SRI BHAGWANversusSTATE OF U.P.

                       [2012] 12 S.C.R. 774

A                         SRI BHAGWAN
                                 v.
                          STATE OF U.P.
                (Criminal Appeal No. 1709 of 2009)
                       DECEMBER 6, 2012
B
       [SWATANTER KUMAR AND FAKKIR MOHAMED
                IBRAHIM KALIFULLA, JJ.]

       Penal Code, 1860- ss.302 and 326- Acid sprinkled on
C victim causing him extensive bum injuries - FIR registered
  u/s.326 /PC - Statement of victim uls.161 CrPC - Death of
  the victim one day thereafter - Case altered to that u/s.302
   /PC - Conviction of accused-appellant u/s. 302 by Courts
  below - Justification - Held: Justified - Testimony of PWs-1
D and 3 was convincing and natural - Moreover, they were total
  strangers and their presence was justified in eveiy respect -
  Statement of victim u/s.161 CrPC was truthful which
  subsequent to his death assumed the character of dying
  declaration falling within the four corners of s.32(1) of
E Evidence Act '."" Recoveiy memo disclosed recoveiy of rubber
  gloves whic~i were apparently used by the appellant while
  carrying out !the offence of pouring acid on the victim - Since
  appellant took eveiy precaution to ensure that while throwing
  acid on victim, he was not injured in any manner, thus,
F absence of any such injuiy on the appellant did not affect the
  prosecution case which was otherwise established by
  abundant legal evidence - Code of Criminal Procedure, 1973
  - ss. 161and162 - Evidence Act, 1872 - s.32.
      The prosecution case was that PWs 1 and 3 saw the
G accused-appellant sprinkling acid on the body of 'Y' who
  suffered extensive burn injuries. FIR was registered
  against the appellant under Section 326 IPC. PW-4
  recorded the statement of 'Y' under Section 161 CrPC. 'Y'

H                              774
         SRI BHAGWAN v. STATE OF U.P.                 775


died one day after the incident. Thereafter the case was     A
altered to that under Section 302 IPC. The trial Court
convicted the appellant under Section 302, IPC and
sentenced him to life imprisonment. The conviction was
affirmed by the High Court, and therefore the instant
appeal.                                                      B

     The substantial contention made on behalf of the
appellant was that PW1 and 3 could not have witnessed
the incident and that having regard to the nature of the
injuries sustained by the deceased 'Y', he could not have C
made a statement under Section 161 Cr.P.C. It was
further contended on behalf of the appellant that even if
the statement can be said to have been made by the
deceased, the same cannot be treated as a dying
declaration for non-fulfillment of the statutory
requirements and that absence of the acid marks on the D
accused belied the case of the prosecution. One other
submission made on behalf of the appellant was that
PWs -1 and 3 were stock witnesses and, therefore, their
version could not have been relied upon.
                                                             E
    Dismissing the appeal, the Court

     HELD: 1. It can be stated that as per the version of
PWs-1 and 3 while they were guarding the area as
responsible residents of a nearby colony they heard the      F
cries of the deceased 'Y' and they rushed to the place of
occurrence to help the deceased when they were able to
witness the act of the appellant in sprinkling acid on the
deceased and the attempt of the appellant to flee from the
scene of occurrence which was successfully thwarted by
the witnesses alongwith others standing nearby. Their        G
statement in narrating the incident in such a sequence
was really convincing and that it was quite natural and
acceptable in every respect without giving room for any
doubt. Moreover, as rightly pointed out by the
respondent, they were not interested in any manner in the    H
    776       SUPREME COURT REPORTS          [2012] 12 S.C.R.


A deceased. Nothing was put in cross examination to state
  that these witnesses had either tendered evidence at the
  instance of the police in any other criminal case or even
  a suggestion that they were stock witnesses of the
  police. There is nothing on record to show that these
B witnesses had earlier deposed in any other criminal case
  in order to even remotely suggest that they were being
  used as stock witnesses by the police authorities. They
  were total strangers and their presence as claimed by
  them was justified in every respect and, therefore, there
C was no room to doubt their version in having stated that
  it was the appellant who was responsible for causing
  acid injury on the deceased. [Paras 8, 10) [784-A-B, F-H;
  785-A-B]

        Babudas v. State of M.P. 2003 (9) SCC 86 and Baldev
D . Singh v. State of Punjab 2009 (6) SCC 564: 2009 (7) SCR
    855 - held inapplicable.

          Jai Prakash and Others v. State of Haryana 1998 (7)
    sec    284 - cited.
E
       2.1. A conspectus consideration of the injury report
  (Exhibit Ka-17) with post-mortem report (Exhibit Ka-13)
  [as issued by PW5] and the oral evidence of PW-5 amply
  show that the deceased was fully conscious immediately
  after the attack on him and that such conscious position
F remained for at least half-an-hour to one hour. As per the
  evidence available on record, while the occurrence took
  place at 10.45 p.m. the deceased along with the accused
  were brought to the police station by,11.10 p.m. PW-4 the
  ASI who recorded the statement of the deceased made
G it clear that having regard to the condition of the
  deceased, he quickly recorded the statement within 10
  minutes in order to send .him to the hospital to get him
  treated. The above factors go to show that the statement
  as recorded by PW-4 of the deceased was true and,
H therefore, it cannot be said that the deceased was not in
          SRI BHAGWAN v. STATE OF U.P.                  777


a position to make the statement. In fact PWs1 and 3 in        A
one voice stated that they heard the cries of the deceased
after the attack. If the deceased was in a position to make
a long cry after the acid attack, it can be safely concluded
that he would have definitely be in a condition to explain
to the police officer the manner in which the occurrence       B
took place. Therefore, it cannot be said that the statement
of the deceased as recorded by PW-4 was not true. [Para
13] [786-E-H; 787-A-B]

     2.2. Going by Section 32(1) Evidence Act, it is quite C
clear that a statement (of relevant facts made by a person
who is dead) would be relevant even if the person who
made the statement was or was not at the time when he
made it was under the expectation of death. Once a
statement though recorded under Sectio'n 161 Cr.P.C.
assumes the character of dying declaration falling within D
the four corners of Section 32(1) of Evidence Act, then
whatever credence that would apply to a declaration
governed by Section 32 (1) should automatically deemed
to apply in all force to such a statement. A purported
recorded statement under Section 161 of a victim having E
regard to the subsequent event of the death of the person
making the statement who was a victim would enable the
prosecuting authority to rely upon the said statement
having regard to the nature and content of the said
statement as one of dying declaration as deeming it and F
falling under Section 32(1) of Evidence Act and thereby
commend all the credence that would be applicable to a
dying declaration recorded and claimed as such. [Para
21] [791-B-F]
                                                               G
    2.3. In the instant case, having regard to the manner
in which the statement in question was recorded at the
time when the crime was registered originally under
Section 326 IPC within the shortest time possible within
which it could be recorded by PW-4 in order to provide         H
   778     SUPREME COURT REPORTS              [2012] 12 S.C.R.


A prop!)r medical treatment to the deceased by sending him
  to the hospital, with no other intention pointed out at the
  instance of the appellant to discredit contents of the said
  statement, the reliance placed upon the said statement
  as the dying declaration of the deceased was perfectly
B justified. [Para 22] [792-A-C]
       3. The recovery memo Exhibit Ka-1 disclose recovery
  of gloves which were marked as exhibit 4 before the trial
  Court. The chemical report marked as Ka-18 discloses
  the rubber gloves apparently used by the appellant while
C carrying out the offence of pouring acid on the deceased.
  Exhibit Ka-18 discloses that the burnt pieces of rubber
  gloves had the content of acid on it. Therefore, when the
  appellant had taken every precaution to ensure that while
  throwing acid on the deceased, he was not injured in any
D manner, the absence of any such injury on him can have
  no effect in the case of the prosecution. [Para 23]
  [792-0-F]
       4. Once the Court is satisfied that the declaration is
E true and voluntary, it undoubtedly, can base its
  conviction on the dying declaration without any further
  corroboration. The rule requiring corroboration is merely
  the rule of prudence. In the case on hand the statement
  under Section 161 Cr.P.C. which was relied upon as
F dying declaration, fulfilled the requirement, every
  provision of the law and fact. Not sending of the clothes
  of the deceased for chemical examination is an isolated
  factor which should not cause any dent in the case of the
  prosecution when the case of the prosecution was
  otherwise established by abundant legal evidence. [Paras
G 26, 27 and 30] [793-C-E; 794-F]
       Ravikumar alias Kutti Ravi v. State of T.N. 2006 (9) SCC
   240 - relied on.
      Suresh Chaudhary v. State of Bihar 2003 (4) SCC 128
H - held inapplicable.
          SRI BHAGWAN v. STATE OF U.P.                     779

                      Case Law Reference:                          A
    1998 (7) sec 284          cited                 Para 6
    2003 (9) sec 86           held inapplicable     Para 8, 9
    2009 (7) SCR 855          held inapplicable     Para 8, 9
                                                                   B
    2006 (9) sec 240          relied on             Para 26
    2003 (4) sec 128          held inapplicable     Para 28
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1709 of 2009.
      From the Judgment & Order dated 28.11.2008 of the High       C
Court of Judicature at Allahabad in Criminal Appeal No. 2520
of 1982.
      M.P. Shorawala, Jyoti Saxena, Ranbir Yadav, Anzu K.
Varkey and Shashi Kiran for the Appellant.
                                                                   D
      Ratnakar Dash, Alka Sinha and Anuvrat Sharma for the
Respondent.
      The Judgment of the Court was delivered by
      FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This
appeal by the sole accused is directed against the judgment        E
of the Division Bench of the High Court of Allahabad dated
28.11.2008 passed in Criminal Appeal No.2520 of 1982 by
which the High Court confirmed the conviction and sentence of
life imposed on the appellant for the offence under Section 302,
Indian Penal Code (IPC) by the Sessions Judge Agra in ST           F
457 of 1981 in the judgment and order dated 06.09.1982.
      2. Shorn of unnecessary details, the case of the
prosecution was that on 26.05.1980 at 10.45 p.m. on hearing
the cries of the deceased Yogender Nath Bhargava, Gurvanta
Singh (PW-1) and Lalji Prasad-first informant (PW-3) rushed        G
to the place of occurrence which was Dayalbagh bus stand
where they witnessed the action of the accused in pouring acid
on the body of the deceased. It was also stated that while
committing the said offence, the accused was heard saying ·r
will pay your Rs.1,300/- today". It was the further case of the    H
    780      SUPREME COURT REPORTS                [2012] 12 S.C.R.


A prosecution that on seeing the witnesses, the accused
  attempted to escape from the spot. However, he was caught
  by the persons who were present at the spot.

       3. Both the deceased and the accused were stated to have
  been then brought to the police station by 11.10 p.m. where
8
  PW-3's report (Exhibit Ka-2) was lodged based on which
  Exhibit Ka-3 FIR was prepared by H.M. Shivraj Singh (PW-6)
  wherein the crime under Section 326, IPC was registered in
  the General diary (Exhibit Ka-14). ASI Raghu Nath Singh (PW-
  4) recorded the statement of the deceased who was injured at
C that point of time under Section 161, Criminal Procedure Code
  (Cr.P.C). Thereafter the injured was stated to have been sent
  to the District Hospital where he was examined by Dr. S.P.
  Mishra (PW-5) at 11.45 p.m. and the injury report was marked
  as Exhibit Ka-17. The injured stated to have breathed his last
D at 9.40 p.m. on 27.5.1980 due to extensive burn injuries
  sustained by him. Dr. S.P. Mishra (PW-5) who conducted the
  post-mortem on the body of the deceased issued Exhibit Ka-
  15, the report. Thereafter, the crime was altered as one under
  Section '302, IPC. Raghu Nath Singh (PW-4) ASI inspected the
E place of occurrence, prepared a site plan (Exhibit Ka-5),
  collected materials such as acid bottle (Exhfbit-1), Nausadar
  (Exhibit-2), gloves (Exhibit-4), and bag (Exhibit.a) from the spot
  under memo (Exhibit Ka-17). The inquest memo was marked
  as (Exhibit Ka-6). Investigation was stated to have been
F subsequently taken over by S.H.O. Raj Pal Singh on
  28.05.1980.
        4. Charge-sheet was thereafter laid as E-xhibit Ka-5. The
  articles recovered were sent for chemical examination and the
  chemical examination report was marked as Exhibit Ka-18. The
G trial Court, on consideration of the evidence placed before it,
  both oral and documentary and the material objects, found the
  appellant guilty of the offence under Section 302, IPC and
  imposed upon him the sentence for life. The appellant's appeal
  before the High Court having been dismissed, he has come
H forward with the present appeal before us.
         SRI BHAGWAN v. STATE OF U.P.                      781
    [F~KKIR MOHAMED IBRAHIM KALIFULLA, J.]
       5. Mr. M.P. Shoravala, learned counsel for the appellant A
 in his submission contended that PWs-1 and 3 could not have
 witnessed the incident inasmuch as, in their version before the
 Court they stated that they only heard the deceased saying that
 the accused sprinkled acid on him. According to the learned
 counsel, since the deceased had severe burn injuries in his"' B
 tongue, he was incapable of making any statement and,
 therefore, the alleged dying declaration in the form of Section
 161 statement recorded by Raghu Nath Singh (PW-4) ASI
 cannot be true. Learned counsel contended that as per para
 115 of Police Regulations, the 161 statement, if were to be c
 treated as a dying declaration, the same should have been
 done in the presence of two respectable witnesses in which the        •
 signature or mark of the declarant and the witnesses at the foot
 of the declaration should have been obtained. Since the said
 requirement was not fulfilled, the said statement could not have
                                                                   0
 been relied upon by the trial Court as well as the High Court. It
 was then contended that absence of acid mark on the accused ·
 belied the case of the prosecution. It. was also contended that
 the arrest of the accused was suppressed. According to the
 learned counsel for the appellant, PW-3 was a stock witness
 and, therefore, his version could not have been relied upon. He E
 also contended that on 25.05.1980, the death ceremony of the
 appellant's father was held and, therefore, in that situation the
 appellant would not have been in a mood at all to commit a
iheinous crime of murder of the deceased. According to the
 learned ceunsel, if the deceased had suffered such extensive F
 burn injuries due to acid attack, he would not have been in a
 position to make such a long statement as was recorded by
 PW-4. The learned counsel also argued that since in the site
 plan, no light post was marked and since the occurrence had
 taken place at 10.45 p.m., there would have been no scope at G
 all for PWs-1 and 3 to have witnessed any incident as stated
 by them. Learned counsel contended that the so-called dying
 declaration recorded by PW-4 was not admissible in evidence.
 The learned counsel, therefore, contended that the evidence
 does not confirm the offence alleged against the appellant.       H
    782      SUPREME COURT REPORTS                [2012] 12 S.C.R.


A         6. As against the above submissions, Mr. Ratnakar Dash,
     learned senior counsel submitted that the very fact that the FIR
    was lodged at 11.10 p.m. at the instance of PWs 1, 2 and 3
    who brought accused as well as the deceased to the police
    station were all factors relevant to show that the case of the
B   prosecution was truly projected before the Court. Learned
    senior counsel submitted that PWs-1 and 2 were guarding the
    area in the night and when they happened to hear the cries of
    the deceased to which they responded by rushing to the spot
    which was just 30 steps ahead of their way and with the aid of
c   the street lights, they were able to witness the occurrence as
    narrated by PW-3 in his report pursuant to which the FIR came
    to be registered. Learned senior counsel also submitted that
    when the appellant attempted to escape from the spot, he was
    caught by the persons standing nearby and thereafter brought
D   to the police station along with the deceased. Learned counsel
    contended that such natural course of events having been
    accepted by the Court with the aid of the evidence of the eye
    witnesses and the declaration made by the deceased who was
    in the injured state at that point of time before PW-4 and having
    regard to the exceptional circumstances stipulated under
E   Section 161 (2) Cr.P.C., the said statement was validly relied
    upon as the dying declaration of the deceased himself falling
    under Section 32 (1) of the Evidence Act and, therefore, the
    reliance placed upon the said dying declaration of the
    deceased was unquestionable. The learned senior counsel
F   submitted that PWs-1, 2 and 3 were all strangers and they had
    no reason to implicate the accused to the offence. He also
    pointed out that PW-3 was working as a Peon in the District
    Court and his statement was fully reliable. According to the
    learned senior counsel, both the Courts accepted the version
G   of PWs1 to 3 inasmuch as they had no axe to grind against
    the accused and they were also not related to the deceased in
    order to state that they were interested witnesses. Learned
    senior counsel relied upon the decision reported in Jai Prakash
    and Others v. State of Haryana - 1998 (7) SCC 284 in support
H   of his submission.
         SRI BHAGWAN v. STATE OF U.P.                       783
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
      7. Having heard learned counsel for the appe!Jpnt as well A
as learned counsel for the respondent and having bestowed our
serious consideration to the respective submissions and the
materials placed on record and the impugned judgments, we
find the substantial contention made on behalf of the appellant
was that PW1 and 3 could not have witnessed the incident and B
that having regard to the nature of the injuries sustained by the
deceased, he could not have made a statement under Section
161 Cr.P.C. It is the further contention that even if the statement
can be said to have been made by the deceased, the same
cannot be treated as a dying declaration for non-fulfillment of c
the statutory requirements and that the absence of the acid
marks on the accused belied the case of the prosecution. One
other submission made on behalf of the appellant which also
 requires to be considered is that PWs -1 and 3 were stock
 witnesses and, therefore, their version could not have been
                                                                    0
 relied upon.
     8. When we consider the said submission of the appellant
in seriatim, in support of the submission that PWs1 and 3 were
stock witnesses, the learned counsel relied upon the decisions
reported in Babudas v. State of M.P. - 2003 (9) SCC 86, E
Ba/dev Singh v. State of Punjab --- 2009 (6) SCC 564. At Jhe
very outset, it will have to be stated that except submitting that
PWs-1 and 3 were stock witnesses, nothing more was pointed
out by learned counsel to support the said contention. Further
when we examine the deposition of the said witnesses it F
disclose that they were actually guarding the area as members
of the residential colony. According to them, the place of
occurrence, namely, the bus stand of Dayalbagh is at a distance
of about 250 yards from their colony. They also stated that when
they heard the pathetic cries of the deceased, they could notice G
the accused assaulting the deceased which they were able to
 see from t.he street light brightness and that when they rushed
towards the deceased, the accused who was throwing acid on
 the deceased started fleeing and that as they shouted at him,
 the passersby caught hold of the accused and lhat is how they H
    784        SUPREME COURT REPORTS                 [2012] 12 S.C.R.


A were able to bring the deceased as well as the accused to the
  police station. Nothing was put in cross examination to state
  that these witnesses had either tendered evidence at the
  instance of the police in any other criminal case or even a
  suggestion that they were stock witnesses of the police. There
s is nothing on record to show that these witnesses had earlier
  deposed in any other criminal case in order to even remotely
  suggest that they were being used as stock witnesses by the
  police authorities.

       9. Keeping the above factors in mind, when we examine
C the decision relied upon reported as Babudas (supra), this
  Court has noted that PW-17 in that case was a stock witness
  who was appearing as witness for recovery on behalf of the
  prosecution even as far back as in the year 1965 and that
  admittedly the prosecution was using him as a stock witness
D and it was in those circumstances that this Court held that there
  should be a cautious approach in relying upon the testimony
  of such a stock witness. In the decision reported in Ba/dev
  Singh (supra) it was noted that PW-22 in that case was
  examined by the police authorities in some other case and that
E a suggestion was put to him that he was a police tout. It was,
  therefore, held that his evidence cannot be relied upon.

          10. In the light of the said peculiar facts involved in those
   two cases, we find no scope to apply those decisions to the
F facts of this case. It can be stated that as per the version of
  PWs-1 and 3 while they were guarding the area as responsible
  residents of a nearby colony they heard the cries of the
  deceased and they rushed to the place of occurrence to help
  the deceased when they were able to witness the act of the
G appellant in sprinkling acid on the deceased and the attempt
  of the appellant to flee from the scene of occurrence which was
  successfully thwarted by the witnesses along with others
  standing nearby. Their statement in narrating the incident in
  such a sequence was really convincing and that it was quite
  natural and acceptable in every respect without giving room for
H
         SRI BHAGWAN v. STATE OF U.P.                       785
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
any doubt. Moreover, as rightly ppinted out by learned counsel      A
for the respondent, they were not interested in any manner in
the deceased. They were total strangers and their presence as
claimed by them was justified in every respect and, therefore,
there was no room to doubt their version in having stated that
it was the appellant who was responsible for causing acid injury    B
on the deceased. The said submission of the learned counsel
for the appellant, therefore, does not merit acceptance.

      11. It was also submitted by learned counsel for the
appellant that PWs1 and 3 could not have witnessed the
incident inasmuch as they stated that they only heard the cries C
of the deceased about inflicting of the injury by pouring acid by
the accused on him and did not see the act of pouring ct;id on
the deceased by the appellant. Even here we find that the said
statement made by PWs-1 and 3 does not in any way dilute
their earlier statement that on hearing the cries of the deceased, D
they rushed to the place of occurrence when they noticed the
accused attacking the deceased by sprinkling acid on him.
After reaching the spot they also heard from the deceased that
the accused sprinkled acid on him. The reference to such
statement of the deceased by the witnesses only strengthened E
their earlier version of having seen the appellant throwing acid
on the deceased. Therefore, the version of PWs1 and 3 about
the statement of the deceased on this aspect in no way
contradict their statement of having seen the appellant
assaulting the deceased by sprinkling acid. The said F
submission also, therefore, does not merit any consideration.
      12. The next submission of the learned counsel for the
appellant was that since the deceased suffered acid injury in
his tongue, he was incapable of making any statement and,           G
therefore, the alleged statement under Section 161 Cr.P.C.
stated to have been recorded by PW-4 cannot be true. In this
context, it will be worthwhile to refer to the post-mortem report
Exhibit Ka-13. The said report mentioned the ante-mortem
injuries as under:-
                                                                    H
     786       SUPREME COURT REPORTS              [2012] 12 S.C.R.

A          "superficial burn on whole face, neck, front of cheeks,
           abdomen, whole back of both bottocks, both upper
           extremities right front of hip, whole tongue, undersurface
           of cheeks and orphornex, leather marks appearance
           (illegible)"
                                                                    •
B'
        13. While referring to the said report and the injuries, it is
  also necessary to refer to the evidence of the doctor who issued
  Ka-13, namely, Dr. S.P. Mishra (PW-5). In the chief examination,
   PW-5 stated that even after sustaining the above mentioned
C injuries, the injured could have lived in consciousness for half
  an hour to an hour. In the cross examination, though PW-5
  stated that the deceased might have suffered grave and severe
  agonies, nothing was suggested to him that he was not in a
  position to speak or make any statement. In the injury report
  Exhibit Ka-17 also it is noted that superficial burn injuries were
D found among other parts of the body as well as in the tongue.
   It was also mentioned therein that the burnt areas where in,
  multiple patches and it was mentioned that they were of leather
  appearance with a distinct demarcation between burnt and
  normal skin. A conspectus consideration of the injury report
E (Exhibit Ka-17) with post-mortem report (Exhibit Ka-13) and the
  oral evidence of Dr. S.P. Mishra (PW-5) amply show that the
  deceased was fully conscious immediately after the attack on
  him and that such conscious position remained for at least half-
  an-hour to one hour. As per the evidence available on record,
F while the occurrence took place at 10.45 p.m. the deceased
  along with the accused were brought to the police station by
  11.1 O p.m. PW-4 the ASI who recorded the statement of the
  deceased made it clear that having regard to the condition of
  the deceased, he quickly recorded the statement within 10
G minutes in order to send him to the hospital to get him treated.
  The above factors go to show that the statement as recorded
  by PW-4 of the deceased was true and, therefore, the
  submission that the deceased was not in a position to make
  the statement cannot be accepted. In fact PWs1 and 3 in one
H voice stated that they heard the cries of the deceased after the
         SRI BHAGWAN v. STATE OF U.P.                        787
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
attack. If the deceased was in a position to make a long cry         A
after the acid attack, it can be safely concluded that he would
have definitely be in a condition to explain to the police officer
the manner in which the occurrence took place. We, therefore,
reject the said submission of the learned counsel for the
appellant that the statement of the deceased as recorded by          B
PW-4 was not true.

     14. Once we steer clear of the said hurdle then the
question arises as to whether the said statement can be
accepted as a dying declaration as has been done by the trial
Court and as approved by the Division Bench of the High Court. C
The trial Court while dealing with the contention made on behalf
of the appellant for not to rely upon the 161 statement of the
deceased as a dying declaration rejected the said argument
in so many words:
                                                                  D
     "30. Regarding the dying declaration of the deceased I
     have already mentioned that there are two sets of dying
     declaration, one which was made by the deceased before
     the witnesses immediately after the incident and the other
     recorded by the investigating officer at the police station E
     u/s 161 Cr.P.C. The learned counsel for the defence
     criticised the dying declaration on the point that the
     investigating officer himself introduced certain facts in it
     while recording the statement u/s 161 Cr.P.C. by adding
     the names and the addresses of the assailant and the F
     victim on the basis of the written report, Ex.Ka2 due to
     which he argued that the same was not at all reliable. In
     this regard I find that 1979 Cr.L.J 1031, Tihari Singh vs.
     State of Punjab, is contrary, in which it has been held that
     the Head Constable who recorded the dying declaration G
      had stated in his evidence that he put the question to the
      deceased and recorded his answers. He also added that
      he recorded what the deceased stated "in his own way". It
      does not mean that he recorded something other than what
      the deceased stated. All that it meant was that the
                                                                  H
    788        SUPREME COURT REPORTS                 [2012) 12 S.C.R.


A          language was his, but the substance was that of the
          deceased. In the circumstances, no infirmity was attached
          to the dying declaration on that account. I also find that the
          dying declaration alleged to have been made by the
          deceased in presence of the witnesses, remains still
B         unaffected by the argument of the defence counsel, and
          in any case, the presence of the witnesses of fact at the
          place of the incident immediately after its occurrence, can
          not be doubted for the reasons mentioned above."

         15. The High Court also rejected the said submission for
C not relying upon the 161 statement which otherwise turned out
  to be the dying declaration of the deceased. Before us, for the
  first time it was contended on behalf of the appellant that the
  said statement cannot be accepted as a dying declaration for
  the reason that it was not attested by two respectable witnesses
D as is required in para 115 of the police regulations. The said
  paragraph 115 reads as under:

          "115.The officer investigating a case in which a person has
          been so seriously injured that he is likely to die before he
E         can reach a dispensary where his dying declaration can
          be recorded should himself record the declaration at once
          in the presence of two respectable witnesses. obtaining
          the signature or mark of the declarant and witnesses at the
          foot of the declaration."
F                                                [emphasis supplied]

        16. A reading of the said paragraph appears to be a
  guideline issued to the investigating officers as to the
  precautions to be taken while recording a dying declaration. It
G was stated therein that such declaration can be recorded by
  the investigating officer himself in the presence of two
  respectable witnesses and obtain the signature or mark of the
  declarant and the witnesses at the foot of the declaration. In the
  first place, such a guideline in the form of police regulation can
H have no impact on any superior statutory prescription. Leaving
         SRI BHAGWAN v. STATE OF U.P.                      789
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
aside such a proposition which does not require to be A
considered in this case, the said para 115 will apply only in a
grave situation where the victim is seriously injured and it would
be impossible compliance of Section 32 (1) of the Evidence
Act in its full rigour. Such guidelines have been issued to insure
that at least the basic requirement of recording such a dying B
declaration in the presence of two respectable persons as
witnesses while obtaining the signature or mark of the victim
himself. It is relevant to note that the said paragraph 115 makes
a specific reference to the recording of the dying deelaration
in which event alone such precautions have to be ensured by c
the investigating officers and not when Section 161 statement
is recorded which does not require the signature of the author
of the statement

        17. While keeping the above prescription in mind, when
we test the submission of the learned counsel for the appellant D
in the case on hand at the time when 161 Cr.P.C. statement of
the deceased was recorded, the offence registered was under
Section 326, IPC having regard to the grievous injuries
sustained by the victim. PW-4 was not contemplating to record
the dying declaration of the victim inasmuch as the victim was E
seriously injured and immediately needed medical aid. Before
sending him to the hospital for proper treatment PW-4 thought
it fit to get the version about the occurrence recorded from the
victim himself that had taken place and that is how Exhibit Ka-
2 came to be recorded. Undoubtedly, the statement was F
recorded as one under Section 161 Cr.P.C. Subsequent
development resulted in the death of the victim on the next day
and the law empowered the prosecution to rely on the said
statement by treating it as a dying declaration, the question for
consideration is whether the submission put forth on.behalf of G
the respondent counsel merits acceptance.
    18. Mr. Ratnakar Dash, learned senior counsel made a
specific reference to Section 162 (2) Cr.P .C. in support of his
submission that the said section carves out an exception and       H
    790       SUPREME COURT REPORTS                [2012] 12 S.C.R.

A credence that can be given to a 161 statement by leaving it like
  a declaration under Section 32(1) of the Evidence Act under
  certain exceptional circumstances. Section 162 (2) Cr.P.C.
  reads as under:

          "162. (2) Nothing in this section shall be deemed to apply
B
          to any statement falling within the provisions of clause (1)
          of section 32 of the Indian Evidence Act, 1872 (1 of 1872),
          or to affect the provisions of section 27 of that Act.•

       19. Under Section 32(1) of the Evidence Act it has been
C provided as under:-

          "32. Cases in which statement of relevant fact by
          person who is dead or cannot be found, etc., is
          relevant-Statements, written or verbal, of relevant facts
D         made by a person who is dead, or who cannot be found,
          or who has become incapable of giving evidence, or
          whose attendance cannot be procured without an amount
          of delay or expense which, under the circumstances of the
          case, appears to the Court unreasonable, are themselves
          relevant facts in the following cases:-
E
          (1) When it relates to cause of death.- When the
          statement is made by a person as to the cause of his
          death, or as to any of the circumstances of the transaction
          which resulted in his death, in cases in which the cause of
F         that person's death comes into question.

                Such statements are relevant whether the person
          who n:iade them was or was not, at the time when they
          were made, under expectation of death, and whatever may
G         be the nature of the proceeding in which the cause of his
          death comes into question."
       20. Going by Section 32(1) Evidence Act, it is quite clear
  that such statement would be relevant even if the person who
  made the statement was or was not at the time when he made
H it was under the expectation of death. Having regard to the
         SRI BHAGWAN v. STATE OF U.P.                        791
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
extraordinary credence attached to such statement fall under         A
Section 32(1) of the India Evidence Act, time and again this
Court has cautioned as to the extreme care and caution to be
taken while relying upon such evidence recorded as a dying
declaration.
                                                                B
     21. As far as the implication of 162 (2) of Cr.P.C. is
concerned, as a proposition of law, unlike the excepted
circumstances under which 161 statement could be relied upon,
as rightly contended by learned senior counsel for the
respondent, once the said statement though recorded under C
Section 161 Cr.P.C. assumes the character of dying
declaration falling within the four corners of Section 32(1) of
Evidence Act, then whatever credence that would apply to a
declaration governed by Section 32 (1) should automatically
deemed to apply in all force to such a statement though was
once recorded under Section 161 Cr.P.C. The above statement D
of law would result in a position that a purported recorded
statement under Section 161 of a victim having regard to the
subsequent event of the death of the person making the
statement who was a victim would enable the prosecuting
authority to rely upon the said statement having regard to the E
nature and content of the said statement as one of dyjng
declaration as deeming it and falling under Section 32(1) of
Evidence Act and thereby commend all the credence that would
be applicable to a dying declaration recorded and claimed as
w~.                                                                  F
     22. Keeping the above principle in mind, it can be stated
without any scope for contradiction that when we examine the
claim made on the statement recorded by PW-4 of the
deceased by applying Section 162 (2), we have no hesitation          G
in holding that the said statement as relied upon by the trial
Court as an acceptable dying declaration in all force was
perfectly justified. We say so because no other conflicting
circumstance was either pointed out or demonstrated before
the trial Court or the High Court or before us in order to exclude   H
     792       SUPREME COURT REPORTS                [2012] 12 S.C.R.


 A the said document from being relied upon as a dying
   declaration of the deceased. We reiterate that having regard
   to the manner in which the said statement was recorded at the
   time when the crime was registered originally under Section 326
   IPC within the shortest time possible within which it could be
 B recorded by PW-4 in order to provide proper medical treatment
   to the deceased by sending him to the hospital, with no other
   intention pointed out at the instance of the appellant to discredit
   contents of the said statement, we hold that the reliance placed
   upon the said statement as the dying declaration of the
 C deceased was perfectly justified. Having regard to our above
   conclusion, the said submission of the learned counsel for the
   appellant also stands rejected.

         23. The other submission of learned counsel for the
    appellant was that the absence of the acid marks on the body
· D of the accused belies the case of the prosecution. At the very
    outset, it will be relevant to note that the recovery memo Exhibit
    Ka-1 disclose recovery of gloves which were marked as exhibit
    4 before the trial Court. The chemical report marked as Ka-18
    discloses the rubber gloves apparently used by the appellant
  E while carrying out the offence of pouring acid on the deceased.
    Exhibit Ka-18 discloses that the burnt pieces of rubber gloves
    had the content of acid on it. Therefore, when the appellant had
    taken every precaution to ensure that while throwing acid on
    the deceased, he was not injured in any manner, the absence
  F of any such injury on him can have no effect in the case of the
    prosecution.
        24. The other argument was that the appellant lost his
   father and that on the day of occurrence he attended the
   ceremony in memory of his father and that when he was in such
 G a distress situation, he would not have committed the offence
   of murder. We do not find any substance in the said feeble
   submission in order to deal with the same in very many details.
         25. The other discrepancies pointed out such as the street
 H light was not shown in the sit~ plan and, therefore, PWs 1, 2
         SRI BHAGWAN v. STATE OF U.P,                       793
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
and 3 could not have witnessed the incident, that the gloves A
were not seized and that the appellant was a small grocery shop
owner and there was previous criminal background and,
therefore, the appellant could not indulge in such a crime to pour
acid on the face of the deceased are all arguments of
desperation. Further some sJch submissions are all trivial B
factors submitted before us which we find do not in any way
affect the case of the prosecution which was fully established
 by legaily acceptable evidence placed before the Courts below.
      25. Reliance was placed upon Ravikumar alias Kutti Ravi
v. State of T.N. -- 2006 (9) SCC 240 for the proposition that C
fully supports the case of the prosecution wherein this Court held
"once the Court is satisfied that the declaration is true and
voluntary, it undoubtedly, can base its conviction on the dying
declaration without any further corroboration. It cannot be laid
down as an absolute rule of law that the dying declaration D
cannot form the sole basis unless it is corroborated. ·The rule
requiring corroboration is merely the rule of prudence".
      27. As in th"e case on hand we have found that the
statement under Section 161 Cr.P.C. which was relied upon
as dying declaration, fulfilled the requirement, every provision    E
of the law and fact. We, therefore, find that the said judgment
fully supports the case of the prosecution in affirming the
conviction imposed on the appellant.
    28. Reliance was placed upon the decisio-n in Suresh            F
Chaudhary v. State of Bihar - 2003 (4) SCC 128 for the
proposition that.though 10 seized certain mattresses and durries
from the place of the incident which were bloodstained, and the
same were not sent to the chemical examiner and this failure
added to the list of suspicions pointed out by the defence.
                                                                    G
      29. The relevant conclusion in para 12 of the said decision
is to the following effect:
     "12 ..............Then again we notice, though PW 13, the 10
     stated in his evidence that he has seized certain
     mattresses and durries from the place of the incident which    H
    794       SUPREME COURT REPORTS                 [2012] 12 S.C.R

A         were bloodstained, the same were not sent to the
          Chemical Examiner for establishing the fact that these
          durries seized from the place of the incident were actually
          used by the victims which might have supported the
          prosecution case if the bloodstains were to be proved to
B         be that of the victims. This failure also adds to the list of
          suspicions pointed out by the defence. All these omissions
          and contradictions also add to the list of doubtful
          circumstances pointed out by the defence in the
          prosecution case."
C         (Emphasis added)
        30. In the said decision the version of the sole eye witness
  was not relied upon inasmuch as he was found to be an
  interested witness and the other evidence alsb did not support
  the case of the prosecution. There was also inordinate delay
0 in sending report to the Magistrate under Section 157 (1)
  Cr.P.C. The failure on the part of the prosecution to recover the
  weapons was one other relevant factor which was referred to
  in order to set aside the conviction. Therefore, apart from not
  sending the recovered blood stained material for chemical
E examination, there were various other serious infirmities in that
  case which all put together persuaded this Court to interfere
  with the conviction. We, therefore, do not find any support from
  the said decision. Not sending of the clothes of the deceased
  for chemical examination is an isolated factor which should not
F cause any dent in the case of the prosecution when the case
  of the prosecution was otherwise established by abundant legal
  evidence. Therefore, the said decision also does not persuade
  us to interfere with the conviction and sentence imposed on the
  appellant.
G       31. Having regard to our above conclusion, we do not find
    any merit in the appeal. The appeal fails and the same is
    dismissed.
    B.B.B.                                       Appeal dismissed.
H