the
District Hospital Gwalior. The information is Ex.P.21. In this information,
it is mentioned that Smt. Priya has been brought by her family members
who have informed that she has suffered burn injuries on account of
bursting of Kerosene Oil stove. Accordingly, Rojanamcha Sanha No. 312
was recorded on 4-12-2013 at 21.10.
28. Dr. Vikrant Singh, (PW15) was working in Ayushman Hospital &
Neuro Trauma Center, Gwalior. He has stated that on 04.12.2013 at 10.30
p.m. she was brought to the hospital from Dabra in an injured condition.
Accordingly an information Ex. P.17 was given by Dr. Vikrant Singh,
(PW15) to the police station. The in-charge of Burns Ward and the MLC
doctors were informed. This witness enquired from the Injured about the
history of the case. The patient informed “that the name of her husband is
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Charanjeet Dhanuk and on 04.12.2013 at about 08.00 p.m. he poured the
kerosene oil on her and set her on fire, as a result she has sustained
extensive burn injuries.” The Dying Declaration recorded by Dr. Vikrant
Singh is Ex. P.18 and its photo copy is Ex. P.18C. The thumb impression
of her left hand was also affixed on the Dying Declaration Ex. P.18C. At
the time of recording of Dying Declaration, the father of the deceased
namely Hukum Singh and the Jeth of the injured, namely Prabhu Dayal,
were present, who also put their signatures at C to C and D to D. On
05.12.2013, Sharda Pathak, Tahsildar Murar came to record the Dying
Declaration of the deceased. Prior to recording of Dying Declaration,
Priya Dhanuk was medically examined by this witness and accordingly,
Dr. Vikrant Singh (PW15) put his remark “that the patient is medically fit
to give her statement”. After the Dying Declaration was recorded, again a
medical certificate was given by this witness to the effect “that during the
recording of the Dying Declaration by the Tehsildar, the patient was in the
full senses and since her both hands and legs were burnt therefore her
thumb impression was put at B to B and E to E.” Thus, it is clear that Dr.
Vikrant Singh, (PW15) not only recorded the Dying Declaration of the
deceased Ex. P.18C, but also on 5-12-2013, he medically examined the
injured/deceased prior to and after recording of the Dying Declaration.
29. This witness was cross examined in detail. He admitted that he is
holding BHMS degree. He further admitted that he did not treat the
patient. However, it was stated that Dr. T.C. Agarwal was the in charge of
the burn unit. He claimed that he had recorded the statement of the injured
Ex. P.18C, under the instructions of Dr. V. K. Divan, M.L.O. He further
claimed that he had prepared the Bed Head Ticket/Treatment sheet of the
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patient. Patient Priya Dhanuk was treated by Dr. T.C. Agarwal in his
presence. After recording the statement of the injured, he had informed
the police. He denied that he had not recorded the statement of the patient,
namely Priya Dhanuk (Ex. P.18C). So far as the Dying Declaration
recorded by Sharda Pathak, Tahsildar, Morar District Gwalior (Ex. P.11)
is concerned, he denied that the said Dying Declaration was not recorded
in his presence. He further reiterated that he had given the medical fitness
certificate prior to and after recording of the Dying Declaration of the
deceased Ex. P.11. He denied the suggestion that he had not recorded the
statement of the patient Priya Dhanuk. Thus, it is clear that except asking
certain questions about the educational qualification of this witness, a
general suggestion was given that he did not record the statement of the
injured Priya Dhanuk Ex. P.18C and the Dying Declaration, Ex. P.11 was
not recorded by Sharda Pathak, Tahsildar Murar District Gwalior in his
presence. Although, the statement, Ex. P.18C which has to be treated as
Dying Declaration was recorded in the presence of father and Jeth of the
deceased, but the said Dying Declaration was not challenged by the
appellant on the ground of tutoring. Since, Dying Declaration, Ex. P.18C
was recorded in the presence of father and Jeth of the deceased and in
absence of any suggestion of tutoring, this Court is of the considered
opinion, that presence of father and Jeth of the deceased was
inconsequential. The appellant could not point out any significant lapses
or circumstances in the evidence of this witness to indicate that this
witness was not competent or this witness had not recorded the Dying
Declaration of injured Priya Dhanuk Ex. P.18C or he did not give the
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medical fitness certificate to the patient before and after recording of
another Dying Declaration Ex. P.11.
Dying Declaration, Ex. P.11 recorded by Sharda Pathak (P.W.8),
Tahsildar.
30. On 5-12-2013, Sharda Pathak (PW.8), Tahsildar, Murar, Distt.
Gwalior recorded second Dying Declaration, Ex.P.11. Sharda Pathak
(P.W.8) has stated that she got a requisition from Police Station Jhansi
Road, Gwalior to record the Dying Declaration of Priya Dhanuk in
Ayushman Hospital and Neuro Trauma Centre, Gwalior. This witness has
specifically reiterated the Dying Declaration given by the
injured/deceased and stated that a statement was given by Priya Dhanuk
that “her husband used to quarrel with her very often and on 4-12-2013 at
about 8:00 P.M. he set her on fire after pouring Kerosene Oil on her. At
the time of incident, only she and her husband were in the house and her
parents-in-law had gone to attend some marriage. Her husband is an
alcoholic and therefore, used to quarrel with her without any reason.”
This witness has also stated that since, both legs and hands of the injured
were burnt, therefore, thumb impression of her left hand was taken on the
Dying Declaration. She further stated that before and after recording the
Dying Declaration, she had taken the medical fitness certificate from the
Doctor.
31. In cross-examination, she specifically stated that at the time of
recording of Dying Declaration, no member of her family was present.
Even the police was also not present. However, admitted that the room
number in which the injured was admitted is not mentioned. She denied
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that the injured was unconscious. No other question was put to this
witness.
32. Thus, it is clear that Sharda Pathak (P.W.8), who was posted as
Tahsildar and had recorded the Dying Declaration, Ex. P.11 was not cross
examined effectively, so as to point out that the Dying Declaration, Ex.
P.11 was suspicious or not reliable. Even otherwise, Dr Vikrant Singh
(P.W.15) and Sharda Pathak (P.W.8) are independent witness and they
have no grudge to grind against the appellant. Even no such suggestion
was given to any of the above mentioned witness.
33. Under these circumstances, it is clear that Dr. Vikrant Singh
(P.W.15) had recorded the Dying Declaration, Ex. P.18C and Sharda
Pathak (P.W.8) had recorded Dying Declaration, Ex. P.11 and both the
Dying Declarations are identical.
34. It is clear from Spot Inspection Map, Ex. P.5 which was prepared
on 5-12-2013 that one empty Kerosene Oil Stove was found outside the
kitchen with broken base whereas the burnt pieces of Saree and Blouse
were found near the bed kept in the adjoining room. From the seizure
memo, Ex. P.6, it is clear that one Stove which was not in working
condition with broken base and its pump and washer were seized. It is the
argument by the counsel for the appellant, that since, the Kerosene Stove
had burst, therefore, the deceased Priya Dhanuk got burnt. However, it is
clear from the Spot Map, Ex. P.5, that no kerosene oil was found either on
the floor or on the wall. If the stove had burst, then, there should have
been remains of kerosene oil, either on the floor or on the surrounding
walls, but no such evidence was found. How it is possible that on account
of bursting of stove, the entire kerosene oil would fall on the deceased and
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not on any surrounding articles kept on the spot? Furthermore, the
kerosene Oil Stove was found outside the kitchen and pump and washer
were found inside the kitchen. If the stove had burst, then it should also
have been found inside the kitchen. The burnt pieces of Saree and blouse
were found inside the bed room i.e., by the side of the bed. If the stove
had burst, then its body should have got shattered but merely the base was
found broken. Even if it is presumed that the deceased after getting
ablazed on account of accident, had rushed towards her bedroom, then
there should have been some evidence on the floor from kitchen to
bedroom. But nothing of that sort was found by the police on 5-12-2013.
35. Thus, the theory of bursting of stove as projected by the appellant,
is not supported by any circumstance found on the spot.
36. Furthermore, the appellant did not take said defence in his
statement recorded under Section 311 of Cr.P.C.
37. Apart from that, if the intention of the injured/deceased was to
falsely implicate her other in-laws, then she would have alleged against
her parents-in-law also but she did not utter a single word against them,
which clearly shows that she was narrating the truth only and was not
trying to over implicate any of her other in-laws. Even otherwise, the
person on the death bed is not likely to make false statement, unless and
until he is tutored. There is no evidence of tutoring and even that
argument was also not raised by Counsel for appellant. Thus, the Dying
Declarations Ex. P.11 and Ex. P.18C are reliable and trustworthy.
Presence of the deceased on the spot
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38. In both the Dying Declarations, Ex. P.11 and Ex. P.18C, the
deceased had specifically alleged that she was burnt by her husband after
pouring kerosene oil on her. It is submitted by Counsel for appellant, that
the appellant was not in the house and he had gone to attend one function
along with his parents.
39. Considered the aforementioned submission made by the Counsel
for the appellant.
40. The appellant has examined Laxmi (D.W.1), Virendra Dhanuk
(D.W.2) and Gaurishanker (D.W.3). Gaurishanker (D.W.3) has proved
two documents i.e., an information given to S.H.O., Police Station Behat,
Distt. Gwalior, Ex. D.1 and Condolence Message, Ex. D.2.
41. Information given by Gaurishanker (D.W.3) to S.H.O., Police
Station Behat, Ex.D.1 was to the effect that he himself, Gangaram, Chetan
Das, Prabudayal, Janaki bai and Leela bai were present in 13 th day
ceremony of mother of Kamlesh. This information was given to S.H.O.,
Police Station Behat on 4-12-2013 at 20:00 i.e., 08:00 P.M. What was the
need for Gaurishanker (D.W.3) and others to give a written information to
S.H.O., Police Station Behat at 8:00 P.M. about their presence in Behat?
Further more, the name of Chetandas has been mentioned in the
information, whereas the appellant‟s name is Charanjit. Furthermore, the
condolence message, Ex. D.2 was not addressed to any of the family
member of the appellant but it was addressed to some Pappu and Bhojelal.
Gaurishanker (D.W.3) has not stated in his evidence, that the appellant is
also known as Chetan Das. Even the counsel for the appellant, clearly
admitted that the name of appellant is not mentioned in the information
which was given to S.H.O., Police Station Behat, Ex. D.1. Furthermore,
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the factum of giving an information about their presence in police station,
Behat itself is a suspicious circumstance. Appellant did not examine any
police personal from Police Station Behat to prove that the information
Ex. D.1 was in fact given by Gaurishanker (D.W.3) on 4-12-2013 at 20:00
i.e., 08:00 P.M. Thus, the defence taken by the appellant that he had gone
to village Behat to attend 13th day ceremony and was not in his house at
the time of incident is false and accordingly it is rejected.
42. Section 106 of Evidence Act reads as under :
106. Burden of proving fact especially within knowledge.–
When any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him.
43. The Supreme Court in the case of Rajinder Singh v. State of
Haryana, reported in (2013) 15 SCC 245 has held as under :
18. Section 106 of the Evidence Act does not relieve the
burden of the prosecution to prove guilt of the accused beyond
reasonable doubt but where the prosecution has succeeded to
prove the facts from which a reasonable inference can be
drawn regarding the existence of certain other facts and the
accused by virtue of special knowledge regarding such facts
fail to offer any explanation then the court can draw a different
inference.
44. As the appellant has failed to give any explanation as to how the
deceased suffered burn injuries which resulted in her death, this Court is
of considered opinion, that failure on the part of appellant to give
information with regard to circumstance which was within his special
knowledge would be an additional circumstance to prove his guilt.
Conduct of the appellant post incident
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45. This Court has already come to a conclusion, that the appellant was
in his house at the time of incident. Had it been a case of accident, then
the appellant would have certainly rushed to the hospital along with the
injured, but it is clear from the information sent from Civil Hospital
Dabra, Ex. P.21, that the injured was brought by her Jeth Virendra
Dhanuk (D.W.2) and not by husband. Furthermore, in the case of
accident, the appellant was expected to make an attempt to save his wife
and in that situation, he should have suffered burn injuries. But as per the
arrest memo, no injuries were found on the body of the appellant.
Similarly, it is clear from information sent by Ayushman Hospital Neuro
Trauma Centre, Gwalior, Ex. P.17, the injured was accompanied by her
Jeth Virendra Dhanuk and not by husband/appellant. Thus, it is clear that
the appellant immediately ran away from the spot and the injured was
taken to Civil Hospital Dabra and from there to Ayushman Hospital
Neuro Trauma Centre, Gwalior by her Jeth Virendra Dhanuk. Thus, the
absence of the appellant, immediately after the incident clearly indicates
his guilty mind. Although the fact that the accused had absconded
immediately after the incident, may not be a conclusive circumstance,
because under the apprehension of false implication, even an innocent
person may also abscond, however, when there are other surrounding
circumstances indicating towards the guilt of the accused, then his
abscondence after the incident also become an important chain. The
Supreme Court in the case of Kundula Bala Subrahmanyam v. State of
A.P., reported in (1993) 2 SCC 684 has held as under :
22. Prosecution has also relied upon the circumstances of the
absconding of the appellants to prove its case.
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23. A closer link with the conduct of the appellants both at the
time of the occurrence and immediately thereafter is also the
circumstance relating to their absconding. Md. Baduruddin PW
15, the investigating officer, deposed that he had taken up the
investigation of the case and having examined PWs 1-4 had
caused search to be made for the accused but they were not
found in the village and despite search, they could not be traced.
Appellant 1 surrendered before the court on November 10, 1981
while appellant 2 surrendered in the court on December 7, 1981.
No explanation, worth the name, much less a satisfactory
explanation has been furnished by the appellants about their
absence from the village till they surrendered in the court in the
face of such a gruesome „tragedy‟. Indeed, absconding by itself
may not be a positive circumstance consistent only with the
hypothesis of guilt of the accused because it is not unknown that
even innocent persons may run away for fear of being falsely
involved in a criminal case and arrested by the police, but
coupled with the other circumstances which we have discussed
above, the absconding of the appellants assumes importance and
significance. The prosecution has successfully established this
circumstance also to connect the appellants with the crime.
46. Therefore, the conduct of the accused immediately after the
incident, specifically when his own wife had suffered extensive burn
injuries also become important and significant. At the cost of repetition, it
is once again clarified that abscondence by itself may not be a conclusion
proof of guilt, but if the other surrounding circumstances are the proof of
guilt of the accused, then abscondence would also become one of the
important chain of circumstance to prove the guilt of the accused.
47. Accordingly, it is held that the fact that the appellant did not take
his wife to hospital and absconded after the incident Under these
circumstances, the post incident conduct of the appellant also become an
important chain of circumstance. However, there is another aspect of the
matter which cannot be lost sight of. No question was put to the appellant
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in his statement recorded under Section 313 of Cr.P.C. regarding his
abscondence. The Supreme Court in the case of Ranvir Yadav v. State
of Bihar, reported in (2009) 6 SCC 595 has held as under :
9. “12. The purpose of Section 313 of the Code is set out in its
opening words–„for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him.‟ In Hate Singh Bhagat Singh v. State of
Madhya Bharat it has been laid down by Bose, J. that the
statements of the accused persons recorded under Section 313 of
the Code „are among the most important matters to be
considered at the trial‟. It was pointed out that : (AIR p. 470,
para 8)
„8. … The statements of the accused recorded by the
Committing Magistrate and the Sessions Judge are intended in
India to take the place of what in England and in America he
would be free to state in his own way in the witness box [and
that] they have to be received in evidence and treated as
evidence and be duly considered at the trial.‟
This position remains unaltered even after the insertion of
Section 315 in the Code and any statement under Section 313
has to be considered in the same way as if Section 315 is not
there.
13. The object of examination under this section is to give the
accused an opportunity to explain the case made against him.
This statement can be taken into consideration in judging his
innocence or guilt. Where there is an onus on the accused to
discharge, it depends on the facts and circumstances of the case
if such statement discharges the onus.
14. The word „generally‟ in sub-section (1)(b) does not limit the
nature of the questioning to one or more questions of a general
nature relating to the case, but it means that the question should
relate to the whole case generally and should also be limited to
any particular part or parts of it. The question must be framed in
such a way as to enable the accused to know what he is to
explain, what are the circumstances which are against him and
for which an explanation is needed. The whole object of the
section is to afford the accused a fair and proper opportunity of
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explaining circumstances which appear against him and that the
questions must be fair and must be couched in a form which an
ignorant or illiterate person will be able to appreciate and
understand. A conviction based on the accused‟s failure to
explain what he was never asked to explain is bad in law. The
whole object of enacting Section 313 of the Code was that the
attention of the accused should be drawn to the specific points in
the charge and in the evidence on which the prosecution claims
that the case is made out against the accused so that he may be
able to give such explanation as he desires to give.
15. The importance of observing faithfully and fairly the
provisions of Section 313 of the Code cannot be too strongly
stressed:
„30. … it is not sufficient compliance to string together a long
series of facts and ask the accused what he has to say about
them. He must be questioned separately about each material
substance which is intended to be used against him. … The
questioning must therefore be fair and couched in a form which
an ignorant or illiterate person will be able to appreciate and
understand. Even when an accused person is not illiterate, his
mind is apt to be perturbed when he is facing a charge of
murder. … Fairness therefore requires that each material
circumstance should be put simply and separately in a way that
an illiterate mind, or one which is perturbed or confused, can
readily appreciate and understand.‟*”**
48. The Supreme Court in the case of Alister Anthony Pareira v.
State of Maharashtra, reported in (2012) 2 SCC 648 has held as under :
58. The words of P.B. Gajendragadkar, J. (as he then was) in Jai
Dev v. State of Punjab speaking for the three-Judge Bench with
reference to Section 342 of the 1898 Code (corresponding to
Section 313 of the 1973 Code) may be usefully quoted: (AIR p.
620, para 21)
“21. … The ultimate test in determining whether or not the
accused has been fairly examined under Section 342 would be to
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of prosecution case against him. If it appears that the
examination of the accused person was defective and thereby a
prejudice has been caused to him, that would no doubt be a
serious infirmity.”
59. In Shivaji Sahabrao Bobade v. State of Maharashtra a three-
Judge Bench of this Court stated: (SCC p. 806, para 16)
“16. … It is trite law, nevertheless fundamental, that the
prisoner‟s attention should be drawn to every inculpatory
material so as to enable him to explain it. This is the basic
fairness of a criminal trial and failures in this area may gravely
imperil the validity of the trial itself, if consequential
miscarriage of justice has flowed. However, where such an
omission has occurred it does not ipso facto vitiate the
proceedings and prejudice occasioned by such defect must be
established by the accused. In the event of evidentiary material
not being put to the accused, the court must ordinarily eschew
such material from consideration. It is also open to the appellate
court to call upon the counsel for the accused to show what
explanation the accused has as regards the circumstances
established against him but not put to him and if the accused is
unable to offer the appellate court any plausible or reasonable
explanation of such circumstances, the court may assume that no
acceptable answer exists and that even if the accused had been
questioned at the proper time in the trial court he would not have
been able to furnish any good ground to get out of the
circumstances on which the trial court had relied for its
conviction.”
60. The above decisions have been referred in Asraf Ali v. State
of Assam. The Court stated: (SCC pp. 334 & 336, paras 21-22 &
24)
“21. Section 313 of the Code casts a duty on the court to put in
an enquiry or trial questions to the accused for the purpose of
enabling him to explain any of the circumstances appearing in
the evidence against him. It follows as a necessary corollary
therefrom that each material circumstance appearing in the
evidence against the accused is required to be put to him
specifically, distinctly and separately and failure to do so
amounts to a serious irregularity vitiating trial, if it is shown that
the accused was prejudiced.
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22. The object of Section 313 of the Code is to establish a direct
dialogue between the court and the accused. If a point in the
evidence is important against the accused, and the conviction is
intended to be based upon it, it is right and proper that the
accused should be questioned about the matter and be given an
opportunity of explaining it. Where no specific question has
been put by the trial court on an inculpatory material in the
prosecution evidence, it would vitiate the trial. Of course, all
these are subject to the rider whether they have caused
miscarriage of justice or prejudice. …
* * *
24. In certain cases when there is perfunctory examination under
Section 313 of the Code, the matter is remanded to the trial
court, with a direction to retry from the stage at which the
prosecution was closed.”
61. From the above, the legal position appears to be this: the
accused must be apprised of incriminating evidence and
materials brought in by the prosecution against him to enable
him to explain and respond to such evidence and material.
Failure in not drawing the attention of the accused to the
incriminating evidence and inculpatory materials brought in by
the prosecution specifically, distinctly and separately may not
by itself render the trial against the accused void and bad in law;
firstly, if having regard to all the questions put to him, he was
afforded an opportunity to explain what he wanted to say in
respect of the prosecution case against him and secondly, such
omission has not caused prejudice to him resulting in failure of
justice. The burden is on the accused to establish that by not
apprising him of the incriminating evidence and the inculpatory
materials that had come in the prosecution evidence against him,
a prejudice has been caused resulting in miscarriage of justice.
49. Therefore, it is clear that recording of statement of accused under
Section 313 of CrPC is not a mere formality and the Court must put all the
incriminating circumstances to the accused under Section 313 of CrPC to
enable him to give explanation to the circumstances, which can be used
against him. But this aspect is also subject to exception. If the
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circumstances which have been put to the accused, grants him reasonable
opportunity to explain what he wanted to say in respect of prosecution
case against him and any omission has not caused any prejudice to the
accused, then the circumstance which was not put to the accused can be
used against him. Under these circumstances, non-putting a question to
the appellant in his statement under Section 313 of CrPC regarding his
abscondence from the place of incident, as he did not take his wife to the
hospital, would not come in the way of the prosecution for using the
circumstance of abscondence against the appellant, specifically when the
appellant himself had tried to take the plea of alibi.
FSL report
50. The FSL report was not exhibited but it is admissible under Section
293 of CrPC. As per the FSL report, kerosene oil was found in stove, as
well as in semi burnt cloths, but no kerosene oil was found in the pump
and its washer. According to the appellant, the stove had burst, and stove
was recovered from the spot with broken base and the pump with washer
was recovered from the kitchen. Pump with washer is an important part
of kerosene oil stove and washer always remain dipped in the kerosene
oil. However no smell of kerosene oil was found on the pump and
washer, which clearly means that the Kerosene Oil Stove was not
containing pump and washer and in such circumstance, the stove cannot
burst. This Court has already held that the appellant has failed to prove
that the stove had burst. Non presence of kerosene oil on the pump and
washer of the kerosene oil stove, indicates, that an attempt was made to
create false evidence by damaging the base of the stove, and with an
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intention to show that stove had burst, the pump and washer were kept at
different place, so that it can be projected that pump and washer had fallen
at different place, but the person creating false evidence, forgot to dip the
pump and washer in kerosene oil.
51. It is not out of place to mention here that FSL report is part of
record but when it was received by the Court is not clear from the order
sheets of the Trial Court. Whether a copy of the same was supplied to the
appellant or not is also not clear. No question with regard to FSL report
was put to the appellant in his statement under Section 313 of CrPC.
Since, there is nothing on record to suggest that even copy of the FSL
report was supplied to the appellant, therefore, this Court is of considered
view that non-mentioning of FSL report in the statement under Section
313 of CrPC would certainly cause prejudice to the appellant.
Accordingly, the FSL report can not be considered as a circumstance
against the appellant.
Whether the death of Priya Dhanuk was homicidal
52. In view of the dying declarations, Ex. P.11 and Ex. P.18C, the
abscondence of the appellant immediately after the incident, non-
explanation of circumstance (as to how his wife got burnt with kerosene
oil on her body) which was within special knowledge of appellant, this
Court is of the considered opinion, that the death of Priya Dhanuk was
homicidal and not accidental.
53. It is clear from the evidence of Meena (P.W.1) and Hukum Singh
(P.W.2), that the deceased Priya Dhanuk had died a homicidal death,
within 2 years of her marriage. It is true that Meena (P.W.1) and Hukum
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Singh (P.W.2) who are the parents of the deceased Priya Dhanuk had
turned hostile, but it is a case of murder and not of dowry death. Whether
the relations of the deceased with her in-laws were good or not is not
material.
54. Considering the totality of the facts and circumstances of the case,
it is held that the prosecution has proved the guilt of the appellant beyond
reasonable doubt.
55. It is next contended by the counsel for appellant, that even if the
entire allegations are found proved, still the act of the appellant would
come within the purview of Culpable Homicide not amounting to murder.
56. Considered the submissions made by Counsel for the appellant.
57. The appellant had knowingly/intentionally and with knowledge that
his act would cause death of his wife Priya Dhanuk, poured kerosene oil
and set her on fire. Thereafter, he did not felt guilty of what he had done,
and instead of taking her to hospital or making an attempt to extinguish
her fire, he went missing and accordingly, the injured Priya Dhanuk was
taken to hospital by her Jeth Virendra Dhanuk. From arrest memo, Ex.
P.20, it is clear that no injury was found on the body of the appellant,
which clearly means that he did not try to save his wife. Even otherwise,
it is not the case of the appellant, that he had suffered any burn injuries
either on his hands or on any other part of his body. Thus, not only the
conduct of the appellant was with full knowledge and with intention but
even after setting his wife on fire, he did not show repentance for what he
had done, and did not try to save his wife. Under these circumstances, it
cannot be said that the act of the appellant in pouring kerosene oil and
setting her on fire was an outcome of momentary outburst. Under these
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circumstances, it is held that the Trial Court has rightly held the appellant
as guilty for committing murder of his wife and thus rightly held the
appellant guilty for committing offence under Section 302 of IPC. The
Supreme Court in the case of Purshottam Chopra (Supra) has held as
under :
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 also deserve to be, and are, rejected.
58. Accordingly, the conviction of the appellant for offence under
Section 302 of IPC is hereby affirmed.
59. So far as the question of sentence is concerned, Life Imprisonment
is the minimum sentence, accordingly no interference is required on the
question of sentence.
60. Accordingly, the judgment and sentence dated 26.05.2016 passed
by First Additional Sessions Judge, Dabra District Gwalior in Sessions
Trial No. 248/2014 is hereby affirmed.
61. A copy of this Judgment along with the record, be sent to the Trial
Court for necessary information and compliance.
62. The appellant is already in jail and he shall undergo the remaining
jail sentence.
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63. The appeal fails and is hereby Dismissed.
(G.S.Ahluwalia) (Pushpendra Yadav)
Judge Judge
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