KRISHANversusSTATE OF HARYANA

                       [2012) 13 S.C.R. 880


A                            KRIS HAN
                                  V.
                       STATE OF HARYANA
                (Criminal Appeal No. 766 of 2008)
                       DECEMBER 13, 2012
B
     [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

       Penal Code, 1860 - ss. 302, 498A and 109 - Prosecution
  under - Acquittal by trial court disbelieving the dying
C declaration in view of the hostility of witnesses - High Court
  convicted the accused relying on the dying declaration,
  evidence of the Judicial Magistrate and the Investigating
  Officer - On appeal, held: The hostility of the witnesses would
  not demolish the value of the dying declaration in view of the
D facts of the case - These witnesses support the prosecution
  case to some extent - Dying declaration was recorded in
  accordance with the established practice and procedure -
  Dying Declaration - Witness - Hostile witness.

        Dying Declaration - Evidentiary value - Dying declaration
E can form the sole basis of conviction if it is true, reliable and
    recorded in accordance with established practice and
    principles - Evidence Act, 1872 - s. 32.

         Witness - Hostile witness - Evidentiary value - Hostility
F   of a witness is a relevant consideration, but not the sole
    determinative factor to decide the guilt of the accused.

      Appellant-accused was prosecuted along-with
  another accused (his mother) ulss. 302, 498A and 109 r/
G w. s. 34 IPC, for causing death of his wife by setting her
  on fire. The deceased had made her dying declaration
  alleging that the appellant-accused set her on fire and
  also used to beat her under influence of liquor and
  another accused used to instigate him. Trial court
H                                880
          KRISHAN v. STATE OF HARYANA                  881

acquitted both the accused on the ground that the             A
material witnesses PWs 1,3 and 4 i.e. relatives of the
deceased turned hostile and it was not safe to rely on the
dying declaration. High Court convicted the appellant-
accused relying on the dying declaration, the evidence
of Sub Divisional Judicial Magistrate (PW10) and              B
Investigating Officer PW11) while maintaining the acquittal
of the other accused. Hence the present appeal.

    Dismissing the appeal, the Court

     HELD: 1. The hostility of PW1, PW3 and PW4 cannot C
demolish the value and reliability of the dying declaration
of the deceased. The dying declaration has been proved
in accordance with law, is a truthful version of the events
that occurred and the circumstances leading to her death.
The same is reliable and in fact, to some extent, finds D
corroboration from the statements of other witnesses.
[Para 26] (900-E-F]

    Khusha/ Rao v. State of Bombay AIR 1958 SC 22:
1958 SCR 552 ; State of Uttar Pradesh v. Ram Sagar E
Yadav and Ors. (1985) 1 SCC 552: 1985 (2) SCR 621 ;
Munnu Raja and Anr. v. State of MadhyaPradesh (1976) 3
sec 104: 1976 (2) SCR 764 - relied on.
     2. It is not an absolute principle of law that a dying
declaration cannot form the sole basis of conviction of F
an accused when such dying declaration is true, reliable
and has been recorded in accordance with the
established practice and principles. In the present case,
the dying declaration had been recorded in accordance
with the established practice and procedures. To its G
correctness and authenticity, there can hardly be any
challenge. The truthfulness of the dying declaration can
further be evaluated from the fact that the deceased
survived for another two-three days after the statement
                                                            H
   882     SUPREME COURT REPORTS            [2012] 13 S.C.R.


A was made from which it can reasonably be inferred that
  she was in a fit condition to make statement at the
  relevant time. In the dying declaration, the deceased did
  not unnecessarily involve the other family members of
  the appellant-accused. She only attributed the acts of
B cruelty and beating to her husband and that too, when
  he was under the influence of liquor. (Paras 18 and 19]
  [894-8-D-G-H; 895-A-B]

      Ramilaben Hasmukhbhai Khristi v. State of Gujarat
  (2002) 7 sec 56: 2002 (1) Suppl. SCR 530 ; Bhajju @
C Karan Singh v. State ofMadhya Pradesh (2012) 4 SCC 327:
  2012 (5) SCR 37 - relied on.

      3. It is not only possible but quite feasible that the
  thumb impression of the deceased could rightly be taken
D by the SDJM. The answer of the QQ!'.;tor in his cross-
  examination, where he stated that "it is correct that both
  hands of the deceased were burnt, including fingers and
  thumb." does not bring any advantage, inasmuch as no
  specific question was put to the doctor that the extent of
E burns was such that her thumb impression could not
  have been taken. PW14, who performed the autopsy on
  the dead body of the deceased, clearly noticed that there
  were superficial to deep burns all over the body except
  her lower parts of both thighs, both legs and feet. [Para
F 21] (895-E-H]
       4. PW1 , PW3 and PW4 were declared hostile by the
  prosecutor with the leave of the court. However, this
  Court can still rely on and refer to the statements of these
  three witnesses to the extent that they support the case
G of the prosecution. These witnesses support the case of
  the prosecution to a limited extent. Keeping in view the
  social set up in rural areas, the fact that another daughter
  i.e. sister of the deceased had been married in the same
  family, gives a definite indication as to the reason why
H these witnesses turned hostile. The hostility of these
          KRISHAN v. STATE OF HARYANA                    883


witnesses would, in no way, render the dying declaration       A
doubtful, much less inadmissible or of no evidentiary
value. The hostility of the witnesses is a relevant
consideration, but is not the sole determinative factor for
deciding the guilt or otherwise of an accused. PW9,
PW11, PW14, SDJM, the other police witnesses and to            B
some extent PW1 have also supported the case of the
prosecution and partially the dying declaration. [Para 23)
(896-C-F-G; 897-A-C]

     Bhajju @ Karan Singh v. State of Madhya Pradesh
(2012) 4 SCC327: 2012 (5) SCR 37; Mrinal Das v. State of C
Tripura (2011) 9 SCC479: 2011 (14) SCR 411 - relied on.

                     Case Law Reference:
 1958 SCR 552                Relied on         Para 12
                                                               D
 1985 (2) SCR 621            Relied on         Para 16
 1976 (2) SCR 764            Relied on         Para 16
 2002 (1) Suppl. SCR 530 Relied on             Para 16
                                                               E
 2012 (5) SCR 37             Relied on         Para 17, 24
 2011 (14) SCR 411           Relied on         Para 25
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 766 of 2008.
                                                               F
    From the Judgment & Order dated 17 .07 .2007 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 423-DBA of 2000.
    Ram Naresh Yadav, Dr. Kailash Chand for the Appellant.     G
   Kamal Mohan Gupta, Mohd. Zahid Hussain, Sanjeev
Kumar for the Respondent.
    The Judgment of the Court was delivered by
    SWATANTER KUMAR, J. 1. This appeal is directed             H
    884      SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A   against the judgment of conviction and order of sentence dated
    17th July, 2007 passed by the High Court of Punjab and
    Haryana at Chandigarh whereby the High Court reversed the
    judgment of acquittal passed by the Trial Court against the
    accused Krishan. However, it maintained the acquittal of
s   another accused Shardi, mother of the accused Krishan.
          2. In brief, the facts are that Ex. PH/1, FIR No. 134 was
    registered against accused Shardi and Krishan under Sections
    307, 498A, 109 read with Section 34 of the Indian Penal Code,
    1860 (for short "IPC") on 30th March, 1998.         This FIR was
C   registered in furtherance of the rukka, Ex.PH, received by the
    Police Station Sadar Narwana, from Civil Hospital, Jind. After
    receiving the rukka ASI Urned Singh, PW9 along with police
    officers reached the Civil Hospital, Narwana. That police
    officer obtained the evidence certificate in respect of Smt. Rani,
D   wife of Krishan. She was admitted to the hospital with burn
    injuries. The doctor declared Rani fit to make the statement
    and also provided her medico-legal report to the Investigating
    Officer. Since Rani's condition was serious, the Investigating
    Officer summoned Sh. Baljit Singh, then SDJM Narwana for the
E   purpose of recording the statement of Rani.
         3. On the request of the police, the said SDJM came to
    the hospital and proceeded to record the statement of Rani.
    The statement of the deceased was recorded on 30th March,
    1998 at about 11.40 a.m. As per the dying declaration, Ext. PR/
F   2 she was married to Krishan approximately 18-19 years ago.
    Krishan was addicted to liquor and used to harass her: When
    she served food to Krishan, he would throw away the thali on
    the ground.
          4. From this wedlock, two sons were born aged 9 years
G   and 7 years respectively. According to Rani, accused Krishan
    used to give her beatings whenever he was under the influence
    of liquor. Krishan also used to make demands for a car, and
    used to ask Rani to bring money to purcha.se the car from her
    father. She also stated that her father-in-law used to help her,
H
           KRISHAN v. STATE OF HARYANA                    885
              [SWATANTER KUMAR, J.]
but mother-in-law never helped. Shardi, mother of the accused   A
used to instigate him.
     5. On the fateful day, Rani herself took kerosene oil from
the store at about 7 a.m. in the morning to burn the stove. At
that time, her husband poured the kerosene oil on her body
and set her on fire. On the night previous to the occurrence, B
Krishan had come with his friend Bedu, son ofTeka and asked
her to prepare tea which she prepared and served to both of
them. According to Rani, when she was set on fire by the
accused, her father-in-law and sister-in-law extinguished the fire
and seeing them even her husband helped in putting off the fire. C
The father-in-law and sister-in-law had come to the place of
occurrence after hearing her screams, but none of them were
present when the accused Krishan had sprinkled kerosene on
her body.
     6. Vide Ext. PJ, PW9 had sought the opinion of the doctor, D
which was recorded vide Ext. PJ/1 wherein it was stated that
"patient is fit to make her statement". The Investigating Officer
then requested the SDJM to record the statement of the
deceased which then was recorded vide Ext. PR/2 and thumb
impression of Rani was taken. This was signed by the SDJM. E
     7. Based upon the dying declaration made by the
deceased, FIR was registered under Sections 498A, 307, 109
and 34 IPC. However, subsequently on 2nd April, 1998 Rani
died and the offence was converted to Section 302 IPC and F
FIR accordingly amended. The Investigating Officer prepared
the site plan, recorded statement of PWs and prepared the
Inquest Report, Ext.PN, with regard to the dead body of Rani.
The doctor, PW14, who performed the post-mortem upon the
body of the deceased and noticed the condition of the body G
and injuries upon the body of the deceased stated in his
statement as follows:-
    "On dated 3.4.98 vide PMR No. 325/98 I conducted the
    autopsy of the dead body of Rani wife of Krishan Balmiki
    by Caste, resident of Sudkan Kalan, District Jind. Dead H
    886      SUPREME COURT REPORTS               [2012] 13 S.C.R.

A         body was brought by H.C. Om Parkash 451 and Identified
          by Rajinder and Wazir. I found the following on Post-
          mortem examination.
          Dead body was 160 cm. Long. It was naked. Rigour
          mortis was present in all the limbs. There was a golden
B         colour nazle coca. There were superficial to deep bones
          over the whole body except lower parts of both thigh, both
          legs, and foot. Line of demarcation was present.
          Singeing was present. Redning, blackning and peeling
          of skin was present. Vesication was present. Bones
c         were superficial to deep and approximately 75%.
          The cause of death was due to burns and its complications
          which were anti-mortem in nature and sufficient to cause
          death in ordinary course of nature.
D         The following were handed over to the police.
          1. Dead body after Post Mortem Examination.
          2. Copy of PMR
          3. 11 Police papers duly signed.
E         The probable time that elapse between the injury and
          death was between 3-4 day (as per record and between
          death) and post mortem was within 4-36 hours. Ext. PT
          is the carbon copy of the PMR which bears my signature.
          On police request Ex. PO I conducted the P.M.
F         Examination on the dead body of Rani wife of Krishan
          which is also accompanied by the inquest report Ex. PN
          which are in total 11 pages and I initial the same.
          xxxxxxxxxxxxxxx by defence counsel.
G         The burns were on the whole body except as mentioned
          in the statement. The burns are classified of three types.
          Epidermal, Dermo-epidermal and Deep. Burns were of
          superficial and deep burns. It is correct that due to burns
          there is severe pains, and the medication is prescribed.
H         It is incorrect to suggest that I am deposing falsely."
           KRISHAN v. STATE OF HARYANA                        887
              [SWATANTER KUMAR, J.]
      8. The accused were directed to face trial before the Court    A
of Sessions. The learned Trial Court vide its detailed judgment
dated 15th November, 1999 confirmed the opinion that the
prosecution had not been able to prove its case against the
accused beyond shadow of reasonable doubt and, thus, while
giving the benefit of doubt, acquitted both the accused. The         B
Trial Court found that in the facts of the present case, it was
not safe to rely upon the dying declaration of the deceased and
acquitted both the accused. It will be useful to refer to the
relevant findings of the trial court.
     "14.All the material witnesses examined by the                  C
     prosecution namely, PW1 Ramdhari, PW3 Mamo, mother
     of deceased, PW4 Nirmala sister of accused Krishan
     have not supported the prosecution version in any manner
     and they were declared hostile on the request of the
     learned PP and were cross-examined by him but nothing           D
     favourable to the prosecution came out of them. The only
     piece of evidence against accused Krishan is the dying
     declaration recorded by Shri Baljeet Singh then SDJM,
     Narwana in which Rani has implicated her husband
     Krishan for the present occurrence. PW11 Dr. B.R. Kayat         E
    who admitted Rani has stated in the cross examination that
    Krishan accused was also admitted in the hospital at the
    same time on the same and he also suffered burn injuries
    and Krishan remained admitted in the hospital for 21 days.
    From this it is proved that Krishan tried to extinguish the      F
    fire and that is why he also received burn injuries along with
    Rani. DW2 Ram Rati who is real sister of Rani has
    stated that Krishan was not present in the house at the time
    of occurrence but he came to the spot from outside and
    he also helped the other family members in extinguishing         G
    the fire. So, from the evidence it is proved that Krishan
    accused took part in extinguishing the fire and Rani was
    got admitted in the hospital alongwith Krishan. The parents
    of the deceased have clearly stated that accused Krishan
    was not addicted to liquor and he never harassed Rani for        H
    888        SUPREME COURT REPORTS                 [2012) 13 S.C.R.


A         bringing less dowry and that accused Krishan never
          demanded any dowry articles although the marriage took
          place more than 18/19 years ago. Similarly sister of the
          deceased who was married with the brother of the accused
          Krishan and who appeared as DW2 has also stated that
B         it was a natural death because Rani caught fire while
          preparing tea and Rani told the witness that Krishan was
          not at fault and accused Krishan took part in extinguishing
          the fire. The material witnesses were declared hostile on
          the question of the learned PP and were cross-examined
c         by him but nothing favourable to the prosecution came out
          them. There is no evidence on record that accused
          Krishan or her mother Sardhi might have ever treated Rani
          with cruelty for bringing fewer dowries or for bringing more
          dowries. It is also not proved from the evidence of the
           prosecution that accused Krishan might be addicted to
D
           liquor. So now we are left with the dying declaration ...... .
            15......... ln the present case dying declaration cannot be
           believed because even parents of the deceased have not
          ·supported her versioning any manner. Similarly, even the
E          sister of the deceased who was present at the time of
           occurrence has not implicated the two accused in any
            manner. Further she has stated that it was accidental fire
            and Krishan accused extinguished the fire."
         9. The above reasoning of the Trial Court did not find
F   favour with the High Court and the High Court while relying upon
    the dying declaration, the statement of SDJM PW10 and the
    statement of Dr. B.R. Kayat PW11, recorded the following
    reasoning:-
           "23. In this case, dying declaration does not leave anything
G          vague. It is free from blemish. The act of the Magistrate
           cannot be suspected when he records the dying
           declaration as a part of the judicial function, which carries
           great sanctity. Opinion of the doctor was obtained and
           deceased remained fit to make statement during the
H          course of recording the dying declaration. There is no
       KRISHAN v. STATE OF HARYANA                        889
          [SWATANTER KUMAR. J.]
evidence that there was any body else to influence her.           A
24. Learned counsel for the accused-respondents,
supporting the judgment of the trial Court. has pointed out
that the benefit of doubt should be given to the husband
because he was the person who tried to extinguish the fire
and as a result thereof, he received burn injuries on his B
hands.
 25. This Court does not concur with the contention of the
 learned counsel for the accused-respondents. When burn
 injuries are found on the hands etc. of the accused in case      C
 of bride burning etc. it shall be a relevant circumstance to
 be taken into consideration along with other circumstances
 pointing to the innocence of the husband or whoever is
 accused of the crime of causing death by burning. It was
 stated by the deceased in her statement (Exhibit PR/2) that
 her father-in-law and Nanad extinguished the fire. Her           0
 husband also extinguished the fire. Since father and
 sister of Krishan accused-respondent tried to extinguish
 the fire, Krishan husband had no option but to join them in
extinguishing the fire. Had there been any falsity in the
statement (Exhibit PR/2) of Rani, she would have been the         E
last person to say that her husband also (sic) extinguished
the fire. It is one of the factors, which strengthens the
consideration that the dying declaration was spontaneous
and truthful. Dr. R.K. Wadhwa (PW14) conducted the Post
Mortem on the dead body of Rani on April 3, 1998 and              F
opined that the death occurred due to burn injuries and the
injuries were ante mortem and sufficient to cause death
in the ordinary course of nature. The circumstance would
further strengthen the duly proved and unequivocal dying
declaration. Learned trial judge, in this case, fell in serious   G
error by putting the circumstance of presence of burn
injuries on the hands of the accused at a higher but
unmerited pedestal and putting the dying declaration in the
background. The importance and emphasis, which ought
to have been put on the dying declaration, were wrongly           H
    890         SUPREME COURT REPORTS              [2012] 13 S.C.R.


A         put on the said circumstance of burn injuries on the hands
          of the accused in negation of the settled proposition of law
          governing dying declaration. The entire approach of the
          trial judge was lopsided and rather contumacious."
        10. The High Court convicted the accused Krishan while
B   maintaining the acquittal of Shardi, mother of accused Krishan.
         11. In light of the diametrically opposite views recorded by
    the Trial Court and the High Court, the primary question that
    arises for consideration in the present case is as to whether
C   the court can safely rely upon the dying declaration and make
    the same as the basis for conviction of the accused Krishan,
    though other witnesses like PW1 , PW3 and PW4 have not fully
    supported the case of the prosecution. In order to examine
    this aspect, it is necessary for us to bifurcate this proposition
    into the following two heads:-
D
           a.     Firstly, whether as a principle of law, a dying
                  declaration can form the sole basis for conviction
                  of an accused or not?
           b.     Secondly, whether the facts of the present case fully
E                 satisfy the settled principles and it would be safe
                  to convict the accused Krishan solely on the basis
                  of the dying declaration of the deceased?
    DISCUSSION :
F        12. The learned counsel appearing for the appellant relied
    upon the judgment of this Court in the case of Khusha/ Rao v.
    State of Bombay [AIR 1958 SC 22) to contend that it is not safe
    to convict an accused merely on evidence furnished by a dying
    declaration, without further corroboration because such a
G   statement is not made on oath and because the maker of it
    might be mentally and physically in a state of confusion and,
    therefore, the value to be attached to such a dying declaration
    cannot be such so as to form the sole basis of conviction of an
    accused.
H         13. On the contrary the counsel appearing for the State
             KRISHAN v. STATE OF HARYANA                        891
                [SWATANTER KUMAR, J.]
· relied upon the judgment of this Court in the case of State of       A
  Uttar Pradesh v. Ram Sagar Yadav and Ors. [(1985) 1 SCC
  552] and argued that primary effort of the Court has to be to
  find out whether the dying declaration is true and if it is so, no
  question of corroboration arises. It is only if the circumstances
  surrounding the dying declaration are not clear or convincing        B
  that the court may, for its assurance, look for corroboration of
  the dying declaration.
      14. We are not able to see any contradiction in these two
 judgments of this Court. The three-Judge Bench judgment in
 the case of Khushal Rao (supra) had stated the principle in           C
 paragraphs 16 and 17, which reads as under:
      "16. On a review of the relevant provisions of the Evidence
      Act and of the decided cases in the different High Courts
      in India and in this Court, we have come to the conclusion,
      in agreement with the opinion of the Full Bench of the D
       Madras High Court, aforesaid, (1) that it cannot be laid
      down as an absolute rule of law that a dying declaration
      cannot form the sole basis of conviction unless it is
      corroborated; (2) that each case must be determined on
      its own facts keeping in view the circumstances in which E
      the dying declaration was made; (3) that it cannot be laid
      down as a general proposition that a dying declaration is
      a weaker kind of evidence than other pieces of evidence;
      (4) that a dying declaration stands on the same footing as
      another piece of evidence and has to be judged in the light F
      of surrounding circumstances and with reference to the
      principles governing the weighing of evidence; (5) that a
      dying declaration which has been recorded by a
      competent Magistrate in the proper manner, that is to say,
      in the form of questions and answers, and, as far as G
      practicable, in the words of the maker of the declaration,
      stands on a much higher footing than a dying declaration
      which depends upon oral testimony which may suffer from
      all the infirmities of human memory and human character,
      and (6) that in order to test the reliability of a dying H
    892       SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A         declaration, the court has to keep in view, the
          circumstances like the opportunity of the dying man for
          observation, for example, whether there was sufficient light
          if the crime was committed at night; whether the capacity
          of the man to remember the facts stated, had not been
B         impaired at the time he was making the statement, by
          circumstances beyond his control; that the statement has
          been consistent throughout if he had several opportunities
          of making a dying declaration apart from the official record
          of it; and that the statement had been made at the earliest
          opportunity and was not the result of tutoring by interested
c         parties.
          17. Hence, in order to pass the test of reliability, a dying
          declaration has to be subjected to a very close scrutiny,
          keeping in view the fact that the statement has been made
D         in the absence of the accused who had no opportunity of
          testing the veracity of the statement by cross-examination.
          But once, the court has come to the conclusion that the
          dying declaration was the truthful version as to the
          circumstances of the death and the assailants of the victim,
E         there is no question of further corroboration.
                 If, on the other hand, the court, after examining the
          dying declaration in all its aspects, and testing its veracity,
          has come to the conclusion that it is not reliable by itself,
          and that it suffers from an infirmity, then, without
F         corroboration it cannot form the basis of a conviction. Thus,
          the necessity for corroboration arises not from any inherent
          weakness of a dying declaration as a piece of evidence,
          as held in some of the reported cases, but from the fact
          that the court, in a given case, has come to the conclusion
G         that that particular dying declaration was not free from the
          infirmities referred to above or from such other infirmities
          as may be disclosed in evidence in that case."
       15. A bare reading of the above paragraphs shows that
  the Court opined that it cannot be laid down as an absolute rule
H of law that a dying declaration cannot form the sole basis of
            KRISHAN v. STATE OF HARYANA                        893
               [SWATANTER KUMAR, J.)
conviction unless it is corroborated. The Bench further clarified     A
that where the dying declaration is true and correct, the
attendant circumstances show it to be reliable and it has been
recorded in accordance with law, the deceased made the dying
declaration of her own accord and upon due certification by the
doctor with regard to the state of mind and body, then it may         B.
not be necessary for the court to look for corroboration. In such
cases, the dying declaration alone can form the basis for the
conviction of the accused. But where the dying declaration
itself is attended by suspicious circumstances, has not been
recorded in accordance with law and settled procedures and            C
practices, then, it may be necessary for the court to look for
corroboration of the same.
     16. In the case of Ram Sagar Yadav (supra}, this Court
had followed the same principle and, in turn, specifically referred
to the judgment of Khushal Rao (supra}. Not only this, even in        o
the case of Munnu Raja and Anr. v. State of Madhya Pradesh
(1976} 3 SCC 104, this Court referred to the judgment in
Khusha/ Rao's case (supra}. In paragraph 6 of the judgment,
the Court stated the same principle that where the dying
declaration suffers from an infirmity, the Courts will have to        E
adopt a different course to adjudicate the matter in accordance
with law. In the case of Ramilaben Hasmukhbhai Khristi v.
State of Gujarat (2002} 7 SCC 56, this Court held as under:
    "28. Under the law, dying declaration can form the sole
    basis of conviction, if it is free from any kind of doubt and     F
    it has been recorded in the manner as provided under the
    law. It may not be necessary to look for corroboration of
    the dying declaration. As envisaged, a dying declaration
    is generally to be recorded by an Executive Magistrate with
    the certificate of a medical doctor about the mental fitness      G
    of the declarant to make the statement. It may be in the
    form of question and answer and the answers be written
    in the words of the person making the declaration. But the
                                                                      ./ .
    court cannot be too technical and in substance if it feels
    convinced about the trustworthiness of the statement which        H
    894      SUPREME COURT REPORTS               [2012) 13 S.C.R.


A         may inspire confidence such a dying declaration can be
          acted upon without any corroboration."
         17. In this regard, reference can also be made to a recent
    judgment of this Court in the case of Bhajju @ Karan Singh
     v. State of Madhya Pradesh (2012) 4 SCC 327.
B
       18. From the above judgments, it clearly emerges that it
  is not an absolute principle of law that a dying declaration
  cannot form the sole basis of conviction of an accused when
  such dying declaration is true, reliable and has been recorded
C in accordance with the established practice and principles.
          19. Having answered the first question, now we have to
    deal with the facts of the present case. As already noticed, the ·
    dying declaration had been recorded in accordance with the
    established practice and procedures. To its correctness and
0   authenticity, there can hardly be any challenge. After receiving
    the rukka at the police station, PW9 had rushed to the hospital
    and vide Ex.PJ/2 submitted application for recording the
    statement of the deceased. The doctor vide Ex. PJ/1 issued a
    certificate of fitness to record the statement of Rani. They dying
E   declaration is Ex.PR/2 and photocopy thereof was marked as
    Ex.PK. This was recorded by the SDJM in his handwriting after
    questioning the deceased. Ex.PR/2 was signed by the SDJM
    as well as the thumb impression of Rani was taken, which was
    duly identified by the Investigating Officer. The proceedings to
F   that effect were duly recorded as giving complete details as to
    how the dying declaration came to be recorded and the
    proceedings were submitted to the SDJM and the Area
    Magistrate. The truthfulness of the dying declaration can further
    be evaluated from the fact that the same was recorded on 30th
    March, 1998 while Rani died on 2nd April, 1998, i.e. she
G   survived for another two-three days after the statement was
    made from which it can reasonably be inferred that she was in
    a fit condition to make statement at the relevant time, as stated
    by PW9 and PW11. In the dying declaration, the deceased did
    not unnecessarily involve the other family members of the
H   accused Krishan. On the contrary, she specifically stated that
            KRISHAN v. STATE OF HARYANA                       895
               [SWATANTER KUMAR, J.]
her father-in-law and sister-in-law were always helping her and,     A
in fact, even tried to douse the fire. She did not even make
any allegations against her mother-in-law, except that she did
not help Rani. She only attributed the acts of cruelty and beating
to her husband and that too, when he was under the influence
of liquor.                                                           B
     20. Dr.B.R. Kayat, when examined as PW11, specifically
stated that the patient was conscious but the B.P. could not be
recorded because of burns. She had 75% burns. The doctor
issued the endorsement, Ex.PJ/1, declaring that the deceased
was fit to make statement and he also permitted the Magistrate       C
to record the statement of the deceased and she remained fit
during the recording of her statement. According to this
witness, he had granted endorsement (Ex. PJ/1) at 11.15 a.m.
and then he granted the other certificate, Ex.PR/3 at about 11.42
a.m. certifying that she remained fit during recording of her        D
statement. He also stated that the Magistrate remained present
in the hospital for about 30 minutes.
      21. The learned counsel appearing for the appellant heavily
 relied upon the answer of the doctor in his cross-examination,
where he stated that "it is correct that both hands of Rani were E
burnt, including fingers and thumb." The deceased is stated
to have suffered 75% burns. This answer of the witness in face
of his statement in examination-in-chief does not bring any
advantage, inasmuch as no specific question was put to the
doctor that the extent of burns was such that her thumb F
impression could not have been taken. No such question was
put to this witness. Not even a suggestion was made to the
doctor and the Investigating Officer to the effect that it was not
possible to take the thumb impression of the deceased in the
state of health that she was in. Dr. R.K. Wadhwa, PW14, who G
performed the autopsy on the dead body of Rani clearly noticed
that there were superficial to deep burns all over the body
except her lower parts of both thighs, both legs and feet. In other
words, it is not only possible but quite feasible that her thumb
impression could rightly be taken by the SDJM.
                                                                    H
           896      SUPREME COURT REPORTS                [2012) 13 S.C.R.


     A      22. The next submission was that since PW1, PW3 and
       PW4, the relatives of the deceased had themselves turned
       hostile, it cannot be said that the prosecution has been able to
       prove its case beyond any reasonable doubt. On the contrary,
       this will also take this case outside the category of cases where
     8 an accused can be convicted solely on the basis of a dying
       declaration.
                 23. No doubt, these three witnesses were declared hostile
           by the prosecutor with the leave of the court. However, this
           Court can still rely on and refer to the statements of these three
     C     witnesses to the extent that they support the case of the
           prosecution. PW1, father of the deceased, stated that he had
           four daughters and one son. His daughters, Rani and Ram Rati
           were married to Krishan and Sat Narain about 19 years back.
           He denied that Krishan used to treat his daughter with cruelty.
       D   But two vital pieces of information that clearly surfaced from his
           examination-in-chief are inferred by the following statement
           "about two years ago, Krishan came to me and demanded
           money for purchase of vehicle, but I refused ...... Statement of
           my daughter was recorded before my arrival." It was, thereafter,
       E   that the witness was declared hostile and cross-examined.
           Similarly, PW3, mother of the deceased stated that her
           daughter was never harassed by the accused for bringing less
           dowry and was declared hostile. PW4 is the sister of Krishan
           and she stated that Krishan was not at home and the deceased
       F   caught fire while she was preparing the tea. Maybe, it was not
           possible for the Court to convict the accused on the basis of
           the statements of PW1, PW3 and PW4 respectively. These
           witnesses support the case of the prosecution to a limited. Rani
           and Ram Rati were two sisters who were married to two real
           brothers, i.e. Krishan and Sat Narain. This fact has duly been
       G   noticed by the Trial Court in its judgment. However, its impact
           on the case of the prosecution and the reason for not supporting
           of the prosecution case by these witnesses was completely
. ,.
,.          ignored by the Trial Court. PW1 supports the dying declaration
            to the extent that money was demanded for purchase of a car
       H
           KRISHAN v. STATE OF HARYANA                         897
              [SWATANTER KUMAR, J.]

and he had refused to meet the demand. To that extent, this A
fully corroborates the dying declaration made by the deceased.
Keeping in view the social set up in rural areas, the fact that
another daughter Ram Rati, sister of the deceased Rani, had
been married in the same family, gives a definite indication as
to the reason why these witnesses turned hostile. The hostility 8
of these witnesses would, in no way, render the dying
declaration doubtful, much less inadmissible or of no evidentiary
value. The hostility of the witnesses is a relevant consideration,
but is not the sole determinative factor for deciding the guilt or
otherwise of an accused. PW9, PW11, PW14, SDJM, the C
other police witnesses and to some extent PW1 have also
supported the case of the prosecution and partially the dying
declaration.
     24. The judgment of this Court in the case of Bhajju @
Karan Singh (supra) can usefully be referred again as it has          o
some similarity on facts. There also two witnesses had turned
hostile and a dying declaration was involved. Considering the
cumulative effect of hostile witnesses and the reliability of a
dying declaration, the Court held as under:
    "33. As already noticed, none of the witnesses or the E
    authorities involved in the recording of the dying
    declaration had turned hostile. On the contrary, they have
    fully supported the case of the prosecution and have,
    beyond reasonable doubt, proved that the dying
    declaration is reliable, truthful and was voluntarily made by F
    the deceased. We may also notice that this very judgment,
    Munnu Raja (1976) 3 SCC 104 relied upon by the
    accused itself clearly says that the dying declaration can
    be acted upon without corroboration and can be made the
    basis of conviction.                                          G
    34. Para 6 of the said judgment reads as under: (Munnu
    Raja case, SCC pp. 106-07)
    "6 .... It is well settled that though a dying declaration must
    be approached with caution for the reason that the maker          H
    898       SUPREME COURT REPORTS                [2012) 13 S.C.R.


A         of the statement cannot be subject to cross-examination,
          there is neither a rule of law nor a rule of prudence which
          has hardened into a rule of law that a dying declaration
          cannot be acted upon unless it is corroborated (see
          Khushal Rao v. State of Bombay AIR 1948 SC 22). The
B         High Court, it is true, has held that the evidence of the two
          eyewitnesses corroborated the dying declarations but it
          did not come to the conclusion that the dying declarations
          suffered from any infirmity by reason of which it was
          necessary to look out for corroboration."
c         35. Now, we shall discuss the effect of hostile witnesses
          as well as the worth of the defence put forward on behalf
          of the appellant-accused. Normally, when a witness
          deposes contrary to the stand of the prosecution and his
          own statement recorded under Section 161 Cr.PC, the
D         prosecutor, with the permission of the court, can pray to
          the court for declaring that witness hostile and for granting
          leave to cross-examine the said witness. If such a
          permission is granted by the court then the witness is
          subjected to cross-examination by the prosecutor as well
E         as an opportunity is provided to the defence to cross-
          examine such witnesses, if he so desires. In other words,
          there is a limited examination-in-chief, cross-examination
          by the prosecutor and cross-examination by the counsel
          for the accused. It is admissible to use the examination-
          in-chief as well as the cross-examination of the said witness
F
          insofar as it supports the case of the prosecution.
          36. It is settled law that the evidence of hostile witnesses
          can also be relied upon by the prosecution to the extent
          to which it supports the prosecution version of the incident.
G         The evidence of such witnesses cannot be treated as
          washed off the records, it remains admissible in trial and
          there is no legal bar to base the cc;mviction of the accused
          upon such testimony, if corroborated by other reliable
          evidence. Section 154 of the Evidence Act enables the
H         court, in its discretion, to permit the person, who calls a
          KRISHAN v. STATE OF HARYANA                     899
             [SWATANTER KUMAR, J.]
    witness, to put any question to him which might be put in   A
    cross-examination by the adverse party.
    37. The view that the evidence of the witness who has
    been called and cross-examined by the party with the leave
    of the court, cannot be believed or disbelieved in part and
    has to be excluded altogether, is not the correct exposition B
    of law. The courts may rely upon so much of the testimony
    which supports the case of the prosecution and is
    corroborated by other evidence. It is also now a settled
    canon of criminal jurisprudence that the part which has
    been allowed to be cross-examined can also be relied C
    upon by the prosecution. These principles have been
    encompassed in the judgments of this Court in the following
    cases:
     a.    Kofi Lakhmanbhai Chanabhai v. State of Gujarat D
                  s
           (1999) sec 624.
     b.    Prithi v. State of Haryana (2010) 8 SCC 536.
     c.    Sidhartha Vashisht @ Manu Sharma v. State
           (NCT of Delhi) (201 O) 6 sec 1.
     d.    Ramkrushna v. State of Maharashtra (2007) 13         E
           sec 525."
    25. Even in the case of Mn·nal Das v. State of Tripura
(2011) 9 SCC 479, this Court held as under:
    "68. In our case, the eyewitnesses including the hostile F
    witnesses, firmly established the prosecution version. Five
    eyewitnesses, namely, PW 1, PW 4, PW 6, PW 7 and PW
    8 clearly identified two convicts, appellants Tapan Das (A-
    5) and Gautam Das (A-11). PWs 1, 4, 7 and 8 identified
    accused Pradip Das (A-9). PWs 1 and 7 identified G
    accused Somesh Das (A-7). PWs 1 and 4 identified Mrinal
    Das (A-4). PWs 4 and 8 identified Anil Das (A-1). It is clear
    that 6 accused persons including two convicts/appellants
    had been identified by more than one eyewitnesses. It is
    also clear that 6 accused could have been identified by H
    900       SUPREME COURT REPORTS                    [2012] 13 S.C.R.


A         the eyewitnesses though all of them could not have been
          identified by the same assailants. However, it is clear that
          two or more than two eyewitnesses could identify one or
          more than one assailants. The general principle of
          appreciating evidence of eyewitnesses in such a case is
B         that where a large number of offenders are involved, it is
          necessary for the court to seek corroboration, at least, from
          two or more witnesses as a measure of caution. Likewise,
          it is the quality and not the quantity of evidence to be the
          rule for conviction even where the number of eyewitnesses
c         is less than two.
          69. It is well settled that in a criminal trial, credible evidence
          of even hostile witnesses can form the basis for conviction.
          In other words, in the matter of appreciation of evidence
          of witnesses, it is not the number of witnesses but quality
D         of their evidence."
                                                    (emphasis supplied)
         26. In view of the settled position of law, we are of the
    considered view that the hostility of PW1, PW3 and PW4
E   cannot demolish the value and reliability of the dying declaration
    of the deceased, Ext. PR/2. The dying declaration has been
    proved in accordance with law, is a truthful version of the events
    that occurred and the circumstances leading to her death. The
    same is reliable and in fact, to some extent, finds corroboration
F   from the statements of other witnesses.
        27. For these reasons, we see no merit in the present
    appeal and the same is dismissed.
    K.K.T.                                           Appeal dismissed.