2013 Supreme(SC) 673

IN THE SUPREME COURT OF INDIA
Dr. B.S. CHAUHAN AND S.A. BOBDE, JJ.
Kaliya - Appellant
Versus
State of Madhya Pradesh - Respondent
CRIMINAL APPEAL NO.228 OF 2008
Decided on: July 23, 2013

Important Point
Law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement.
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Headnote:Indian Penal Code,1860—Section 302—Conviction of appellant mother-in-law of deceased on basis of dying declaration—Appeal—Deceased was admitted in hospital with 100 per cent burn injuries and she died on same day—Dying declaration was recorded by doctor in presence of staff nurse and another doctor—Doctor deposed in evidence that 100 per cent burnt patient could also be in a fit mental and physical condition to give statement—Dying declaration was to the effect that deceased was dying on cot when appellant poured kerosene oil and set her on fire—Conviction was not liable to be interfered with.

       Held: This Court has examined the issue of putting a thumb impression on the dying declaration by 100% burnt person in State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059, and after considering a large number of cases including Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186; Laxmi v. Om Prakash & Ors., AIR 2001 SC 2383; and Govindappa & Ors. v. State of Karnataka, (2010) 6 SCC 533.

       Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity.

       So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remai9ned intact.”

       Dr. Nirmal Kumar Gupta (PW18), deposed that 100% burnt patient can also be in a fit mental and physical condition to give statement. Dr. V.K. Deewan (PW14), who performed the post-mortem of deceased Guddi, deposed that she was completely burnt and the burn injuries were anti-mortem. She had died due to Asphyxia, due to burn injuries, her death was homicidal.

       In view thereof, both the courts below were of the considered opinion that the appellant was responsible for causing the death of Guddi, deceased.

       The defence taken by the appellant that she had gone out of her house to provide water to the buffalo has been disbelieved by the Court. As the incident occurred in the house of the appellant, and she was present therein at the relevant time, she could have furnished the explanation as to how and under what circumstances Guddi died.

        (ii) Evidence Act, 1872—Section 65—Secondary evidence—Dying declaration recorded by doctor produced in court in form of carbon copy—Doctor deposed that even after extensive search the original dying declaration could not be traced and prosecution was permitted to adduce secondary evidence—No illegality in taking din g declaration proved on record.

       Held: Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, 2012) 2 SCC 196. However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457; Marwari Khumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., AIR 2000 SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and Life Insurance Corporation of India & Anr. v. Rampal Singh Bisen, 2010) 4 SCC 491.

       Result: Appeal dismissed.