http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: JAI KARAN

       Vs.

RESPONDENT: STATE OF (N.C.T.  DELHI)

DATE OF JUDGMENT:       27/09/1999

BENCH: K.T.Thomas D.  P.Moh.apatra

JUDGMENT:

     JUD GM E N T       D.  P.  MOHAPATRA .  J .

     In  this  appeal  filed by the accused Jai  Karan  the judgment  of the learned Additional Sessions Judge, Delhi in Sessions  case  No.  16/91 holding him guilty of the  charge under  section 302 IPC for the murder of his wife Wanti Devi (hereinafter  referred.   to  as ’deceased’) and  the  order sentencing  him to R.I.  for life whicn was confirmed by the High  Court  of Delhi incriminal Appeal No.91/94,  is  under challenge.  , ’

     The  genes  is  of the case is that  the  relationship between the appellant and the deceased was not cordial.  The deceased had gone to the

     Court  with  a  claim   for  maintenance  against  the appellant.   On  the  intervention of  their  relations  and will-wisher’s  the  differences  were   patched-up  and  she withdrew  she case.  Thereafter the deceased returned to her marital home and started living with appellant This happened about 7-8 months before the fateful incident.

     On  the  intervening night of 25/26.9.90 the  deceased was  admitted  to  the  Jai Prakash  Narain  Hospital  Delhi (LNJPN)  with extensive burn injuries on her body.  On being informed  about it by the duty constable, S.I.  Balej  Singh (PW  19)  arrived  at thehoepital and obtained  the  medico- legal  certificate  of the deceased in which it  was  stated inter-alia  that  the story given by the patient was to  the effect that she was burnt by her husband by pouring kerosene oil  after  a fight between the two.  On such information  a formal  FIR under section 307 IPC was registered.  Later  in the  day  at about 9.45 a.m.  on receiving  the  information that Wanti Devl expired at 8.35 a.m.  the case was converted into  one  under  section   302  IPC.   After  investigation charge-sheet  under  section 302 IPC was filed  against  the appellant.

     Having  denied  the charge the appellant faced  trial. It  was his case that the injuries sustained by the deceased were  accidental  and  the incident occurred  when  she  was trying to light the kerosene stove.

     The prosecution examined in all 19 witnesses including three  Doctors.   Or.   Anil  Kurmar Aggarwal  (PW  2),  who conducted  the post mortem examination of the deceased;  Dr.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

P.S.   Bhandari (PW 3), who was the head of the unit of  the LNJPN  Hospital,  Delhi  in which, injured  Wanti  Devi  was admitted;   Dr.  Gaurav Nijhara (PW 11), who is said to have recorded the dying declaration of the deceased (Ex.PW 11/A); Muhshi  Ram  (PW 4) and Joginder Singh (PW 5) neighbours  of the  parties;   Hari Singh (PW 10) father of  the  deceased; Chhano  Devi (PW 17) mother of the deceased;  Prem Singh (PW 16)  a nephew of the deceased and Baltej Singh (PW 19), Sub- Inspector of Police, the Investigating Officer.  Neither the neighbourers nor the relations of the deceased supported the prosecution  case and they were cross-examined by the public prosecutor with permiss Ion of the Court.

     Beena  (DW  1) daughter of the deceased was  the  sole witness for the defence.

     The   learned  trial  judge,  as  appears   from   the discussion  in  the judment, believed the  procecution  case that  it was the accused who poured kerosene on his wife and lit  the  match-stick on account of which she  suffered  the fatal  injuries,  relying  mainly on the  dying  declaration (Exh.   11/A) and accordingly passed the order of conviction and sentence.

     The  High Court on perusal of the oral and documentary evidence  came to the conclusion that the dying  declaration was  &  reliable  piece of evidence on which  the  order  of conviction  could  be  based and accordingly  confirmed  the judgment and order of the trial court.

     The  short  Question that arises is whether the  dying declaration  said  to have been made by the  deceased  (Exh. 11/A)  is  believable and acceotable and conviction  can  be based on the same.

     A  dying declaration is admissible in evidence on  the principle of necessity and can form the basis for conviction if  it is found to be reliable.  While it is in the  nature’ of  an  exception  to the general  rule  forbidding  hearsay evidence, it is

     admitted on the premiss that ordinarily a dying person will  not  falsely  implicate  an  innocent  person  in  the commission of a serious crimee.  It is this premiss which is considered  strong enough to set off the need that the maker of  the  statement  should  state so on oath  and  be  cross examined  by the person who is sought to be implicated.   In order  that a dying declaration may form the sole basis  for conviction without the need for independent corroboration it must  be shown that the person making It had the opportunity of  identifying  the  person implicated  and  is  thoroughly reliable  and  free  from blemish.  If.  in  the  facts  and circumstances of the case, it is found that the maker of the statement  was  in a fit state of mind and  had  voluntarily made  the  statement  on the basis  of’  personal  knowledge without  being influenced by others and the court on  strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence

     cannot  be  acted upon unless it 1s  corroborated.   A dying  declaration is an independent piece of evidence  like any  other piece of evidence - neither extra strong nor weak and  can be acted upon without corroboration if it is  found to be otherwise, true and reliable.  (1991 (1) SCO 744

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

     Padmaben  Shamalbhai Patel Vs.  State of Gujarat  Para 8).

     In  AIR 1975 SC 1519 (Jayarj V.  State of Tamil  Nadu) this Court made the followin observations :

     When the deponent (while making his dying declaration) was  in severe bodily oain (because of stabbing injuries  in abdomen),  and words were scarce, his natural impulse  would be  to  tell the Magistrate, without wasting his  breath  on details,  as  to who had stabbed him.  The very  brevity  of dying  declaration,  in the circumstances of the  case,  far from  being  a suspicious circumstance, was an index of  its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the ocular account given by the eye- witnesses."

     In  case of Khushal Rao Vs.  State of Bombay (AIR 1958 SC  22)  this Court laid down the following propositions  of law relating to the test of reliability of dying declaration :

     (1)  That it cannot be laid own as an absolute rule of law  that a dying declaration cannot form the sole basis  of conviction unless it is corroborated;

     (2) That each case must be determined on its own facts keeping  in  view  the  circumstances in  which  the  dy’ing declaration was made;

     (3)  That  1’t  cannot  be  laid  down  as  a  general proposition  that  a .dying declaration is a weaker kind  of evidence than other piece of evidence.

     (4)  That  a  dying .declaration stands  on  the  same footing  as another .piece of evidence and has to be  judged in the light of surrounding circumstances and with reference to the pririciples governing the weighing of evidence;

     (5)  That a dying declaration which has been  recorded by  a competent Magistrate in the proper manner, that 1s  to say,  in  the form of Questions and answers, and, as far  as practicable,  in  the words of the maker of the  declaration which depends -upon

     oral   testimony.   wich  may   suffer  from  all  the infirmities of human memory ana human character;  ana

     (6)  That in order to test the reliability of a  dying declaration;    the  Court  has  to   keep  in   view,   the circumstances  like  the  opportunity of the dying  man  for observation, for example, whether there was sufficient light if  the crime was committed at night;  whether the  capacity of  the  man  to  remember the facts stated,  had  not  been impaired  at  the  time  he was  making  the  statement,  by circumstances  beyond  his control;  that  thestatement  has been  consistent throughout if he had several  opportunities of making a dying declaration apart from the official record of  it;   and-  that  the statement had  been  made  at  the earliest  opportunity and was not the result of tutor ing by interested parties.

     In  the case of Paniben V.  State of Gujarat 1992  (2) SCO  474  this  Court  summed up  the  principles  of  dying declaration with the following

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

     observation (para 18):

     "Though  a  dying  declaration is en  itled  to  great weight,  it  is worthwhile to note that the accused  has  no power  of cross examination.  Such a power is essential  for eliciting the truth as an obligation of oath could be.  This is  the  reason  the  Court  also  insists  that  the  dying declaration  should  be of such a nature as to inspire  full confidence  of the.  Court ’-in its correctness.  The  Court has  to be on- guard that the statement of daceased was  not as  a result of either tutor-ing, prompting or a product  of imagination.   The Court must be further satisfied that  the deceased  was  in  .a  fit  state of  mind  after  a  clear, opportunity  to  observe and identify the assailants.   Once the  Court  1s satisfied that the declaration was  true  and voluntary,  undoubtedly, it can base its conviction  without any  further  corroboration.  It cannot be laid down  as  an absolute  rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.  The rule  requiring corroboration is merely a rule of  prudence. This Court has laid down .n several judgments the principles governing dying.

     declaration, which could be summed up as under:

     "(ii)  There  is neither rule of law nor  of  prudence that   dying  declaration  cannot  be  acted  upon   without corroboration  (Munnu  Raja V.  State of M.P.  1976 (3)  SCC 104;

     (ii)   If  the-Court  is   satisfied  that  the  dying declaration  "is true and voluntary "it can base  conviction on  it;   without  corroboration.  (State of U.P.   v.   Ram Sagar Yadav (1985 (1) SCC 552 and Ramawati Devi V.  State of Bihar (1983) 1 SCC 211);.

     (ill)   THIS  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 opportunity to observe and  identify  the assailants  and  was in a fit state of make the  declaration (K.   Ramachandra Reddy Vs.  Public Prosecutors 1976 (3} SCC 618);  .-

     (iv)’  Where dying declaration is suspicious it should not be acted acted without

     corroborative  evidence  (Rasheed  Beg  v.   State  of M.P.(1974(4) SCC 264);

     (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to  be rejected.  (Kake Singh V.  State of M.P.  1981 (Supp) SCC 25);

     (v1) A dying dec}aration which suffers from infirmity cannot form the basis of conviction (Ram Manorath Vs.  State of U.P.(1981 (2) SCC 654);

     (vii)  Merely  because  a dying declaration  does  not contain  the  details as to the occurrence, it is not to  be rejected.   (State  .   of Maharashtra  Vs.   KrisnnaiTiurti Laxmipati Naidu, 1980 (Supp).SCC 455)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

     (viii)   Equally,  merely  because  it  is   a   brief statement,  it is not to be discarded.  On the contrary, the shortness of the statement itself guarantees truth, Surajdeo Oza vs.  State of Bihar (1980 Supp.  SCC 769);

     (ix)  Normally  the court in order to satisfy  whether deceased was in a fit mental condition

     to  make the dying declaration look up to the  medical opinion.   But  where  the  eye witness has  said  that  the deceased was in a fit and conscious state to make this dying declaration,  the medical opinion cannot prevail.   (Nanahau Ram Vs.  State of M.P .  1988 Supp.  SCC 152);

     (x)  Where  the prosecution version differs  from  the version   as  given  in   the  dying  declaration,  the-said declaration cannot be acted upon.  (State of U.P.  V.  Madan Mohan (1989) 3 SCC 390)."

     Testing  the  case- in hand on the touchstone  of  the principles  laid  down in the decisions.;  noted  above  the position that emerges is that the prosecution evidence rests solely  on  the dying declaration said to have been made  by the   deceased  since  the   parents,  other  relations  and neighbours  did not support its case.’ From the evidence  of Dr.   Bhandari  (PW 3), it appears that he had produced  the case  sheets  pertaining to injured Wanti Devi in the  Court and  with  reference  to  those papers he  stated  that  the injured  was  admitted in the burns ward of the hospital  on 26.9.90 at 1.00

     a.m.   with  95%  burns;   that she was  seen  by  Dr. Rajender  Prasad  Singh, the then medic.  I officer on  duty .in  the  ward and that the case sheets were written by  Dr. Rajender Prasad Singh.  From the evidence of this witness it is  older  that though he was the head of the unit in  which the  patient was admitted ha had not personally attended the patient  nor  had any knowledge about the statement made  by her.   The  witness could not say where Dr.  Gaurav  Nijhara was on duty on that day, even after seeing records.

     Dr.Gaurav  Nijhara (PW11) in his testimony has  stated that  he  was  posted  as  ffiedica.l  officer  in  L.N.J.P. hosoital  on 26.9.90 and on that day injured Wanti Devi wife of Jai Karan was brought to the hospital by her husband.  It is  also in his evidence that the injured ’cold the  witness that  after  a fight with her husband he  (huobarid)  poured kerosene  on  her and lit the fire;  that on  examining  the injured  he  found  her  haying 90%  burns;   that  she  was conscious, cooperative and oriented regarding time place and person.  The witness claim that he admitted her in the burns ward  and  prepared  her MLC No.  89766 and  he  signed  the document  Ex.PW 11/A.  The witness also examined the accuse’ when he

     brought  his  wife.  and gave the history  of  burning both his hands while "burning his wife with kerosene".  This history  was also written by the witness (Ex.PW 11/B).   The witness has also stated that  the injured persons (deceased and  accused) made the statement in Hindi while he  recorded it  in English, that he had not read over and explained  the contents  of  the document to the injured.  He had also  hot taken her signature or thumb impression on the document.  No other  person  had.  attested the statement alleged to  have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

been made by the injured Wanti Devi before the witness.

     A  look at the document Ex.PW 11/A clearly brings  out that  an endorsement had been’ made by Dr.  Rajender  Prasad Singh at 1.10 a.w.  that the injured Warti Devi was not in a fit  condition for making statement.  This endorsement  also gains  support  from the evidence of the Police Officer  (PW IS)  who  stated that on getting the information  about  the incident  when  he  reached the hospitat he  was  told  that the-injured  is  .not  in  a fit condition  for  making  any statement and he returned without recording any statement.

     A closer look at the document also shows that

     a  portion of it staling "after fight between the two" was  written in a different manner (words written in smaller letters) giving an Impression that it was not-written at the time of making the rest of the endorsements.

     From  the statement of Or.  Bhandar’ it is clear  that Dr.Gaurav Nijhara was not allotted duty in the unit in which the deceased Wanti Devi was admitted.  It is his categorical statement  that  he  could not say where  Dr.   Nijhara  was allotted  duty in the hospital.  This .statement by the head of  the  unit  is very Important.  The  statement  raises  a serious doubt whether Dr.  Gaurav Nijhara was at all on duty In the burns ward at the time when the injured was admitted. Further,  from the endorsement made by Dr.  Rajender  Prasad Singh  who was the medical officer in charge of theward  the injured  was not in a fit condition for making a  statement. There  is  no  statement made by Dr.  Nijhara or  any  other witness  when her condition improved and she became fit  for making  the statement.  Unfortunately, Dr.  Rajender  Prssad Singh has not been exa.mined by the prosecution-.

     In the facts and circumstances of the-case.

     emerging  from the evidence on record as discussed  in the  foregoing  paragraphs, we find it difficult to raly  on the alleged dying declaration as sole basis for conviction,

     On  perusal  of the records and on giving our  anxious considerations  to the entire entire we are of the view that it  will not be safe to convict the appellant solely on  the basis  of  the dying declaration made by the deceased.   The learned Courts below erred in passing the judgment and order of conviction against the appellant on that basis.

     The  appeal is allowed.  The impugned Judgment of  the High  Court  of  Delhi in Criminal Appeal No.   91  of  1994 confirming  the .judgment of the Additional Sessions  Judge, Delhi  in Sessions Case No .16 of 1991 is set aside and  the appellant is acquitted of the charges framed against him.