Supreme Court of India
JAGBIR SINGHversusSTATE
- Citation
- 2019 INSC 1000
- Decided
- 4 September 2019
- Disposal
- Dismissed
- Bench
- SANJAY KISHAN KAUL
Holding
The later dying declaration of 27‑01‑2008 is reliable, voluntary and sufficient to uphold the conviction, and the appeal is dismissed.
Summary
Jagbir Singh was convicted of murder (Sec. 302 IPC) and criminal intimidation (Sec. 506 IPC) for allegedly pouring kerosene on his wife and setting her ablaze. The victim gave three statements: two early statements (24‑01‑2008 and 25‑01‑2008) describing an accidental fire, and a later dying declaration on 27‑01‑2008 implicating the appellant. The Supreme Court examined the reliability of the later dying declaration, the absence of a medical fitness certificate, the possibility of tutoring or prompting, and the forensic evidence of kerosene residue. It held that the 27‑01‑2008 declaration was voluntary, trustworthy and corroborated by scientific and eyewitness evidence, and therefore could sustain conviction even without corroboration. The appeal was dismissed and the conviction upheld.
Issues considered
- The admissibility and evidentiary value of multiple dying declarations, especially the later one implicating the accused.
- Whether a dying declaration can form the sole basis of conviction in the absence of a medical fitness certificate.
- Whether the earlier statements constitute dying declarations and how they affect the later declaration.
- Whether the dying declaration was vitiated by tutoring, prompting or imagination.
- The cause of the fire – accidental (petrol leak) versus homicidal (kerosene poured by the accused).
- The appellant's claim to the deceased's property under the Hindu Succession Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Hindu Succession Act, 1956s. 15, s. 16
- Indian Evidence Act, 1872s. 32
- Indian Penal Code, 1860s. 302, s. 506
Subjects
dying declarationmultiple dying declarationsadmissibilitySection 32 Evidence ActSection 302 IPCSection 506 IPCforensic evidencekerosene residuetutoring and promptingmedical fitness certificateproperty disputeHindu Succession Act
Judgment
[2019] 11 S.C.R. 1137 1137
JAGBIR SINGH A
v.
STATE (N.C.T. OF DELHI)
(Criminal Appeal No. 967 of 2015)
B
SEPTEMBER 04, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Penal Code, 1860:
ss. 302 and 506 - Prosecution under - Alleging that the
C
accused killed his wife setting her ablaze after pouring kerosene
oil over her - Accused also sustained burn injuries - In the MLC
(on 24.1.2008 the date of incident) the victim-wife made her
statement that fire was accidental which was caused due to leakage
of petrol from the tank of motorcycle when the accused was lighting
his 'biri' - On 25.1.2018 in statement made to the police officer D
the victim did not implicate the accused - However, in her statement
dated 27.01.2008 the victim attributed the act of setting her ablaze
by pouring kerosene oil over her - Presence of kerosene oil on
the clothes of the victim, at the scene of incident and also on the
articles recovered therefrom - Plea of accused that he was being E
implicated in the case pursuant to a conspiracy by the other sisters,
brother-in-law and mother of the deceased-victim to deprive him
of the property of the deceased - Courts below convicted the
accused relying on dying declaration dated 27.01.2008 discarding
the earlier two statements of the deceased and also relying on other F
evidence - Appeal to Supreme Court - Held: There is overwhelming
evidence that the fire was caused by the use of kerosene - The
statements of deceased dated 24.01.2008 and 25.01.2008 do not
explain the cause of smell of kerosene from the body of the
deceased as well as the accused and from the clothes of the G
deceased - The version as projected in the statement/declaration
dated 27.1.2008 is clinchingly proved as the same is corroborated
by other evidence - The declaration dated 27.01.2008 is reliable
as the deceased was fit to make the declaration - Evidence Act,
1872 - s. 32 - Dying Declaration.
H
1137
1138 SUPREME COURT REPORTS [2019] 11 S.C.R.
A Dying Declaration:
Evidentiary value of dying declaration - Held: Conviction
can be based solely on dying declaration - If the court finds that
there is nothing suspicious about the declaration; that there is no
tutoring or prompting; and that imagination was not at play in
B making the declaration, no corroboration is required.
Multiple dying declarations - Inconsistent and irreconcilable
declarations being repugnant to one another - Reliance on - Held:
The Court, after examining the entirety of materials as also the
circumstances surrounding the making of the different dying
C declarations, should act upon the truthful dying declaration.
Absence of medical certificate as to fit mental and physical
condition of the person making dying declaration - Effect of -
Held: The medical certificate would go a long way in inspiring
confidence of the court in the declaration - However, such
D certificate is essentially a rule of caution - The voluntary and
truthful nature of declaration can be established otherwise -
Absence of such certificate is not fatal.
Dismissing the appeal, the Court
HELD: 1.1 Conviction of a person can be made solely on
E the basis of a dying declaration which inspires confidence of the
court. If there is nothing suspicious about the declaration, no
corroboration may be necessary. No doubt, the court must be
satisfied that there is no tutoring or prompting, the court must
also analyse and come to the conclusion that imagination of the
F deceased was not at play in making the declaration. In this
regard, the court must look to the entirety of the language of
the dying declaration. Considering material before it, both in the
form of oral and documentary evidence, the court must be
satisfied that the version is compatible with the reality and the
truth, as can be gleaned from the facts established. [Para 30]
G [1164-E-H]
1.2 There may be cases where there are more than one
dying declaration. If there are more than one dying declaration,
the dying declarations may entirely agree with one another.
There may be dying declarations where inconsistencies between
H the declarations emerge. The extent of the inconsistencies would
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1139
then have to be considered by the court. The inconsistencies A
may turn out to be reconciliable. In such cases, where the
inconsistencies go to some matter of detail or description but
is incriminatory in nature as far as the accused is concerned, the
court would look to the material on record to conclude as to
which dying declaration is to be relied on unless it be shown that
B
they are unreliable. [Para 30] [1165-A-C]
1.3 Where in one dying declaration, the accused may not
be blamed at all and the cause of death may be placed at the
doorstep of an unfortunate accident. This may be followed up
by another dying declaration which is diametrically opposed to
C
the first dying declaration. In fact, in that scenario, it may not
be a question of an inconsistent dying declaration but a dying
declaration which is completely opposed to the dying declaration
which is given earlier. [Para 30] [1165-D-E]
1.4 When there are more than one dying declaration, and D
in the earlier dying declaration, the accused is not sought to be
roped in but in the later dying declaration, a summersault is made
by the deceased, the case must be decided on the facts of each
case. The court will not be relieved of its duty to carefully
examine the entirety of materials as also the circumstances
E
surrounding the making of the different dying declarations. If the
court finds that the incriminatory dying declaration brings out
the truthful position particularly in conjunction with the capacity
of the deceased to make such declaration, the volu ntariness with
which it was made which involves, no doubt, ruling out tutoring
and prompting and also the other evidence which support the F
contents of the incriminatory dying declaration, it can be acted
upon. Equally, the circumstances which render the earlier dying
declaration, worthy or unworthy of acceptance, can be
considered. [Para 31] [1166-B-D]
1.5 The Trial Court has brushed aside the contention that G
the Dying Declaration was result of conspiracy, as frivolous. The
property belonged to PW7-mother-in-law of the appellant. It is
inconceivable how the appellant would have any right either
during her lifetime or even upon her dying intestate to get the
property under the Hindu Succession Act, 1956. Having regard H
1140 SUPREME COURT REPORTS [2019] 11 S.C.R.
A to Sections 15 and 16 of the Hindu Succession Act, 1956, it is
clear that the appellant cannot claim any right. [Para 33] [1166-
H; 1167-A-B]
1.6 It is not in dispute that in the dying declaration dated
27.01.2008, there is no certificate by the Doctor certifying that
B the patient was conscious or that the patient was mentally or
physically fit to give the declaration. Undoubtedly, it is true that
the certificate by a Doctor about the patient being conscious and
fit to give a dying declaration would go a long way in inspiring
confidence of the court. However, a certification by the doctor
is essentially a rule of caution and therefore the voluntary and
C
truthful nature of the declaration can be established otherwise.
Though absence of the certificate by a Doctor is not fatal to act
upon a dying declaration, but 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
D the declaration. [Paras 37 and 38] [1168-E-G; 1169-A-B]
1.7 In the present case, the controversial dying declaration
dated 27.01.2008 implicating the appellant, was recorded by a
Police Officer. The Police Officer was performing his official
functions. There is no acceptable material to show that he was
E interested in implicating the appellant or that he was showing
any undue favour to PW1 or PW7. Even though, it may be true
that he may not have put questions to ascertain her condition,
the declaration, which is seen made, sufficiently assures of the
physical and mental condition of the deceased to make the
declaration. The appellant also proceeded on the basis that on
F
25.01.2008, the deceased was in a condition to make the
statement. There is no case for the appellant that after
24.01.2008 and 25.01.2008, the condition of the deceased took
a turn for the worse. The death took place only on the sixth day
after making the declaration on 27.01.2008. Therefore, the
G deceased was in a position to make the declaration. [Para 39]
[1169-F-H; 1170-A]
1.8 There is no material before the Court to hold that the
dying declaration is a creation of imagination of the deceased.
Nothing is established by the appellant to show that the facts
H which have been stated in regard to the physical places and
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1141
things spoken of by the deceased in regard to the rooms, etc., A
do not match with the reality on the ground. [Para 40] [1170-C]
1.9 It is not correct that the statements made at the
hospital on 24.01.2008 and to the Police Officer on 25.01.2008,
are not dying declarations. Under Section 32 of the Evidence
Act any statement made by a person as to the cause of his death B
or to any circumstance of the transaction which resulted in his
death would be relevant. Once it is proved that such statement
is made by the deceased then it cannot be brushed aside on the
basis that it is not elaborate or that it was not recorded in a
particular fashion. The principle that the statement is brief, would
not detract from it being reliable. Equally, when there are C
divergent dying declarations, it is not the law that the court must
invariably prefer the statement which is incriminatory and must
reject the statement which does not implicate the accused. The
real point is to ascertain which contains the truth. [Para 41]
[1170-E-F]
D
1.10 The courts below were not in error in disregarding
the statement attributed to the deceased in the MLC dated
24.01.2008 and the statement taken on the next day, i.e., on
25.01.2008. The incident, admittedly, took place towards the
evening of 24.01.2008. The appellant and the deceased were
taken by the Police in the PCR vehicle to the hospital. It is the E
proximity of the appellant, which apparently stood in the way of
the deceased, disclosing the truth of the matter. The appellant
and the deceased continued to be in the same hospital on
25.01.2008 also. In this regard, in the dying declaration, relied
upon by the prosecution, the deceased has stated that as the F
appellant had extended threat to her, she could not give a
statement on the very same day. Apparently, this means that she
has proceeded on the basis that the declaration made on
27.01.2008 is the first dying declaration which she is making.
She has, in other words, not treated the statement made on
24.01.2008 at the time when she was admitted, as a declaration. G
So also, the statement made on 25.01.2008, she was operating
under the threat extended by her husband. [Para 57] [1175-H;
1176-A-C]
1.11 The dying declaration dated 27.01.2008 is seen
recorded in Hindi. There is no case that the deceased was not H
1142 SUPREME COURT REPORTS [2019] 11 S.C.R.
A familiar with Hindi and it can safely be concluded that the dying
declaration was recorded in a language with which the deceased
was familiar. [Para 45] [1172-B]
1.12 The dying declaration dated 27.01.2008 is a fairly
lengthy narration. It contains details about what happened on the
B fateful day, in a fairly graphic manner including details regarding
the place where it happened, the manner in which it happened,
the specific role played by the appellant, even things (presence
of the motorcycle), the door being locked, are reflected. Even
reference was made to the relationship which the appellant was
having with his sister-in-law. [Para 46] [1172-C-D]
C
1.13 Further, the motive of the appellant to kill the
deceased, has been stated by her to be that he had illicit relations
with his Bhabhi (sister-in-law). She has also spoken about
differences which she had with her husband and the settlement
which had taken place in the Panchayat. PW7-mother of the
D
deceased has also spoken about the affair, which appellant had
with his sister-in-law. Thus, the motive attributed to the appellant
by the deceased, is not the figment of her imagination. She is
very coherent and clear in this regard. [Para 58] [1176-D]
1.14 In dying declaration dated 27.01.2008, the deceased
E speaks of one boy, (PW24) a neighbour coming inside by jumping
the main gate and breaking the lock placed inside the main gate
with the help of hathi (handle) of the handpump. It is difficult to
find that the deceased could have given the detail about PW24
doing what he did, only on the basis of any tutoring or prompting
F by PW1 or PW7. Thus, this portion of the statement stands
fortified by the corroborative evidence of PW24. [Para 59] [1176-
E-H; 1177-A]
Laxman v. State of Maharashtra (2002) 6 SCC 710 -
followed.
G Kishan Lal v. State of Rajasthan AIR 1999 SC 3062 :
[1999] 1 Suppl. SCR 517 ; Paniben (Smt) v. State of
Gujarat (1992) 2 SCC 474 : [1992] 2 SCR 197 ;
Kundula Bala Subrahmanyam and another v. State of
Andhra Pradesh (1993) 2 SCC 684 : [1993] 2 SCR
H 666 ; Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1143
713 : [2004] 2 SCR 659 ; Sayarabano Alias A
Sultanabegum v. State of Maharashtra (2007) 12 SCC
562 : [2007] 2 SCR 354 ; Amol Singh v. State of M.P.
(2008) 5 SCC 468 : [2008] 8 SCR 956 ; Heeralal v.
State of M.P. (2009) 12 SCC 671 : [2009] 4 SCR 283;
Lakhan v. State of M.P. (2010) 8 SCC 514 : [2010] 9 B
SCR 705 ; Sher Singh v. State of Punjab (2008) 4 SCC
265 : [2010] 9 SCR 705 - referred to.
2.1 There is evidence on record, both in the form of oral
testimony and documentary evidence, to suggest that there was
kerosene kept in the premises. The can is found, the photograph C
of the can is taken. It is also sent for forensic examination.
There is reference to the smell of kerosene available in evidence.
The very first document available, viz., the MLC is dated
24.01.2008. In the same, it is clearly stated that there is smell
of kerosene from the body of the deceased. In the second D
statement recorded by the Investigating Officer on the very next
day, i.e., on 25.01.2008, it is stated that the patient was unable
to tell the cause of kerosene oil smell from her body. This is in
regard to the statement by the appellant which has also come
to be recorded. [Paras 47, 48] [1172-E-G]
E
2.2 So far as further evidence indicating presence of
kerosene oil is concerned, there is evidence of PW1 who speaks
about being told about pouring of kerosene oil by the appellant
over the deceased. PW7-mother-in-law of the appellant states
that her daughter told her while in the hospital that kerosene
F
oil was kept behind in a small container meant for storing grains.
The appellant poured kerosene oil over her. He also sprinkled
some kerosene oil on himself also. She, no doubt, states that
she had stated before the Police that she had no ration card, that
they never used to purchase kerosene oil or never used to keep
kerosene oil and the kerosene oil must have been purchased G
from outside. She was, no doubt, confronted about such omission
in the statement. PW8 conducted the post-mortem. She does
not, undoubtedly, note the smell of kerosene. However, the
post-mortem was conducted on 03.02.2008, almost ten days after
the incident. [Para 48] [1172-G-H; 1173-A-B] H
1144 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 2.3 PW-29 is the Investigating Officer. He deposes that
the can of kerosene oil was lying and kerosene was lying spread
on all the sides of the can. He has spoken about seizing the burnt
matchstick and matchbox. He reiterates that in the report, he
has mentioned about the smell of kerosene oil emanating from
B the clothes seized by him. [Para 49] [1173-C]
2.4 PW30 is the Doctor who identified the handwriting of
the doctor who had taken down the statement of the deceased
inter alia on 24.01.2008, stated that the patient/deceased was
unable to tell the cause of kerosene smell present on her body.
C More significantly, it was stated that the doctor who had
recorded the statement dated 24.1.2008 also appended a note
that patient is not giving proper history. [Para 50] [1173-D-E]
2.5 PW31, the Senior Scientific Assistant (Chemistry),
C.F.S.L., stated that on chemical and gas chromatographic
D examination, Exhibits 1A, 1B, 2A, 2B, 2C, 2D and 2F (clothes)
and Exhibit 3 were found to contain residue of kerosene oil.
Residue of kerosene oil, diesel and petrol could not be detected
in Exhibit 4 (two burnt matchsticks) and Exhibit 5 (Scissors of
iron and copper). He further stated that only in case, in a mixture
E of petrol and kerosene, if the quantity of kerosene is more, it will
emanate smell of kerosene. The residue can remain even for about
one year or so unless the article is placed in Sun and is not properly
preserved. [Para 51] [1173-G-H; 1174-A]
2.6 Overwhelming evidence relating to the presence of
F kerosene starting with the can, kerosene being found by PW29
on the spot near the can on his inspection on the same day, the
presence of kerosene residue on the clothing belonging both
to the deceased and the appellant, as found by the Scientific
Expert, would clearly establish that kerosene was used in
causing the fire. This completely fortifies the prosecution. It
G
equally clearly rules out the case sought to be set up by the
appellant that it was a case of accidental fire which was brought
about when the appellant was lighting his biri and a leak from
the motorbike causing the fire. As deposed by the Scientific
Expert, the possibility of kerosene smell would be there only if
H kerosene content is more in the petrol. Secondly, the leak would
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1145
not have been of such an extent as to lead to the incident of A
this nature. [Para 52] [1174-D-F]
2.7 There is overwhelming evidence that the fire was
caused by the use of kerosene. In the statement, there is no
reference to the appellant being drunk. Everything was normal
till the accidental fire erupted upon the motorcycle catching fire. B
Deceased states that the appellant was trying to extinguish the
fire and his clothes also caught fire. The deceased, however,
does not state that she went to extinguish the fire and thereby
sustained the burn injuries. In other words, the statement on
25.01.2008 does not contain any reason as to how the deceased C
caught fire. There was no statement that she suffered the
extensive (65 per cent) burn injuries when she tried to put out
the fire. Secondly, the version involves the motorcycle catching
fire. There are photographs of the motorcycle. It is only the part
of the seat of the motorcycle which was burnt. In this regard, it
is apposite to notice that PW14-Police Photographer has D
deposed about reaching the spot on 24.01.2008 at 09.00 P.M.
and taking the photographs, inter alia, of the motorcycle.
Statement of 25.01.2008 does not appear to indicate the cause
of the burn injuries suffered by the deceased, for the reasons
stated above. This version also is incompatible with the presence E
of the kerosene can which is proved by the evidence of PW29-
Investigating Officer, PW-14-photographer and the photograph.
The statements made on 24.01.2008 and 25.01.2008 will not
explain the cause of smell of kerosene emanating from the body,
both of the deceased and from the appellant, as also the clothes
smelling of kerosene. PW30 apparently spoke about the clothes F
smelling. That the appellant was unable to tell the cause of
kerosene smell from his body. It is found that kerosene smell
was present in the body of the patient. [Para 60] [1177-G-H;
1178-A-D]
2.8 In the statement on 27.01.2008, the deceased had G
spoken about the appellant coming drunk. He poured kerosene
over the deceased. He also poured some kerosene on himself.
The cause of fire was by lighting matchstick after pouring the
kerosene. The deceased runs and trips over the handpump. The
presence of the handpump is corroborated by the evidence of H
1146 SUPREME COURT REPORTS [2019] 11 S.C.R.
A PW24-neighbour. No doubt, the action of the appellant in pulling
out the petrol pipe is also referred to by the deceased in the
dying declaration dated 27.01.2008. The fire erupting near the
motorcycle is, thus, explained in the declaration dated
27.01.2008. It is here that the role of alcohol in the whole
incident, which must be borne in mind. [Para 61] [1178-E-F]
B
2.9 The appellant suffering 40 per cent injuries on his face,
neck and both upper limbs, was found compatible with the dying
declaration dated 27.01.2008 wherein the deceased has
explained that when she tried to flee, the appellant caught her
trying to prevent her from running out. In the dying declaration,
C
the deceased has stated that the appellant caught fire when the
fire erupted near the motorcycle as a result of the pipe of the
petrol tank being taken out by the appellant. The case of the
appellant is that the fire occurred when he had lit a biri. He had
no case that the pipe of the petrol tank had been taken out
D thereby causing the fire. But PW29-Investigating Officer, has
deposed that the petrol pipe of the motorcycle had been
detached from the place where it should be. He has also stated
that in the inner room, a can of kerosene oil was lying and the
kerosene was lying spread on all the four sides of the can. There
is no reason to disbelieve PW29. The version, as projected in
E the declaration dated 27.01.2008, is clinchingly proved by this
circumstance that kerosene was indeed the fuel used which
caused the burn injuries and its position in the inner room is
compatible with the dying declaration dated 27.01.2008. [Para
63] [1179-B-F]
F Case Law Reference
[1999] 1 Suppl. SCR 517 referred to Para 18
[1992] 2 SCR 197 referred to Para 19
[1993] 2 SCR 666 referred to Para 20
G
[2004] 2 SCR 659 referred to Para 21
[2007] 2 SCR 354 referred to Para 22
[2008] 8 SCR 956 referred to Para 23
H [2009] 4 SCR 283 referred to Para 25
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1147
[2010] 9 SCR 705 referred to Para 26, 28 A
(2002) 6 SCC 710 followed Para 37
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 967 of 2015.
From the Judgment and Order dated 07.10.2013 of the High B
Court of Delhi at New Delhi in Criminal Appeal No. 757 of 2010.
D. B. Goswami, S. Gaurav Sasan, Dr. Sushil Balwada, Advs.
for the Appellant.
S. S. Ray, T. A. Khan, B. V. Balaram Das, Advs. for the
C
Respondent.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The appellant stands convicted under Sections 302 and 506 D
of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC',
for short) by the Trial court, and the appeal carried by him before the
High Court being unsuccessful and is, therefore, before this Court.
2. Briefly, the case of the prosecution against the appellant is as
follows: E
The deceased was married to the appellant in the year 1999. He
was unemployed at that time. Later, he secured employment in the
C.R.P.F.. He did not take his wife on the basis that he could not take
her far away. Wife continued to reside with the mother of the deceased
at her house. Appellant used to harass his wife and had illicit relationship F
with the wife of his brother. A Panchayat was held. A settlement was
arrived at, pursuant to which, after four years, when the appellant was
transferred to Delhi, he assured the mother of the deceased that he
will not harass his wife and he started residing at the house along with
his wife and mother-in-law. It is the further case of the prosecution
that the appellant continued to have an affair with the wife of his brother. G
On 23.01.2008, the mother of the deceased went to the matrimonial
home of another daughter. On 24.01.2008, at about 06.00 P.M., the
appellant came to the house under influence of liquor, and in short,
poured kerosene oil upon his wife and also some kerosene oil over
himself and threw a lighted matchstick on his wife. Initially, both, the H
1148 SUPREME COURT REPORTS [2019] 11 S.C.R.
A appellant and the deceased, were taken to the hospital. Initially, the wife
gave statement which did not implicate the appellant. However, on
27.01.2008, a dying declaration was made by the deceased pointing the
finger of blame clearly at the appellant and attributing the act of pouring
kerosene and setting her ablaze to him. Initially, a First Information
Report was lodged on 27.01.2008 on the basis of the dying declaration
B
dated 27.01.2008 under Section 307 of the IPC, which was, upon the
deceased succumbing to the burn injuries, converted to Section 302 of
the IPC. This is besides a charge under Section 506 of the IPC for
extending threat to his wife.
3. 31 witnesses were examined by the prosecution. After closure
C
of prosecution evidence, appellant was questioned under Section 313
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
‘the Code’ for short).
FINDINGS BY THE TRIAL COURT
D 4. It is a case where there are two dying declarations, viz., one
made on 24.01.2008 and another on 27.01.2008. In regard to the
statement on 24.1.2008 it is actually the history which is recorded in
the M.L.C. of the deceased and it is stated that it has noted history of
sustaining thermal burns when her husband was trying to ignite a match
E stick for smoking; accidently a fire erupted due to petrol leaking from
the tank of the motorcycle as told by the patient herself. Patient got
burnt along with her husband. Patient is unable to tell the cause of
kerosene smell from her body.
5. The Trial Court noticed the contention that PW29-Investigating
F Officer admitted that, on 25.01.2008, the mother of the deceased also
made a statement on the lines of what her daughter had made which
appeared to clear the appellant of any wrong doing.
6. Commenting on PW10-Smt. Indrawati, the Court wades
through her evidence and found that the witness has reached the place
G after the incident and seen both the deceased as well as the accused
in the burnt condition. She was not an eyewitness to the incident. The
same was found true about Chhoto Devi-PW7-the mother of the
deceased. The statement is of no avail with regard to the dying
declaration made on 24.01.2008. We may advert to paragraph 49 in
H regard to the first version:
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1149
[K. M. JOSEPH, J.]
“49. As per the first version, it was leaking of petrol pipe of the A
motorcycle, which was the cause of fire and sustaining of burn
injuries by both the accused and the deceased, and in this regard,
the testimony of PW-30 is very material. PW-30 Dr. Thakur
Thussu has stated that as per MLC Ex. PW-30/A of accused
Jagbir and Ex.PW-30/B of deceased Santosh, the alleged history
B
given was of thermal burns when the accused was trying to ignite
the matchstick for smoking and accidentally a fire erupted and
probably due to nearby leaking of petrol tank, they got engulfed
in fire, but at that very time, Dr. K.K. Sharma, who had examined
them and who had left the hospital (and his present whereabouts
could not be ascertained and because of the same reason, request C
was sent to Medical Superintendent, Safdarjung Hospital, to
depute any doctor or doctor or doctors conversant with the
handwriting and signature of Dr. K.K. Sharma and who can
depose about the contents of the MLC. PW-30 Dr. Thakur
Thussu, Sr. Resident, Deptt. Of Burns and Plastic Surgery,
D
Safdarjung Hospital, was called), in the MLC itself, the history
was disbelieved by the doctor, who has specifically mentioned
that both the husband and wife were unable to tell the cause of
kerosene oil emanating from their body and on examination, smell
of kerosene was emanating from the body, and special note in
this regard was appended by Dr. K.K. Sharma that the patient E
is not giving a proper history.”
7. The differentiation between smell of petrol and kerosene oil
has been explained by PW31-Senior Scientific Assistant (Chemistry).
It was further found that the deceased had deep burns present over
her face, neck, anterior trunk, lower part, both upper limbs, portions of F
both lower limbs. The study of the injuries ruled out sustaining burn
injuries from leaking petrol of a motorcycle as it was highly unlikely
that upper portion of the body will be burnt so as the fire travelled from
downward to upward. Only a very small quantity would have leaked
out in case of the petrol leaking. The biri has not been recovered.
Clothes were seized from the house which were in burnt condition and G
kerosene oil was present in the house immediately after the incident
and much before the recording of the dying declaration dated
27.01.2008, demolished completely the defence of the appellant. The
appellant has not given any explanation in regard to the presence of
kerosene oil in the house or how the clothes contained residue of H
1150 SUPREME COURT REPORTS [2019] 11 S.C.R.
A kerosene oil. The case set up by the appellant regarding the conspiracy
of other sisters of the deceased and his brother-in-law with the mother
of the deceased to deprive him of the property, is found to be frivolous.
The argument that dying declaration dated 27.01.2008 was a long one,
and therefore, should not be relied upon, was rejected.
B 8. Regarding the Investigating Officer not obtaining certificate
from Doctor about the medical fitness of the deceased to make the
dying declaration, it was found, not material. It was not a case where
at any point of time, the deceased was declared unfit for the statement.
No question was asked from PW30-the Doctor that considering the
nature of the burn injuries and the medicines given to the deceased, it
C
was not possible for her to give a statement without being certified.
MLC-Exhibit 30/B does not show that the patient is unfit to give a
statement. Evidence of PWs 1, 7 and 29 are relied upon to repose faith
in the dying declaration. No cross-examination was conducted in regard
to PW29-Investigating Officer with reference to his going to the hospital
D on the basis of the call received from the hospital. Discrepancy in the
timings, as emerged from the testimony of PW29 and dying declaration
No. 20B, is overcome by the finding that timings will not be remembered
exactly. Regarding the inconsistency in evidence as to whether deceased
was in the ward or in the Intensive Care Unit (ICU), assurance was
drawn from the dying declaration wherein reference is made to the ICU
E
Ward. The dying declaration was got recorded without noting as to what
is the statement to be made on the basis of a call. PW1 and PW7 have
supported the recording of the dying declaration, being witnesses. The
testimony of mother of the deceased-PW7 would reveal that though
her daughter was under sedation, she was competent to make the
F statement. The first dying declaration dated 24.01.2008 was also
recorded by the Investigating Officer without certificate issued by the
Doctor. The evidence of Dinesh (neighbour) was found to corroborate
the dying declaration. The appellant was found guilty under Sections
302 and 506 of the IPC and convicted thereunder. He was awarded
substantive sentence of rigorous imprisonment for life and fine for the
G
offence. Further, the appellant was also sentenced to rigorous
imprisonment for two years for the offence under Section 506 of the
IPC. Both the sentences were to run concurrently.
FINDINGS BY THE HIGH COURT
H 9. There are three dying declarations given by the victim. At about
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1151
[K. M. JOSEPH, J.]
09.30 P.M. on 24.01.2008, the first dying declaration was given in the A
form of history given by the patient to the Doctor. It was recorded in
the MLC. No role was attributed to the appellant. The history was
recorded as one of sustaining thermal burns when her husband was
trying to ignite matchstick for smoking and accidentally a fire erupted
due to the petrol leaking from the tank of the motorcycle. This is stated
B
to be told by the patient herself. It was further recorded therein that
the patient is unable to tell the reason for kerosene smell from her body.
What is referred to as the second dying declaration and is recorded by
PW10 in his case diary on 25.01.2008, is extracted by the High Court.
The Court held:
C
“22. The second dying declaration of the victim was recorded
by the Investigating Officer in his daily diary on 25.01.2008. The
relevant extract of this reads herein as under:-
“Time 01:31 P.M.. it is entered that I, the SI alongwith
accompanying Ct. Ram Kumar have come to the Police
D
Station after investigation vide DD No. 50-A, dated 24/
01/08. On the receipt of the call, I reached the place of
occurrence i.e. H.No. RZ-40, Mataji Line, Sultan Puri
Road, (sic) School, Gopal Nagar, Najafgarh where
many burnt clothes were lying in the gallery of the
house. The seat of a passion motorcycle bearing Regn. E
No. HR-14B-1992 was found burnt and one burnt cream
coloured jeans shirt was also lying behind the
motorcycle. And one ladies" Kurta, one cardigan, a
salwar, shawl were lying burnt near the front wheel of
the motorcycle. The foul smell of kerosene oil was F
coming from the whole house. The SHO arrived at the
spot and after enquiry it was learnt that one Jagbir
Singh lived in the house as "gharjamai" (son-in-law
living at the in-laws" home) alongwith his wife Santosh
and mother-in-law Chhoti Devi. The mother-in-law
Chhtoi Devi had gone to the matrimonial home of their G
younger daughter Rakesh at Rohtak. And as per the
neighbourers, husband-wife were living all alone in the
house and the motorcycle got fire due the leakage of
petrol from the motorcycle. Jagbir works as sweeper in
CRPF. G-91 Mobile Crime Team was called on wireless. H
1152 SUPREME COURT REPORTS [2019] 11 S.C.R.
A The photographs of the place of the occurrence were
taken by the Crime Team and all the burnt clothes and
the can of the Kerosene oil which was kept near the
drum in the interior room and a lot of kerosene which
was also lying outside and on the floor were taken into
B the police possession as a piece of evidence by means
of a memo. Thereafter, I, the SI reached S.J. Hospital
after receiving the information where Jagbir s/o Sh.
Devi Singh and Santosh w/o Sh. Jagbir Singh were
admitted vide MLC Nos. 17608/08 and 17609/08
respectively. Jagbir was 45% burnt and Santosh was
C 60% burnt. The doctor wrote in (sic…) that when Jagbir
ignited the match-stick for smoking, the motor-cycle
caught fire accidently as its petrol tank had been
leaking. The patient was unable to tell the cause of
kerosene oil smell from his body. Santosh Devi w/o
D Jagbir Singh deposed that I reside with my husband
Jagbir and mother Chhoti Devi in the house. Earlier
there had been some problem between me and my
husband. I had got married in the year 1999. But for
the last one year, I have been living with my husband
happily. There is no such quarrel between us. Today on
E
24/01/08 my mother had gone to the matrimonial home
of my younger sister Rakesh at Rohtak. My husband
Jagbir came back in the evening from his duty as
sweeper in CRPF. We have had our dinner and were
preparing to go for sleep. I locked the gate while my
F husband was smoking "Bidi" near the motorcycle. All
of a sudden, the motorcycle caught fire. Jagbir was
trying to extinguish the fire and his clothes also caught
fire. Both of us screamed and shouted for help. Our
neighbours saved both of us by jumping the wall (of our
G house). No one has done this intentionally. You have
recorded my statement and read over the same to me. I
have heard the statement and the same is correct.
LTI of Santosh Devi
Thereafter, the statement of Jagbir Singh s/o Lt. Sh. Devi
H Singh was recorded who also gave the aforesaid
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1153
[K. M. JOSEPH, J.]
statement and Mrs. Chhoti Devi also deposed the same A
and told that there was no dispute between both of them
and they were living together happily. Both the husband-
wife had caught fire because of the catching of the fire
by the motorcycle due to the smoking "Bidi" by Jagbir
and leakage of petrol from the motorcycle. No one has
B
intentionally done this. I do not suspect anyone. All the
facts were apprised to the SHO and the call was held
pending."
(Emphasis supplied)
10. Thereafter, the court referred to the dying declaration on C
27.01.2008, which we will refer to later on.
11. The first dying declaration is discarded by noting that it was
in the presence of her husband. PW30-the Doctor who was examined
to identify the signatures of another Doctor, viz., Dr. K. K. Sharma
who had actually prepared the MLC and who could not be examined, D
has specifically stated that the smell of spirit and kerosene is different.
No possible explanation could be given as to why kerosene smell was
emanating from the body and clothes. The presence of the appellant/
her husband inhibited the deceased from speaking the truth. Second
dying declaration, which was recorded at 01.30 P.M. on the next day E
25.01.2008, was also discarded for the same reason, viz., her husband
was in the same hospital and it was recorded in his presence. The court
discussed the evidence of the Investigating Officer-PW29 who recorded
the third dying declaration. The court also discussed the contents of
the dying declaration and finds support from the fact that the evidence
F
of PW29 is supported by PWs 1 and 7. The deceased was fully
conscious and well-oriented going by the MLC dated 24.01.2008. Her
mental faculties to make a statement, was never in challenge. The
deceased, being fit to make the statement on 27.01.2008, it cannot be
doubted. The defence set up by the appellant was found to be palpably
false. The dying declaration was an answer found worthy of G
acceptance. The kerosene can and also clothes were sent for scientific
examination and CFSL Report found that kerosene oil was detected
on the clothes of the appellant. No explanation from the appellant is
forthcoming about kerosene. Site plan and also the photographs were
relied upon. H
1154 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 12. The High Court found no merit in the appeal and dismissed
the same.
13. We have heard learned counsel for the appellant.
14. The learned counsel for the appellant would undoubtedly
emphasise that this is a case where there are three dying declarations.
B In the first two dying declarations, which were given by the deceased
herself, no incriminatory role is attributed to the appellant. Rather, the
cause of her catching fire is attributed to an accident generated by the
appellant lighting his biri. It is submitted that there is evidence of PW1-
husband of the sister of the deceased visiting the deceased at the
C hospital on 26.01.2008. It is on the very next day, i.e. 27.01.2008, as a
result of the tutoring and prompting by PW1, that the deceased comes
up with a completely different version in the dying declaration. The
mother of the deceased-PW7 was also in the hospital. The theory of
conspiracy to sabotage the claim to the property is pressed into service.
D 15. In other words, the argument is painting the appellant as the
murderer, his claim to the property would stand extinguished, thus
enabling the other two daughters to claim exclusive right. In this regard,
he would point out that PW29 has deposed that he went to the hospital
on 27.01.2008 and recorded the dying declaration on the basis of a
telephone call which came from the hospital. He points out that the
E call did not come from any Doctor as ordinarily would have been the
case if the patient wanted to make the dying declaration but strangely
it came from his co-brother, viz., PW1. PW1 has admitted in his
evidence that he did indeed made the call to the Police to come and
record the statement of the sister-in-law. Therefore, the dying
F declaration, in other words, is the brain child of PW1 in pursuance to
the conspiracy to oust the appellant from property rights. He next points
out that the very case of homicide is irreconcilable with the appellant
himself suffering burn injuries to the extent of 40 per cent. In the dying
declaration, it is stated that after pouring kerosene on the deceased,
the appellant poured less kerosene oil on himself. The medical evidence
G establishes that the appellant suffered 40 per cent burns. A reference
is made to the evidence of PW15 who is a Police Constable working
with the Police Control Room (PCR) as in cross-examination, she has
this to state:
“It is correct that as per further proceedings mentioned in
H Ex.PW15/DA, it is mentioned that the husband was smoking a
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1155
[K. M. JOSEPH, J.]
biri inside the room and lid of the petrol tank of a motorcycle A
lying nearby was lying open as a result of which the husband
got fire and wife tried to extinguish the fire, she also caught fire
and that Indrawati who is their relation had also stated so and
both husband and wife were conscious.”
16. He, therefore, would point out that the said statement, which B
is recorded at the earliest point of time after the incident, corroborates
the first and the second dying declaration and the case of accidental
burn injuries is clearly probablised.
17. The learned counsel for the State, on the other hand, would
submit that it is not correct to characterise the first statement as dying C
declaration. There is only one dying declaration and that dying
declaration was recorded on 27.01.2008. This dying declaration is
believable. The case of tutoring is sought to be rebuffed. As far as the
Officer recording the dying declaration without the certificate from the
Doctor is concerned, it is pointed out that the very fact that the dying
declaration was recorded when the patient was in the ward, itself shows D
that her condition had not deteriorated to such an extent as otherwise
she would have been in the ICU. PWs 1 and 7 have witnessed the
recording of the dying declaration. They have stood by the dying
declaration and evidence of PW29-Investigation Officer. The dying
declaration dated 27.01.2008 brings out the truth. The statements E
contained therein could not have been made up. Presence of kerosene
is made conspicuous by being smelt by witnesses and also being found
on the clothes by PW31-Senior Scientific Assistant (Chemistry) and also
the admitted fact that the can from which the kerosene was used being
also sent for forensic report, squarely establishes prosecution case.
F
THE LAW RELATING TO DYING DECLARATION
18. A Dying declaration is relevant evidence as declared by
Section 32 of the Indian Evidence Act, 1872. A distinction exists,
however, between English Law and Indian Law in regard to dying
declaration. We may, in this regard, note the declaration of the law G
contained in Kishan Lal v. State of Rajasthan1 :
“18. Now we proceed to examine the principle of evaluation of
any dying declaration. There is a distinction between the
evaluation of a dying declaration under the English law and that
1
AIR 1999 SC 3062 H
1156 SUPREME COURT REPORTS [2019] 11 S.C.R.
A under the Indian law. Under the English law, credence and the
relevancy of a dying declaration is only when a person making
such a statement is in a hopeless condition and expecting an
imminent death. So under the English law, for its admissibility,
the declarant should have been in actual danger of death at the
time when they are made, and that he should have had a full
B
apprehension of this danger and the death should have ensued.
Under the Indian law the dying declaration is relevant whether
the person who makes it was or was not under expectation of
death at the time of declaration. Dying declaration is admissible
not only in the case of homicide but also in civil suits. Under the
C English law, the admissibility rests on the principle that a sense
of impending death produces in a man's mind the same feeling
as that of a conscientious and virtuous man under oath. The
general principle on which this species of evidence are admitted
is that they are declarations made in extremity, when the party
is at the point of death, and when every hope of this world is
D
gone, when every motive to falsehood is silenced and the mind
is induced by the most powerful considerations to speak only the
truth. If evidence in a case reveals that the declarant has reached
this state while making a declaration then within the sphere of
the Indian law, while testing the credibility of such dying
E declaration weightage can be given. Of course depending on other
relevant facts and circumstances of the case.”
(Emphasis supplied)
19. But when a declaration is made, either oral or in writing, by
a person whose death is imminent, the principle attributed to Mathew
F Arnold that “truth sits upon the lips of a dying man” and no man will
go to meet his maker with falsehood in his mouth will come into play.
The principles relating to dying declaration are no longer res integra
and it would be apposite that we refer to the decision of this Court in
Paniben (Smt) v. State of Gujarat2 wherein the concepts are summed
G up as follows:
“(i) 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 : 1976
SCC (Cri) 376 : (1976) 2 SCR 764])
H 2
(1992) 2 SCC 474
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1157
[K. M. JOSEPH, J.]
(ii) If the Court is satisfied that the dying declaration is true A
and voluntary it can base conviction on it, without
corroboration. (State of U.P. v. Ram Sagar Yadav [(1985)
1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] ;
Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983
SCC (Cri) 169 : AIR 1983 SC 164] ).
B
(iii) 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 to make the declaration. (K. Ramachandra
C
Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC
(Cri) 473 : AIR 1976 SC 1994] ).
(iv) Where dying declaration is suspicious it should not be acted
upon without corroborative evidence. (Rasheed Beg v. State
of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] ) D
(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 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021]
(vi) A dying declaration which suffers from infirmity cannot form E
the basis of conviction. (Ram Manorath v. State of U.P.
[(1981) 2 SCC 654 : 1981 SCC (Cri) 581])
(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 [1980 F
Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617])
(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 : 1979 SCC (Cri) 519 : AIR 1979 G
SC 1505] )
(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 H
1158 SUPREME COURT REPORTS [2019] 11 S.C.R.
A make this dying declaration, the medical opinion cannot
prevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC
152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912])
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot
B be acted upon. (State of U.P. v. Madan Mohan [(1989) 3
SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519])”
Also, in paragraph 19, it was held as follows:
“19. In the light of the above principles, we will consider the three
dying declarations in the instant case and we will ascertain the
C truth with reference to all dying declarations made by the
deceased Bai Kanta. This Court in Mohanlal Gangaram
Gehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC
(Cri) 334 : AIR 1982 SC 839] held:
“where there are more than one statement in the nature of
D dying declaration, one first in point of time must be
preferred.”
Of course, if the plurality of dying declarations could be held to
be trust worthy and reliable, they have to be accepted.”
The problem of multiple dying declarations has engaged the
E attention of this Court.
20. In Kundula Bala Subrahmanyam and another v. State of
Andhra Pradesh3, this Court held as follows:
“18. Section 32(1) of the Evidence Act is an exception to the
general rule that hearsay evidence is not admissible evidence and
F
unless evidence is tested by cross-examination, it is not
creditworthy. Under Section 32, when a statement is made by a
person, as to the cause of death or as to any of the circumstances
which result in his death, in cases in which the cause of that
person's death comes into question, such a statement, oral or in
G writing, made by the deceased to the witness is a relevant fact
and is admissible in evidence. The statement made by the
deceased, called the dying declaration, falls in that category
provided it has been made by the deceased while in a fit mental
H 3
(1993) 2 SCC 684
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1159
[K. M. JOSEPH, J.]
condition. A dying declaration made by person on the verge of A
his death has a special sanctity as at that solemn moment, a person
is most unlikely to make any untrue statement. The shadow of
impending death is by itself the guarantee of the truth of the
statement made by the deceased regarding the causes or
circumstances leading to his death. A dying declaration, therefore,
B
enjoys almost a sacrosanct status, as a piece of evidence, coming
as it does from the mouth of the deceased victim. Once the
statement of the dying person and the evidence of the witnesses
testifying to the same passes the test of careful scrutiny of the
courts, it becomes a very important and a reliable piece of
evidence and if the court is satisfied that the dying declaration is C
true and free from any embellishment such a dying declaration,
by itself, can be sufficient for recording conviction even without
looking for any corroboration. If there are more than one dying
declarations then the court has also to scrutinise all the dying
declarations to find out if each one of these passes the test of
D
being trustworthy. The Court must further find out whether the
different dying declarations are consistent with each other in
material particulars before accepting and relying upon the
same…”
(Emphasis supplied)
E
21. In Lella Srinivasa Rao v. State of A.P. 4 , in the dying
declaration which was recorded by the Magistrate, there was no
mention about appellant having treated the deceased with cruelty or
having caused harassment. His name did not figure in the declaration.
The deceased was in a position to make the statement. Five minutes
thereafter, another statement was recorded by the Head Constable. F
Allegations were made against the appellant. It related to the immediate
cause which led to the deceased committing suicide. Court found that
the witnesses including the father of the deceased did not support the
case of the prosecution that the deceased was treated with cruelty by
the accused. The Court did not act upon the second dying declaration. G
5
22. In Sayarabano Alias Sultanabegum v. State of Maharashtra ,
the offence involved was under Section 302 of the IPC. There was a
quarrel between the appellant/accused and the deceased, during which,
4
(2004) 9 SCC 713
5
(2007) 12 SCC 562 H
1160 SUPREME COURT REPORTS [2019] 11 S.C.R.
A it was the case of the prosecution that appellant poured kerosene from
the lamp on the deceased which resulted in the deceased catching fire
and finally succumbing to death. In the first dying declaration, the
deceased attributed her catching fire to an accident. She absolved all
the inmates of her husband family of any wrong doing. When the Special
Judicial Magistrate was called on the next day for dying declaration,
B
she set up a different version whereunder the accused was alleged to
have thrown the kerosene lamp on her and also that her husband used
to beat her after listening to his mother. The deceased was asked by
the Magistrate as to why she was changing the statement. The
deceased told the Magistrate that she was told that she should not give
C any statement against family members and she reiterated that the
appellant/ mother-in-law of the deceased had thrown the kerosene lamp
and she was burnt. The deceased died almost a week thereafter. This
Court took the view that the judgment of this Court in Lella Srinivasa
Rao v. State of A.P.6 (supra), was distinguishable noticing that in the
said case there was no other evidence, and this Court in Sayarabano
D
v. State of Maharashtra 2007 (12) SCC 562 also finally held as follows:
“16. In our opinion, criminal cases are decided on facts and on
evidence rather than on case law and precedents. In the case
on hand, there is ample evidence to show that even prior to the
incident in question, the appellant used to beat the deceased and
E ill-treat her. It is in the light of the said fact that other evidence
requires to be considered. In our view, both the courts were right
in relying upon the second dying declaration of the deceased
treating it as true disclosure of facts by the deceased Halimabi.
In the light of the evidence of parents of the deceased (PW 2
F and PW 3), Dr. Kishore (PW 6) and Special Judicial Magistrate
(PW 5), it cannot be said that the courts below had committed
any error and the conviction deserves to be set aside.”
23. In Amol Singh v. State of M.P.7, the High Court rejected the
plea on the basis that there being more than one dying declaration and
G on the basis that the extent of difference between the two declarations
was insignificant:
“13. Law relating to appreciation of evidence in the form of more
than one dying declaration is well settled. Accordingly, it is not
6
(2004) 9 SCC 713
7
H (2008) 5 SCC 468
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1161
[K. M. JOSEPH, J.]
the plurality of the dying declarations but the reliability thereof A
that adds weight to the prosecution case. If a dying declaration
is found to be voluntary, reliable and made in fit mental condition,
it can be relied upon without any corroboration. The statement
should be consistent throughout. If the deceased had several
opportunities of making such dying declarations, that is to say, if
B
there are more than one dying declaration they should be
consistent. (See Kundula Bala Subrahmanyam v. State of A.P.
[(1993) 2 SCC 684 : 1993 SCC (Cri) 655] ) However, if some
inconsistencies are noticed between one dying declaration and
the other, the court has to examine the nature of the
inconsistencies, namely, whether they are material or not. While C
scrutinising the contents of various dying declarations, in such a
situation, the court has to examine the same in the light of the
various surrounding facts and circumstances.”
(Emphasis supplied)
24. The court finally, in the facts of the said case, took the view D
that the discrepancies made the last declaration doubtful and it was
found unsafe to convict the accused.
25. In Heeralal v. State of M.P.8 , in the first dying declaration
recorded by the Tehsildar, the deceased stated clearly that she tried to
set herself ablaze by pouring kerosene on herself. The second dying E
declaration, however, contained the contrary statement. The Court held,
inter alia, as follows:
“9. Undisputedly, in the first dying declaration recorded by a Naib
Tahsildar, it has been clearly stated that she tried to set herself
ablaze by pouring kerosene on herself, but in the subsequent
F
declaration, recorded by another Nayab Tahsildar, a contrary
statement was made. It appears that one dying declaration earlier
was made before the doctor. The trial court referred to the
evidence of Dr. Chaturvedi who stated that the deceased was
admitted on Bed No. 8, but the father of the deceased stated
that her daughter was admitted on some other bed number. G
10. The trial court and the High Court came to abrupt conclusions
on the purported possibility that the relatives of the accused may
have compelled the deceased to give a false dying declaration.
8
(2009) 12 SCC 671 H
1162 SUPREME COURT REPORTS [2019] 11 S.C.R.
A No material was brought on record to justify such a conclusion.
The evidence of the Nayab Tahsildar who recorded Ext. D-4
was examined as PW 8. His statement was clear to the effect
that nobody else was present when he was recording the
statement. That being so, in view of the apparent discrepancies
in the two dying declarations it would be unsafe to convict the
B appellant.”
(Emphasis supplied)
The Conviction of the appellant came to be set aside.
26. In Lakhan v. State of M.P.9, this Court was dealing with the
C case of death as a result of burn injuries suffered by the wife. In the
first dying declaration before the Magistrate, the deceased stated that
when she was cooking, kerosene oil had been put behind her back. In
the next dying declaration, it was stated that the appellant/accused
brought a metal container full of kerosene and poured it on her body
and the fire was lit by him and she was burnt. This Court, after going
D
through all the decisions, held as follows:
“21. In view of the above, the law on the issue of dying
declaration can be summarised to the effect that in case the court
comes to the conclusion that the dying declaration is true and
reliable, has been recorded by a person at a time when the
E deceased was fit physically and mentally to make the declaration
and it has not been made under any tutoring/duress/prompting;
it can be the sole basis for recording conviction. In such an
eventuality no corroboration is required. In case there are multiple
dying declarations and there are inconsistencies between them,
F generally, the dying declaration recorded by the higher officer
like a Magistrate can be relied upon, provided that there is no
circumstance giving rise to any suspicion about its truthfulness.
In case there are circumstances wherein the declaration had been
made, not voluntarily and even otherwise, it is not supported by
the other evidence, the court has to scrutinise the facts of an
G individual case very carefully and take a decision as to which of
the declarations is worth reliance.”
27. In the course of its discussion, the Court found that the
second dying declaration was reliable inter alia on the ground that it
9
H (2010) 8 SCC 514
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1163
[K. M. JOSEPH, J.]
was corroborated by the earlier declaration made by the deceased to A
her parents who were examined as PW1 and PW3.
28. We may also notice the judgment in Sher Singh v. State of
Punjab10. This is also a case of burn injuries suffered by the deceased/
wife of the appellant. Upon being taken to the hospital, the Police
Officer recorded a statement wherein it was stated that the fire was B
accidental and it happened when she was preparing tea. When her uncle
met her on the next day, she informed that the accused had burnt her.
On the very next day he moved an application for recording a statement
which came to be recorded. Yet another application was moved
requesting for re-examining the matter as the deceased had made a
wrong statement before the police officer initially and another statement C
was accordingly recorded.
29. In the second dying declaration, deceased had stated that she
was burnt by her in-laws. It was stated that her father-in-law, mother-
in-law and sister-in-law poured oil on her and burnt her. She further
stated that her husband was not with her but in the next sentence, she D
stated that there were four. The fourth person was her husband. She
further stated that they had stated that unless she made a wrong
statement, they would not take her to the hospital. It was thereafter
that she made a third declaration. The Court went on to hold as follows:
“17. In the present case, the first dying declaration was recorded E
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. F
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 G
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
10
(2008) 4 SCC 265 H
1164 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 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
B
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
C 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 dying declaration and the oral dying declaration made
to her uncle though with some minor inconsistencies. The third
D
dying declaration was recorded after the doctor certified that she
was in a fit state of mind to give the statement.”
(Emphasis supplied)
30. A survey of the decisions would show that the principles
E can be culled out as follows:
a. Conviction of a person can be made solely on the basis of
a dying declaration which inspires confidence of the court;
b. If there is nothing suspicious about the declaration, no
corroboration may be necessary;
F
c. No doubt, the court must be satisfied that there is no tutoring
or prompting;
d. The court must also analyse and come to the conclusion that
imagination of the deceased was not at play in making the
G declaration. In this regard, the court must look to the entirety
of the language of the dying declaration;
e. Considering material before it, both in the form of oral and
documentary evidence, the court must be satisfied that the
version is compatible with the reality and the truth as can
H be gleaned from the facts established;
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1165
[K. M. JOSEPH, J.]
f. However, there may be cases where there are more than A
one dying declaration. If there are more than one dying
declaration, the dying declarations may entirely agree with
one another. There may be dying declarations where
inconsistencies between the declarations emerge. The extent
of the inconsistencies would then have to be considered by B
the court. The inconsistencies may turn out to be
reconciliable.
g. In such cases, where the inconsistencies go to some matter
of detail or description but is incriminatory in nature as far
as the accused is concerned, the court would look to the C
material on record to conclude as to which dying declaration
is to be relied on unless it be shown that they are unreliable;
h. The third category of cases is that where there are more
than one dying declaration and inconsistencies between the
declarations are absolute and the dying declarations are D
irreconcilable being repugnant to one another. In one dying
declaration, the accused may not be blamed at all and the
cause of death may be placed at the doorstep of an
unfortunate accident. This may be followed up by another
dying declaration which is diametrically opposed to the first E
dying declaration. In fact, in that scenario, it may not be a
question of an inconsistent dying declaration but a dying
declaration which is completely opposed to the dying
declaration which is given earlier. There may be more than
two. F
i. In the third scenario, what is the duty of the court? Should
the court, without looking into anything else, conclude that
in view of complete inconsistency, the second or the third
dying declaration which is relied on by the prosecution is
demolished by the earlier dying declaration or dying G
declarations or is it the duty of the court to carefully attend
to not only the dying declarations but examine the rest of
the materials in the form of evidence placed before the court
and still conclude that the incriminatory dying declaration is
capable of being relied upon? H
1166 SUPREME COURT REPORTS [2019] 11 S.C.R.
A OUR CONCLUSION ON MULTIPLE DYING
DECLARATION
31. We would think that on a conspectus of the law as laid down
by this court, when there are more than one dying declaration, and in
the earlier dying declaration, the accused is not sought to be roped in
B but in the later dying declaration, a summersault is made by the
deceased, the case must be decided on the facts of each case. The
court will not be relieved of its duty to carefully examine the entirety
of materials as also the circumstances surrounding the making of the
different dying declarations. If the court finds that the incriminatory
dying declaration brings out the truthful position particularly in
C conjunction with the capacity of the deceased to make such declaration,
the voluntariness with which it was made which involves, no doubt, ruling
out tutoring and prompting and also the other evidence which support
the contents of the incriminatory dying declaration, it can be acted upon.
Equally, the circumstances which render the earlier dying declaration,
D worthy or unworthy of acceptance, can be considered.
CONSPIRACY
32. It is strenuously argued before us by the learned counsel for
the appellant that the dying declaration dated 27.01.2008 is the result
of conspiracy. PW7-the mother-in-law of the appellant is the owner of
E the property. She is a widow. She had three daughters, one of whom
was the deceased. The other two daughters were married. PW1 is the
husband of one of the daughters. It was to eliminate the chance of
appellant succeeding to the property that PW1-the co-brother of the
appellant visits the hospital where the deceased was admitted. She is
F tutored. The result of tutoring is the controversial declaration dated
27.01.2008. This fact receives support from the admission made by
PW1 that it was he who made the call to the Police Officer, viz., PW29,
and PW29, without any call from the hospital authorities, came and
recorded the dying declaration. No doubt, the cross-examination of the
deposition of PW7-mother of the deceased shows her as a witness
G whose deposition exposes omissions with reference to her statement
to the Police. Likewise, there are certain omissions brought out in the
evidence of PW1. But for reasons, as stated hereinafter, it would not
be fatal.
33. The Trial Court has brushed aside this contention as frivolous.
H The property belonged to PW7-mother-in-law of the appellant. It is
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1167
[K. M. JOSEPH, J.]
inconceivable how the appellant would have any right either during her A
lifetime or even upon her dying intestate to get the property under the
Hindu Succession Act, 1956. Having regard to Sections 15 and 16 of
the Hindu Succession Act, 1956, it is clear that the appellant cannot
claim any right. No doubt, it is always open to the person to bequeath
the property. Therefore, we would think that the submission in this regard
B
is totally ill-founded.
THE DYING DECLARATOIN DATED 27.01.2008
34. The dying declaration dated 27.01.2008 reads as hereunder:
“I reside at my parental house along with my mother Chhpoto
Devi and husband Jagbir Singh. My marriage took place in year C
1999. In the meanwhile, for about four years, there were
differences between me and my husband, after a settlement took
place in Panchayat, I along with my husband had been residing
in my parental house.
On 24.01.2008 in the afternoon, my mother left for matrimonial D
home of Rakesh at Rohtak. My husband Jagbir works as a
Sweeper in CRPF, who came from his duty at about 6 p.m. in a
drunken position and said to me. “You want to live with me”. I
said ‘Yes’, then Jagbir took me to a big room and picket up a
‘can’ of kerosene oil and poured kerosene oil upon me. He E
poured kerosene oil upon me and poured less kerosene oil upon
him. Then, I got myself free from the clutches of Jagbir and ran
towards a small room, and he came to me after following me,
and then he ignited a matchstick and threw it upon me, and
immediately my clothes caught fire. After that when I, in order
to save myself, ran towards main gate, he caught me from behind F
as a result, I fell down near a handpump, which was installed at
the house. Thereafter, my husband brought out the pipe of petrol
tank of the motorcycle, which was lying in the Chowk, as a result
of which fire erupted near the motorcycle, and Jagbir also caught
fire and when I raised hue and cry to save, the one boy namely G
Dinesh Jain, who resides in the neighbourhood, came inside by
jumping the main gate and broke the lock placed inside the main
gate with the help of ‘Hathi’ of the handpump. Then all the
neighbourers saved me and Jagbir while burning. As my husband
had extended threat to me, I could not give my statement on the
same very day. My husband has tried to kill me by pouring H
1168 SUPREME COURT REPORTS [2019] 11 S.C.R.
A kerosene oil upon me because of the reason that he has illicit
relations with his ‘Bhabhi’ namely Babita. You have recorded
my statement in presence of my mother Chhoto Devi and my
‘Jija’ Vinod, which I have been read over and is correct.”
PHYSICAL AND MENTAL CONDITION OF DECEASED
B 35. We have noticed the contents of the MLC concerning the
deceased. Her condition was characterised as critical. She had suffered
deep burns. The injuries were understood as dangerous. The patient,
no doubt, died only on 02.02.2008, i.e., on the ninth day after admission
on 24.01.2008.
C 36. As far as the dying declaration made on 27.01.2008 is
concerned, particularly, when Doctors were near at hand, the
Investigating Officer ought to have taken the caution of obtaining a
certificate after the Doctor put questions to the patient for ascertaining
her condition. It is equally true that a declaration does not appear to be
D preceded by questions put by the Investigating Officer to the deceased
from which he could ascertain details from which he could have
received verification about her condition.
37. The first question, one must bear in mind, is whether the
deceased was in a physical and mental condition to make a dying
E declaration. It is not in dispute that in the dying declaration dated
27.01.2008, there is no certificate by the Doctor certifying that the
patient was conscious or that the patient was mentally or physically fit
to give the declaration. The patient was, in fact, admittedly lying in the
hospital. Even in the narrative of the dying declaration, there are no
F questions seen put by PW29 to ascertain her condition. Undoubtedly, it
is true that the certificate by a Doctor about the patient being conscious
and fit to give a dying declaration would go a long way in inspiring
confidence of the court. However, the Constitution Bench in Laxman
v. State of Maharashtra11, has held as follows:
G “……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
11
H (2002) 6 SCC 710
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1169
[K. M. JOSEPH, J.]
caution and therefore the voluntary and truthful nature of the A
declaration can be established otherwise.”
(Emphasis supplied)
38. 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 B
dying declaration must ensure that the patient was in a fit condition,
both mentally and physically, to give the declaration.
39. Turning to the facts of this case, the following features are
most important:
C
A. The patient was brought to the hospital on 24.01.2008 at about
09.30 P.M. where MLC was recorded. The MLC specifically
records that the patient was conscious, oriented, follows verbal
command and able to speak. This material undoubtedly would
show that as on 24.01.2008 at 09.30 P.M., the patient was fully
D
conscious and oriented. In fact, the statement, which is made
by her/deceased, is sought to be made use of by the appellant
himself as a dying declaration. If that is so, it would be illogical
to not proceed on the basis that the patient was capable of
making a dying declaration. Deceased also made a statement at
01.30 P.M. on 25.01.2008 which is the next day. Again, it was E
relied upon by the appellant himself. This means that the appellant
is also proceeding on the basis that on 25.01.2008, the deceased
was in a condition to make the statement.
B. It is on 27.01.2008 that the controversial dying declaration is
made implicating the appellant. It is recorded by a Police Officer. F
We have set out the entirety of the dying declaration. We have
to undoubtedly proceed on the basis that the Police Officer was
performing his official functions. There is no acceptable material
to show that he was interested in implicating the appellant or that
he was showing any undue favour to PW1 or PW7. Even though,
G
it may be true that he may not have put questions to ascertain
her condition, the declaration, which is seen made, in our view,
sufficiently assures us of the physical and mental condition of
the deceased to make the declaration. In this regard, we may
notice that there is no case for the appellant that after 24.01.2008
and 25.01.2008, the condition of the deceased took a turn for H
1170 SUPREME COURT REPORTS [2019] 11 S.C.R.
A the worse. It is further important to notice that the death took
place only on the sixth day after making the declaration on
27.01.2008. Therefore, we are of the considered opinion that the
deceased was in a position to make the declaration.
WHETHER DECLARATION BETRAYS IMAGINATION LET
B LOOSE?
40. However, question which would arise is whether the
declaration was vitiated, it being tutored, prompted and result of her
imagination running wild. Taking the last point first, namely, that the
dying declaration must not be the figment of the imagination of the
C deceased, nothing is established by the appellant to show that the facts
which have been stated in regard to the physical places and things
spoken of by the deceased in regard to the rooms, etc., do not match
with the reality on the ground. In fact, there is no material before us to
hold that the dying declaration is a creation of her imagination.
D WHETHER STATEMENTS MADE ON 24.01.2008 AND
25.01.2008 ARE DYING DECLARATION?
41. We are not much impressed by the contention of the State
that the statements made at the hospital on 24.01.2008 and to the Police
Officer on 25.01.2008, are not dying declarations. Under Section 32 of
E the Evidence Act any statement made by a person as to the cause of
his death or to any circumstance of the transaction which resulted in
his death would be relevant. Once it is proved that such statement is
made by the deceased then it cannot be brushed aside on the basis
that it is not elaborate or that it was not recorded in a particular fashion.
We have already noted that the principle that the statement is brief,
F would not detract from it being reliable. Equally, when there are
divergent dying declarations it is not the law that the court must
invariably prefer the statement which is incriminatory and must reject
the statement which does not implicate the accused. The real point is
to ascertain which contains the truth.
G FURTHER ANALYSIS
42. On 24.01.2008, the appellant and the deceased suffered burn
injuries. A call was made to the Police Control Room. PW22-Police
Constable deposed about taking the appellant and the deceased to the
hospital. Investigation Officer-PW29 has spoken about immediately
H coming to the site of the incident. He states he made inquiries. He stayed
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1171
[K. M. JOSEPH, J.]
there for about two hours. It is not in the region of dispute that the A
deceased and the appellant, who had suffered the injuries, were in the
hospital, viz., the Safdarjung Hospital. PW13-ASI, has deposed about
responding to the call received, inspecting the spot on 24.01.2008.
Photographs were got taken. PW14-the Police Photographer has been
examined. He speaks about going to the site on 24.01.2008 at about
B
09.00 P.M.. He took nine photographs. Two of the photographs were
washed out. He has produced the negatives. He speaks about
photographs of plastic can as also the matchstick. On the MLC of the
deceased, the time of arrival is shows as 09.30 P.M.. It is further noted
that the patient was not giving proper history. Thereafter, it is stated,
alleging a case of accidental fire when husband was trying to ignite C
matchstick for smoking probably due to nearby bike leaking petrol tank.
It is stated, as told by patient self. Patient got burn injury with her
husband. It was further stated, patient unable to tell the cause of
kerosene smell from her body. She was brought to the casualty by the
PCR Van. She had deep burns present over her face, neck, anterior
D
trunk, lower part, both upper limbs, portions of both lower limbs. It is
further stated that patient is very critical. However, it is written, patient
is conscious, oriented, follows verbal command, able to speak. It is also
stated, kerosene smell present in body of the patient. The nature of
the injuries was classified as ‘dangerous’. The Doctor is Dr. K.K.
Sharma. It is thereafter that on the next day on 25.01.2008 at 01.30 E
P.M., a statement was given to the Investigating Officer by the
deceased which we have already extracted. It is thereafter that the
dying declaration dated 27.01.2008 (extracted above) came to be
recorded.
43. It is found by two courts to be witnessed by PW1-the co- F
brother of the appellant and PW7-the mother-in-law of the appellant.
PW29 is the Police Officer who has recorded the statement. He has
also deposed that on receiving a call, which is no doubt, a call made by
PW1, he had come to the hospital and recorded the statement.
G
44. Let us look at the circumstances emerging from the facts.
There can be only two possible causes for fire which finally resulted
in the death of the deceased. It is either accidental or homicidal. If it is
found to be accidental, certainly, it would rule out homicide. The
converse is also true. H
1172 SUPREME COURT REPORTS [2019] 11 S.C.R.
A LANGUAGE IN WHICH DYING DECLARATOIN
RECORDED
45. The dying declaration dated 27.01.2008 is seen recorded in
Hindi. There is no case that the deceased was not familiar with Hindi
and we can safely conclude that the dying declaration was recorded in
B a language with which the deceased was familiar. There can be no
doubt in regard to the same.
THE DYING DECLARATION IS A DETAILED NARRATIVE
46. The dying declaration dated 27.01.2008 is a fairly lengthy
C narration. It contains details about what happened on the fateful day,
viz., 24.01.2008 in a fairly graphic manner including details regarding
the place where it happened, the manner in which it happened, the
specific role played by the appellant, even things (presence of the
motorcycle), the door being locked, are reflected. Even reference was
made to the relationship which the appellant was having with his sister-
D in-law.
THE SMELL OF KEROSENE
47. There is evidence on record, both in the form of oral
testimony and documentary evidence, to suggest that there was
E kerosene kept in the premises. The can is found, the photograph of the
can is taken. It is also sent for forensic examination.
48. There is reference to the smell of kerosene available in
evidence. The very first document available, viz., the MLC is dated
24.01.2008. In the same, it is clearly stated that there is smell of
F kerosene from the body of the deceased. In the second statement
recorded by the Investigating Officer on the very next day, i.e., on
25.01.2008, it is stated that the patient was unable to tell the cause of
kerosene oil smell from her body. This is in regard to the statement by
the appellant which has also come to be recorded. As far as further
evidence indicating presence of kerosene oil is concerned, there is
G evidence of PW1 who speaks about being told about pouring of kerosene
oil by the appellant over the deceased. PW7-mother-in-law of the
appellant states that her daughter told her while in the hospital that
kerosene oil was kept behind in a small container meant for storing
grains. The appellant poured kerosene oil over her. He also sprinkled
H some kerosene oil on himself also. She, no doubt, states that she had
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1173
[K. M. JOSEPH, J.]
stated before the Police that she had no ration card, that they never A
used to purchase kerosene oil or never used to keep kerosene oil and
the kerosene oil must have been purchased from outside. She was, no
doubt, confronted about such omission in the statement. PW8 conducted
the post-mortem. She does not, undoubtedly, note the smell of kerosene.
But here we cannot ignore the submission of the counsel for the State
B
that post-mortem was conducted on 03.02.2008, almost ten days after
the incident.
49. PW-29 is the Investigating Officer. He deposes that the can
of kerosene oil was lying and kerosene was lying spread on all the sides
of the can. He has spoken about seizing the burnt matchstick and
C
matchbox. He reiterates that in the report, he has mentioned about the
smell of kerosene oil emanating from the clothes seized by him.
50. PW30 is the Doctor who identified the handwriting of
Dr. K. K. Sharma who took down the statement of the deceased inter
alia on 24.01.2008. He says that on 24.01.2008, Dr. K. K. Sharma
D
also examined the deceased with alleged history of sustaining thermal
burns when patient's husband was trying to ignite matchstick for
smoking and accidentally fire erupted, probably due to nearby bike
leaving petrol tank, as told by the patient by herself. He also says that
patient got burnt along with her husband and was unable to tell the cause
of kerosene smell present on her body. More significantly, it is stated, E
Dr. K.K. Sharma also appended a note that patient is not giving proper
history. In the cross-examination, a suggestion was made that since spirit
was used in the hospital, the Doctor may have been under
misapprehension that kerosene oil was present on the body. This
suggestion was denied as incorrect by PW30 and he went on to say F
that even the smell of spirit and kerosene is different. It may be noticed
that the suggestion is not that the Doctor was confused between the
smell of kerosene and petrol. Though, PW30 goes on to state that
kerosene oil is the product of petroleum. PW30 also denied as incorrect
a foul smell was wrongly treated as kerosene smell.
G
51. PW31 is the Senior Scientific Assistant (Chemistry), C.F.S.L..
He has stated that on chemical and gas chromatographic examination,
Exhibits 1A, 1B, 2A, 2B, 2C, 2D and 2F and Exhibit 3 were found to
contain residue of kerosene oil. Residue of kerosene oil, diesel and petrol
could not be detected in Exhibit 4 and Exhibit 5. He further states as
follows “only in case, in a mixture of petrol and kerosene, if the H
1174 SUPREME COURT REPORTS [2019] 11 S.C.R.
A quantity of kerosene is more, it will emanate smell of kerosene. The
residue can remain even for about one year or so unless the article
is placed in Sun and is not properly preserved”.
52. Exhibit 1A, which is found containing the residue of kerosene
oil, is brown colour shirt. Exhibit 1B is the blue colour jeans. Exhibit
B 2A, which is found to contain kerosene oil, is a printed scarf with black
border. Exhibit 2B is the glittering printed shawl partially burnt. Exhibit
2C which again is found to contain residue of kerosene oil is mustard
colour cardigan pieces which were partially burnt. Exhibit 2D is the
yellow colour cloth piece stated to be kurta in semi-burnt condition.
Exhibit 2F is a green colour partially burnt cloth stated to be the bra. It
C also contains residue of kerosene oil. Exhibit 4 consists of two burnt
matchsticks which did not contain kerosene oil, diesel or petrol. This is
not inconsistent with the case of kerosene being used in the manner
canvassed by the prosecution. Exhibit 5 contains scissors of iron and
copper metal. Overwhelming evidence relating to the presence of
D kerosene starting with the can, kerosene being found by PW29 on the
spot near the can on his inspection on the same day, the presence of
kerosene residue on the clothing belonging both to the deceased and
the appellant, as found by the Scientific Expert, would clearly establish
that kerosene was used in causing the fire. This completely fortifies
the prosecution. It equally clearly rules out the case sought to be set
E up by the appellant that it was a case of accidental fire which was
brought about when the appellant was lighting his biri and a leak from
the motorbike causing the fire. As deposed by the Scientific Expert,
the possibility of kerosene smell would be there only if kerosene content
is more in the petrol. Secondly, we must also remember that the leak
F would not have been of such an extent as to lead to the incident of this
nature.
OTHER CIRCUMSTANCES
53. As against this, we may also examine what circumstances
can be culled out in favour of the appellant. In the first two statements,
G which have been made by the deceased to the Police, the blame is
placed at the doorstep of an unfortunate accident, which the appellant
while trying to light his biri and the leak from the motorcycle, caused.
This version is repeated in the statement to the Police on 25.01.2008
also. PW1 states, and it is not disputed by the counsel for the State,
H that the deceased had put her footmark in the dying declaration dated
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1175
[K. M. JOSEPH, J.]
27.01.2008. PW29, however, speaks about the thumb impression. This A
is apparently a lapse of memory of the Officer.
54. Coming to tutoring and prompting, there is no doubt that it is
on PW1-the co-brother of the appellant informing the Police Officer,
the Police Officer-PW29 came on 27.01.2008 and took down the
declaration. It is true that the presence of PW1 and PW7, at the time B
of making the dying declaration, cannot be doubted. Their proximity
with the deceased, before PW29 came to take the declaration, can be
easily assumed.
55. It is a double-edged sword. On the one hand, if the Police
Officer recording the statement was to call somebody else as witness, C
when the mother and the other relatives are near at hand, it can be
challenged on the ground that it is unnatural. On the other hand, if such
close relatives are made witnesses and it turns out later on that a case
is set up that they had an interest in the declaration being made in a
particular manner, again, the prosecution would be in trouble. In this
case, however, the nature of the case set up by the appellant to bring D
the dying declaration under a cloud, on account of the interest shown
by PW1, is the conspiracy theory mainly to prevent the appellant from
succeeding to the property. We have already dealt with the same and
found that the said version is totally unacceptable. If that be so, in the
facts of this case, we cannot read much into the presence of PW1 E
playing a role he did, namely, calling the Police Officer and being a
witness in the dying declaration. PWs 1 and 7 were witnesses to the
dying declaration. They have spoken about the dying declaration and
about it being recorded by PW29.
56. The question then arises about the fact of the previous
F
statements which have been attributed to the deceased contained in
the MLC dated 24.01.2005 and in the statement of the deceased
recorded on 25.01.2008. The view taken by the courts is that the
deceased and the appellant were admitted in the same hospital, the
presence of the appellant would have come in the way of the deceased
speaking of the truth. G
57. We are of the view that the courts below were not in error
in disregarding the statement attributed to the deceased in the MLC
dated 24.01.2008 and the statement taken on the next day, i.e., on
25.01.2008. The incident, admittedly, took place towards in the evening
of 24.01.2008. The appellant and the deceased were taken by the Police H
1176 SUPREME COURT REPORTS [2019] 11 S.C.R.
A in the PCR vehicle to the hospital. It is the proximity of the appellant,
which apparently stood in the way of the deceased, disclosing the truth
of the matter. The appellant and the deceased continued to be in the
same hospital on 25.01.2008 also. In this regard, in the dying declaration,
relied upon by the prosecution, the deceased has stated that as the
appellant had extended threat to her, she could not give a statement on
B
the very same day. Apparently, this means that she has proceeded on
the basis that the declaration made on 27.01.2008 is the first dying
declaration which she is making. She has, in other words, not treated
the statement made on 24.01.2008 at the time when she was admitted,
as a declaration. So also, the statement made on 25.01.2008, she was
C operating under the threat extended by her husband.
58. Further, the motive of the appellant to kill her, has been stated
by her to be that he had illicit relations with his Bhabhi (sister-in-law).
She has also spoken about differences which she had with her husband
and the settlement which had taken place in the Panchayat. PW7-mother
D of the deceased has also spoken about the affair, which appellant had
with his sister-in-law. Thus, the motive attributed to the appellant by
the deceased, is not the figment of her imagination. She is very coherent
and clear in this regard.
59. In dying declaration dated 27.01.2008, she speaks of one boy,
E viz., Dinesh Jain, a neighbour coming inside by jumping the main gate
and breaking the lock placed inside the main gate with the help of hathi
(handle) of the handpump. Dinesh Jain has been examined as PW24.
He states that on 24.07.2008, at about 08.00 P.M., he heard the sound
of loud cries. He saw the appellant and the deceased both engulfed in
fire. He tried to push the gate of the house of PW7 but it could not be
F opened. He climbed the wall. He found that the gate was locked from
inside. After reaching inside the house, he found the handpump in the
house. He pulled down the handle, and with it, broke open the lock.
By the time he came out of the house, certain persons had gathered
there. In the cross-examination, he says that Police did not record his
G statement either on the date of the incident nor on any other date. A
motorcycle was lying seen near the handpump. He was unable to tell
the number of rooms in the house. It is for the first time that he is going
there. He did not try to extinguish the fire. The handle of the handpump
could be removed easily as there was no nut and only a nail was there.
It is difficult to find that the deceased could have given the detail about
H PW24 doing what he did only on the basis of any tutoring or prompting
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1177
[K. M. JOSEPH, J.]
by PW1 or PW7. Thus, this portion of the statement stands fortified A
by the corroborative evidence of PW24.
60. Let us also examine the content of the actual case of the
defence as is sought to be established through the statement in the MLC
dated 24.01.2008 and the statement on 25.01.2008. The case set up in
the MLC is that deceased suffered burns when the appellant tried to B
ignite a matchstick for smoking and the fire erupted due to petrol leaking
from the tank of the motorcycle. As already noted, there is no smell of
petrol. However, what is to be noted is the presence of kerosene. In
fact, in the very statement, which is ascribed to the deceased on
24.01.2008, it is recorded that the deceased was unable to explain the
cause of kerosene smell from her body. This, apparently, shows that C
the deceased was hoping that she would survive, and if she explained
the cause of the smell of the kerosene, necessarily implicating the
appellant, the chance of her married life surviving would come to an
end. As already noted, there is a note of Dr. K. K. Sharma that the
patient was not giving proper history. There is also the aspect of the D
threat explained. Whether it is her desire or the threat, both prevented
the disclosure of the truth. In the statement of 25.01.2008, it is stated
that the deceased deposed that she resides with the appellant and
mother. Earlier, there had been some problem between the appellant
and the deceased. She was since last one year living with the appellant
happily. There is no such quarrel between them. Mother had gone on E
24.01.2008 for matrimonial home of Rakesh, younger sister, at Rohtak.
Appellant came back in the evening. They had dinner and were
preparing to go for sleep. She locked the gate while the appellant was
smoking biri near the motorcycle. All of a sudden, the motorcycle
caught fire. Appellant was trying to extinguish the fire and his clothes F
also caught fire. Both of them screamed. Neighbours saved both of
them. No one had done this intentionally. The above case is founded
on a premise which eliminates the possibility of kerosene. We have,
however, noted that there is overwhelming evidence that the fire was
caused by the use of kerosene. In the statement, there is no reference
to the appellant being drunk. Everything was normal till the accidental G
fire erupted upon the motorcycle catching fire. Deceased states that
the appellant was trying to extinguish the fire and his clothes also caught
fire. The deceased, however, does not state that she went to extinguish
the fire and thereby sustained the burn injuries. In other words, the
statement on 25.01.2008 does not contain any reason as to how the H
1178 SUPREME COURT REPORTS [2019] 11 S.C.R.
A deceased caught fire. There was no statement that she suffered the
extensive (65 per cent) burn injuries when she tried to put out the fire.
Secondly, the version involves the motorcycle catching fire. There are
photographs of the motorcycle. It is only the part of the seat of the
motorcycle which was burnt. In this regard, it is apposite to notice that
PW14-Police Photographer has deposed about reaching the spot on
B
24.01.2008 at 09.00 P.M. and taking the photographs, inter alia, of the
motorcycle. Statement of 25.01.2008 does not appear to indicate the
cause of the burn injuries suffered by the deceased, for the reasons
stated above. This version also is incompatible with the presence of
the kerosene can which is proved by the evidence of PW29-
C Investigating Officer, PW-14-photographer and the photograph. The
statements made on 24.01.2008 and 25.01.2008 will not explain the cause
of smell of kerosene emanating from the body, both of the deceased
and from the appellant, as also the clothes smelling of kerosene. PW30
apparently spoke about the clothes smelling (MLC recorded by Dr. K.K.
Sharma). That the appellant was unable to tell the cause of kerosene
D
smell from his body. It is found that kerosene smell was present in the
body of the patient.
61. It must be remembered that in the statement on 27.01.2008,
the deceased had spoken about the appellant coming drunk. He poured
kerosene over the deceased. He also poured some kerosene on himself.
E The cause of fire was by lighting matchstick after pouring the kerosene.
The deceased runs and trips over the handpump. The presence of the
handpump is corroborated by the evidence of PW24-neighbour. No
doubt, the action of the appellant in pulling out the petrol pipe is also
referred to by the deceased in the dying declaration dated 27.01.2008.
F The fire erupting near the motorcycle is, thus, explained in the
declaration dated 27.01.2008. It is here that the role of alcohol in the
whole incident, which must be borne in mind.
62. In the declaration dated 27.01.2008, it is true that the deceased
states that the appellant poured less kerosene oil upon himself. It must
G be, at once, remembered that deceased had stated that the appellant
had come on the said day in the drunken position. The appellant's act
in bringing out the pipe of the petrol tank of the motorcycle resulting in
fire erupting and him also catching fire, does establish that fire did erupt
near the motorcycle. What the deceased has stated is compatible with
the motorcycle itself not being burnt as such which is in accord with
H the evidence.
JAGBIR SINGH v. STATE (N.C.T. OF DELHI) 1179
[K. M. JOSEPH, J.]
63. As to why the appellant would bring out the pipe of the petrol A
tank, is one question which may require consideration. The Trial Court
holds that it was in order to show it to be an accident, that he brought
out the petrol pipe and took the defence that because of the leaking
pipe, the fire engulfed and both of them caught fire, which defence was
found absolutely improbable. The High Court, in the impugned order,
B
on the other hand, would state that the appellant suffered 40 per cent
injuries on his face, neck and both upper limbs, was found compatible
with the dying declaration dated 27.01.2008 wherein the deceased has
explained that when she tried to flee, the appellant caught her trying to
prevent her from running out. It is how the burn injuries occurred on
his face and upper trunk and upper limbs. It is true, a question may C
arise that if this version is accepted and the appellant caught fire from
catching the deceased from behind, why would he pull out the petrol
pipe when both of his upper limbs (hands) had caught fire. In the dying
declaration, the deceased has stated that the appellant caught fire when
the fire erupted near the motorcycle as a result of the pipe of the petrol
D
tank being taken out by the appellant. It is to be remembered that the
case of the appellant is that the fire occurred when he had lit a biri.
He had no case that the pipe of the petrol tank had been taken out
thereby causing the fire. But PW29-Investigating Officer, visited the
site on 24.01.2008, has deposed that the petrol pipe of the motorcycle
had been detached from the place where it should be. As already E
noticed, he has also stated that in the inner room, a can of kerosene oil
was lying and the kerosene was lying spread on all the four sides of
the can. We have no reason to disbelieve PW29 when he speaks about
kerosene oil lying in the inner room and the can also. The version, as
projected in the declaration dated 27.01.2008, is clinchingly proved by
F
this circumstance that kerosene was indeed the fuel used which caused
the burn injuries and its position in the inner room is entire compatible
with the dying declaration dated 27.01.2008.
64. In the above facts and circumstances, we see no ground to
interfere. The appeal will stand dismissed. Since, appellant has been
released on bail, his bail bonds shall stand cancelled and he shall be G
taken into custody.
Kalpana K. Tripathy Appeal dismissed.
H
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