AMIT KUMAR & ANR.versusSTATE OF PUNJAB

                       [2010] 9 S.C.R. 1088


A                      AMIT KUMAR & ANR.
                                  v.
                        STATE OF PUNJAB
                 (Criminal Appeal No. 62 of 2006)
                         AUGUST 12, 2010
B
       [B. SUDERSHAN REDDY AND SURINDER SINGH
                      NIJJAR, JJ.]

        Penal Code, 1860 - s.302134 - Murder- Conviction by
C courts below based on dying declaration and ocular testimony
    of witnesses - On appeal, held: Conviction was justified - The
    dying declaration and ocular evidence is reliable - Evidence
    - Dying Declaration.

       The two appellants-accused, alongwith other two
0
  accused persons, were prosecuted for commission of
  offences punishable u/s. 302/34 IPC. The prosecution
  case was that the appellant-accused (husband of the
  victim) alongwith his younger brother (another appellant-
  accused) his mother (accused since deceased) and his
E sister-in-law, set the victim on fire. The victim was taken
  to hospital. Her statement was recorded by the Judicial
  Magistrate, after taking opinion of the doctor regarding
  her fitness to make the statement. Subsequently, the
  victim succumbed to the burn injuries. The Mother-in-law
F of the deceased died before the committal proceedings.
  The other three accused were put on trial. The trial court
  convicted the appellants-accused u/s. 302/34 IPC and
  acquitted the third accused giving her the benefit of
  doubt. High Court upheld the order of the trial court. The
G instant appeal was filed by the appellants-accused.

         Dismissing the appeal, the Court

        HELD: 1. The trial court as also the High Court
H                               1088
    AMIT KUMAR & ANR. v. STATE OF PUNJAB              1089


meticulously examined and re-examined the entire              A
evidence to conclude that the two appellants are guilty
of murdering the deceased by setting her on fire as she
and her parents had failed to meet the wholly unlawful
demands of dowry. The entire body of evidence leaves
no doubt that the trial court as well as the High Court       B
correctly concluded that the two appellants are guilty
beyond reasonable doubt. There is no reason to interfere
with the verdict recorded by the trial court as well as the
High Court in convicting the appellants of murder. [Paras
10 and 19] [1095-D-E; 1106-G]                                 C

      2. Both the courts below correctly relied on the dying
declaration. The same cannot be disbelieved on the basis
that it may be a result of tutoring by the family members
of the deceased. It was specifically noticed in the
judgment of the High Court that the statement of the D
deceased had been recorded after an application
(Ex.. P26) was moved before the Magistrate. The Judicial .
Magistrate also stated that all safeguards were observed
by him before recording the statement. He was cross-
examined at length but nothing fruitful could be extracted E
from his statement which would show that the dying
declaration was a tainted one. The Magistrate has
categorically stated in his evidence that the deceased
was lying in the cabin at the time when the statement was
recorded. The cabin was not accessible to the relatives F
of the injured. Thus, there is no occasion to disbelieve
the dying declaration in the facts and circumstances of
the instant case. [Paras 15 and 16) [1102-B-F; 1104-H]

     Paniben (Smt.) vs. State of Gujarat (1992) 2 SCC 474,    G.
relied on.

    3. There is also no reason to doubt the presence of
the witnesses PW1, PW2 and PW5. PW2 had been told
by the deceased that she had been burnt. Similarly, PW3
came into the compound after he saw the smoke from the        H
    1090   SUPREME COURT REPORTS              [2010) 9 S.C.R.


A fire in which the deceased was burning. The evidence of
  PW1, and PWS is unflinching, coherent and consistent.
  Both the witnesses have withstood lengthy cross-
  examination without any loss of credibility. Their evidence
  cannot be discarded only on the ground that they are
B close relations of the deceased. Even PW2 had stated
  that the deceased had named the appellants as the·
  persons who set her on fire. She seems to have changed
  her stand, during the long interval between the earlier
  statement and the time when she appeared in the court,
c for reasons best known to her, but not difficult to discern.
  But that is no reason to discard her entire evidence. [Para
  17] [1105-A-D]

         Sat Paul vs. Delhi Administration (1376) 1 SCC 727,
    relied on.
D
       4. There is no doubt that the appellants had indeed
  set the deceased on fire. In the history· recorded on the
  bed-head ticket (Ex. P13), it is stated that the patient had
  herself claimed to have set herself on fire by using
E kerosene oil on account of some fight within t~e family
  members. The High Court examined the bed-head ticket
  and observed that the whole record is made
  subsequently by the doctor as he is making repeated
  entries with regard to the previous history at different
F stages. This was not required at all. In his enthusiasm to
  help the accused, at one stage, he even goes to the
  extent of showing that fire was extinguished by husband
  and family members by using water and cloth. This was
  not even the case pleaded by the appellants who had put
G forward a plea of alibi to show that they were not even
  present at the time when the deceased received the burn
  injuries. Similarly, the testimony of DW8 has been held to
  be unreliable as he was trying to save his kith and kin.
  He has made improvements in his statement, while
H
    AMIT KUMAR & ANR. v. STATE -----
                                OF. PUNJAB               1091


stating that the deceased disclosed to his wife that she          A
committed suicide and it was her mistake. The courts
below have correctly held that this was an effort made by
the witness to save his family. [Para 18) [1106-B-F]

                     Case Law Reference:
                                                                  B
    (1992) 2 sec 474            Relied on.           Para 16

    (1976) 1 sec 121            Relied on.           Para 17

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 62 of 2006.                                                   C

    From the Judgment & Order dated 18.05.2004 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 226-0B of 2002.
                                                                  0
    Tanuj Bagga Sharma (AC.) for the Appellants.

    Kuldip Singh for the Respondent.

    The Judgment of the Court was delivered by

      SURINDER SINGH NIJJAR, J. 1. This appeal has been E
filed by the two appellants challenging the judgment rendered
by the High Court of Punjab and Haryana in Criminal Appeal
No.226-0B of 2002 dated 18.5.2004. By the aforesaid
judgment, the High Court has confirmed the judgment of the
Sessions Judge, Faridkot dated 25.1.2002 in Sessions Case F
No. 48 of 16.12.1997 and Sessions Trial No. 390 of 7.4.1998
whereby both the appellants have been convicted under
Section 302 IPC for the murder of Anita Rani, hereinafter
 referred to as "the deceased''. However, Neelam Rani, sister-
in-law of the deceased has been given benefit of doubt and · G
acquitted of the charges framed against her.

    2. It appears that Anita Rani, deceased was married to
Amit Kumar, appellant herein, about 4 % years prior to the date
                                                                  H
    1092    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A when she was set on fire, which led to her death. Both the
  Courts have noticed the continuous history of torture and
  harassment of the deceased by the appellants and their
  deceased mother Kailash Rani as they were not satisfied with
  the dowry given to the deceased at the time of marriage. Both
B the Courts have also noticed that continuous efforts had been
  made to bring about reconciliation between the deceased and
  the in-laws. Efforts had been made by the panchayat also to
  make the in-laws of the deceased accept the fact that her
  parents had given as much dowry as they could afford.
c However, it appears that the family of ttie in-laws was not
  satisfied and, therefore, decided to do away with the young
  bride, m.erely 22 years of age. She was set ablaze in broad
  daylight on the morning of 26.6.1997, in the courtyard of the
  house belonging to her in-laws. The horror of the story lies in
  the fact, that the victim lost her life, because her parents failed
0
  to provide a refrigerator and a television.

         3. With the aforesaid tragic prelude, we can now proceed
    to decipher the events which culminated in the burning of Anita
    Rani on the morning of 26.6.1997.
E
       4. According to Kimti Lal, PW1 and Gulshan Kumar, PWS,
  it was Asha Rani PW2, neighbour of the deceased, who told
  them that Anita Rani had been set ablaze with kerosene oil.
  Thereafter, they went to the house of the accused where they
F saw Anita Rani lying in the courtyard, having been severely
  burnt. However, the fire had been extinguished by the time they
  reached. On enquiry made by Kimti Lal, PW1, Anita Rani stated
  "Kailash Rani, Amit Kumar, Brij Bhushan and Neelam Rani had
  put kerosene oil on her and set her on fire and she should be
G saved." At that time, all the accused were present in the
  courtyard. Kimti Lal and Gulshan Kumar took Anita Rani to
  Dayanand Medical College/Hospital, Ludhiana and got her
  a':lmitted th~re. ASI Rajpal Singh (PW 17) received information
  about the incident at about 12.15 p.m. He promptly reached the
  hospital (DMC), and made preliminary enquiries. Thereafter, he
H
    AMIT KUMAR & ANR. v. STATE OF PUNJAB                    1093
          [SURINDER SINGH NIJJAR, J.]

went to the Duty Magistrate and moved a request application          A
(Ex.P26) at 4.30 p.m. for recording the statement of Anita Rani.
(Endorsement Ex.P27 was made by Judicial Magistrate i.e. on
the application). Within a short period, ASI Rajpal Singh
alongwith Harjinder Pal Singh, PW13, the then Judicial
Magistrate, 1st Class, Ludhiana, reached the hospital. Opinion       B
of the doctor regarding the fitness of the patient was given at
5.05 p.m. (Ex.P28). After she was declared fit (endorsement
Ex.P11), her statement (Ex.P29) was recorded at 5.25 p.m.
Thereafter, ASI Raj pal Singh, PW17 recorded another
statement of Anita Rani (Ex.P8) from 5.40 p.m. to 6.30 p.m.          c.
This statement was also recorded after obtaining the opinion
of the doctor (Ex.P13). On the basis of the aforesaid statement,
a ruqa was sent for the registration of the case at the Police
Station, Moga resulting in the recording of a formal FIR (Ex.P7).
Initially, the FIR was recorded under Section 307/498-A/34 IPC       0
against all the four accused, namely, Amit Kumar, Brij Bhushan,
Kailash Rani and Neelam Rani. Holf:lever, Anita Rani died on
1st July, 1997. Therefore, the case was registered under
Section 302 read with 34 IPC against all the four accused.
However, Kailash Rani passed away before committal
                                                                     E
proceedings. Consequently, the proceedings against her was
abated.

     5. The aforesaid three accused were duly put on trial for
the offence under Section 302 read with 34 IPC. At the trial,
the prosecution examined 17 witnesses. Apart from giving their       F
explanation under Section 3.13 Cr.P.C, the accused also
examined 9 witnesses in defence. Upon meticulous
examination of the entire evidence, the trial court convicted Amit
Kumar and Brij Bhushan under Section 302 read with Section
34 IPC for the murder of Anita Rani. However, Neelam Rani            F
was given benefit of doubt and acquitted.

    6. The aforesaid judgment was challenged by the two
appellants by way of Criminal Appeal No. 226-08 of 2002
before the High Court. Upon a complete reappraisal of the            H
    1094    SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   evidence, the High Court dismissed the appeal filed by the two
    appellants.

         7. We have heard the learned counsel for the parties at
    length.
B        8. Challenging the findings and observations of the Courts
    below, the learned counsel for the appellants submitted that this
    is a case of a tainted investigation. The evidence of
    prosecution witnesses can not establish the guilt of the
    appellants as their evidence is only with regard to the
C   maltreatment being given to the deceased. None of them being
    eye-witnesses can possibly state as to whether she committed
    suicide or not. Asha Rani only stated that Anita Rani had told
    her that she had been burnt by them. She did not name any
    person as an accused. Although she says that she saw Kailash
D   Rani and Neelam Rani were present, she did not see any other
    accused in the house. Even otherwise her evidence is
    worthless as she was declared hostile, when she denied having
    made any previous statement, in which she had named the
    accused, as having set Anita Rani on fire. Learned counsel
E   further pointed out that evidence of Gulshan Kumar (DW8) who
    also sustained burn injuries has been wrongly ignored. He had
    given a true account of the events. He was the only eye witness.
    With regard to the investigation, it is submitted that Rajpal
    Singh, ASI was hand-in-glove with the parents of the ·deceased.
F   He pointed out a number of procedural irregularities. He actually
    doubted the manner in which Rajpal Singh, ASI came to know
    about the incident. The sum total of the submissions of the
    learned counsel seems to be that the investigation was
    unsatisfactory, as well being partial. Learned counsel also
G   submitted that both the Courts below have committed a serious
    error .in relying on the dying declaration recorded by the Judicial
    Magistrate. He has submitted that Anita Rani was so badly
    burnt, she was in no fit state to make such a lengthy statement.
    It has been fabricated at the instance of ASI Rajpal Singh. Both
H   the Courts, according to the learned counsel, have erred in not
    AMIT KUMAR & ANR. v. STATE OF PUNJAB                   1095
          [SURINDER SINGH NIJJAR, J.]

giving proper weightage to the statement made to the doctor         A ·
which was recorded in the bedhead ticket of the patient. The
doctor had clearly recorded the statement of Anita Rani that she
had set herself ablaze. It was only subsequently at the instance
of Rajpal Singh, ASI that the accused i.e. appellants had been
named by Anita Rani. Learned counsel laid considerable              B
emphasis on the fact that conduct of the appellants in removing
the injured immediately to the hospital clearly shows that the
accused made all efforts to save Anita Rani, after she had set
herself on fire.

     9. We have given our anxious thought to the submissions        C
of the learned counsel. We are, however, unable to accept any
of the submissions of the counsel of the appellants.

      10. The trial court as also the High Court has meticulously
examined and re-examined the entire evidence to conclude that       D
the two appellants are guilty of murdering Anita Rani by setting
her on fire as she and her parents had failed to meet the wholly
unlawful demands of dowry. The entire body of evidence seems
to leave no manner of doubt that the trial court as well as the
High Court has correctly concluded that the two appellants are      E
guilty beyond reasonable doubt.

     11. From the evidence on record, it would appear that the
present two appellants and the two accused, namely, Kailash
Rani and Neelam Rani were arrested on 29th June, 1997. Kimti
Lal (PW1 ), who is the real brother of the deceased, has F
narrated the entire history of harassment of the deceased prior
to her being set on fire by the accused persons. Gulshan Kumar
(PW5) is a cousin of Anita Rani, deceased. He has
corroborated the testimony of Kimti Lal, PW1 in all details. He
has deposed about the demands made by the accused for G
dowry in the shape of television and refrigerator. He also talked
about the continuous maltreatment given by the accused
persons to Anita Rani. Asha Rani, PW2 had initially made a
statement before.the police giving a graphic account of how .
Anita Rani was set on fire by the accused persons after pouring ,/f-1
    1096    SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A kerosene oil on her. She, however, did not reiterate the entire
  sequence in Court, which in all probability, led to her being
  declared hostile. Even then, in Court, she unequivocally stated
  that due to the disputes over dowry, there always used to be
  quarrels between the accused and the deceased. The in-laws
B were always asking for more dowry and used to taunt her.
  However, so far as the tragic incident of 26.6.1997 is
  concerned, she only stated that when she reached the house
  of Anita Rani, the fire had already been extinguished and Anita
  Rani did not disclose to her as to who had set her ablaze. In
C the earlier statement, she had specifically named the present
  appellants actively participating in setting Anita Rani on fire by
  pouring kerosene oil on her. Another witness Satnam Singh,
  PW3, is a Carpenter, who had been working in the
  neighbourhood of the accused. He also stated that on the day
  of the occurrence he had seen a fire burning in the house of
0
  the accused. When he pushed the door open and entered the
  house, ~e had seen one person trying to extingui.sh the fire.
  Thereafter, he also helped in extinguishing the fire. Afterwards,
  he went back to his place of work. PW4 Dr. U.S. Sooch,
  Medical Officer, Civil Hospital, Ludhiana conducted the autopsy
E on the dead body of Anita Rani on 1.7.1997 af4.40 p.m. He
  observed as follows:

              "The dead body was 5 feet 4 inches long. It was
        naked, well built and well nourished, Eyes and mouth were
F       partially open. Post mortem staining was present on the
        posterior surface of viscera and was patchy. The rigor
        mortis was present in the upper limbs only. The vene
        section wound was on the left ankle and pad ink blue in
        colour was present on the right big toe. He found the
G       following injuries on the dead body :

        (1) Superficial .to deep infected burns all over the body
        except the grow in area, public area, vulva and both feet,
        singeing of hairs of body, Scalp and face were present.

H
     AMIT KUMAR & ANR. v. STATE OF PUNJAB                   1097
           [SURINDER SINGH NIJJAR, J.]

    Puss and slough formation was present at multiple areas          A
    with crust formation of the superficial wounds of burns."

     He also observed that pleura larynx, tracheae and both
lungs were congested. The stomach contained 250cc of fluids.
The liver, spleen and kidneys were also congested. Urinary
                                                                     8
bladder and uterus were healthy and empty. He has opined that
the cause of death was due to septicaemia as a result of
infected extensive burns, which were sufficient to cause death
in ordinary course of nature and the burns were ante mortem
in nature. He further opined that the probable time between          C
burns and death was about six days and between death and
post mortem was about six hours. He has further deposed that
the post mortem was conducted after observing normal
formalities and upon an application made by the police (Ex.P6).
The fitness of the deceased to make the statement was duly
proved by PW7 Dr. Sanjiv Kumar Singla. At this stage, we must        D
also notice that the bedhead ticket (Ex.P13) pertaining to Anita
Rani prepared at DMC has been proved by Dr. Panjak Arora,
PW8. In his cross-examination, he has stated that Amit Kumar
had brought Anita Rani to the hospital and she was alleged to
have sustained burn injuries after she set herself on fire because   E
of some dispute with the family members on 26.6.1997 at 10
a.m. Ashish Gupta, PW9, Registrar, DMC, Ludhiana has
deposed that Anita Rani waf 1dmitted in the hospital on
26.6.1997 at 11.20 a.m. He had sent the necessary intimation
to the police station regarding Anita Rani being brought to the      F
hospital having approximately 90% burns of second and third
degrees. Although the patient had been burnt at about 10 a.m.
on 26.6.1997, she was conscious and oriented. He opined that
the nature of the injuries was dangerous. He has also stated
that Anita Rani was shifted to burn Intensive Care Unit on           G
26.6.1997 at about 2.00 p.m. He had further stated, during
cross-examination, that after a patient suffers 90% burn injuries,
he goes into primary shock initially for 2 to 4 hours. He however
further testified that according to the record, she remained
conscious throughout the period. Raj Kumar PW10 is the               H
    1098   SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A photographer, who has proved the photographs (Ex.P21 to
  P23). Ex.P18 to P20 are the negatives of the photographs.
  PW11, Gursewak Singh is the Draftsman, who prepared the
  scaled site plan of the place of occurrence. Subhash Chander,
  PW12 is another witness produced by the prosecution to the
B effect that he had intervened in the dispute of Anita Rani and
  her in-laws as she was being harassed on account of demand
  of dowry. PW14 Mangat Ram is again a witness with regard
  to the demand of dowry. He has narrated that there was a
  demand of TV and Refrigerator by the appellants. He had
c intervened in the dispute, it was as a result of his undertaking
  that Anita Rani was sent back to the matrimonial home.

        12. ASI HC Hardial Singh, PW15 delivered the special
  report to the llaqa Magistrate on 26.6.1997 at 10.00 p.m. HC
  Gurmail Singh, PW16 produced the Roznamcha for the period
D from 20.6.1997 to 11.7.1997 of Police Station, Moga City- I.
  ASI Rajpal Singh is the investigating officer. We may notice at
  this stage that the statement (Ex.P29) recorded by the Judicial
  Magistrate in the vernacular language was treated as a dying
  declaration upon the death of Anita Rani. The translated version
E of the dying declaration is:-

              "There used to be a quarrel on trivial matters. My
        younger Darani (my husband's brother's wife) had gone
        to her parents after quarrelling. I have been residing
F       separate from my in-laws in the same house. My husband's
        younger brother washed his banyan (under garment)
        himself. It happened a day before yesterday that my
        husband had slapped me and given fist blows and he had
        refused to take meals from me. I had said that I should
        work as well and bear the beatings. My husband was also
G
        saying that I war. a clung (i.e. clunk) to him. A day before
        yesterday when I had asked my husband to take meals
        then he had told that "Tere Maan bap da siapa kar ke
        awanga" (he will go and protest before her parents.) My
        husband had also told me that if I died, he will have no
H
      AMIT KUMAR & ANR. v. STATE OF PUNJAB                     1099
            [SURINDER SINGH NIJJAR, J.]

      worry. My husband's younger brother Babbu, mother-in-law          A
      Kai lash Rani, my husband, my husband's sister were also
      standing there (uni kol khari see). Then my husband's elder
      brother came there and put off the fire. Kerosen_e oil was
      sprinkled upon me by my mother-in-law, my husband's
      younger brother and my husband after taking me near the           B
      kacha kotha in the courtyard of our house. When my
      husband, my mother-in-law and my husband's younger
      brother set me on fire, then my sister-in-law was standing
      there. My husband's elder brother and his wife, both saved
      me. When a mattress (Gadha) was demanded for placing              c
      the same upon me, then my mother-in-law told that she had
      no mattress. My in-laws were saying that neither the
      refrigerator nor a television has been given in dowry and
      only a scooter has been given. Now I have brought utensils
      from my parental house, then they said that why she had
                                                                        0
      brought utensils by demanding the same and why these
      u_tensils were not given at the time of Marriage? I do Aot
      want to say anything more. R.O.A.C. Sd/- JMIC(Duty)
      26.6.1997 statement recorded between 5: 10 p.m. to 5:25
      p.m.)".
                                                                        E
       · 13. It has also come in the statement of Judicial Magistrate
   tlarinder Pal Singh (PW 13) that since all the finger tips of the
· hands of Anita Rani were burn~ . .3he had put the impression of
 . h.et:,J~ght toe on the dying declaration. A note (Ex.P30/1) was
>-iecorded by the Magistrate in this regard. Another note               F
. (Ex.P30/3) was also recorded, which indicated that Anita Rani
   had made her statement voluntarily and which contains the true
. account of the statement made by her. In court the Judicial
   r{agistrate reiterated that upon reaching the hospital, he had
   soll"ght the information about the fitness of Anita Rani from Dr.    G
   Sanjiv Kumar Singla, who was present in the burn Intensive Care
   Unit of DMC, Ludhiana. The witness has duly proved the
   opinion (Ex.P11) made by the doctor declaring that Anita Rani
   was fit to make a statement. It is categorically stated by the
   Judicial Magistrate that Anita Rani understood the questions         H
    1100    SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A and the answers that were being recorded. He has a!so stated
  that the statement was made by Anita Rani out of her free will.
  He has proved the statement (Ex.P29) and the endorsement
  (Ex.P30) by which he had certified that Anita Rani had, put
  impression of her right toe on the dying declaration as
B impression of the finger tips of her hands could not be taken
  because all the finger tips were burnt.

         14. Upon completion of the prosecution evidence, the trial
   court examined the accused under Section 313 of the Criminal
   Procedure Code and the incriminating circumstances
C appearing against the accused in the prosecution evidence
   were put to them. All the accused pleaded that they were
   innocent and that the witnesses being relations of the
   deceased are only interested in the success of the case. The
   appellants Amit Kumar and Brij Bhushan run cloth shop at
D Village Daroli Bhai. It was further stated by them that on the
   date of the occurrence Poonam w/o Brij Bhushan had gone to
   her parental house. Therefore, when Amit Kuniar asked his wife
   Anita Rani to prepare the food for them, she had flatly refused
   to do so. Consequently, both of them did not have their meal
E and left for the shop at 8.30 a.m. It was only when Brij Bhushan
   and Amit Kumar were standing at the tempo stand, Moga for
   going to Village Daroli Bhai that they received a message that
   Anita Rani has set herself ablaze by sprinkling kerosene oil on
   her. On the return to the house, they saw that Anita Rani had
F been burnt and their brother Gulshan ~umar had also got burn
   injuries while extinguishing the fire. Then Amit Kumar called her
   parents and arranged a jeep and took Anita Rani to DMC,
   Ludhiana in order to save her life. It was also stated that
   Gulshan Kumar, Brother-in-law of Amit Kumar, Purshottam Lal
G and Kimati Lal had also accompanied Anita Rani and Gulshan
   Kumar to DMC. They denied mrtking any demands for dowry
   from Anita Rani or from her parents. It was also the case of Amit
   Kumar that Anita Rani had told the doctor, who prepared the
   case history that she had set herself on fire. This was all
H- changed at about 1.30 p.m. when his father-in-law Sant Lal
     AMIT KUMAR & ANR. v. STATE OF PUNJAB                   1101
           [SURINDER SINGH NIJJAR, J.]
          \

reached there alongwith ASI Rajpal Singh, who is close to them.      A
It is also alleged that he was illegally detained by Rajpal Singh,
ASI. The appellants also examined DW1 to DW9 in their
defence. DW4 Dr. Ashok Kumar has proved the burn injuries
suffered by Gulshan Kumar at the time of extinguishing the fire
of Anita Rani on 26.6.1997. He has also proved bed head ticket       B
of Gulshan Kumar (Ex.017) and Anita Rani (Ex.018). DW8,
Gulshan Kumar, who is the brother of the accused stated that
he with the help of Satnam Singh and his wife put off the fire.
He had further stated that Anita Rani had disclosed to his wife
that she had herself set ablaze. DW9, Harish Kumar is a              c
witness to prove the plea of Alibi set up by the accused Neelam
Rani. Sipce she has been acquitted, the High Court treated this
as irrelevant. We need say no more on this issue.

      15. The High Court while examining the various
submissions made on behalf of the appellants has come to the D
conclusion that the dying declaration is a clinching piece of
evidence as it was recorded by the Judicial Magistrate within
a few hours of the occurrence. We have also seen the contents ·
of the dying declaration. This statement which was recorded
in the vernacular has been translated into English with E
exactitude. A bare perusal of the same would show that whole
statement is spontaneous and sets out the correct version of
the events leading to her being set on fire. She does not unfairly
implicate anybody who had not participated in the crime. She
clearly stated that her younger Darani i.e. husband's brother's F
wife had gone to her parents after quarrelling. She also states
that there was a quarrel between her and her husband. He had
slapped her and refused to take any food from her. She had
retorted that she does all the work in the house and still she
has to bear the beatings with shoes. He had earlier informed G
her that he was going to protest to her parents about her
misbehavior. He had categorically told that if she dies, he would
have no worries. She stated that her husband's younger
brother, mother-in-law, her husband and her husband's sister
were also standing there. But she then correctly states that her H
    1102    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A husband's elder brother tried to save her by extinguishing the
  fire. In the very next line, she again states that kerosene oil was
  sprinkled upon her by her mother-in-law, her husband's younger
  brother and her husband. This was done by taking her near the
  "kacha kotha". She stated that her mother-in-law, her husband
B and younger brother set her on fire. But her husband's elder
  brother and his wife, both tried to save her. In our opinion, both
  the Courts below have correctly relied on the dying declaration.
  We are unable to accept the submission of learned counsel for
  the appellant that the aforesaid dying declaration ought to be
c disbelieved on the basis that it may be a result of tutoring by
  her family members. In fact, this very objection has been
  considered by the High Court. It has been specifically noticed
  in the judgment of the High Court that the statement had been
  recorded after an application (Ex.P26) had been moved before
  the Magistrate. The Judicial Magistrate also stated that all
0
  safeguards were observed by him before recording the
  statement. He was cross-examined at length but nothing fruitful.
  could be extracted from his statement which would show that
  the dying declaration was a tainted one. The Magistrate has
E categorically stated in his evidence that Anita Rani was lying
  in the cabin at the time when the statement was recorded. The
  cabin was not accessible to the relatives of the injured and she
  could be seen from outside only through the glass of the cabin.
  It must be remembered that at the time Anita Rani had been
  taken to the Intensive Burn Injury Unit, she had received 90%
F burn injuries of second and third degrees. Therefore, she was
  isolated in the burn unit to avoid any chances of infection. She
  was so badly injured that her statement had to be identified by
  the right toe print of her foot.

G       16. In view of the above, we are unable to disbelieve the
  statement (Ex.P29) which has ultimately been declared as a
  dying declaration. This Court while stating the principles of
  testing the authenticity of a dying declaration has observed in
  the case of Paniben (Smt.) Vs. State of Gujarat (1992) 2 SCC
H 474 as follows:-
AMIT KUMAR & ANR. v. STATE OF PUNJAB                       1103
      [SURINDER SINGH Nl~JAR, J.]
"18. Though a dying declaration is entitled to great weight, · A
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 B
the Court in its correctness. The Court has to be on guard
that the statement of deceased was not as a result of either
tutoring, 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 c
identify the assailants. Once the Court is satisfied that the
declaration was true and voluntary, undoubtedly, it can
base 1ts 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
                                                               0
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:

(i) There is neither rule of law nor of prudence that dying         E
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                 F
corroboration. (State of UP. v. Ram Sagar Yadav (1985)
1 SCC 552; Ramawati Devi v. State of Bihar (1983) 1
SCC211).

(iii) This Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the           G
result of tutoring, prompting or imagination. The deceased
had opportunity to observe and identify the assailants and
was in a fit state to make the declaration. (K.
Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC
618).                                                               H
    1104    SUPREME COURT REPORTS                  [2010) 9 S.C.R.


A       (iv) Where dying declaration is suspicious it should not be
        acted upon without corroborative evidence. (Rasheed Beg
        v. State of M.P. (1974) 4 sec 264).

        (v) Where the deceased was unconscious and could never
        make any dying declaration the evidence with regard to it
8
        is to be rejected. (Kake Singh v. State of M.P. (1981)
        Supp sec 25)

        (vi) A dying declaration which suffers from infirmity cannot
        form the basis of conviction. (Ram Manorath v. State of
c       UP. (1981) 2 sec 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 v. Krishnamurti Laxmipati Naidu
D       (1980) Supp sec 455)

        (viii) Equally, merely because it is a brief statement, it is
        not be discarded. On the contrary, the shortness of the
        statement itself guarantees truth. Surajdeo Oza v. State
        of Bihar (1980) Supp SCC 769)
E
        (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
F       to make this dying declaration, the medical opinion cannot
        prevail. (Nanahau Ram v. 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
G       cannot be acted upon. (State of UP. v. Madan Mohan
        (1989) 3 sec 390)."

       Applying the aforesaid ratio of law we find that there is no
  occasion to disbelieve the dying declaration in the facts and
H circumstances of the present case.
       AMIT KUMAR & ANR. v. STATE OF PUNJAB                      1105
             [SURINDER SINGH NIJJAR, J.]

        17. We also see no reason to doubt the presence of the            A
  witnesses PW1, PW2 and PWS. Asha Rani had been told by
  Anita Rani that she had been burnt. Similarly, Satnam Singh,
  PW3 came into the compound after he saw the smoke from
  the fire in which Anita Rani was burning. The evidence of PW1,
  Kimti Lal and PWS, Gulshan Kumar is unflinching, coherent and           B
  consistent. Both the witnesses have withstood lengthy cross-
  exam ination without any loss of credibility. Their evidence
  cannot be discarded only on the ground that they are close
  relations of the deceased. Even Asha Rani, PW2 had stated
  that Anita Rani had named the appellants as the persons who             c
  set her on fire. She seems to have changed her stand, during
· the long interval between the earlier statement and the time
  when she appeared in court, for reasons best known to her, but
  not difficult to discern. But that is no reason to discard her entire
  evidence. In our opinion, the course adopted by the Courts
                                                                          0
  below can not be said to be erroneous. In similar
  circumstances, this Court has in the case of Sat Paul Vs, Delhi
  Administration (1976) 1 SCC 727, has observed as follows:

      "From the above conspectus, it emerges clear that even
      in a criminal prosecution when a witness is cross-                  E
      examined and contradicted with the leave of the court, by
      the party calling him, his evidence cannot, as a matter of
      law, be treated as washed off the record altogether. It is
      for the Judge of fact to consider in each case whether as
      a result of such cross-examination and contradiction, the           F
      witness stands thoroughly discredited or can still be
      believed in regard to a part of his testimony. If the Judge
      finds that in the process, the credit of the witness has not
      been completely shaken, he may, after reading and
      considering the evidence of the witness, as a whole, with           G
      due caution and oare, ·accept, in the light of the other
      evidence on the record, that part of his testimony which he
      finds to be creditworthy and act upon it."

      Without reference to any case law, the Courts below have
                                                                          H
    1106     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   correctly applied the aforesaid principle to the facts of the
    present case.

          18. There remains no doubt that the appellants had indeed
    set the deceased on fire. Much emphasis was placed by the
    learned counsel for the appellant on the history recorded on the
8
    bedhead ticket (Ex.P13). In this history, it is stated that the
    patient had herself claimed to have set herself on fire by using
    kerosene oil on account of some fight within the family members
    at 10.00 a.m. on 26.6.1997. The High Court examined the
    bedhead ticket and observed that the whole record is made
C   subsequently by the doctor as he is making repeated entries
    with regard to the previous history at different stages. This was
    hot required at all. In his enthusiasm to help the accused, at one
    stage, he even goes to the extent of showing that fire was
    extinguished by husband and family members by using water
D   and cloth. This was not even the case pleaded by appellant Amit
    Kumar and Brij Bhushan, who had put forward a plea of alibi
    to show that they were not even present at the time when Anita
    Rani received the burn injuries. Similarly the testimony of
    Gulshan Kumar (DW8) has been held to be unreliable as he
E   was trying to save his kith and kin. He has made improvements
    in his statement (Ex.DE), while stating that Anita Rani disclosed
    to his wife she committed suicide and it was her mistake. In
    our opinion, the courts below have correctly held that this was
    an effort made by the witness to save his family. Clearly the
F   appellants had resorted to telling one lie after another to escape
    the conviction for the murder which they had clearly committed.

       19. In view of the aforesaid, we find no reason whatsoever
  to interfere with the verdict recorded by the trial court as well
G as the High Court in convicting the appellants of murder.

         20. The appeal is accordingly dismissed.

    K.K.T.                                       Appeal dismissed.