The statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 35 OF 2013

Naresh Kumar…..APPELLANT(S)

Vs.

Kalawati and others …..RESPONDENT(S)

J U D G M E N T

      We shall now consider the facts of the present case in the background of the aforesaid enunciation of the law, to examine if the impugned orders call for interference by us, or not. The deceased was married to respondent no. 2 about 1½ years ago. She suspected a promiscuous relationship between the respondents.The deceased even after 1½ of marriage was unable to conceive. A probable defence has been taken that she committed suicide out of frustration.

8. The deceased had suffered 95% burn injuries at home on17.09.1991 at about 4:30 pm while making tea. She was brought to Safdar jung Hospital at 6:00 pm. She is said to have initially told the police at the hospital that she had been set on fire by her husband. The deceased was examined by the said Dr. Anant Sinha at about 6:00 pm and prepared her MLC. She is stated to have told him that she had been set on fire by the wife of her husband’s elder brother while making tea. The MLC records her as being fully conscious. It is signed only by the Doctor who has not been examined. The deceased is then stated to have made a dying declaration before P.W. 25 that she was set on fire by respondent no.1 by pouring kerosene oil while she was making tea and that her husband had brought her to the hospital. It bears her right toe impression as her hands were burnt. The statement bears the signature of Dr. Anant Sinha. His signature has been proved by P.W. 19. But it does not bear any endorsement by the Doctor with regard to his presence during the recording of the same and the fit state of mind by the deceased to make the statement. P.W. nos. 3and 4 have stated that the deceased told them that she was set on fire by respondent no.1. P.W. 5 has stated that both the respondents have killed his sister. He then states that the deceased had told him she was set on fire by respondent no.1.

9.A dying declaration is admissible in evidence under Section 32of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.

10.The first statement of the deceased made to P.W. 13 is based on hearsay as deposed by P.W. 20 that she was set on fire by respondent no.2. There is no reference to respondent no.1 in this statement and neither has she said anything about dowry demand.The next statement of the deceased, blaming respondent no.1 alone does not name respondent no1. It is not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by P.W. 19 cannot establish the correctness of its contents. The next statement of the deceased has been recorded by P.W. 25, blaming respondent no.1alone without any allegation against respondent no.2, and on the contrary states that she was brought to the hospital by respondent no.2. It again does not disclose any dowry demand.

11.P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased,when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. At this stage it is relevant to notice the statement of P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in his presence and that at times doctors would come and put their signatures in the record room.

12.In Paparambaka Rosamma and others vs. State of Andhra Pradesh, (1999) 7 SCC 695, distinguishing between consciousness and fitness of state of mind to make a statement, it was observed:

“9. It is true that the medical officer Dr K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified “patient is conscious while recording the state­ment”. It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who per­formed the post­mortem stated that the injured had sustained 90% burn injuries. In this case as stated ear­lier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prose­cution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion,the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (P.W.10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration.The certificate of the said expert at the end only says that “patient is conscious while recording the state­ment”. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P­14) astrue and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.”

13.In the facts and circumstances of the present case,considering that the statements of the deceased have vacillated,there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor,the veracity and truthfulness of the dying declaration remainssuspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.

14.Parthu (Supra) is distinguishable on its facts. Despite the absence of a certificate of fitness of state of mind on the dying declaration, the Doctor was examined as a witness and proved the fitness of the state of mind.

15.Sukanti (supra) is again distinguishable on its own facts as follows:

“25.Further, though no specific endorsement has been made on the dying declaration but there is contemporaneous evidence in the form of Ext. 9/1which makes it clear that the Doctor recording the dying declaration had recorded that the patient was oriented to time and place and mentally clear at the time of recording of the dying declaration.

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35.The Doctor who recorded the dying declaration was examined as a witness and he had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. The aforesaid position makes it therefore clear that the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place.”

16.In Heeralal (supra), noticing the discrepancies in the two dying declarations, it was held that the conviction could not be founded upon the dying declaration.

17. The appeal is, therefore, dismissed.

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