KALIYAversusSTATE OF MADHYA PRADESH

                       (2013) 7 S.C.R. 760


A                             KALIYA ..
                                v.
                 ·STATE OF MADHYA PRADESH
                (Criminal Appeal No. ·228 of 2008)
                          JULY 23, 2013
B
         [DR. B.S. CHAUHAN . ANO. S.A. BOBDE,
                                       .
                                              JJ.]

        PENAL CODE, 1860:

c      s. 302- Married woman· burnt alive by her mother-in~law
  (appellant) - Conviction and sentence oflife imprisonment -
  Held: In the dying declaration recorded by the doctor, the
  deceased stated that her mother-in-law.poured kerosene on
  her and set her on fire - Carbon copy of dying declaration
0 rightly admitted by trial court as secondary evidence - No
  objection was raised at that time - As the incident occurred
  in the house of appellant, and she was present therein at the
  relevant time, she could have furnished the explanation as
  to how and under what circumstances the· victim died - The
  matter was within her special knowledge ""'" Both the courts
E below rightly held· that appellant was responsible for causing
  the death of deceased - Evidence Act, 1872 - ss. 63 and 65.

        Evidence Act, 1872:

F      ss. 63 and 65(c) -- 'Secondary evidence' - Witnesses
  concerned deposing that original dying declaration was not
  traceable - Trial court granting permission to lead secondary.
  evidence and permitting carbon copy to be adduced in
  evidence - Held: In view of provisions of ss. 63 and 65, such
G a course is permissible.
        The mother-in-law of the deceased (appellant), her
    husband, and the father-in-law faced· trial for offences
    punishable u/ss. 302 and 498-IPC, on the allegation that

H                              760
     · KALIYA v. STATE OF MADHYA PRADESH               761

they burnt alive the deceased for dowry, The trial court      A
convicted all the accused of the offences charged.
However, the High Court maintained th~<conviction of.the
appellant u/s, 302-IPC and acquitted the other accused
of the charges.
                                                              B
     In the instant appeal it was mainly'contended for the
appellant that since the original dying declaration was not
filed before the trial court, the carbon copy of the· same
could not have been exhibited and taken on record.
    Dismissing the appeal, the Court                          c
    HELD: 1.1. There is ample evidence on record to the
effect that the deceased was admitted to hospital on
18.6.1984. However, her case sheet could not be
deposited by the Clerk working in the hospital. PW.18,        D
the doctor who examined the deceased, supported the
case of the prosecution with respect to the admission of
the deceased in the hospital and further that he recorded
her dying declaration wherein she stated that when she
was lying on the bed, her mother-in-law poured kerosene       E
on her and set her on fire and ran away. He further
deposed that the .deceased appended her thumb
impression on the dying declaration. He also deposed
that before recording her dying declaration, the deceased
was in a fit mental condition. His statement stands fully
                                                              F
corroborated by the evidence of the staff nurse, (PW.5)
who was present at the time of recording the dying
declaration. The testimony of both these witnesses
remained unimpeached. [Para 5] [766-E-H)
     1.2. In the instant case, the dying declaration· G
produced before the court was the carbon copy of the
original. PW.16 and PW.17 clearly deposed that even after
conducting an extensive search, the original dying
declaration. could not be traced~ The trial court granted
permission to lead secondary evidence and the same was H
    762      SUPREME COURT REPORTS              [2013] 7 S.C.R.


 A adduced strictly in accordance with law and accepted by
   the courts below. In view of the provisions of SS. 63 and
   65 of the Evidence Act 1872, such a course of action is
   permissible. In case an objection was not raised at the
   time of admission of the secondary evidences, it is
 B precluded from being raised at a belated stage. (Paras 5,
   9 and 10] (766-H; 767-A-B; 768-F-G; 769-0-E]

       State of Madhya Pradesh v. Dal Singh & Ors. AIR 2013
   SC 2059; State of Rajasthan v. Kishore, 1996 (2) SCR 1103
 C =AIR 1996 SC 3035; M. Chandra v. M. Thangamuthu & Anr.,
   2010 (11) SCR 38 = (2010) 9 SCC 712; J. Yashoda v. K.
   Shobha Rani, 2007 (5) SCR 367 = AIR 2007 SC 1721 -
    relied on

         Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992
  D SC 2186; Laxmi v. Om Prakash & Ors., 2001 ( 3) SCR 777
    =AIR 2001 SC 2383 ; Govindappa & Ors. v. State of
    Karnataka, 2010 (6 ) SCR 962 = (2010) 6 SCC 533; H.
    Siddiqui (D) by Lrs. v. A. Ramalingam 2011 (5 ) SCR 587   =
    AIR 2011 SC 1492; Rasiklal Manikchand Dhariwal & Anr. v.
                                                =
. E M.S.S. Food Products, 2011 (14) SCR 1141 (2012) 2 SCC
    196); The Roman Catholic Mission v. The State of Madras,
    1966 SCR 283 =AIR 1966 SC 1457; Marwari Khumhar &
    Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., 2000 (2) Suppl.
    SCR 368 = AIR 2000 SC 2629; R. V.E. Venkatachala
  F Gounder v. Arulmigu Viswesaraswami and V. P. Temple &
                                          =
    Anr., 4548 2003 (4) Suppl. SCR 450 AIR 2003 SC; Smt.
    Dayamathi Bai v. K. M. Shaffi, 2004 (3) Suppl. SCR 336    =
    AIR 2004 SC 4082; Life Insurance Corporation of India & Anr.
    v. Rampa/ Singh Bisen 2010 (3) SCR 438     = (2010) 4 SCC
 G 491 - referred to
          Narain Singh & Anr. v. State of Haryana, AIR 2004 SC
    1616 - held inapplicable

       1.3. PW.18, the doctor who examined the deceased
 H and recorded ,her statement, deposed that 100% burnt
      KALIYA v. STATE OF MADHYA PRADESH               763


patient can also be in a fit mental and physical condition   A
to give statement. PW.14, the doctor who performed the
post-mortem, deposed that the deceased was completely
burnt and the burn injuries were anti-mortem. She had
died due to asphyxia, as a result of burn injuries and her
death was homicidal. As the incident occurred in the         B
house of the appellant, and she was present therein at
the relevant time, she could have furnished the
explanation as to how and under what circumstances the
victim died. The matter was within her special knowledge.
Both the courts below have, thus, rightly held that the      c
appellant was responsible for causing the death of the
deceased. [Paras 12 and 13] [770-D-E; F-G]
                    Case Law Reference:
    AIR 2013 SC 2059             relied on      Para 7       D
    AIR 1992 SC 2186             referred to    Para 7
    2001 (3) SCR 777             referred to    Para 7
    2010 (6) SCR 962             referred to    Para 7
                                                             E
    1996 (2) SCR 1103            relied on      Para 8
    AIR 2004 SC 1616             held inapplicable Para 9
    2011 (5) SCR 587             referred to    Para 10
    2011 (14) SCR 1141                                       F
                                 referred to    Para 10
    1966 SCR 283                 referred to    Para 10
    2000 (2) Suppl. SCR 368      referred to    Para 10
    2003 (4) Supp._ SCR 450      referred to    Para 10      G
    2004 (3) Suppl. SCR 336      referred to    Para 10
    2010 (3) SCR 438             referred to    Para 10

                                                             H
    764      SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A         2010 (11) SCR 38               relied on .     Para 11
          2007 (5) SCR 367               relied on · ·   Para 11
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 228 of 2008.
B
        From the Judgment and Order dated 06.12.2005 of the
    High Court of Madhya Pradesh Jabalpur, Bench at Gwalior in
    Criminal Appeal No. 23 of 1992.

      S.K. Dubey, Ambuj Agarwal, Mridula Ray Bharadwaj,
C Yogesh Tiwari, B.S. Banthia, Vibha Datta Makhija, Archi
  Agnihotri for the appearing parties.

          The Judgment of the Court was delivered by

        OR. B.S. CHAUHAN, J. 1. This appeal has been preferred
D against the judgment and order dated 6.1 i2005, passed by
   the High Court of Madhya Pradesh (Gwalior Bench) in Criminal
   Appeal No.23 of 1992, affirming the judgment and order dated
   10.1.1992 passed by Additional Sessions Judge, Morena in.
E. Sessions Trial .No.5 of 1985. By this order the appellant h·ad
   been convicted under Section 302 of the Indian Penal Code,
   1860 (hereinafter referred to as the 'IPC') and sentenced to life
   imprisonment and a fine of Rs.500/- had also been imposed,
   and in default of payment of fine to undergo RI for three months.

F         2. Facts and circumstances giving rise to this appeal are:

        A. Thafon 18.6.1984, Guddi, daughter-in-law of the
  present appellant. Smt.. Kaliya was admitted to J.A.. Hospital,
  Gwalior in a burnt condition. Her dying declaration was
G recorded and she died of the burn injuries on the same day.
  Information from hospital was .given to Police Station, Jhansi
  Road, Gwalior. Her dead body was sent for post-mortem and
  all formalities were properly completed.

          8. An FIR was lodged and after the completion of the
H
      KALIYA v. STATE OF MADHYA PRADESH                    765
             [DR. B. S. CHAUHAN, J.]
investigation, a chargesheet was filed against the appellant      A
alongwith her husband and son under Section 498-A IPC, the
appellant was additionally charged under Section 302 IPC .

    . C. The prosecution examined a large number of witnesses
including Dr. Nirmal Kumar Gupta (PW.18) who recorded the         8
dying declaration, Merry Kutti Michael (PW.5), the staff Nurse
who was present at the time of recording the dying declaration.
After the conclusion of the trial, the appellant was convicted
under Section 302 IPC and sentenced as mentioned
hereinabove, though, other co-accused Amar Singh (son of the      C
appellant). and Bheema (husband of the appellant) stood
convicted under Section 498~A IPC and sentenced to undergo
RI for 3 years.

   · D. The appellant as well as the other co~accused filed .
Criminal Appeal Nos. 23 and 17 of 1992, respectively before D
the Madhya Pradesh High Court. The High Court dismissed the
appeal of the present appellant vide impugned judgment and
order dated 6.12.2005 but allowed the appeal of the other co-
accused acquitting them of the said charges.
                                                              E
     Hence, this appeal.

      3. We have heard Shri S.K. Dubey, learned Senior counsel
for the appellant and Ms. Vibha Datta Makhija, learned counsel
for the respondent-State.                                ·
                                                                 F
    4. The I rial Court as well as the High Court relied mainly·
upon the dying declaration made by Guddi, deceased wherein
she had stated that she was subjected to harassment by her
mother-in~law, present appellant, her father-in-law and her
husband. So far as the incident dated 18.6.1984 was G
concerned, Gudd~ suffered 100 per cent burn injuries at her
house. After hearing commotion, some neighbours reached the
place of occurrence and extinguished the fire by pouring water
on her body and took her to the hospital. In the hospital her
dying declaration was recorded wherein she had specifically H
    766      SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A stated "I was lying on the cot then my mother-in-law by pouring
  kerosene oil and setting fire in my silk saree ran away". Dr.
  (Miss.) Bharti Kanned who was on duty and Merry Kutti
  Michael, Staff Nurse (PW.5) were witnesses to the dying
  declaration recorded by Dr. Nirmal Kumar Gupta (PW.18). In
s the FIR there is a full reference of the dying declaration recorded
  by Dr. Nirmal Kumar Gupta (PW.18). After the death, the post-
  mortem was conducted wherein it was opined that she died of
  burn injuries. If she had been admitted in the hospital with 100%
  burns she would not be in a state to get her dying declaration
c recorded. The whole emphasis before the courts below as well
  as before this Court has been that the dying declaration cannot
  be relied upon since the original of the same had not been filed
  by the prosecution and the carbon copy could not have been
  exhibited and taken on record. It has been further contended
D that even if the carbon copy could be relied upon it may have
  been tampered with as is evident from many interpolations and
  cuttings.
       5. There is ample evidence on record particularly, the
  statement of Dr. B.L. Jain (PW.16} and F.A. Khan {PW.17} to
E the effect that Guddi, deceased was admitted to J.A. Hospital
  on 18.6.1984. However, her case sheet could not be deposited
  by the Clerk working in the hospital. Dr. Nirmal Kumar Gupta
  (PW.18} supported the case of the prosecution with respect to
  the admission of Guddi in the hospital and further that he
F recorded her dying declaration wherein she had stated that
  when she was lying on the bed, her mother-in-law poured
  kerosene oil on her and set her on fire and ran away. He further
  deposed that Guddi appended her thumb impression on the
  dying declaration. He also deposed that before recording her
G dying declaration, Guddi was in a fit mental condition. His
  statement stands fully corroborated by the evidence of Merry
  Kutty Michael, the staff nurse, (PW.5} who was present at the
  time of recording her dying declaration. The testimony of both
  these witnesses, namely, Dr. Nirmal Kumar Gupta (PW.18) and
  Merry Kutty Michael (PW.5) remained unimpeached. Dr. Ninnal
H Kumar Gupta (PW.18) in his cross-examination explained that
      KALIYA v. STATE OF MADHYA PRADESH                     767
             [DR. B. S. CHAUHAN,J.]
Ex.P.4 was the carbon copy of the original. Dr. B.L. Jain           A
(PW.16) and F.A. Khan (PW.17) clearly deposed that even after
conducting an extensive search, the original dying declaration
could not be traced.
     In view of the provisions of Sections 63 and 65 of the
Indian Evidence Act 1872 (hereinafter referred to as the 'Act       B
1872'). such a course of action is permissible.
      6. The original record reveal that as the original dying
declaration was not traceable/available, the prosecution was
permitted to adduce secondary evidence. In this regard, the
Trial Court passed several orders from time to time as is evident   C
from the orders dated 4.9.1990, 15.10.1990, 7.11.1990,
8.12.1990, 26.12.1990, 25.2.1991 and 14.3.1991. And
ultimately, on 13.4.1991, on being satisfied that the original
dying declaration was not traceable, the Trial Court granted
permission to the prosecution for adducing the secondary            D
evidence.
     7. This Court has examined the issue of putting a thumb
impression on the dying declaration by 100% burnt person in
State of Madhya Pradesh v. Dal Singh & Ors. AIR 2013 SC
2059, and after considering a large number of cases including       E
Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC
2186; Laxmi v. Om Prakash & Ors., AIR 2001 SC 2383; and
Govindappa & Ors. v. State of Kamataka, (2010) 6 SCC 533
came to the conclusion as under:-
                                                                    F
     "The Jaw on the issue can be summarised to the effect
     that law does not provide who can record a dying
     declaration, nor is there any prescribed form, format, or
     procedure for the same. The person who records a dying
     declaration must be satisfied that the maker is in a fit       G
     state of mind and is capable of making such a statement.
     Moreover, the requirement of a certificate provided by a
     Doctor in respect of such state of the .deceased, is not
     essential in every case.

                                                                    H
    768      SUPREME COURT REPORTS                  [20131 7 S.C.R.

A               Undoubtedly, the subject of the evidentiary value
          and acceptability of a dying declaration, must be
          approached with caution for the reason that the maker of
          such a statement cannot be subjected to cross-
          examihation. However, the court may not look for
B         corroboration of a dying clec/arat1on, unless the
          declaration suffers from any infirmity.
               So far as the question of thumb impression is
         concerned, the same depends upon facts, as regards
         whether the skin of the thumb that was placed upon the
C        dying declaration was also burnt. Even in case of such
         bums in the body, the skin of a small part of the body,
         i.e. of the thumb, may remain intact. Therefore, it is a
       · question of fact regarding whether the skin of the thumb
         had in fact been completely burnt, and if not, whether the
o        ridges and curves had· remained intact."
          8. In State of Rajasthan v. Kishore, AIR 1996 SC 3035,
    in an identical case, this Court placed reliance on the dying
    declaration and upheld the conviction.
        9. Shri S.K. Dubey has placed much reliance on the
E judgment of this Court in Narain Singh & Anr. v. State of
  Haryana, AIR 2004 SC 1616, wherein the court acquitted the
  accused persons only on the ground that the dying declaration
  itself was not proved and, therefore the question of acting on it
  could not arise. The ratio of the said judgment has no
F application in the instant case as mentioned hereinabove. In
  the instant case, the Trial Court had granted permission to lead
  secondary evidence and the same had been adduced strictly
  in accordance with law and accepted by the courts below.
G        10. Section 65(c) of the Act 1872 provides that secondary
    evidence can be adduced relating to a document when the
    original has been destroyed or lost, or when the party offering
    evidence of its contents cannot, for any other reason, not arising
    from his own default, or neglect, produce it in reasonable time.
    The court is obliged to examine the probative value of
H
        KALIYA v. STATE OF MADHYA PRADESH                         769
               [DR. B. S. CHAUHAN, J.]
  documents produced in court or their contents and decide the            A
  question of admissibility of a document in secondary evidence.
  (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011
  SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S.
  Food Products, (2012) 2 SCC 196). However, the secondary
  evidence of an ordinary document is admissible only and only            B
  when the party desirous of admitting it has proved before the
 ·court that it was not in his possession or control of it and further,
  that he has done what could be done to procure the production
  of it. Thus, the party has to account for the non-production in
  one of the ways indicated in the section. The party further has         c
  to lay down the factual foundation to establish the right to give
  secondary evidence where the original document cannot be
  produced. When the party gives in evidence a certified copy/
  secondary evidence without proving the circumstances entitling
  him to give secondary evidence, the opposite party must raise           D
  an objection at the time of admission. In case, an objection is
  not raised at that point of time, it is precluded from being raised
  at a belated stage. Further, mere admission of a document in
  .evidence does not amount to its proof. Nor, mere marking of
: exhibit on a document does not dispense with its proof, which           E
  is otherwise required to be done in accordance with law. (Vide:
   The Roman Catholic Mission v. The State of Madras, AIR
   1966 SC 1457; Marwari Khumhar & Ors. v. Bhagwanpuri
  Guru Ganeshpuri & Anr., AIR 2000 SC 2629; R. V.E.
   Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.
  Temple & Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v.                  F
  K.M. Shaffi, AIR 2004 SC 4082; and Life Insurance
  Corporation of India & Anr. v. Rampa/ Singh Bisen, (2010) 4
  sec 491).
      11. In M. Chandra v. M. Thangamuthu & Anr., (2010) 9
 sec 712, this Court considered this aspect in detail and held            G
 as under:
      "We do not agree with the reasoning of the High Court. It
      is true that a party who wishes to rely upon the contents
      of a document must adduce primary evidence of the                   H
    770        SUPREME COURT REPORTS                (2013] 7 S.C.R.


A          contents, and only in the exceptional cases will secondary
           evidence be admissible. However, if secondary evidence
           is admissible, it may be adduced in any form in which it
           may be available, whether by production of a copy,
           duplicate copy of a copy, by oral evidence of the contents
B          or in another form. The secondary evidence must be
           authenticated by foundational evidence that the alleged
           copy is in fact a true copy of the original. It should be
           emphasised that the exceptions to the rule requiring
           primary evidence are designed to provide relief in a case
c          where a party is genuinely unable to produce the original
           through no fault of that party. n
       A similar view has been re-iterated in J. Yashoda v. K.
    Shobha Rani, AIR 2007 SC 1721.
       12. Dr. Nirmal Kumar Gupta (PW.18), deposed that 100%
D burnt patient can also be in a fit mental and physical condition
  to give statement. Dr. V.K. Deewan (PW.14), who performed
  the post-mortem of deceased Guddi, deposed that she was
  completely burnt and the burn injuries were anti-mortem. She
  had died due to Asphyxia, due to burn injuries, her death was
E homicidal.
        In view thereof, both the courts below were of the
    considered opinion that the appellant was responsible for
    causing the death of Guddi, deceased.
F      13. The defence taken by the appellant that she had gone
  out of her house to provide water to the buffalo has been
  disbelieved by the Court. As the incident occurred in the house
  of the appellant, and she was present therein at the relevant
  time, she could have furnished the explanation as to how and
G under what circumstances Guddi died. The rnatter was within
  her special knowledge.
        14. In view of the above, the appeal lacks merit and is
    accordingly dismissed.
    R.P.                                         Appeal dismissed.
H