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

CASE NO.: Appeal (crl.)  646 of 2006

PETITIONER: Sher Singh & Anr

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 15/02/2008

BENCH: P.P. NAOLEKAR & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 646 OF 2006

P.P. NAOLEKAR, J.  

1.              Three accused have been convicted and sentenced  with rigorous imprisonment for life under Section 302/34 of  the Indian Penal Code (IPC)] and a fine of Rs.1,000/- each  and in default of which to undergo further rigorous  imprisonment of three months.  The fourth accused has  been tried in the Juvenile Court and hence no order was  passed by the Court regarding her. 2.              The brief facts are that Jaspal Kaur (deceased)  married the accused appellant Sher Singh in 1993.  She was  living in her matrimonial home for one-and-a-half years with  the accused - her husband Sher Singh, father-in-law Attar  Singh, mother-in-law Kailash Kaur and sister-in-law  Lakhwinder Kaur alias Rani who has been tried in the  Juvenile Court. On 18.7.1994 at about 12.00 noon, the  deceased received serious burn injuries and was taken to  the Civil Hospital, Ludhiana.  ASI Hakim Singh was informed  and told to record her statement.  Hakim Singh (DW 1)  recorded her statement at 9.00 p.m. in which she said that  the fire was accidental, caught while preparing tea. When  her uncle Harbhajan Singh (PW 4) met her on 19.7.1994,  the deceased informed him that she was burnt by the  accused.  On 20.7.1994, he moved an application before the  District Magistrate to record her statement.  The ADM  directed the Executive Magistrate, Rajiv Prashar (PW 7) to  record her statement and on 20.7.1994 he recorded her  statement.  Her uncle moved another application this time  before the DSP(Rural) Kanwarjit Singh (PW 1) requesting  him to re-examine the matter as according to him she was  forced to make a wrong statement before Hakim Singh.  On  22.7.1994 the S.I. recorded her statement (Exh.PJ) at about  8.05 p.m. after taking the doctor’s opinion.  He stated that  she was fit to make a statement. On 23.7.1994 Jaspal Kaur  died due to burn injuries.  Hence the offence was converted  into that of Section 302 read with Section 34 IPC which  resulted in trial and conviction.   3.              It is submitted by the learned counsel for the  appellant before us that while appreciating the evidence,  reliance should have been placed upon the first dying  declaration made on 18.7.1994, which was first in time  immediately after the incident wherein she stated that the  fire was accidental and no one was responsible for the same,  particularly when there are 6 dying declarations in total (3  written and 3 oral) wherein the statement has been

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

improved from time to time.   Submission of the learned  counsel for the appellants is that it is only when the uncle of  the deceased met her in the hospital that she changed her  first dying declaration and implicated the accused appellants  for commission of crime. When the dying declaration was  recorded by the Executive Magistrate on 20.7.1994, there is  no certification of the doctor that she was in a fit state of  mind to give the dying declaration even though she had  received 80% burns.  It is urged that one local congress  worker Nirmala Sharma was present at the bedside of the  deceased when the dying declaration was made by her on  20.7.1994 and possibility of her being tutored could not be  ruled out. 4.              To appreciate argument of the learned counsel for  the appellants, it would be necessary to scrutinize the  written dying declarations made by the deceased to Hakim  Singh, Rajiv Prashar and Arvind Puri and oral dying  declarations made before her uncle and father.  On  18.7.1994, ASI Hakim Singh recorded her statement when  the doctor endorsed that she was fit to make a statement.   However, the doctor was not present when the dying  declaration was made, though her mother-in-law, one of the  accused was present.  Hakim Singh in his statement before  the Court stated that while recording the dying declaration  he felt that Jaspal Kaur was under pressure.  In this  statement, she said that when the incident took place her  husband and father-in-law were not present in the house  and her mother-in-law was standing outside the house, in  front of the gate, while she was preparing tea.  The stove  suddenly burst and she was soaked with oil and her clothes  caught fire.  She shouted "bachao, bachao", her mother-in- law heard her cries for help and doused her with water from  the bathroom.  Thereafter, she was taken to the hospital by  her mother-in-law with the help of her neighbours and she  said that no one was at fault for the accident. 5.              Harbhajan Singh (PW 4) in his deposition said that  after 6 to 7 months of the marriage of the deceased with  one of the accused, Sher Singh,  all accused persons were  demanding money to the tune of Rs.10,000/-.  On  15.7.1994, the deceased had gone to his house at  Jullandhar and told him that she has to take Rs.10,000/-  from her father otherwise she would have to face dire  consequences.  At that time, the father of the deceased,  Balkar Singh, was in Thailand and, therefore, Harbhajan  Singh sent her back.  On 19.7.1994, he went to Ludhiana to  see Jaspal Kaur.  He saw that the house was locked and on  enquiring from neighbours he came to know that she was  admitted in the hospital.  He met her in the Medical Hospital  where she was admitted.  She told him that her husband,  mother-in-law, father-in-law and sister-in-law set her ablaze  and that her mother-in-law held her by her hair and threw  her on the ground, Attar Singh poured kerosene oil from a  ’peepi’ lying closeby on her and Sher Singh set her on fire  with a match-box and her sister-in-law exhorted  them that  she should be burnt so that she does not survive.  She  requested them to take her to the hospital and the accused  persons said that if she would make a statement in their  favour then alone she would be taken to the hospital.   Consequently, since she was under fear, she made a  statement in their favour to the police.   Hearing this, PW-4  moved an application before the DM for re-recording of her  statement.  On 20.7.1994, the deceased’s statement was  recorded by the Executive Magistrate Rajiv Prashar (PW 7)  (Exh.PG) in the presence of Dr. Rajinder Kumar and Nirmala  Sharma.  In the dying declaration, it was stated that she

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

was burnt by her in-laws, when her mother-in-law asked her  to prepare tea.  Her father-in-law, mother-in-law and sister- in-law poured oil on her and burnt her.   She said that her  husband was not with her but thereafter in the next  sentence she said that they were four \026 father-in-law,  mother-in-law, sister-in-law and husband.  She said further  that they had stated that unless she would make a wrong  statement they would not take her to the hospital and on  agreeing to it they had taken her to the hospital.  It is stated  by her that her sister-in-law lit the fire by match-stick.  She  went to the bathroom where the bucket of water was kept  and poured the same upon herself.   6.              Dr. Rajinder Kumar, Registrar, Plastic Surgery,  New Daya Nand Hospital, Ludhiana issued a certificate to the  effect that Jaspal Kaur, aged 19 years, was admitted in the  hospital on 19.7.1994 at 4.10 p.m. and according to the  record, the patient had got burn injuries upto 80 per cent.   There is no certificate of the doctor that the patient was in a  condition to make a dying declaration but it is apparent from  the dying declaration that the doctor was present when it  was recorded. 7.              Shri Rajiv Prashar, District Transport Officer,  Gurdaspur (PW-7), who was posted as Executive Magistrate  on 20.7.1994, recorded the statement.   He deposed that he  reached the hospital and enquired from Dr. Rajinder Kumar  who was standing near the deceased whether she was in a  condition to make the statement and then the statement  was recorded.  He deposed that the statement was read  over to her and he obtained her right hand thumb  impression and the thumb impression of her right foot.  He  stated that the statement is in his hand and bears his  signature. 8.              The oral dying declaration made before the father  Balkar Singh (PW-6) on 22.7.1994 cannot be relied upon.  It  is admitted by him in the cross-examination that when he  went to the hospital he did not have any talk with his  daughter as she was not in a position to speak at that time.   He touched her but she was unable to speak.   9.              DSP (Rural), Ludhiana instructed SI Arvind Puri  (PW 8) to record the statement of injured Jaspal Kaur.   Accordingly, he went to the hospital and moved an  application before the doctor whether the injured was in a fit  condition to make the statement or not.  On 22.7.1994 at  6.45 p.m., the doctor certified that she was fit to make  a  statement and accordingly her statement was recorded on  22.7.1994.  In her statement, she said that her father-in-law  Attar Singh and husband Sher Singh often used to give  beatings to her and they used to ask her to bring Rs.  10,000/- from her parents.  When she was preparing tea,  her mother-in-law caught hold of her hair and pressed the  same towards the ground and her father-in-law picked up a  kerosene oil can and poured the same on her body and her  husband Sher Singh lit the match box.  She raised alarm.   Her sister-in-law Rani exhorted that she should be burnt in  such a manner that she might not escape.  Her husband  asked all other persons to move out and thereafter closed  the room from outside.  After some time, her husband  opened the door of the room, but by that time she was  badly burnt and was speaking at a very low speech.  When  she pleaded them to take her to the hospital, her father-in- law, husband and sister-in-law said that they would take her  to the hospital only if she would make the statement in their  favour.  On that she told them that she would do so.  She  got her statement recorded on 18.7.1994 under duress of  her in-laws.  On 22.7.1994, she stated that the offence had

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

been committed by her mother-in-law, father-in-law,  husband and sister-in-law for not bringing Rs.10,000/- from  her parents, with an intention to kill her by pouring kerosene  oil upon her.   She stated that she had no fear of anyone  then and thereafter she got her above mentioned statement  recorded.  According to her, the statement heard by her was  correct.  She  put  her  right thumb impression  on  the   dying declaration.  This  statement  is  proved  by  SI Arvind  Puri (PW-8). 10.             In Paparambaka Rosamma and Ors. v. State  of Andhra Pradesh, AIR 1999 SC 3455, it was held by this  Court that although the doctor had appended a certificate to  the dying declaration to the effect that the patient was  conscious while recording the statement, yet it would not be  safe to accept the dying declaration as true and genuine,  since the certificate of the doctor was only to the effect that  the patient was conscious while recording the statement.  It  is necessary for the prosecution to prove that the dying  declaration is true, voluntary and free from all doubts.  But  the doctor’s certificate only said that the patient was  conscious, it did not say that the patient was in a fit state of  mind.  In medical science there are two stages \026 one of  consciousness and the other of a fit state of mind, but they  are not synonyms, and one may be conscious without being  in a fit state of mind.  The court did not rely upon the dying  declaration as the court had also found serious lacunae in  other material particulars.  11.             But in Harjit Kaur and Others v. State of  Punjab and others, (1998) 9 SCC 691, it is held that even  if the dying declaration is not certified by the doctor, it will  still have to be accepted because the person recording it had  stated that the victim was fit to make the statement and had  said that he took the doctor’s opinion regarding the same.   12.             In Koli Chunilal Savji and Anr. v. State of  Gujarat, AIR 1999 SC 3695, the question again was  whether in the absence of a doctor’s certificate as regards  the mental fitness of the person to make a statement, would  it not be reliable?   This Court held that the requirement of  such endorsement is only a matter of prudence and the  ultimate test is whether the dying declaration is voluntary  and truthful.  Before recording the dying declaration, the  officer concerned must find that the declarant was in a fit  condition to make the statement and if the Magistrate is  satisfied about the condition of the patient to make the  statement, such statement can be relied upon. 13.             In Laxman v. State of Maharasthra, AIR 2002  SC 2973, a Constitution Bench of this Court had an occasion  to consider similar aspects regarding veracity of dying  declaration where the doctor’s certificate regarding the  fitness of a person had not been taken.  This Court held that  if the person recording the statement is satisfied that the  person was fit then the veracity of the declaration will not be  questioned.  The Court said that the view taken in  Paparambaka case (supra) of getting the doctor’s  certificate on the state of mind of the patient to make the  statement would be a hyper-technical view, particularly  when the Magistrate stated that the patient was in a fit state  of mind and whereafter he recorded the dying declaration.    The Court further held that where the Magistrate had  ascertained from the doctor whether the victim was in a fit  condition to make the statement and obtained an  endorsement to that effect, merely because the  endorsement was not made on the dying declaration but on  the application, it would not render the dying declaration  suspicious in any manner.

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

14.             Acceptability of a dying declaration is greater  because the declaration is made in extremity.  When the  party is at the verge of death, one rarely finds any motive to  tell falsehood and it is for this reason that the requirements  of oath and cross examination are dispensed with in case of   a dying declaration.  Since the accused has no power of  cross-examination, the court would 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 should ensure that the statement was not as a  result of tutoring or prompting or a product of imagination.   It is for the court to ascertain from the evidence placed on  record that the deceased was in a fit state of mind and had  ample opportunity to observe and identify the culprit.   Normally, the court places reliance on the medical evidence  for reaching the conclusion whether the person making a  dying declaration was in a fit state of mind, but where the  person recording the statement states that the deceased  was in a fit and conscious state, 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 mind of the declarant, the  dying declaration is not acceptable.  What is essential is that  the person recording the 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 without there being the  doctor’s opinion to that effect, it can be acted upon provided  the court ultimately holds the same to be voluntary and  truthful.  A certificate by the doctor is essentially a rule of  caution and, therefore, the voluntary and truthful nature of a  statement can be established otherwise. 15.             In the present case, the first dying declaration was  recorded on 18.7.1994 by ASI Hakim Singh (DW-1).  The  victim did not name any of the accused persons and said  that it was a case of an accident.  However, in the statement  before the court, Hakim Singh (DW-1) specifically deposed  that he noted that the declarant was under pressure and at  the time of recording of the dying declaration, her mother- in-law was present with her.  In the subsequent dying  declaration recorded by the Executive Magistrate Rajiv  Prashar (PW 7) on 20.7.1994, she stated that she was taken  to the hospital by the accused only on the condition that she  would make a wrong statement.  This was reiterated by her  in her oral dying declaration and also in the written dying  declaration recorded by SI Arvind Puri (PW 8) on 22.7.1994.   The first dying declaration exonerating the accused persons  made immediately after she was admitted in the hospital  was under threat and duress that she would be admitted in  the hospital only if she would give a statement in favour of  the accused persons in order to save her in-laws and  husband.  The first dying declaration does not appear to be  coming from a person with free mind without there being  any threat.  The second dying declaration was more  probable and looks natural to us.  Although it does not  contain the certificate of the doctor that she was in a fit  state of mind to give the dying declaration but the  Magistrate who recorded the statement had certified that  she was in a conscious state of mind and in a position to  make the statement to him.  Mere fact that it was contrary  to the first declaration would not make it untrue.  The oral  dying declaration made to the uncle is consistent with the  second dying declaration implicating the accused persons  stating about their involvement in the commission of crime.  The third dying declaration recorded by the SI on the  direction of his superior officer is consistent with the second

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

dying declaration and the oral dying declaration made to her  uncle though with some minor inconsistencies. The third  dying declaration was recorded after the doctor certified that  she was in a fit state of mind to give the statement.  16.             On overall consideration of the entire evidence, we  find no infirmity in the judgment of the High Court which has  considered all material evidence placed by the prosecution  while arriving at the conclusion of finding the accused guilty  of an offence they were charged with.   The appeal is,  accordingly, dismissed.