SURINDER KUMARversusSTATE OF PUNJAB

                    [2012] 9 S.C.R. 1019


                    SURINDER KUMAR                                  A
                             v.
                    STATE OF PUNJAB
             (Criminal Appeal No. 579 of 2009)

                   NOVEMBER 21, 2012
                                                                    B
 [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.)

    Evidence Act, 1872 - s. 32 - Dying declaration -
Appreciation and admissibility of - Discussed.

     Penal Code, 1860 - ss. 3048 and 498A - Death of married
                                                                    c
woman due to burn injuries - Victim gave declaration/
statement squarely blaming her husband - Statement/
declaration was recorded by a police official in the presence
of two doctors - Conviction of victim's husband i.e. the
appellant by Courts below - Justification of - Held: The dying      D
declaration of the victim was voluntary and truthful - It was not
made under any pressure - The dying declaration contained
facts which would not have been known to strangers like the
police official or the two doctors - The details given by the
victim in the dying declaration were indicative of her              E
consciousness and her fitness to make a statement - The
dying declaration was truthful inasmuch as the victim did not
introduce any exaggerations and narrated only the basic and
important facts, namely, about the persistent demand for
dowry by the appellant- She also truthfully stated that she had     F
been telling her mother-in-law and brothers-in-law that
appellant was demanding dowry and that they had asked him
not to make such demands - The victim did not implicate
anybody other than the appellant and truthfully stated that
since she was fed up with the persistent demand of dowry            G
made by him, she poured kerosene oil on herself and set
herself on fire - Consequently, conviction of appellant upheld
- Evidence Act, 1872 - s.32.

                             1019                                   H
    1020    SUPREME COURT REPORTS            [2012] 9 S.C.R.

A     The appellant's wife was admitted in the hospital with
  90% burn injuries. 'M', Assistant Sub Inspector of Police,
  went to the Hospital and recorded the statement of
  appellant's wife in vernacular in which she squarely
  blamed the appellant. Subsequently, the appellant's wife
8 succumbed to her injuries.
      The Trial Judge held that the evidence indicated that
  the appellant had been demanding dowry from his wife
  and since she had not brought sufficient dowry, he
  mistreated her; that there was no reason to disbelieve the
C dying declaration given by the appellant's wife that she
  was driven by the appellant to commit suicide; that the
  dying declaration was voluntary and that it was recorded
  by 'M' in the presence of two doctors, and accordingly
  convicted the appellant under Section 304-8 and 498-A
D IPC and sentenced him to ten years rigorous
  imprisonment under Section 304-8 IPC and 3 years
  rigorous imprisonment under Section 498-A IPC. The
  High Court affirmed the conviction and sentence.

E      The case of the appella:it is that his wife had
  accidentally caught fire and therefore it was not a case
  of suicide. The appellant contended before this Court that
  the dying declaration given by his wife should not be
  accepted. The reasons given for this were that she had
  90% muscle deep burns and as per the post-mortem
F report the superficial skin had peeled off and that with
  such a high degree of burns, it cannot be said that the
  appellant's wife was in a condition to make a statement
  and secondly she could not have signed the statement
  or even affixed her thumb impression. It was submitted
G that the dying declaration was a very detailed one and it
  is not expected that a person in that condition could
  make such a detailed dying declaration.

       The question which therefore arose for consideration
H
      SURINDER KUMAR v. STATE OF PUNJAB              1021


in the present appeal was whether the dying declaration       A
given by the appellant's wife to the effect that the
appellant had driven her to commit suicide should be
accepted or not.

      Dismissing the appeal, the Court                        B
    HELD: 1. There are a large number of decisions
where persons with 90% burns have given a dying
declaration and that has been accepted. [Para 16] [1028-
C]
                                                              c
     Amit Kumar v. State of Punjab (2010) 12 SCC 285: 2010
(9) SCR 1088; Paniben v. State of Gujarat (1992) 2 SCC 474:
1992 (2) SCR 197; Govindappa v. State of Karnataka (2010)
6 SCC 533: 2010 (6) SCR 962; Sukanti Moharana v. State
of Orissa (2009) 9 SCC 163: 2009 (11) SCR 996;                D
Kamalavva v. State of Karnataka (2009) 13 SCC 614: 2009
(11) SCR 498 and Satish Ambanna Bansode v. State of
Maharashtra (2009) 11 SCC 217: 2009 (3) SCR 1166 - relied
on.
    2. There is no format prescribed for recording a dying    E
declaration. Indeed, no such format can be prescribed.
Therefore, it is not obligatory that a dying declaration
should be recorded in a question-answer form. There may
be occasions when it is possible to do so and others
when it may not be possible to do so either because of        F
the prevailing situation or because of the pain and agony
that the victim might be suffering at that point of time.
[Para 21] [1029-C-E]
    3. It is also not obligatory that either an Executive
Magistrate or a Judicial Magistrate should be present for     G
recording a dying declaration. It is enough that there is
evidence available to show that the dying declaration is
voluntary and truthful. There could be occasions when
persons from the family of the accused are present and
in such a situation, the victim may be under some             H
    1022    SUPREME COURT REPORTS             [20121 9 S.C.R.

A pressure while making a dying declaration. In such a
  case, the Court has to carefully weigh the evidence and
  may need to take into consideration the surrounding facts
  to arrive at the correct factual position. [Para 22) [1029-
  E-G]
B
      4.1. In the instant case, clearly, the dying declaration
  made by the appellant's wife was not under any pressure.
  The only persons who were present when she made her
  dying declaration were 'M' and two doctors. There is no
  doubt that both the Courts have rightly come to the
C conclusion that the dying declaration made by the
  appellant's wife was voluntary. [Para 23) [1029-G-H; 1030-
    A]
      4.2. The dying declaration contains some facts which
D would not have been known to strangers like 'M' or the
  two doctors. For example, they could not have known the
  parental village of the appellant's wife or ·when she was
  married or the caste of the appellant and so on.
  Therefore, it is incorrect to obliquely suggest that since
E the dying declaration was detailed, it should not be
  accepted. On the contrary, the details given by the
  appellant's wife at the time of her death are indicative of
  her consciousness and her fitness to make a statement.
  [Para 24] [1030-B-C]
F     4.3. The dying declaration was truthful inasmuch as
  the appellant's wife did not introduce any exaggerations
  and narrated only the basic and important facts, namely,
  about the persistent demand for dowry by the appellant.
  She also truthfully stated that she had been telling her
G mother-in-law and brothers-in-law that the appellant was
  demanding dowry and that they had asked him not to
  make such demands. The appellant's wife did not
  implicate anybody other than the appellant and truthfully
  stated that since she was fed up with the persistent
H demand of dowry made by him, she poured kerosene oil
     SURINDER KUMAR v. STATE OF PUNJAB                 1023


on herself and set herself on fire. [Para 25] [1030-D-E]        A

    4.4. Given the facts of the case and the law laid down
in Paniben case, this Court has no difficulty in upholding
the concurrent views of the Trial Court as well as the High
Court in accepting the dying declaration of the appellant's
                                                                8
wife as voluntary and truthful. The appellant's wife was
driven to suicide by the appellant and consequently the
conviction and sentence awarded to the appellant under
Section 304-8 and Section 498-A IPC is upheld. [Paras 2,
28) [1024-C; 1031-C-D]
                                                                c
    Laxmi v. Om Prakash (2001) 6 SCC 118: 2001 (3) SCR
777 - distinguished.

                    Case Law Reference:
    2010 (9) SCR 1088          relied on           Para 16      D
    1992 (2) SCR 197           relied on            Para 16
    2010 (6) SCR 962           relied on            Para 17

    2009 (11) SCR 996           relied on           Para 18     E
    2009 (11) SCR 498           relied on           Para 19

     2009 (3) SCR 1166          relied on           Para 20

    2001 (3) SCR 777            distinguished       Para 27
                                                                F
    CRIMINAL APPELi.ATE JURISDICTION : Criminal Appeal
No. 579 of 2009.
    From the Judgment & Order dated 13.8.2008 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
337-SB of 1995.                                                 G
     Rajiv Kumar, Prabhoo Dayal Tiwari, Dinesh Verma (for Dr.
Kailash Chand) for the Appellant.
    V. Madhukar, AAG, Srijita Mathur, Anvita Gowshish (for
Kuldip Singh) for the Respondent.                               H
     1024    SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A        The Judgment of the Court was delivered by

        MADAN B. LOKUR, J. 1. The question for consideration
  is whether the dying declaration given by Kiran Bala to the
  effect that her husband (the appellant) had driven her to commit
  suicide should be accepted or not. The case of the appellant
B is that Kiran Bala accidentally caught fire and therefore it is not
  a case of suicide.

         2. We agree with the concurrent view of the Trial Court and
    the High Court that Kiran Bala was driven to suicide by the
c   appellant and as such his conviction and sentence under
    Section 304-B and Section 498-A of the Indian Penal Code (for
    short the IPC) should be upheld.

    The facts:

D       3. The appellant Surinder Kumar and Kiran Bala were
    married some time in 1990-91. They have a female child.

       4. On 28th April 1994 Kiran Bala was admitted to the Civil
  Hospital, Tanda, with burn injuries all over her body. Since her
E condition appeared to be serious, Dr. Kewal Singh the Medical
  Officer informed the Assistant Sub Inspector of Police,
  Mohinder Singh, through a memo, of her admission in the
  hospital with 90% burns.

         5. Mohinder Singh went to the Tehsil Office to contact the
F   Tehsildar who was also the Executive Magistrate. Finding that
    he was not available and since a Judicial Magistrate was not
    located in Tanda, Mohinder Singh went to the Civil Hospital
    apparently to obtain first hand information of the events.

       6. In the Civil Hospital, Mohinder Singh contacted Dr.
G Kewal Singh at about 9.30 a.m. and he certified that Kiran Bala
  was fit to make a statement. Thereafter, Mohinder Singh
  recorded the statement of Kiran Bala in vernacular in the
  presence of Dr. Kewal Singh and Dr. Satpal Singh, Medical
  Officer. The statement was read over to her and after she
H
        SURINDER KUMAR v. STATE OF PUNJAB                    1025
               [MADAN B. LOKUR, J.]

admitted the contents to be true, her signature and right thumb       A
impression was taken on the statement. An endorsement was
made on the statement by Dr. Kewal Singh and Dr. Satpal
Singh to the effect that Kiran Bala had given her statement in
their presence.
                                                                      B
       7. Unfortunately, Kiran Bala passed away on the same
day.

     8. In the meanwhile, based on the statement given by Kiran
Bala, Mohinder Singh began investigating into the occurrence.
On 5th May, 1994 he arrested the appellant who had been               C
absconding ti!I then and on completion of investigations, he filed
a challan in which the appellant was accused of having driven
Kiran Bala to commit suicide. The appellant was charged for
offences under Section 304-B and Section 498-A of the IPC.
He pleaded not guilty and claimed trial.                              D

    9. Before filing the challan, Mohinder Singh asked Dr.
Kewal Singh in writing on 8th July 1994 whether Kiran Bala was
conscious throughout the time her statement was recorded. Dr.
Kewal Singh certified that Kiran Bala was medically fit (fully        E
conscious) from the beginning of her statement till the very end.

     10. At this stage, it is appropriate to quote the English
translation of the dying declaration made by Kiran Bala on 28th
April 1994. This reads as under:-
                                                                      F
       "I am resident of village Bainchan. My parental village is
       Chatiwind in Amritsar. I was married about 3 % years ago
       with Surinder Kumar son of Rattan Chand, caste Balmiki,
       resident of Bainchan, Distt. Hoshiarpur, according to
       customary rites. I have one daughter, who is aged about        G
       2 % years. My husband Surinder Kumar is working as a
       labourer. Today i.e. 28.4.1994 at about 7.30 A.M. my
       husband Surinder Kumar quarreled with me and was
       saying that I had brought less dowry at the time of marriage
       and that I should bring a scooter and Rs.5000/- in cash        H
    1026     SUPREME COURT REPORTS                [20121 9 S.C.R.

A       from my parents. I had been telling my mother-in-law and
         brothers-in-law that my husband had been demanding
        more dowry and they had been asking him not to make
        such demands. I had not informed my parents about the
        demands of dowry so that they may not form a bad opinion
B       about my husband. Today, at about 7.30 A.M. fed up with
        the demands of dowry made by my husband, I poured
        kerosene oil and set myself on fire. When I put myself on
        fire, my mother-in-law Ramo, sister-in-law Paramjit Kaur,
        my daughter Ritu, my husband Surinder Kumar were
c       present in the house. However, my mother-in-law and
        sister-in-law were not aware about the setting on fire. When
        I caught fire, I raised alarm extinguished the fire. My
        husband Surinder Kumar, sister-in-aw Paramjit Kaur, a
        neighbour, namely Kamla my nephew Kala took me to Civil
        Hospital for treatment. My parents should get back the
D
        articles of dowry given to me and my daughter Ritu should
        remain with my husband. My parents should not marry my
        younger sister Neeta with my husband Surinder Kumar. I
        had confided iA my younger sister Neeta about demands
        of dowry made by husband. Except my husband, my
E       mother-in-law, sister-in-law, brother-in-law or other
        members of my in laws had not made any demands of
        dowry and only my husband Surinder Kumar used to make
        the demands of dowry and I have set myself on fire after
        pouring kerosene oil being fed up from the demands of
F       dowry made by my husband".

    Decision of the Trial Court:

       11. On the merits of the case, the Trial Judge held that the
G evidence indicated that the appellant had been demanding
  dowry from Kiran Bala and since she had not brought sufficient
  dowry, he mistreated her. The Trial Judge was of the view that
  there was no reason to disbelieve the dying declaration given
  by Kiran Bala that she was driven by the appellant to commit
H suicide. It was held that the dying declaration was voluntary and
     SURINDER KUMAR v. STATE OF PUNJAB                     1027
            [MADAN B. LOKUR, J.]

was recorded by Mohinder Singh in the presence of two               A
doctors. Under the circumstances, the appellant was found
guilty of the offences alleged against him and sentenced to ten
years rigorous imprisonment and fine for an offence under
Section 304-B of the IPC and 3 years rigorous imprisonment
and fine for an offence under Section 498-A of the IPC.             B

Decision of the High Court:

     12. Before the High Court the submission made by the
appellant was that the dying declaration could not be relied upon
for several reasons. It was argued that since Kiran Bala had        C
suffered burn injuries to the extent of 90%, she was not in a fit
condition to make a statement. Moreover, the dying declaration
was not recorded in a question-answer form. There was also
no reason to disbelieve the defence witnesses who testified
that Kiran Bala accidentally caught fire.                           D

     13. The High Court was of the view that there was sufficient
evidence to show that Kiran Bala was driven to commit suicide,
which she did at about 7.30 a.m. on 28th April, 1994. Kiran
Bala was conscious when she gave her dying declaration and          E
although her condition may have been critical at that point of
time, there was sufficient intrinsic evidence to show that she
was fit to make the statement. Moreover, it is not as if her
statement was vindictive inasmuch as she squarely blamed only
the appellant and nobody else.
                                                                    F
     14. On this evidence, the High Court upheld the view of
the Trial Judge and affirmed the conviction and sentence.

Discussion and conclusion:

    15. The only submission before us was that the dying            G
declaration given by Kiran Bala should not be accepted. The
reasons given for this were that she had 90% muscle deep
burns and as per the post-mortem report the superficial skin
had peeled off. It was argued that with such a high degree of
                                                                    H
    1028     SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A   burns, it cannot be said that Kiran Bala was in a condition to
    make a statement and secondly she could not have signed the
    statement or even affixed her thumb impression. It was
    submitted that the dying declaration is a very detailed one and
    it is not expected that a person in that condition could make
s   such a detailed dying declaration.

        16. We are not at all impressed by any of these
  submissions. There are a large number of decisions that have
  been cited before us by learned counsel for the State where
C persons with 90% burns have given a dying declaration and
  that has been accepted. For example, in Amit Kumar v. State
  of Punjab, (2010) 12 SCC 285 the victim had 90% burns and
  yet her statement was accepted. This Court noted, inter alia,
  that the victim did not unfairly implicate anybody who had not
  participated in the crime. This Court relied on ten principles
D governing a dying declaration as mentioned in Paniben v.
  State of Gujarat, (1992) 2 SCC 474 to conclude that there was
  no reason to disbelieve the dying declaration given by the victim
  in that case.

E        17. Similarly, in Govindappa v. State of Karnataka, (2010)
    6 sec 533 the victim had 100% burn injuries and yet she was
    found to be in a fit state of mind to give her statement and affix
    her left thumb impression on the statement. The dying
    declaration was accepted by this Court on the evidence of the
F   doctor that the victim was in a position to talk.

         18. In Sukanti Moharana v. State of Orissa, (2009) 9 SCC
    163, the victim had 90 to 95 per cent burn injuries covering 90
    to 95 per cent body surface and yet her dying declaration was
    accepted after considering the principles laid down in Paniben.
G
       19. In Kamalavva v. State of Karnataka, (2009) 13 SCC
  614, reference was again made to Paniben. It was noted that
  the doctor who was present at the time of recording the dying
  declaration had attached a certificate to the effect that it was
H recorded in his presence. This Court rejected the technical
      SURINDER KUMAR v. STATE OF PUNJAB                     1029
             [MADAN B. LOKUR, J.]

objection regarding the non-availability of a certificate and        A
endorsement from the doctor regarding the mental fitness of
the deceased. It was held that the view taken by this Court in
numerous decisions is that this is a mere rule of prudence and
not the ultimate test as to whether or not the dying declaration
was truthful or voluntary.                                           B

    20. In Satish Ambanna Bansode v. State of Maharashtra,
(2009) 11 sec 217, the victim had 95% superficial to deep
burns and after referring to Paniben, her dying declaration was
accepted by this Court.
                                                                     c
     21. Insofar as the case before us is concerned, we may
only note that there is no format prescribed for recording a dying
declaration. Indeed, no such format can be prescribed.
Therefore, it is not obligatory that a dying declaration should
be recorded in a question-answer form. There may be                  D
occasions when it is possible to do so and others when it may
not be possible to do so either because of the prevailing
situation or because of the pain and agony that the victim might
be suffering at that point of time.
                                                                     E
      22. It is also not obligatory that either an Executive
Magistrate or a Judicial Magistrate should be present for
recording a dying declaration. It is enough that there is evidence
available to show that the dying declaration is voluntary and
truthful. There could be occasions when persons from the family
                                                                     F
of the accused are present and in such a situation, the victim
may be under some pressure while making a dying declaration.
In such a case, the Court has to carefully weigh the evidence
and may need to take into consideration the surrounding facts
to arrive at the correct factual position.
                                                                     G
     23. Clearly, the dying declaration made by Kiran Bala was
not under any pressure. The only persons who were present
when she made her dying declaration were Mohinder Singh and
the two doctors. We have no doubt that both the Courts have
                                                                     H
    1030     SUPREME COURT REPORTS                 [2012] 9 S.C.R.

A rightly come to the conclusion that the dying declaration made
  by Kiran Bala was voluntary.

        24. The dying declaration contains some facts which would
  not have been known to strangers like Mohinder Singh or the
B two doctors. For example, they could not have known the
  parental village of Kiran Bala or-when she was married or the
  caste of her husband and so on. Therefore, it is incorrect to
  obliquely suggest that since the dying declaration was detailed,
  it should not be accepted. On the contrary, the details given by
  Kiran Bala at the time of her death are indicative of her
C consciousness and her fitness to make a statement.

       25. We are also of the opinion that the dying declaration
  was truthful inasmuch as Kiran Bala did not introduce any
  exaggerations and narrated only the basic and important facts,
D namely, about the persistent demand for dowry by her husband.
  She also truthfully stated that she had been telling her mother-
  in-law and brothers-in-law that the appellant was demanding
  dowry and that they had asked him not to make such demands.
  Kiran Bala did not implicate anybody other than the appellant
E and truthfully stated that since she was fed up with the persistent
  demand of dowry made by him, she poured kerosene oil on
  herself and set herself on fire.

      26. It is not necessary for us to repeat the principles laid
  down in Paniben since they have been repeated in several
F judgments, some of which have been referred to above. All that
  we need say is that the decisions referred to and relied on in
  Paniben need to be updated. Applying the principles laid down
  Paniben, the dying declaration given by Kiran Bala ought to be
  accepted as voluntary and truthful.
G
       27. Learned counsel for the appellant relied on Laxmi v.
  Om Prakash, (2001) 6 SCC 118 particularly paragraph 21 of
  the Report. In that case, the third dying declaration (out of five)
  was under consideration. This Court upheld the doubt
H expressed by the Trial Court (and endorsed by the High Court)
      SURINDER KUMAR v. STATE OF PUNJAB                   1031
             [MADAN B. LOKUR, J.]

that even though the victim had 85% burns, her neck, mouth and     A
lips were burnt. The records available with the Burns Ward of
the concerned hospital also showed that her hands were burnt
and the skin had peeled off. In such a situation, a grave doubt
was expressed whether the victim could have made a detailed
statement and put her signature thereon. Clearly, that case was    B
decided on its peculiar facts and no general principle of law
was laid down in the paragraph under reference.

Result:

     28. Given the facts of the case and the law laid down in      C
Paniben, we have no difficulty in upholding the concurrent views
of the Trial Court as well as the High Court in accepting the
dying declaration of Kiran Bala as voluntary and truthful.
Consequently, we uphold the conviction and sentence awarded
to the appellant.                                                  D

    29. There is no merit in the appeal and it is accordingly
dismissed.

B.B.B.                                      Appeal dismissed.