Law Web: Whether court can rely on dying declaration if it is not signed by victim?

Another argument of Shri Bhatia is that the dying declaration as

well as the Dehati Nalishi have not been signed by the victim but have

been thumb marked. When a person has been burnt even though the

person may be asked it is not possible for that person to sign a

document and there is nothing unusual in getting it thumb marked. We

must also remember that PW-5 and PW-9 are a doctor and a NaibTahsildar,

respectively. They are independent witnesses. They have

no personal axe to grind. We cannot disbelieve their statements.

Nothing has been brought on record to show why these people should

tell a lie and why they should have created a false document with a

view to implicate the accused. The fact that Suresh was caught hold of

by the villagers and was brought to the hospital itself indicates that he

was at the spot and he has given no explanation in this regard.

24. Keeping in view all these facts, we are of the considered view that

the Learned Trial Court was fully justified in relying upon the dying

declaration (Ex.P-4).

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1063 of 2002

Dated : 29.9.2016

Suresh Purushottam,

State of Chhattisgarh,

Coram:

Shri Deepak Gupta, Chief Justice

Shri Justice P. Sam Koshy

Citation: 2017 CRLJ 91 Chhatis

1. This appeal is directed against the judgment dated 13.9.2002

delivered by the Third Additional Sessions Judge, Durg in Sessions

Trial No.179 of 2001, whereby he convicted the accused of having

committed an offence punishable under Section 302 of the Indian

Penal Code (IPC) and sentenced him to undergo rigorous

imprisonment for life.

2. The prosecution story, briefly stated, is that on 20.3.2000, on the

day of the festival of Holi, two accused, i.e., Appellant Suresh and one

Venkat, residents of Risali Sector went to the residence of Kachrabai

(deceased). They wanted that Kachrabai should play Holi with them.

When she refused to play Holi with them, they sprinkled kerosene on

her and set her on fire. It is further alleged that Suresh had caught

hold of Kachrabai so he also received injuries. Kachrabai raised an

alarm and neighbours came to the spot and took her to the hospital.

Suresh was caught hold of by the neighbours and other accused

Venkat ran away. Kachrabai was admitted in hospital, but could not

survive and died on 29.3.2000. The Learned Additional Sessions

Judge has mainly convicted the accused on the basis of the dying

declaration of the deceased. Aggrieved by this judgment, the Appellant

has preferred the present appeal.

3. We have heard Shri M.P.S. Bhatia, Learned Counsel appearing for

the Appellant and Shri Vinod Deshmukh, Deputy Government

Advocate appearing for the State/Respondent and have also perused

the record.

4. The main grounds raised by Shri Bhatia are that the dying

declaration is not reliable for various reasons. It was not recorded in

the language of the deceased. According to Shri Bhatia, deceased

Kachrabai only knew Chhattisgarhi and could not speak on Hindi in

which language the dying declaration has been recorded. There is

nothing to show that Kachrabai was in a position to make the

statement. It is further contended that other witnesses including the

husband of deceased Kachrabai did not support the prosecution story.

There are contradictions between Dehati Nalishi and First Information

Report recorded at the instance of Kachrabai.

5. Immediately after the occurrence which took place at 4:30–5:00

O’clock in the evening on 20.3.2000, the victim was taken to the

hospital. On the top portion of the dying declaration, it is stated that it

was recorded at 7:45 p.m. and at the end of the dying declaration the

time is recorded as 8:15 p.m. This means that the dying declaration

was recorded between 7:45 p.m. and 8:15 p.m. This dying declaration,

Ex.P-4 has been recorded in question and answer form. In the

opening portion of the dying declaration, opinion of the doctor has3

been given that the victim is in a position to make a statement. There

are some signatures below this also. In this dying declaration, the

victim states that when she was at home at about 5:00 p.m. then

Venkat Telugu and Suresh, who are residents of Risali, came to her

house and wanted her to play Holi with them. When she refused then

Suresh poured kerosene on her body and lit it with a match. She

raised an alarm then other residents of the area came to help her. In

answer to the third question, she states that the people of the colony

caught hold of Suresh, but Venkat Telugu ran away. Thereafter,

information was given to the police and she was admitted in hospital.

She then states that she is married and her husband works in HSCL.

Her daughter is also married and her son aged about 13 years lives in

another village. She further states that she was alone at the house

because on Saturday her husband had gone to the village where her

son resides. She also stated that Venkat Telugu and Suresh used to

come to meet her husband and on the day of occurrence in absence of

her husband they came and wanted to play Holi with her and when she

refused, Suresh poured kerosene on her and set her on fire. This

dying declaration was also thumb marked. Below the dying

declaration, there is a statement of the doctor recorded that the victim

was fully conscious while making the statement.

6. First of all her dying declaration was recorded. Thereafter, the

complaint of the deceased was recorded at 8:30 p.m. on 20.3.2000

itself. In this complaint, which is thumb marked by Kachrabai, she

states that she along with her husband resides in Newai Basti. Her

husband works in HSCL. Deceased Kachrabai had one daughter, who

is married and lives in her matrimonial home. Her son also resides in

some other village. Her husband had gone to the village on Saturday.

On that day, i.e., Monday, 20.3.2000, which was the day of Holi4

festival, at about 4:30 p.m., she was alone at her home. At that time,

one Suresh of Risali and Venkat, who both used to come and visit her

husband very often, came to her house. They wanted to play Holi with

her. When she refused to play Holi, Suresh and Venkat got angry.

They picked up one container of kerosene lying there and poured the

same over her body and set her on fire by lighting a matchstick with

intention of killing her. The victim raised an alarm then neighbours

came there and extinguished the fire of her body. Suresh was caught

hold at the spot and his hands were burnt. Venkat managed to run

away. Kachrabai and Suresh had been brought to hospital. Kachrabai

had recorded the report which had been read over and explained to

her. On the basis of this report (Ex.P-10), First Information Report

(Ex.P-10A) was recorded at 10:30 p.m. on 20.3.2000.

7. The first question is whether we should rely upon the dying

declaration (Ex.P-4) or not. The dying declaration was recorded by

PW-9, Pulak Bhattacharya. He states that at the relevant time, he was

posted as Naib-Tahsildar at Durg. On the directions of the Tahsildar,

he went to record the statement of Kachrabai, the wife of Prahlad,

resident of Newai, Police Station Newai, District Durg. According to

him, at 7:35 p.m. a request was received to record the dying

declaration of the victim and 2-3 minutes later, he was ordered to go to

the hospital. According to him, he had already reached the hospital at

Durg and Shri Das, Tahsildar was also present in the hospital. The

witness states that at that time, some victims of an accident in a rural

area had been brought to the hospital and, therefore, the entire

administration was in the hospital. He further states that he met the

doctor in the casualty and duty room. He inquired from the concerned

doctor whether the victim was in a position to make statement and the

doctor stated that she was in a position to make the statement. He5

then narrates what has been stated in the dying declaration. He

denied the suggestion that the statement had not been recorded

properly. He further states that he was told that Kachrabai was

illiterate. He then states that he cannot say whether Kachrabai was

literate and knew how to sign. According to him, he would first ask a

question thereafter Kachrabai would reply the same and then he noted

down the same. The witness admitted the suggestion that Kachrabai

was a Chhattisgarhi and that the questions and answers were orally

spoken in Chhattisgarhi. According to him, at the time when the dying

declaration was recorded, Kachrabai, he and the doctor only were

present. He denied the suggestion that Kachrabai was not in a

position to make a statement.

8. The other important witness is PW-5, Dr. Lal Mohammed. He

states that Kachrabai was admitted in the hospital and an application

was presented for recording her dying declaration. He after examining

the patient and talking to her, made a report that she is in a position to

make dying declaration. The application is Ex.P-3 dated 20.3.2000

and time 7:15 p.m. and the doctor in his handwriting written “c;ku

nsus ;ksX; gS” (fit to make a statement) and thereafter signed the

statement. He then states that the statement of the victim was

recorded by PW-9, Pulak Bhattacharya and he was also present when

the statement was recorded. He has also proved his opinion on the

dying declaration, Ex.P-4 that the victim was in a position to make the

statement when it was recorded. In cross-examination, he again

repeats that the victim was fully conscious and fit to make statement.

He has further stated that he did not note down the blood pressure etc.

on the statement because in his opinion it was not necessary to do so.

He denied the suggestion that after the statement had been recorded

by PW-9, Pulak Bhattacharya, he had put his signatures on the same.6

He also denied the suggestion that he was not present when the

statement was recorded. In cross-examination, he also stated that he

did not remember where exactly the statement of the deceased was

recorded. He stated that if he is shown bed head ticket, he would be

able to tell these facts also.

9. PW-1, Hemkumari is a neighbour who turned hostile. However, she

does state that when she was inside the house, she heard the sound

*cpkvks cpkvks^. She then came out and saw that a number of people

had gathered there and Kachrabai was lying in burnt condition.

However, she could not say how Kachrabai got burnt. Kachrabai was

taken to the hospital. In cross-examination, she admits that it was the

day of Holi. According to her, deceased Kachrabai did not know Hindi.

The witness states that they used to converse with each other in

Chhattisgarhi. She further goes to state that deceased Kachrabai was

literate and could sign. She had signed in her presence on many

occasions.

10. PW-2, Arjun Singh Yadav also turned hostile and states that he

does not know how Kachrabai received the burn injuries. PW-3, Dr.

S.R. Churendra carried out the post mortem and he opined that the

deceased had died because of the burn injuries. The statements of

PW-6, Ramayan Prasad Upadhyay and PW-7, S.S. Dhurve are not

very relevant for deciding the case.

11. PW-8 is Prahlad, the husband of deceased Kachrabai. He states

that he did not know accused Suresh and Venkat. He further states

that when he came to know that his wife had been burnt, he went to

the hospital. He further states that he never talked to Kachrabai

because she was unable to speak. He does not know how the

occurrence took place. He was declared hostile and cross-examined7

by the Public Prosecutor. He denied the suggestion that when he

reached the hospital, he talked to Kachrabai. He further states that

Kachrabai told him that Suresh had poured kerosene on her and set

her on fire. He further states that he does not remember whether

Kachrabai took the name of Venkat or not. When confronted with his

statement, Ex.P-6, he stated that he had not named Venkat and he

does not know how the police had recorded the name of Venkat in his

statement under Section 161 Cr.P.C. In cross-examination by the

accused, he states that when he reached the hospital, Kachrabai could

not speak and, therefore, he could not talk with Kachrabai. He further

states that in his earlier examination, when he had stated that a person

named Suresh had poured kerosene on Kachrabai and set her on fire

on the basis of information received from some other people. He

further states that he does not know who is Suresh. In further crossexamination,

he states that Kachrabai was his second wife and son-inlaw

Ravi had come to inform him that Kachrabai was in hospital. He

states that his first wife lives in the village. He also states that

Kachrabai had studied upto Class 5 and could sign. According to him,

she could read newspapers. He further states that the accused never

used to visit him at his house.

12. PW-11, R.P. Yadav is an Assistant Sub-Inspector. He states that on

20.3.2000, it was the day of Holi and he was on town patrolling duty in

the police van. He received information on the wireless set that some

woman has been burnt in Village Newai. He then went to Newai. The

burnt woman was lying on the side of the road. A crowd had gathered

there. He then went to the place of occurrence and secured it. He also

states that accused Suresh had been caught by the villagers. He then

brought this burnt woman and Suresh to the District Hospital, Durg. He

also states that he made a request in writing to the doctor to certify8

whether the victim was in a fit position to make a statement or not.

This request is Ex.P-3. He has identified his signature on the same.

He then made a request Ex.P-9 to the Magistrate Shri Das, who was

present in the hospital and then PW-9, Pulak Bhattacharya recorded

the dying declaration of Kachrabai. Thereafter, he (PW-11) inquired

from victim Kachrabai as to what had happened and on the basis of

her statement, he recorded Dehati Nalishi, Ex.P-10 and on the basis of

the same, FIR, Ex.P-10A was recorded. He has also proved

document, Ex.P-11, which is a request for medico legal examination of

Suresh, son of P.L. Soni, who is none else than the accused.

13. Shri Bhatia has placed reliance on two documents. One is Ex.P-

13, which is the arrest warrant of accused Suresh and shows that he

was arrested on 8.4.2000. Shri Bhatia has also relied upon another

document which is not exhibited, but is purportedly signed by Dr. Lal

Mohammed and in this document it is mentioned that on 27.3.2000,

Suresh, son of P.L. Soni, aged about 27 years was admitted with burns

and his hands and face were burnt and these burns were about 12

hours old. Relying upon these documents, it is urged by Shri Bhatia

that the entire story set up by the police is false and no reliance can be

placed on the dying declaration (Ex.P-4). Shri Bhatia has placed

reliance on the judgment of Bombay High Court in State of

Maharashtra V. v. Gopichand Uttamchand Keswani, 1985 Cri.L.J.

784 and Kashi Vishwanath v. State of Karnataka, (2013) 7 SCC 162

in which the Apex Court, dealing with the dying declaration, held as

follows:

“30. The prosecution has failed to state as to why

three dying declarations were recorded in Kannada,

if the deceased Neelamma was talking in Telugu. It

has also not been made clear as to who amongst the

Tahsildar, PSI or SI or the doctors who had signed

Ext. P12, Ext. P22 and Ext. P29 had knowledge of9

Telugu and translated the same in Kannada for

writing dying declarations in those exhibits and that

at the bottom of three dying declarations it has not

been mentioned that they were read over in

Kannada and explained in Telugu and that the

deceased understood the contents of the same. The

abovementioned facts create doubt in our mind as to

the truthfulness of the contents of the dying

declarations as the possibility of the deceased being

influenced by somebody in making the dying

declarations cannot be ruled out.”

Shri Bhatia has also placed reliance on the judgment of the Apex Court

in State of Gujarat v. Jayrajbhai Punjabhai Varu, AIR 2016 SC

3218. The relevant portion of the judgment reads as follows:

“10. The courts below have to be extremely careful

when they deal with a dying declaration as the

maker thereof is not available for the crossexamination

which poses a great difficulty to the

accused person. A mechanical approach in relying

upon a dying declaration just because it is there is

extremely dangerous. The court has to examine a

dying declaration scrupulously with a microscopic

eye to find out whether the dying declaration is

voluntary, truthful, made in a conscious state of

mind and without being influenced by the relatives

present or by the investigating agency who may be

interested in the success of investigation or which

may be negligent while recording the dying

declaration. …..

11. The court has to weigh all the attendant

circumstances and come to the independent finding

whether the dying declaration was properly

recorded and whether it was voluntary and truthful.

Once the court is convinced that the dying

declaration is so recorded, it may be acted upon and

can be made a basis of conviction. The courts must

bear in mind that each criminal trial is an

individual aspect. It may differ from the other trials

in some or the other respect and, therefore, a

mechanical approach to the law of dying declaration

has to be shunned.

12. ….. A dying declaration is entitled to great

weight. The conviction basing reliance upon the

oral dying declaration made to the father of the

deceased is not reliable and such a declaration can10

be a result of afterthought. This is the reason the

Court also insists that the dying declaration should

be of such a nature as to inspire full confidence of

the Court in its correctness. The Court has to be on

guard that the statement of deceased was not as a

result of tutoring, prompting or a product of

imagination. The Court must be further satisfied

that the deceased was in a fit state of mind after a

clear opportunity to observe and identify the

assailants. Once the Court is satisfied that the

declaration was true and voluntary, undoubtedly, it

can base its conviction without any further

corroboration. It cannot be laid down as an absolute

rule of law that the dying declaration cannot form

the sole basis of conviction unless it is corroborated.

The rule requiring corroboration is merely a rule of

prudence.”

14. On the other hand, on behalf of the State/Respondent, reliance has

been placed on Bakhshish Singh v. State of Punjab, AIR 1957 SC

904, wherein it was held that since the language of the subordinate

Courts and the police in the State of Punjab for recording statements

was Urdu, the mere fact that the dying declaration was recorded in

Urdu and not in the language of the deceased, was not a ground to

reject the dying declaration. The Apex Court held as follows:

“5. ….. As a matter of fact in the Punjab the

language used in the subordinate courts and that

employed by the Police for recording of statements

has always been Urdu and the recording of the dying

declaration in Urdu cannot be a ground for saying

that the statement does not correctly reproduce what

was stated by the declarant. This in our opinion was

a wholly inadequate reason for rejecting the dying

declaration.”

15. In State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675, the

Apex Court took a similar view and held as follows:

“10. Assuming that the deceased gave her

statement in her own language, the dying

declaration would not vitiate merely because it was

recorded in a different language. We bear in mind11

that it is not unusual that courts record evidence in

the language of the court even when witnesses

depose in their own language. Judicial officers are

used to the practice of translating the statements

from the language of the parties to the language of

the court. Such translation process would not upset

either the admissibility of the statement or its

reliability, unless there are other reasons to doubt

the truth of it.

11. Nor would a dying declaration go bad merely

because the magistrate did not record it in the form

of questions and answers. It is axiomatic that what

matters is the substance and not the form.

Questions put to the dying man would have been

formal and hence the answers given are material.

Criminal courts may evince interest in knowing the

contents of what the dying person said and the

questions put to him are not very important

normally. That part of the statement which relates

to the circumstances of the transaction which

resulted in his death gets the sanction of

admissibility. Here it is improper to throw such

statement overboard on a pedantic premise that it

was not recorded in the form of questions and

answers.”

16. In Mohd. Hushan Andhra Pradesh v. State of Andhra Pradesh,

(2002) 7 SCC 414, the Apex Court held as follows:

“5. ….. The High Court has noticed that Surender

Rao, PW1, the magistrate has testified that on

10.3.1988 he recorded dying declaration between

2.46 a.m. to 3.15 a.m. He has certified that he had

signed it and had taken the endorsement of the

doctor on duty that the deceased was in a fit state of

mind to make a statement; the deceased had made

the dying declaration in questionanswer form in

Urdu and he had translated the version and

recorded the declaration in English. After recording

her statement, he explained the statement in Hindi

to the deceased who admitted its correctness.

Thereafter, he took the thumb impression of the

deceased on her declaration (exhibit P2). In crossexamination,

he has stated that he could read and

speak in Hindi; the deceased had made statement in

Urdu which he could understand as Urdu and Hindi

languages are almost similar and in Hyderabad,

Urdu and Hindi languages are spoken in the same

way, there being no much difference. PW11, Dr.12

Vidya Sagar, corroborated the statement of PW1, to

the effect that the deceased was in a fit mental

condition to make statement and that he was

present when the statement was recorded by the

magistrate. …..”

17. In Meesala Ramakrishan v. State of Andhra Pradesh, (1994) 4

SCC 182, the Apex Court went on to hold that a dying declaration can

even be recorded on the basis of nods and gestures and the same

possesses evidentiary value.

18. In the present case, none of the neighbours or even the husband of

the deceased have come out to support the case of the prosecution.

In any event, the occurrence did not take place in the presence of any

witness. The statement of the husband of the deceased is neither here

nor there. He gave three different versions in his statement. Therefore,

one will have to go through the other evidence on record. PW-11, R.P.

Yadav is the Assistant Sub-Inspector of Police, who came to the site

after receiving the information on wireless. It is he who took Kachrabai

(deceased) as well as accused Suresh to the hospital. He has proved

the application, Ex.P-3, which he made to the doctor for recording the

statement of the Kachrabai. He has also proved his signatures on the

application made to the Tahsildar, Ex.P-9. He then himself recorded

the statement of Kachrabai, which is Ex.P-10 and on the basis of this,

FIR, Ex.P-10A was recorded. It was important to note that this witness

in cross-examination has stated that accused Suresh is the same

whom he had arrested at the spot. He further clarifies that when he

had got admitted Suresh in the hospital, he had not arrested him. He

further states that though he had not arrested accused Suresh, the

villagers had caught hold of him.

19. The main argument of Shri Bhatia is that Kachrabai (deceased)

was speaking in Chhattisgarhi and, therefore, her statement should13

have been recorded in Chhattisgarhi. It is true that the statement

should be recorded in as close a language as is possible to the

deceased. However, Chhattisgarhi has no script. No question has

been put to the Tahsildar/Magistrate that he did not know

Chhattisgarhi. Chhattisgarhi is quite similar to Hindi and a person who

is working as Naib-Tahsildar/Tahsildar can be presumed to have

knowledge of Chhattisgarhi. The statement had to be recorded in

Devnagari Script. The witness (PW-9, Naib-Tahsildar) has recorded it

in a language which he is more comfortable with him. No suggestion

has been put to him that the witness does not know Chhattisgarhi. In

fact, this witness clearly states that the questions answers were

exchanged in Chhattisgarhi. There is nothing unusual if the statement

was recorded in Hindi. The Apex Court in two judgments, which are

cited above, has held that merely because the dying declaration was

recorded in a different language is not a ground to discard the same.

We must also keep in mind the fact that PW-5, Dr. Lal Mohammed has

fully supported the version of PW-9. He states that he had, after

examining the victim, certified that she was fit to make a statement.

This fact is also recorded in the opening portion of the dying

declaration. Thereafter, the dying declaration has been recorded in

question answer form and at the end of the dying declaration it has

been mentioned that the dying declaration was read over and accepted

to be correct by the victim. Thereafter, there is another note of the

doctor that at the time of making of the statement, the victim was fully

conscious. Therefore, we find no reason why the dying declaration

should not be relied upon.

20. Shri Bhatia has placed great reliance on the statement of PW-1,

Hemkumari neighbour and PW-8, Prahlad, the husband of the

deceased, where they have stated that the deceased could read and14

write and that she could sign. This argument in itself is contradictory.

On the one hand, it is urged that the deceased could only speak

Chhattisgarhi and knew no other language and on the other hand, it is

argued that she was semi-literate and could even read newspapers.

As pointed out earlier, Chhattisgarhi has no script. Therefore, the only

newspaper which Kachrabai (deceased) could have read would be the

Hindi newspaper. If she could understand Hindi newspapers then mere

fact that her statement was recorded in Hindi would not make the

statement unreliable. Another important factor is that PW-11, R.P.

Yadav has stated that he had taken Suresh from the place of

occurrence straightway to the hospital. A suggestion has been put to

him that this part of the statement is false, but he has denied the same

and again he has reiterated the same that Suresh is the same person

who was caught hold by the villagers and whom he had taken to the

hospital. This statement of PW-11, R.P. Yadav is supported by the

document, Ex.P-11, which clearly shows that one Suresh, son of P.L.

Soni, aged 27 years was brought to the hospital for medico legal

examination. It is true that the prosecution has been lax in not proving

the documents relating to the admission of Suresh in hospital on

20.3.2000.

21. Next reliance has been placed by Shri Bhatia on unexhibited

document allegedly signed by PW-5, Dr. Lal Mohammed, which would

indicate that Suresh was taken to the hospital on 27.3.2000. However,

Dr. Lal Mohammed, when he appeared in the witness box, was not

confronted with this document and he was not asked any question in

this regard.

22. There are in fact not one dying declaration but there are two dying

declarations, one recorded by PW-9, Pulak Bhattacharya, NaibTahsildar

and another recorded by PW-11, R.P. Yadav, Assistant Sub-15

Inspector in the form of the statement of the victim as a Dehati Nalishi.

This is also thumb marked by the victim. There is no effective crossexamination

of PW-11 in this regard.

23. Another argument of Shri Bhatia is that the dying declaration as