Smt. Laxmi Vs Om Prakash and others [ALL SC 2001 JULY]

AIR 2001 SC 2383 : (2001) 3 SCR 777 : (2001) 6 SCC 118 : JT 2001 (5) SC 280 : (2001) 4 SCALE 241 : (2001) CriLJ SC 3302

(SUPREME COURT OF INDIA)

(Before : R. C. Lahoti And Doraiswamy Raju, JJ.)

Criminal Appeal No. 717 of 1994, Decided on : 09-07-2001.

It is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.

Dying declaration—Oral declaration—Declaration made to brother of deceased—Brother not informing police in spite of fact that he did not know about registration of case against accused—Dying declaration cannot be believed.

Corroboration—Dying declaration—When not necessary—If dying declaration is true and free from any embellishment—Then it can be made basis for conviction without any corroboration.

Mental fitness—Absence of medical evidence—Death by burning—Case of 85% burning—Statement of deceased recorded by Magistrate—Inconsistent with her earlier statement—Cannot be believed.

Evidence Act, 1872—Section 32—Dying declaration—Admissibility—philosophy behind it—Is that man will not meet with his maker with a lie in his mouth after his death.

Evidence Act, 1872—Section 32—Dying declaration—Reliability—Death by burning—Deceased allegedly making statement to ASI who came on spot in PCR van—This fact neither mentioned in roznamacha kept in PCR van nor brought into knowledge of control room or police station—This fact also not mentioned in rukka—In absence of corroboration—Dying declaration cannot be made basis for conviction.

Counsel for the Parties:

Anoop G. Chowdhury and V. V. Vaze, Sr. Advocates, D. N. Goburdhan, Ms. Pinky Anand, Ms. Geeta Luthra, K. K. Tyagi, for K. R. Nagaraja, W. A. Qadri, S. N. Terdol, K. C. Kaushik and D. S. Mahra, for the Appearing Parties.

Judgment

R. C. Lahoti, J—”Nemo moriturus praesumitur mentire – No one at the point of death is presumed to lie.” “A man will not meet his Maker with a lie in his mouth” – Is the philosophy in law underlying admittance in evidence of dying declaration. “A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration” – Is the statement of law summed up by this Court in Kundula Bala Subrahmanyam vs. State of A.P., (1993) 2 SCC 684. The Court added – such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition. The above statement of law, by way of preamble to this judgment, has been necessitated as this appeal, putting in issue acquittal of the accused respondents from a charge under Section 302/34, I.P.C. seeks reversal of the impugned judgment and invites this Court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other plece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.

2. The deceased Janak Kumari died an unnatural death on 8-3-1982 having sustained extensive burn injuries on 7-3-1982. She was aged about 25 years at the time of her death. Six years before the date of the incident she was married to the accused Om Prakash. The couple had a female child aged about 5 years at the time of the incident. They lived with Smt. Ram Pyari and Kumari Shakuntala, the two co-accused and respectively mother and sister of the accused Om Prakash. Unfortunately, Janak Kumari and Om Prakash could not carry on well and their marital relationship suffered a jolt so much so that on 14-11-1980 on a complaint made by Janak Kumari an offence under Section 385, I.P.C. and Section 4 of Dowry Prohibition Act was registered at P.S. Pahar Ganj, Delhi against these three accused persons. However, the case was consigned to record room on 9-3-1982 under the order of the Metropolitan Magistrate. There were divorce proceedings also initiated by Om Prakash against Janak Kumari which ended in a compromise in December 1981 whereunder Janak Kumari joined back the matrimonial home.

3. On 7-3-1982 at about 7.20 a.m. the accused Om Prakash informed the police control room on telephone that his wife had set herself unto fire having poured kerosene oil on herself. This information was received by S.I. Badri Nath, PW-19 who directed the police control room van (PCR Van) to rush to the place of the incident. Simultaneously he conveyed message to P.S. Pahar Ganj where it was recorded in the Roznamcha, Exhibit PW-14/E, SI Ramesh Chand Garg, PW-21 was handed over a copy of Exhibit PW-14 /E for necessary action. ASI Shiv Charan PW-5 reached the residence of the accused persons along with the PCR van. SI Ramesh Chand Garg, PW-21 along with constable Raghbir Singh had also reached there. The three brought the victim Janak Kumari to LNJP Hospital at 8 .10 a.m. Janak Kumari was attended to by Dr. C.M. Khanijau, PW-9.

On way from the residence of accused persons to the hospital, Janak Kumari made a dying declaration to ASI Shiv Charan, PW-5. This is her first dying declaration. Another dying declaration was made by Janak Kumari to Dr. C. M. Khanijau, PW-9 which was recorded by him as Exhibit PW-9/A. SI Ramesh Chand recorded a statement of Janak Kumari between 9 and 10 a.m. This is the third dying declaration, Exhibit PW-21/A. At the request of SI Ramesh Chand, Ajit Shrivastava, Sub-Divisional Magistrate, PW-16 reached the hospital and recorded the statement of Janak Kumari between 1.30 and 1.45 p.m. This statement, Exhibit PW-16/A is the fourth dying declaration. Kishan Lal, PW-3 the brother of the deceased reached the hospital at about 5.30 p.m. and to him Janak Kumari made a statement which is the fifth dying declaration.

4. All the three accused persons were arrested by the police on 7-3-1982 itself. The half-burnt clothes of the deceased which she was wearing at the time of the incident as also the clothes of the accused, Om Prakash which were seized soon after the incident were sent to CFSL. Both the sets of clothes were found to contain residue of water and kerosene oil.

5. Janak Kumari succumbed to her injuries and died at about 12 noon on 8-3-1982. Post-mortem on her body was conducted by Dr. B. N. Reddi, PW-12.

6. On completion of the usual investigation, the details whereof are not very material, a challan under Section 302/34 of the I.P.C. was filed against the three accused persons. Charges were framed under Section 302/34 of the I.P.C. against each of the three accused persons who pleaded not guilty. The prosecution examined 21 witnesses. 4 witnesses were examined in defence. We will refer to the relevant parts of the testimony at appropriate places. The learned Additional Sessions Judge having meticulously examined the prosecution evidence and having subjected each of the dying declarations to judicial scrutiny found none of them worthy of reliance so as to base conviction thereon either collectively or individually. On 31-1-1985 the learned Additional Sessions Judge recorded a verdict of not guilty and acquittedl all the three accused persons.

7. The State Government has not filed any appeal putting in issue the acquittal of the accused-respondents. However, Smt. Laxmi, the mother of the deceased Janak Kumari, filed a special leave petition under Article 136 of the Constitution before this Court. Leave was granted.

8. Before taking up each of the dying declarations for consideration we will briefly set out the prosecution case as emerging from the evidence adduced so as to appreciate the worth of the dying declarations. We would also set out the nature of the injuries suffered and the condition of Janak Kumari after the incident i.e. during the time when she is said to have made dying declarations.

9. The prosecution case opened with the statement of PW-1 Trishla Kumari, aged 23 years, a close neighbour of the accused persons. She was friendly with the deceased being almost of the same age and was often talking to her. She stated that though at one point of time Janak Kumari and the accused Om Prakash had indulged into litigation and Janak Kumari had left the matrimonial home but after her returning back a few months before the date of the incident they were living well having sorted out their differences. At about 7 a.m. on the date of the incident while she was busy collecting water from the tap inside her house she heard the cries of Janak Kumari and she came out. She saw Janak Kumari burning. She threw water from her bucket on Janak Kumari and got the fire extinguished. The accused persons were also trying to extinguish the fire. Om Prakash accused had helped Janak Kumari in putting on a gown in place of her clothes which were burnt. Om Prakash had also put a blanket over Janak Kumari with a view to extinguish the fire. There are two very important disclosures made by her. Firstly , she stated, that before Janak Kumari left Om Prakash and the litigation started, Janak Kumari used to stand in the street and often abuse her in-laws. The other fact, revealed by her, is that after her return although apparently Janak Kumari and Om Prakash were living well having sorted out their differences yet once Janak Kumari had confided in this witness by telling her that she would kill herself and get the accused persons implicated.

10. The five dying declarations made by the deceased on 7-3-1982, i.e. the date of the incident, pressed by the learned counsel for the appellants as reliable so as to provide basis for convicting the accused persons are as under:-

11. Before taking up the individual dying declarations for consideration we would place on record the physical and mental condition of the deceased soon after the incident and before her death, i.e. at the time when the dying declarations are said to have been made. The deceased brought in the PCR van to casualty department of LNJP Hospital was admitted indoors by PW-9 Dr. C.M. Khanijau. He examined the patient. According to Dr. Khanijau, Janak Kumari had superficial burns involving front of trunk, both thighs, arms, part of face and neck, scalp and hair. Her pulse was 102 per minute. The pupils were normal and reacting to light. The area of burns was 80-90% approximately. He gave the patient injection tetanus toxides and injection pathedine 75 ml intra muscular and admitted the patient in burns ward for detailed examination and treatment. On being transferred to burns ward from casualty at 9 a.m., she was placed in charge of PW-18, Dr. I. N. Tiwari, Plastic Surgeon. According to Dr. Tiwari, Janak Kumari was admitted as a case of 85% deep burns and dehydration. She was to be inter alia on heavy sedation, antibiotics and intra-venus fluids. According to the case sheet of Janak Kumari, maintained in the burn ward of the hospital, Ex. PW18-A and proved by Dr. I. N. Tiwari PW-18, Janak Kumari was under intense pain. Her tongue was dried. Her hands, were burnt and the skin of the hands had peeled off. There was a complete loss of fluid and she was gasping for breath. Her condition was constantly deteriorating. She expired on 8-3-1982 at 12.10 p.m.

12. PW-12 Dr. B. N. Reddy, Associate Professor, Department of Forensic Medicine, conducted the post mortem examination on the body of deceased Janak Kumari at 10 a.m. on 9-3-1982. Dr. Reddy found extensive superficial burns spread over almost all the parts of the body. The cuticular layer peeled off from most of the areas of burns and in unpeeled areas, specially over the front of abdomen, was blackish. All the burns were ante-mortem. The diagrams of the body of Janak Kumari marked Ex. PW-12-B drawn by Dr. B. N. Reddy go to show that Janak Kumari had 85% burn injuries. Her neck, mouth and both lips were also burnt.

13. The abovesaid condition of the deceased has been noted by the learned trial Judge also and dealt with in his judgment. We will refer back to this aspect and its impact on the credibility of dying declarations where necessary. We now take up and deal with each of the dying declarations individually.

First dying declaration – made to PW-5 Shiv Charan, ASI, between 7.30 and 8 a.m.

14. PW-19 Badrinath, SI, was on duty at Police Control Room at 7.20 a.m. on 7-3-1982 when he received an information from Om Prakash, accused, to the effect that his wife had set herself to fire by sprinkling kerosene oil over herself. The information was recorded as Ex. PW19/A. He sent the PCR van to the place of the incident by instructing PW-5 Shiv Charan, ASI. Shiv Charan stated that on his reaching the place of the incident and finding Janak Kumari in a burnt condition, the latter told him that her husband, mother-in-law and husband’s sister had burnt her by pouring kerosene oil on her. In the PCR van a register is maintained termed as ‘roznamcha’. The messages received and transmitted at and from the PCR van are entered in the register. The witness was asked to produce the register for which purpose he sought for time from the Court. The cross-examination was deferred on 12-10-1982 and resumed on 1-8-1984. On the adjourned date of hearing the witness did not produce the roznamcha and stated that the same was not traceable. The witness does not explain why it was not traceable. Nothing has been brought on record to show if an important document in roznamcha maintained in PCR Van was missing what was follow-up action, if any and whether this fact was brought to the notice of senior officials and any record of such missing of document came into existence.

15. The statement of this witness was recorded during investigation. Shiv Charan, PW-5 has admitted during cross-examination that the fact that he had enquired from Janak Kumari as to how she got burnt and what the victim had told him were not stated by him to the Investigating Officer when his statement was recorded. No reason has been assigned for this material omission, though his statement was recorded belatedly on 31-5-1982.

16. A suggestion was given by defence during cross-examination of this witness that he having reached the place of the incident, had made on the spot enquiries from different persons of neighbourhood, including Trishna Kumari, PW1 and he had come to know that Janak Kumari had committed suicide by pouring kerosene oil on herself and it was so recorded in the PCR van roznamcha and that is why it was being withheld from the Court. Be that as it may, the fact remains that PW-5 Shiv Charan, ASI, had proceeded to the place of the incident on being informed of a suicide having been committed by a woman. If a story to the contrary – a positive information of an attempt to commit murder by burning and that too having been received from the mouth of the victim had come to the knowledge of PW-5 Shiv Charan, ASI, then that should have been recorded in the roznamcha and also flashed to the Police Control Room. Neither the PCR van roznamcha has been produced nor such information coveyed to the Control Room and/or police station. If only a dying declaration was made by Janak Kumari to this witness then in the ordinary course of the things, message would have been transmitted promptly by ASI Shiv Charan to the Police Control Room and would have been recorded as a first information report of the incident disclosing commission of a cognizable offence by specified accused persons. The omission in the police statement of Shiv Charan is fatal to his testimony. Ramesh Chand SI, PW-21, had reached the place of incident before Janak Kumari was lifted from her house and removed to hospital. The alleged dying declaration made to Shivcharan PW -5 must have come to the knowledge of Ramesh Chand SI who sent the rukka Ex. PW-14/A to the police station. This rukka also does not make any mention of any such dying declaration having been made by Janak Kumari. In our opinion, the sole testimony of PW-5 Shiv Charan, ASI uncorroborated by any other evidence as to a dying declaration, implicating the three accused persons having been made by the victim to him, is difficult to believe in the facts and circumstances of the case. The first dying declaration, therefore, stands discarded.

Second dying declaration – made to PW-9 Dr. C. N. Khanijau at 8. 10 a.m. vide Ex. PW-9-A.

17. This is a dying declaration, so called; it is no dying declaration in the eye of law. It would be a misadventure to spell out a dying declaration made by the victim from the statement of Dr. C.N. Khanijau. All that he has stated is this much that Janak Kumari was brought to casualty ward by Shiv Charan, ASI “with the alleged history of being burnt by husband, mother-in-law and sister-in-law after pouring kerosene oil, after attempting to strangulate her with rope.” Dr. Khanijau has nowhere in his statement deposed to having talked to Janak Kumari nor has he deposed to Janak Kumari having made any disclosure or declaration to the witness. A reading of the statement of the witness shows that such history may have been given to him by ASI, Shiv Charan who had accompanied the injured to the casualty ward. Strangely enough, the information given by Shiv Charan, ASI to Dr. Khanijau goes on to add the injured having been attempted to be strangulated with rope before having been set on fire. This misleading information must have had an embellishing effect on the medico-legal examination of the injured by Dr. Khanijau. He went on to record that on local examination of the neck there were marks of rope on the anterior half of the neck. However, Dr. B.N. Reddy, PW-12 who performed the autopsy, has completely belied Dr. Khanijau on this point. He has stated that there were no strangulation ligature mark caused by rope on the neck of the victim. There was no evidence of ligature strangulation. There was no bruise in the neck muscles and no fracture of neck bones and cartilages. It is thus clear that there was no dying declaration made by the injured Janak Kumari to Dr. Khanijau. Rather it appears that there was someone attempting to develop a story of Janak Kumari having been attempted to be strangulated before she received burn injuries.

Third Dying-Declaration – made to PW -21, Ramesh Chand, SI between 9 and 10 a.m. vide Exhibit PW-21/A.

18. According to Ramesh Chand, PW21 the police had swung into action on account of an information having been received regarding a woman having set herself on fire. We have disbelieved and dicarded the prosecution case as to the injured Janak Kumari having made any declaration to PW-5 Shivcharan ASI between 7.30 and 8 a.m. That being so, at the time when Ramesh Chand, SI interrogated Janak Kumari and recorded her statement till then he had not received any information from any one else as to the injured Janak Kumari having been set on fire by any one else than herself, that is to say, by her husband, mother-in-law and sister- in-law. On the contrary he admits that when he visited the place of the incident upon an information having been conveyed to him by the PCR van he made enquiries from the neighbours and the persons of neighbourhood present at the scene of the incident who were 3 or 4 persons in number, none had told him of Janak Kumari having been set on fire by the accused persons. When he recorded the statement of Janak Kumari the doctor attending on her was not present in close vicinity of Janak Kumari or this witness but he was certainly present in the burns ward. He did not have the statement Exhibit PW/21/A attested by the doctor. The statement is a detailed statement and purports to have been signed by the deceased. Below the statement Ramesh Chand, SI has made an endorsement that the doctor (not named) had given in writing “patient is fit for giving statement.” However, such an endorsement made by any doctor has not been proved before the Court.

19. Ramesh Chand SI states that at the time of recording the statement Glucose drip was being given to Janak Kumari and the signature was obtained when she was lying on the bed.

20. We have already noted hereinabove that at 9 a.m., before the statement Exhibit PW-21/A was recorded by Ramesh Chand, SI the patient had reached under the care of Doctor I.L. Tiwari who had kept her on heavy sedation on account of 85% deep burns and dehydration while her condition was constantly deteriorating. Dr. B. N. Reddy, PW 12 opined that neck, mouth and lips of the deceased were burnt. The records of the burn ward show that the hands of the injured were also burnt and the skin of the hands had peeled off. In such condition of the injured we have grave doubts, as the trial Court has also expressed, if the injured could have made a detailed statement to Ramesh Chand, SI and could have put her signature on the same. The learned Sessions Judge, who tried the case, has arrived at the following finding, supported by reasons, based on detailed evaluation of evidence:

“Until and unless it is proved that at the time of the making of the dying declaration the deceased was also mentally sound and physically fit to make a statement the dying declaration cannot be accepted. It is clear from the evidence on record that at the time of the making of the dying declaration Exts. PW21/A and PW16/A the deceased Smt. Janak Kumari was neither mentally nor physically fit to make any statement.”

21. The learned Sessions Judge has in his judgment noted the question which remained unanswered, as under:-

“Ever since Smt. Janak Kumari was taken to the hospital her general condition remained poor and it continued to deteriorate till she ultimately died by the noon of 8-3-1982. Under these circumstances how could Smt. Janak Kumari make her dying declarations Exts. PW-21/A and PW16/A. Then her hands were burnt and the skin of the hands had peeled off, then how could she have signed Exts. PW16/A and PW21/A. So on account of all these facts the dying declarations Exts. PW16/A and PW/21/A also do not inspire confidence.

22. Having ourselves evaluated the evidence independently we do not feel inclined to disagree with the finding of the trial Court in this regard specially in view of the absence of medical evidence showing that Janak Kumari was in a fit physical and mental condition between 9 and 10 a.m. on the date of the incident to make the statement.

Fourth dying declaration – recorded by PW-16 Ajit Shrivastava, SDM between 1.30 and 1.45 p.m. vide Exhibit PW-16/A.

23. According to Ajit Shrivastava he was working for one month as Sub -Divisional Magistrate (SDM). He was holding his Court when SI Ramesh Chand came to him in his Court and requested him to record the statement of Janak Kumari. There was no request made in writing. It was the first and the last dying-declaration recorded by him till the date of his examination before the Court. He had not recorded any other dying-declaration in any case at the request of the police. Ajit Shrivastava admitted that Ramesh Chand, SI often used to come to him. To test the veracity of the witness he was confronted with the fact that 7-3-1982 was a Sunday and he was not in the Court room but at his home and therefore what was being stated by him was false. To this suggestion the witness responded by saying that he could not say if it was Sunday because sometimes he had to go to the Court even on Sundays. He was again asked if he could tell any reason for his visit to Court on 7-3-1982, a Sunday? The answer was in negative. However, he hastened to add that it was perhaps to clear the pending work. The fact remains that the statement Exhibit PW 16/B recorded by this witness is again a detailed one and in a narrative form. The narration of the incident is generally on the same lines as is to be found contained in the statement Exhibit PW-21/A recorded by Ramesh Chand, SI. At the end of the statement Shri Ajit Shrivastava records as the words of Janak Kumari – “I have given this statement in my full consciousness and senses. Read over to me and found correct.” This statement, Exhibit PW-16/A also does not bear any endorsement by any doctor either in charge of the burns ward attending on the victim or present in the hospital verifying the physical and mental condition of the injured so as to make the statement.

24. While discussing the third dying declaration, Exh. PW-21/A, we have already stated that we have on the material available on record grave doubts if the injured Janak Kumari was in a position to make any statement or to sign the same between 9 and 10 a.m. The same observation applied with added force to the statement Exhibit PW-16/B which is said to have been recorded between 1.30 and 1.45 p.m. on the same day. ‘Added force’ – we say – because the material available on record shows that the condition of the injured Janak Kumari was continuously deteriorating and obviously between 1.30 and 1.45 p.m. she must have been in a condition more worse than what she was in between 9 and 10 a.m.

25. According to the dying declaration Exhibit PW-21/A there was a scuffle between the deceased and the accused Om Prakash on the night preceding the date of the incident while according to the dying declaration Exhibit PW-16/A such scuffle had taken place in the morning soon before the victim was set on fire. The recital that the statement was being given (by the injured) “in full consciousness and senses” recorded in Exhibit PW16/A is belied by the medical evidence. These are additional factors casting doubt on credibility of dying declaration Exh. PW16 /A.

26. Absence of medical evidence to show if Janak Kumari was in a fit state of mind and physical condition to have at all made a statement and signed the same, doubtful setting of the place – Court or home -wherefrom the inexperienced SDM accompanied the Investigating Officer to record the statement, inconsistency though a bit little with the earlier statement and prima facie unsustainable truth of some of the recitals contained in the statement do not permit the conscience of the Court to accept the dying declaration Exh. PW-16/A as safe to act upon.

Fifth dying-declaration (oral) – made to PW-3, Kishan Lal between 5.30 and 6 p.m.

27. PW-3 Kishan Lal is the brother of the deceased Janak Kumari. According to him, he having learnt of the incident reached the hospital at about 5.30 or 6 p.m. where Janak Kumari was admitted and on her enquiry the injured Janak Kumari revealed to him that her husband, mother-in-law and sister-in-law had poured kerosene on her and set fire unto her. He did not know that any offence was registered regarding the incident and was under investigation. Yet he did not try to contact, or give information to, the police which would have been his ordinary natural conduct on learning such ghastly incident having taken place with his sister. Kishan Lal admitted that he never informed to the police what was told to him by Janak Kumari. Such conduct of the witness is fatal to reliability and acceptance of any dying-declaration by the deceased having been made to him. Moreover, we also have grave doubts if Janak Kumari was in a position to speak and make statement to Kishan Lal and about 5.30 or 6 p.m.

28. A dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. (See Tapinder Singh vs. State of Punjab, (1971) 1 SCJ 871. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das vs. State of Rajasthan, AIR 1957 SC 589 : (1957 Cri LJ 889) the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh alias Surendra Singh vs. State of M.P., AIR 1982 SC 1021 : (1982 Cri LJ 986) the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh vs. State of Punjab, AIR 1983 SC 554 : (1983 Cri LJ 985) this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mahar Singh vs. State of Punjab, AIR 1981 SC 1578 : (1981 Cri LJ 998) the dying declaration was recorded by the Investigating Officer. This Court excluded the same from consideration for failure of the Investigating Officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present.

29. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by Investigating Officer has been discouraged and this Court has urged the Investigating Officer availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the police officer lateron relied on as dying declaration. In Munnu Raja vs. State of Madhya Pradesh, AIR 1976 SC 2199 : (1976 Cri LJ 1718) this Court observed – “Investigating Officer are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an Investigation ought not to be encouraged.” The dying declaration recorded by the Investigating Officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh vs. State of Punjab, AIR 1979 SC 1173 : (1979 Cri LJ 700) this Court has permitted dying declaration recorded by Investigating Officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.

30. The principal accused Om Prakash had himself informed the police of the incident. In fact, he was the first to give any information relating to the incident to the police. Unfortunately , none of the accused could have escorted the victim to the hospital nor could remain present by her side as the case diary revealed (as has been noticed by the trial Court) that the accused persons were arrested on the same day. The house of the accused persons which is the site of the incident is situated in a thickly populated locality in a narrow lane where the houses are located like a cluster. The neighbours must have collected soon at the place of the incident. This is borne out from the statement of Shiv Charan, ASI who had made on the spot inquiries. None of the neighbours has been examined excepting Trishla Kumari, PW-1 to whom the injured Janak Kumari has not made any statement implicating the accused persons although she had the opportunity of doing so. We have also dealt with each of the five dying declarations to find out their worth. We have found the second dying declaration to be no dying declaration, the first and third ones having been made to police officers associated with Investigation and also not worthy of credence. We have disbelieved the fifth dying declaration said to have been made to PW-3, Krishan Lal. We have found it not safe to act on the fourth dying declaration said to have been made to a Magistrate as we entertain grave doubts if the injured Janak Kumari was in a position to make any statement at the time at which this fourth, as also the third and the fifth dying declarations are alleged to have been made. We have found some inconsistency between the statements said to have been made by the injured Janak Kumari and recorded as third and fourth dying declarations. We have also found that from the beginning there was an effort to develop a story of Janak Kumari having been attempted to be strangulated which story finds a mention in the record as prepared by Dr. Khanijau but which story has been found to be false. None of the five statements attributed to Janak Kumari and coming from the mouth of different witnesses has been held worthy of being accepted and acted upon as dying declaration so as to form a safe basis to base conviction of the accused thereon. We find ourselves not persuaded to reverse the well-reasoned finding of not guilty recorded by the trial Court and convert the same into a finding of guilty simply because the statements alleged to be dying declarations are five in number. Needless to say there is no other shred of evidence connecting the accused with the crime.

31. It appears that the marriage between the accused Om Prakash and the victim Janak Kumari proved to be a failure and all efforts at restoring and re-establishing the materimonial home had falied leading to utter frustration in the mind of Janak Kumari. She probably felt convinced in her mind that she had no other escape except to finish herself which course would also enable her avenging her grievance and settling scores with the accused persons whom she thought were responsible for spoiling her life and leading her into immense misery. She had indicated what was transpiring in her mind to Trishla Kumari, PW-1. The possibility of her committing suicide and implicating the accused persons cannot be ruled out in the facts and circumstances of the case as available on record.

32. For the foregoing reasons, the appeal is dismissed. The judgment of acquittal, along with the findings recorded by the trial Court, is maintained.