1998 Supreme(SC) 503

1998(4) Supreme 178
Supreme Court of India
(From Patna High Court)
M.K. Mukherjee & S.S. Mohammed Quadri, JJ.
Ram Bihari Yadav -Appellant
versus
State of Bihar & Ors. -Respondents
Crl. Appeal No. 500 of 1990
Decided on 20-4-1998
Counsel for the Parties :
For the Appellant : Pankaj Kalra, Vijay Kumar and B.K. Sharma, Advo­cates.
For the Respondents : Uday Sinha, Sr. Advocate, Anil K. Jha, Advocate.

Important Points
1. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case.
2. Generally, the dying declaration u/s. 32(1) of Evidence Act, 1872 ought to be recorded in the form of questions-answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker, the mere fact that it is not in question-answer form cannot be a ground against its acceptability or reliability.
3. The mental condition of the maker of the dying declaration, alert­ness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declara­tion, the certificate of a medically trained person is insisted upon. In the absence of availability of a doctor to certify the above-men­tioned factors, if there is other evidence to show that the recorder of the statement has satisfied himself about those requirements before recording the dying declaration, there is no reason as to why the dying declaration u/s. 32(1) of Evidence Act, 1872 should not be accepted.

Headnote:Indian Penal Code, 1860-Section 302-Evidence Act, 1872-Section 32(1)-Dying Declaration-Probative value-Accused/husband burning his wife to death by setting her on fire after pouring kerosene on her-Statement by deceased/ victim/wife in her dying declaration that she was burnt by her husband-Doctor who performed post mortem stating that smell of kerosene on the scalp of deceased/ victim/wife-Post mortem report opining that burn injuries were of 1st degree and were also the cause of death-Allegation of accused/ husband that there were two dying declarations which were inconsistent and they cannot be relied on-Not sustainable in view of the fact that original of alleged 1st dying declaration not brought on record and also A.S.I. who recorded the original was not examined-Dying declaration not in question-answer form but in actual words of the deceased/victim/wife-Not a ground against it reliability - Magistrate putting questions to deceased/ victim/wife to test the veracity of statements made by her while recording dying declaration-State­ment of Magistrate that she was conscious while making statements -Circumstan­tial evidence corroborates dying declaration-Dying dec­laration true, relevant and admissible-Conviction of accused/hus­band by courts below based on said dying declaration-Proper.

       Held : Having regard to the sanctity attached to a dying declaration as it comes from the mouth of a dying person though, unlike the principle of English law he need not be under apprehension of death, it should be in the actual words of the maker of the declaration. Generally, the dying declaration ought to be recorded in the form of questions-answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question-answer form cannot be a ground against its acceptability or reliabi­lity. The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declara­tion, the certificate of a medically trained person is insisted upon. In the absence of availability of a doctor to certify the abovemen­tioned factors, if there is other evidence to show that the recorder of the statement has satisfied himself about those requirements before recording the dying declaration there is no reason as to why the dying declaration should not be accepted. (Para 9)

       From a plain reading of Exh. 2 as well as the statement of P.W. 7, it is clear that the learned Magistrate has satisfied himself about the identity of Smt. Shivratri Devi; he put questions to her and satisfied himself about her condition that she was fit enough to make the statement. The statement itself consists of two sentences. Having regard to all the facts and circumstances both the courts below have relied upon the dying declaration and we find no cogent reason to take a different view of the matter. Having found that the dying declaration is true and acceptable there is no escape from the conclusion that the appellant was responsible for intentionally causing burn injuries to his wife Smt. Shivratri Devi, which resulted in her death. Though no corroboration of dying declaration as such is necessary to convict the accused-a principle which has been laid down in Khu­shal Rao’s case (supra), however, in this case, there is circumstan­tial evidence which corroborates the dying declaration, viz., the statements of P.Ws. 3 and 4 that they found the victim in her room where the smell of kerosene was present, the statement of P.W. 5, the doctor who conducted the post-mortem examination after four days of the accident noticed smell of kerosene from the scalp of the deceased, statements of P.Ws. 4 and 6 who rushed to the house of the appellant immediately after hearing of the incident and found that the house was locked from inside and the appellant was delaying in opening the lock on one pretext or the other; the plea of the appellant that she died of accident while igniting the oven and that the appellant and D.W. 2 put water on her was belied from the evidence on record as no sign of water was found in the kitchen and that the ash in the oven was found in tact. These facts corroborate and lend assurance to the truth of the declaration of the deceased “mere pati ne mujhe jala diya hai”. (Paras 11 & 12)

       However : Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record Exh. 5/4 and GD Entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extrane­ous reason, the interest of justice demands that such acts or omis­sions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials other­wise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obvi­ously shake the confidence of the people not merely in the law enforc­ing agency but also in the administration of justice. (Para 13)

       Consequently held : For the above reasons, we are of the view that the Trial Court as well as the High Court has rightly based the conviction on Exh. 2, the dying declaration. (Para 14)