BHAJJU @ KARAN SINGHversusSTATE OF M.P.

                     [2012] 5 S.C.R. 37


                 BHAJJU @ KARAN SINGH                              A
                               v.
                       STATE OF M.P.
             (Criminal Appeal No. 301 of 2008)

                      MARCH 15, 2012
                                                                   B
     [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

     Penal Code, 1860 - s.302 - Murder - Prosecution case
that appellant poured kerosene oil on his wife, and set her
ablaze with the help of a match stick - Appellant's wife taken     C
to the hospital where she subsequently died - Dying
declaration recorded by Executive Magistrate-cum-Tehsildar
- Conviction of appellant by Courts below - Challenge to -
Held: The dying declaration had been recorded by the
competent officer of the executive, duly attested by the doctor    D
and the cross-examination of both these witnesses did not
bring out any legal or substantial infirmity in the dying
declaration, which could render it inadmissible or unreliable
- The statements of the doctor, PW9 and the Investigating
Officer, PW10 and the Exhibits including the site plan, post-      E
mortem report etc., which are admissible pieces of substantive
evidence, fully corroborated the dying declaration - If
deceased had poured kerosene oil on herself, then in the
normal course; a) there could not be bleeding wounds on her
body, b) broken bangles could not have been recovered from         F
the site, in question and c) she could not have suffered
injuries on her hands and arms - All these factors show
struggle before death and this indication is further
strengthened by the fact that lower part of her body had
suffered greater bum injury, than the upper part - Conviction      G
accordingly confirmed.

    Evidence Act, 1872 - s. 32 - Dying declaration -
Appreciation of - Held: If the dying declaration has been
recorded in accordance with Jaw, is .~e/iable and gives a cogent
                              37                                   H
    38       SUPREME COURT REPORTS                [2012] 5 S.C.R.


A   and possible explanation of the occurrence of the events,
    then the dying declaration can certainly be relied upon by the
    Court and could form the sole piece of evidence resulting in
    the conviction of the accused - The first attempt of the court
    has to be, to rely upon the dying declaration, whether
B   corroborated or not, unless it suffers from certain infirmities,
    is not voluntary and has been produced to overcome the
    /aches in the investigation of the case - There has to be a
    very serious doubt or infirmity in the dying declaration for the
    courts to not rely upon the same - If it falls in that class of
    cases, the dying declaration cannot form the sole basis of
c
    conviction.

          Evidence Act, 1872 - s. 32 - Dying declaration -
    Appreciation of - Distinction between principles governing
    evaluation of a dying declaration under the English law and
D   t11e Indian law - Held: Under the English law, credence and
    relevancy of a dying declaration is only when the person
    making such a statement is in hopeless condition and
    expecting an imminent death - So under the English law, for
    its admissibility, the declaration should have been made in
E   the actual danger of death and when the declarant should
    have had a full apprehension that his death would ensue -
    However, under the Indian law, the dying declaration is
    relevant, whether the person who makes it was or was not
    under expectation of death at the time of such declaration.
F
          lMtness - Hostile witness - Admissibility of evidence of
    such witness - Held: Evidence of hostile witnesses can also
    be relied upon by the prosecution to the extent to which it
    supports the prosecution version of the incident - The
    evidence of such witnesses cannot be treated as washed off
G
    the records, it remains admissible in trial and there is no legal
    bar to base the conviction of the accused upon such
    testimony, if corroborated by other reliable evidence - But the
    court will always have to take a very cautious decision while
    referring to the statements of such witnesses who tum hostile
H   or go back from their earlier statements recorded, particularly,
    BHAJJU @ KARAN SINGH v. STATE OF M.P.               39


under Section 164 Cr.P.C. - What value should be attached     A
and how much reliance can be placed on such statement is
a matter to be examined by the Courts with reference to the
facts of a given case.

     The prosecution case was that appellant poured           8
kerosene oil on his wife when she was cleaning the
kitchen, and set her ablaze with the help of a match stick.
The appellant's wife was admitted in the hospital with 60
% burn injuries where she subsequently died. Her dying
declaration was recorded by the Executive Magistrate-         C
cum-Tehsildar (PWS). The trial court disbelieved the
defence plea of the appellant-accused that his wife had
accidentally caught fire and got burnt while she was
preparing food, and convicted him under Section 302 IPC
and awarded him rigorous imprisonment for life. The
High Court affirmed the conviction and sentence.              D

     In the instant appeal, the primary contention raised
on behalf of the accused was that the dying declaration,
Ex. P4 being the sole piece of evidence, could not be
relied upon; that there was no evidence corroborating         E
Ex.P4 and as such, the concurrent judgments of
conviction were unsustainable.

    Dismissing the appeal, the Court

    HELD: 1. It is a matter of common prudence that a         F
person who had been burnt and was having 60 per cent
burn injuries would not be able to go to the hospital on
her own and somebody must have taken her to the
hospital. According to the prosecution, PW3 and PW2,
had reached the spot and had taken the deceased to the        G
hospital. Thus, they were the first persons whom the
deceased met and as per the case of the prosecution,
she had told them that the appellant had poured
kerosene on her and set her ablaze. At the hospital, she
was examined by Dr. PW9, who in his statement had             H
   40      SUPREME COURT REPORTS            [2012] 5 S.C.R.


A recorded that he had examined the deceased and she
  had as many as 10 injuries on her body and that some
  wounds on her body were bleeding. According to the said
  doctor, these injuries could have been caused by a Kada
  or some sharp object. The burn injuries were found to be
B 60 per cent. The person was burnt with kerosene oil.
  Lower parts of her body were burnt. Her left hand was
  burnt, right hand and arm were also burnt. He further
  stated that the statement of the deceased was recorded
  by the Tehsildar, on which she had put her thumb
c impression and that the dying declaration also had been
  written by the doctor declaring that she was in full
  senses to make the statement. In his cross-examination,
  this witness clearly stated that the blouse that deceased
  was wearing was smelling of kerosene oil. Thus, the
D doctor is a witness to the dying declaration as well as to
  the condition and cause of death of the deceased. [Para
  4) [53-D-H; 54-A-B]

       2. PW5 is the Tehsildar who recorded the dying
  declaration of the deceased. When he appeared as a
E witness, he admitted to having recorded the dying
  declaration of the deceased, which bore his signatures
  at A to A of Exhibit P4 and recording was in his hand-
  writing of what was stated by deceased and that he
  added or subtracted nothing from what she had stated.
F Nothing material could be brought out during the lengthy
  cross-examination of this witness. Thus, the dying
  declaration had been recorded by the competent officer
  of the executive, duly attested by the doctor and the
  cross-examination of both these witnesses did not bring
G out any legal or substantial infirmity in the dying
  declaration of the deceased, which could render it
  inadmissible or unreliable. [Para 5) (54-B-D]
      3. The post mortem of the body of the deceased was
H performed by Dr. PW10, and his report is Exhibit P15
    BHAJJU @ KARAN SINGH v. STATE OF M.P.              41


which confirms the burn injuries and the death being due A
to these injuries. There is evidence which clearly shows
that she tried to fight before she succumbed to the burn
assault by the appellant/accused. In that process, her
bangles were broken which were recovered vide Exhibit
PS from the site and she also suffered injuries which B
were bleeding when she was examined by PW9. Other
recoveries were also made from the site, which
evidences that the occurrence took place in the manner
as stated by the deceased. It is a common behaviour that
if a person is pouring kerosene on herself then the c
maximum kerosene will be poured on the head, face and
upper parts of the body and lesser amount will reach the
lower parts of the body and clothes. Contrary to this, the
lower half of the body of the deceased had received more
burn injuries than her upper part. [Para 6] [54-F-H; 55-A] 0

     4. The incident in question is stated to have occurred
on 12th September, 1995. Exhibit 01 is the affidavit stated
to have been sworn by the deceased on 30th September,
1995 while she died on 17th October, 1995. In this
affidavit, which is the backbone of the defence, it was E
stated that at the time of swearing-in of the affidavit in the
Medical College, the deceased was more or less healthy
in all respects. If one has to even remotely believe that
Exhibit 01 could be executed by her, then on the
photograph annexed to it, not even a single burn injury F
on her face and· upper part of the body is visible. If this
photograph is of a date prior to the incident then there
was no occasion for the appellant/accused or the Oath
Commissioner attesting the affidavit to affix this
photograph on this affidavit. This document, thus, G
appears to have been created and is, thus, incapable of
being relied upon by the Court. (Paras 2, 3, 6] [51-F; 53-
A-B; 55-A-C]

    5. Besides recording of Exhibit P4, two other           H
    42       SUPREME COURT REPORTS               [2012] 5 S.C.R.


A   statements of the deceased were also recorded. Both of
    them were recorded by the Police Officers on different
    occasions. Firstly, Exhibit P16 was the statement
    recorded immediately after the occurrence on 12th
    September, 1995, on the basis of which FIR, Ext. P-17,
B   was registered and thereafter Exhibit P18, the statement
    of the deceased under Section 161 of the Cr. P.C. was
    recorded, that too, on 12th September, 1995. Exhibit P16
    and P18 may, by themselves, not carry much evidentiary
    value but they definitely have the same version as was
c   recorded by PW11, the Tehsildar in Exhibit P4, the dying
    declaration, which is not only admissible in evidence but
    is reliable, coherent and in conformity with the
    requirements of law. [Para 7] [55-0-F]

         6. This is not a case where the dying declaration,
D   Ex.P4, is the only evidence against the appellant/accused
    or that whatever is stated in it, is not partially or otherwise
    supported by other evidence given the fact that there is
    no dispute to the occurrence in question, the statements
    of the doctor, PW9 and the Investigating Officer, PW10
E   and the Exhibits including the site plan, post-mortem
    report etc., which are admissible pieces of substantive
    evidence, fully corroborate the dying declaration. If the
    deceased had poured kerosene oil on herself, then in the
    normal course; a) there could not be bleeding wounds
F   on her body, b) broken bangles could not have been
    recovered from the site, in question and c) she could not
    have suffered injuries on her hands and arms. All these
    factors show struggle before death and this indication is
    further strengthened by the fact that lower part of her
G   body had suffered greater burn injury, than the upper
    part. [Para 9] [55-G-H; 56-A-C]

        7.1. The law is very clear that if the dying declaration
    has been recorded in accordance with law, is reliable and
    gives a cogent and possible explanation of the
H
    BHAJJU @ KARAN SINGH v. STATE OF M.P.              43


occurrence of the events, then the dying declaration can      A
certainly be relied upon by the Court and could form the
sole piece of evidence resulting in the conviction of the
accused. This Court has clearly stated the principle that
Section 32 of the Indian Evidence Act, 1872 is an
exception to the general rule against the admissibility of    B
hearsay evidence. Clause (1) of Section 32 makes the
statement of the deceased admissible, which is generally
described as a 'dying declaration'. The 'dying declaration'
essentially means the statement made by a person as to
the cause of his death or as to the circumstances of the      C
transaction resulting into his death. The admissibility of
the dying declaration is based on the principle that the
sense of impending death produces in a man's mind, the
same feeling as that the conscientious and virtuous man
under oath. The dying declaration is admissible upon the      D
consideration that the declaration was made in extremity,
when the maker is at the point of death and when every
hope of this world is gone, when every motive to file a
false suit is silenced in the mind and the person deposing
is induced by the most powerful considerations to speak       E
the truth. Once the Court is satisfied that the declaration
was true and voluntary, it undoubtedly can base its
conviction on the dying declaration, without requiring 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   F
by other evidence. [Para 1OJ [56-D-H; 57-A-B]

    7.2. There is a clear distinction between the principles
governing the evaluation of a dying declaration under the
English law and the Indian law. Under the English law, G
credence and relevancy of a dying declaration is only
when the person making such a statement is in hopeless
condition and expecting an imminent death. So under the
English law, for its admissibility, the declaration should
have been made when in the actual danger of death and H
    44      SUPREME COURT REPORTS             [2012] 5 S.C.R.


A that the declarant should have had a full apprehension
  that his death would ensue. However, under the Indian
  law, the dying declaration is relevant, whether the person
  who makes it was or was not under expectation of death
  at the time of such declaration. The dying declaration is
B admissible not only in the case of homicide but also in
  civil suits. The admissibility of a dying declaration rests
  upon the principle of nemo meritorious praesumuntur
  mentiri (a man will not meet his maker with a lie in his
  mouth) [Para 11] [57-B-E]
c      7.3. The law is well-settled that a dying declaration is
  admissible in evidence and the admissibility is founded
  on the principle of necessity. A dying declaration, if found
  reliable, can form the basis of a conviction. A Court of
  facts is not excluded from acting upon an uncorroborated
D dying declaration for finding conviction. The dying
  declaration, as a piece of evidence, stands on the same
  footing as any other piece of evidence. It has to be
  judged and appreciated in light of the surrounding
  circumstances and its weight determined by reference to
E the principle governing the weighing of evidence. If in a
  given case a particular dying declaration suffers from any
  infirmity, either of its own or as disclosed by the other
  evidence adduced in the case or the circumstances
  coming to its notice, the Court may, as a rule of prudence,
F look for corroboration and if the infirmities are such as
  would render a dying declaration so infirm that it pricks
  the conscience of the Court, the same may be refused to
  be accepted as forming basis of the conviction. [Para 12]
  [57-E-H; 58-A]
G     7.4. Another consideration that may weigh with the
  Court, of course with reference to the facts of a given
  case, is whether the dying declaration has been able to
  bring a confidence thereupon or not, is it trust-worthy or
  is merely an attempt to cover up the latches of
H investigation. It must allure the satisfaction of the Court
      BHAJJU @ KARAN SINGH v. STATE OF M.P.                 45


that reliance ought to be placed thereon rather than              A
distrust. [Para 13] [58-B-C]

    7.5. The first attempt of the court has to be, to rely
upon the dying declaration, whether corroborated or not,
unless it suffers from certain infirmities, is not voluntary      8
and has been produced to overcome the latches in the
investigation of the case. There has to be a very serious
doubt or infirmity in the dying declaration for the courts
to not rely upon the same. Of course, if it falls in that class
of cases, the dying declaration cannot form the sole basis        C
of conviction. However, that is not the case here. [Para
17] [61-E-F]

     Ravikumar @ Kutti Ravi v. State of Tamil Nadu (2006)
9 SCC 240; Vikas and Others v. State of Maharashtra, (2008)
2 SCC 516 : 2008 (1) SCR 933; Kishan Lal v. State of D
Rajasthan (2000) 1 SCC 310 : 1999 (1) Suppl. SCR 517;
Laxmi (Smt.) v. Om Prakash & Ors. (2001) 6 SCC 118 : 2001
(3) SCR 777; Panchdeo Singh v. State of Bihar (2002) 1 SCC
577 : 2001 (5) Suppl. SCR 503; Jaishree Anant Khandekar
v. State of Maharashtra (2009) 11 SCC 647 : 2009 (4 ) SCR E
992 and Muthu Kutty and Another v. State by Inspector of
Police, T.N. (2005) 9 sec 113 : 2004 (6) Suppl. SCR 222 -
relied on.

    Munnu Raja and Another v. The State of Madhya                 F
Pradesh - (1976) 3 SCC 104: 1976 (2) SCR 764 - referred
to.

     8.1. It was also vehemently argued that the two main
witnesses PW2 and PW3 as well as the brother of the
deceased PW4, had turned hostile and, therefore, the              G
case of the prosecution has no legs to stand, much less
that they have proved their case beyond any reasonable
doubt. This submission is without any merit. Firstly, there
is no witness to the dying declaration who has turned
hostile. None of the witnesses, i.e. PW2 to PW4, were             H
    46       SUPREME COURT REPORTS             [2012) 5 S.C.R.


A witnesses to or were even remotely involved in the
  recording of the three different dying declarations, i,e.
  Ex.P4, P16 and ·p18. None of the witnesses or the
  authorities involved in the recording of the dying
  declaration had turned hostile. On the contrary, they have
B fully supported the case of the prosecution and have,
  beyond reasonable doubt, proved that the dying
  declaration is reliable, truthful and was voluntarily made
  by the deceased. The dying declaration can be acted
  upon without corroboration and can be made the basis
c of conviction. [Para 18] [61-G-H; 62-A-B, C-D]
         8.2. Normally, when a witness deposes contrary to
    the stand of the prosecution and his own statement
    recorded under Section 161 of the Cr.P.C., the
    prosecutor, with the permission of the Court, can pray to
D   the Court for declaring that witness hostile and for
    granting leave to cross-examine the said witness. If such
    a permission is granted by the Court then the witness is
    subjected to cross-examination by the prosecutor as well
    as an opportunity is provided to the defence to cross-
E   examine such witnesses, if he so desires. In other words,
    there is a limited examination-in-chief, cross-examination
    by the prosecutor and cross-examination by the counsel
    for the accused. It is admissible to use the examination-
    in-chief as well as the cross-examination of the said
F   witness in so far as it supports the case of the
    prosecution. It is settled law that the evidence of hostile
    witnesses can also be relied upon by the prosecution to
    the extent to which it supports the prosecution version
    of the incident. The evidence of such witnesses cannot
G   be treated as washed off the records, it remains
    admissible in trial and there is no legal bar to base the
    conviction of the accused upon such testimony, if
    corroborated by other reliable evidence. Section 154 of
    the Act enables the Court, in its discretion, to permit the
H   person, who calls a witness, to put any question to him
    BHAJJU@ KARAN SINGH v. STATE OF M.P.               47

which might be put in cross-examination by the adverse A
party. The view that the evidence of the witness who has
been called and cross-examined by the party with the
leave of the court, cannot be believed or disbelieved in
part and has to be excluded altogether, is not the correct
exposition of law. The Courts may rely upon so much of B
the testimony which supports the case of the prosecution
and is corroborated by other evidence. It is also now a
settled cannon of criminal jurisprudence that the part
which has been allowed to be cross-examined can also
be relied upon by the prosecution. [Para 19) [63-A-G]      C

     8.3. PW2 and PW3 were the persons who had met the
deceased first after she was put on fire. They were not
the eye-witnesses to the occurrence. It is an admitted
case that they were the first persons to meet the
deceased after she suffered the burn injuries and had         D
taken her to the hospital. This was their consistent
version when stated before the police and even before
the court. Contrary to their statement made to the
Investigating Agency, in the Court, they made a statement
that the deceased had told them that she had caught fire      E
by chimney and her burn injuries were accidental. This
was totally contrary to their version given to the police
where they had stated that she had told them that the
appellant had poured kerosene on her and put her on fire.
To the extent that their earlier version is consistent with   F
the story of the prosecution, it can safely be relied upon
by the prosecution and court. The later part of their
statement, in cross-examination done either by the
accused or by the prosecution, would not be of any
advantage to the case of the· prosecution. However, the       G
accused may refer thereto. But the court will always have
to take a very cautious decision while referring to the
statements of such witnesses who turn hostile or go back
from their earlier statements recorded, particularly, under
Section 164 of the Cr.P.C. What value should be attached      H
    48      SUPREME COURT REPORTS             (2012] 5 S.C.R.


A   and how much reliance can be placed on such statement
    is a matter to be examined by the Courts with reference
    to the facts of a given case. [Para 20] (64-B-G]

       8.4. PW4, brother of the deceased, is another witness
  who has made an attempt to help the accused. He stated
8
  that deceased had died and appellant was his brother-
  in-law and she got burnt while cooking food and that
  deceased had told him that appellant used to keep her
  nicely. Firstly, it must be noticed that all these witnesses
  who had turned hostile or attempted to support the
C accused are the neighbours or close relations of the
  deceased and also that of the appellant/accused. Their
  somersault appears to be founded on the consideration
  of saving a relation from receiving punishment at the
  hands of justice. They appear to have lied before this
D Court, more out of sympathy for the appellant/accused.
  The very opening part of the statement of PW4, where he
  says "Medabai mari ja chuki hai" and "Medabai ko khana
  pakate samay aag lagi thi" is sufficient indicator of his
  sympathy and the fact that his sister has already died and
E that he would not like to lose his brother-in-law and
  secondly, that it is also not clear from his statement as
  to who told him that deceased had caught fire while
  cooking. (Para 21] (64-G-H; 65-A-C]

F      8.5. These are matters of serious consequences and
  render the statement of all these three witnesses
  unreliable and undependable. Thus, these statements
  this Court would refer and rely (examination-in-chief) only
  to the extent they support the case of the prosecution and
G are duly corroborated, not only by other witnesses but
  even by the dying declaration and the medical evidence.
  (Para 22] (65-D-E]

        Kofi Lakhmanbhai Chanabhai v. State of Gujarat (1999)
    a sec 624; Prithi v. State of Haryana - (201 O) a sec 536 :
H   2010 (9) SCR 33; Sidhartha Vashisht@ Manu Sharma v.
    BHAJJU @ KARAN SINGH v. STATE OF M.P.               49


State (NCT of Delhi) - (2010) 6 SCC 1 : 2010 (4) SCR 103;     A
Ramkrushna v. State of Maharashtra -(2007) 13 SCC 525 :
2007 (5) SCR 818- relied on.
     9. Coming to the credibility of the defence witnesses,
Ex.01 is a document created by the defence just to
                                                              B
escape the punishment under law. If that is what the
deceased wanted to say, she had a number of
opportunities to say so, freely and voluntarily. However,
in presence of the Tehsildar and twice in presence of the
Police, she made the same statement implicating her
husband appellant of pouring kerosene oil on her and          C
putting her on fire. Where was the necessity of typing an
affidavit and getting the same thumb-marked by the
deceased when she was suffering 60% burn injuries. If
the version given in this affidavit was true, there is no
reason why the deceased should have stated before the         D
police and the Tehsildar what she did. The two defence
witnesses, namely DW1 and DW2, were examined by the
defence to prove its innocence. DW1, the Notary Public,
does not state as to where, when and at whose instance
the affidavit was typed. This witness has completely          E
failed to explain as to why the photograph of the
deceased was fixed on the affidavit. If it was the
requirement of law, then why the photograph of a date
prior to the date on which the affidavit was sworn and
attested, was affixed on the affidavit. This witness also     F
admitted in his cross-examination that he knew that the
affidavit was being sworn for belying a statement made
earlier, but he made no enquiries from the deceased or
from any other proper quarters to find out what was the
previous statement of the deceased. It will not be safe for   G
the Court to rely on the statement of this witness. A
Notary Public is expected to maintain better professional
standards rather than act at the behest of a particular
party.
    DW2, is the person who had typed the affidavit,           H
    50       SUPREME COURT REPORTS               (2012] 5 S.C.R.


A Ex.01. He knew the deceased. According to this witness,
  the contents were typed on the basis of what deceased
  had stated. There are contradictions between the
  statements of DW1 and DW2. It cannot be said that these
  witnesses are reliable and their statements are
B trustworthy. [Para 23] [65-E-H; 66-A-D]

                         Case Law Reference:
         (2006) 9 sec 240          relied on           Para 14
         2008 (1) SCR 933          relied on           Para 14
c
         1999 (1) Suppl. SCR 517 relied on             Para 14
         2001 (3) SCR 777          relied on           Para 14
         2001 (5) Suppl. SCR 503 relied on             Para 14
D
         2009 (4) SCR 992          relied on           Para 15
         2004 (6) Suppl. SCR 222 relied on             Para 16
         1976 (2) SCR 764          referred to         Para 18
E        (1999) a sec 624          relied on           Para 19
         2010 (9) SCR 33           relied on           Para 19
         2010 (4) SCR 103          relied on           Para 19

F        2007 (5) SCR 818          relied on           Para 19

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 301 of 2008.

      From the Judgment & Order dated 7.8.2007 of the High
G Court of Madhya Pradesh at Jabalpur in CRLA No. 634 of 1998.

         S.K. Choudhary, Daya Krishan Sharma for the Appellant.

         Vibha Datta Makhija for the Respondent.

H        The Judgment of the Court was delivered by
      BHAJJU@ KARAN SINGH v. STATE OF M.P.                       51


     SWAT~NTER KUMAR, J. 1. The present appeal is                      A
directed against the judgment of conviction and order of
sentence dated 9th February, 1998 passed by the Court of
Sessions Judge, Tikamgarh and affirmed by the High Court of
Madhya Pradesh, Bench at Jabalpur, vide its judgment dated
7th August, 2007.                                                      B

       2. The facts giving rise to the present appeal fall within a
 very narrow compass and are being stated at the very outset.
 Bhajju @ Karan Singh, the appellant herein, was married to
 Medabai, the deceased, and was living in Niwadi, District             C
 Tikamgarh, Madhya Pradesh. Bhajju had doubts about the
 chastity of his wife and often used to accuse her of having illicit
 relations with one Ramdas. According to the appellant, she also
 had a lose temper and on one occasion, she had left their one
 month old child on a platform and had gone to her parental
 house along with her son, Harendra, aged about four years. It         D
 is stated that he had even reported this incident at the Police
Station, Niwadi, on 2nd September, 1995. On the other hand,
the prosecution has alleged that besides accusing the
deceased of having illicit relations, he used to ill-treat her and
even question the paternity of the children born out of the            E
wedlock. In fact, on the evening before the incident in question,
he had beaten his wife with slipper. On 12th September, 1995,
at about 7.00 a.m., when she was cleaning the kitchen, Bhajju
poured kerosene oil on her and set her ablaze with the help of
a match stick. She raised hue and cry. Ayub (PW3) and Pratap           F
(PW2) from the neighbourhood reached the spot. They took
her to the hospital in the taxi where she was examined by Dr.
Suresh Sharma (PW9), vide report Exhibit 14. Dehati Nalishi,
Exhibit P16 was recorded on the basis of which FIR Exhibit
P14 was recorded and a case was registered under Section               G
307 of the Indian Penal Code, 1860 (IPC). She was admitted
to the hospital and was found to be having 60 per cent burn
injuries and her blouse was smelling of kerosene oil at that
time. Her dying declaration was recorded· by the Executive
Magistrate-cum-Tehsildar at about 9.10 a.m. vide Exhibit P4.           H
    52       SUPREME COURT REPORTS                  [2012].5 S.C.R.


A   She succumbed to the burn injuries and died on 17th October,
    1995. A case under Section 302 IPC. was registered against
    the appellant-accused. After registration of the case, the
    Investigating Officer prepared the inquest report. Post mortem
    was performed and the cause of death was opined to be
8   extensive burn injuries. During the investigation, statements of
    other witnesses including Pratap, Ayub and Lakhanpal (PW-
    1) were recorded and the site plan was prepared. Certain items
    were recovered from the site like broken bangles, match box,
    half burnt match sticks, clothes of the deceased, kerosene oil
C   container, etc. Based on the ocular and documentary evidence,
    the Investigating Officer filed the charge-sheet before the court
    of competent jurisdiction. The appellant-accused was
    committed to the Court of Sessions where he was tried. The
    appellant put up the defence that because of her illicit
    relationship with Ramdas, their neighbor, and her arrogant
0
    attitude, the deceased was a difficult person to live with.
    However, on 12.9.1995, she accidentally caught fire and got
    burnt while she was preparing the food. As a result, she died
    and the accused was innocent. Disbelieving the defence of the
    accused and forming an opinion that the prosecution has been
E   able to prove its case beyond reasonable doubt, the learned
    Sessions Judge convicted the accused for the offence under
    Section 302 IPC and awarded him rigorous imprisonment for
    life vide his judgment dated 9th February, 1998. This was
    challenged before the High Court. The High Court affirmed the
F   judgment of conviction and order of sentence passed by the
    learned trial court and dismissed the appeal of the appellant/
    accused, giving rise to the present appeal.

         3. Not only the facts of this case but also the legal issues
G   involved herein fall in a narrow compass. It is for the reason that
    the incident in question is not disputed. Pratab (PW-2), Ayub
    (PW-3) and Lakhan pal (PW-1) , who were later declared hostile
    by the prosecution and subjected to cross-examination had
    stated that the deceased had got burnt accidentally while she
H   was cooking food. They have denied any involvement of the
     BHAJJU @ KARAN SINGH v. STATE OF M.P.                     53
            [SWATANTER KUMAR, J.]

appellant/accused as well as the fact that the deceased had          A
told them that the appellant/accused had burnt her by pouring
kerosene oil on her. Furthermore, Exhibit 01 is the affidavit
stated to have been sworn by the deceased on 30th
September, 1995 while she died on 17th October, 1995. In this
affidavit, which is the backbone of the defence, a similar stand     B
has been taken by the deceased, Medabai. In this affidavit, it
was stated that at the time of swearing-in of the affidavit in the
Medical College, she was more or less healthy in all respects.
The appellant/accused in his statement under Section 313 of
the Criminal Procedure Code, 1973 (for short 'Cr.P.C.') has          c
given the usual reply that he knows nothing and that he was not
present at his residence at the time of the occurrence.

     4. Before we comment upon this defence and the
evidentiary value of Exhibit 01, it will be appropriate to examine
the case of the prosecution. The FIR, Ext P-17 itself was            D
registered on the basis of a statement made by the deceased
referred as Dehati Nalishi, Exhibit P-16, and a case was
registered under Section 307 IPC. It is a matter of common
prudence that a person who had been burnt and was having
60 per cent burn injuries would not be able to go to the hospital    E
on her own and somebody must have taken her to the hospital.
According to the prosecution, PW3 and PW2, had reached the
spot and had taken the deceased to the hospital. Thus, they
were the first persons whom the deceased met and as per the
case of the prosecution, she had told them that Bhajju had           F
poured kerosene on her and set her ablaze. At the hospital, she
was examined by Dr. Suresh Sharma, PW9, who in his
statement had recorded that he has examined the deceased
and she had as many as 10 injuries on her body and that some
wounds on her body which were bleeding. According to the said        G
doctor, these injuries could have been caused by a Kada or
some sharp object. The burn injuries were found to be 60 per
cent. The person was burnt with kerosene oil. Lower parts of
her body were burnt. Her left hand was burnt, right hand and
arm were also burnt. He further stated that the statement of the     H
   54        SUPREME COURT REPORTS                [2012] 5 S.C.R.


A deceased was recorded by the Tehsildar, on which she had put
  her thumb impression and that the dying declaration also had
  been written by the doctor declaring that she was in full senses
  to make the statement. In his cross-examination, this witness
  clearly stated that the blouse that Medabai was wearing was
B smelling of kerosene oil. Thus, the doctor is a witness to the
  dying declaration as well as to the con<llition and cause of death
  of the deceased.

       5. PW5, Vijay Kumar is the Tehsildar who recorded the
  dying declaration of the deceased. When he appeared as a
C witness, he admitted to having recorded the dying declaration
  of the deceased, which bore his signatures at A to A of Exhibit
  P4 and recording was in his hand-writing of what was stated
  by Medabai and that he added or subtracted nothing from what
  she had stated. Nothing material could be brought out during
D the lengthy cross-examination of this witness. Thus, the dying
  declaration had been recorded by the competent officer of the
  executive, duly attested by the doctor and the cross-
  examination of both these witnesses did not bring out any legal
  or substantial infirmity in the dying declaration of the deceased,
E which could render it inadmissible or unreliable.

       6. The post mortem of the body of the deceased was
  performed by Dr. S.K. Khare, PW10, and his report is Exhibit
  P15 which confirms the burn injuries and the death being due
F to these injuries. There is evidence which clearly shows that she
  tried to fight before she succumbed to the burn assault by the
  appellant/accused. In that process, her bangles were broken
  which were recovered vide Exhibit P6 from the site and she
  also suffered injuries which, as already noticed, were bleeding
G when she was examined by Dr. Suresh Sharma, PW9. Other
  recoveries were also made from the site, which evidences that
  the occurrence took place in the manner as stated by the
  deceased. It is a common behaviour that if a person is pouring
  kerosene on herself then the maximum kerosene will be poured
  on the head, face and upper parts of the body and lesser
H
     BHAJJU @ KARAN SINGH v. STATE OF M.P.                       55
            [SWATANTER KUMAR, J.]

amount will reach the lower parts of the body and clothes. A
Contrary to this, the lower half of the body of the deceased had
received more burn injuries than her upper part and, in fact, if
one has to even remotely believe that Exhibit 01 could be
executed by her, then on the photograph annexed to it, not even
a single burn injury on her face and upper part of the body is B
visible. If this photograph is of a date prior to the incident then
there was no occasion for the appellant/accused or the Oath
Commissioner attesting the affidavit to affix this photograph on
this affidavit. This document, thus, appears to have been
created and is, thus, incapable of being relied upon by the             c
Court.

      7. Besides recording of Exhibit P4, two other statements
of the deceased were also recorded. Both of them were
 recorded by the Police Officers on different occasions. Firstly,
as already noted, Exhibit P16 was the statement recorded D
 immediately after the occurrence on 12th September, 1995, on
the basis of which FIR, Ext. P-17, was registered and thereafter
 Exhibit P18, the statement of the deceased under Section 161
of the Cr. P.C. was recorded, that too, on 12th September,
 1995. Exhibit P16 and P18 may, by themselves, not carry much E
evidentiary value but they definitely have the same version as
was recorded by PW11, the Tehsildar in Exhibit P4, the dying
declaration, which is not only admissible in evidence but is
reliable, coherent and in conformity with the requirements of law.
                                                                   F
      8. The primary contention raised on behalf of the accused
is that the dying declaration, Ex. P4 being the sole piece of
evidence, cannot be relied upon by the courts. There is no
evidence corroborating Ex.P4. As such, the concurrent
judgments of conviction are unsustainable.
                                                                   G
     9. Firstly, we must notice that this is not a case where the
dying declaration, Ex.P4, is the only evidence against the
ai)pellant/accused or that whatever is stated in it, is not partially
or otherwise supported by other evidence given the fact that
there is no dispute to the occurrence in question, the statements       H
    56       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A   of the doctor, PW9 and the Investigating Officer, PW10 and the
    Exhibits including the site plan, post-mortem report etc., which
    are admissible pieces of substantive evidence, fully corroborate
    the dying declaration. If the deceased had poured kerosene oil
    on herself, then in the normal course; a) there could not be
s   bleeding wounds on her body, b) broken bangles could not have
    been recovered from the site, in question and c) she could not
    have suffered injuries on her hands and arms. All these factors
    show struggle before death and this indication is further
    strengthened by the fact that lower part of her body had suffered
c   greater burn injury, than the upper part. Had that been the case,
    then alone the case of the defence could be considered by this
    Court, even as a remote probability. That certainly is not the
    situation in the present case.

       10. The law is very clear that if the dying declaration has
D been recorded in accordance with law, is reliable and gives a
  cogent and possible explanation of the occurrence of the
  events, then the dying declaration can certainly be relied upon
  by the Court and could form the sole piece of evidence
  resulting in the conviction of the accused. This Court has clearly
E stated the principle that Section 32 of the Indian Evidence Act,
  1872 (for short 'the Act') is an exception to the general rule
  against the admissibility of hearsay evidence. Clause (1) of
  Section 32 makes the statement of the deceased admissible,
  which is generally described as a 'dying declaration'. The 'dying
F declaration' essentially means the statement made by a person
  as to the cause of his death or as to the circumstances of the
  transaction resulting into his death. The admissibility of the
  dying declaration is based on the principle that the sense of
  impending death produces in a man's mind, the same feeling
G as that the conscientious and virtuous man under oath. The
  dying declaration is admissible upon the consideration that the
  declaration was made in extremity, when the maker is at the
  point of death and when every hope of this world is gone, when
  every motive to file a false suit is silenced in the mind and the
H person deposing is induced by the most powerful
    BHAJJU @ KARAN SINGH v. STATE OF M.P.                     57
           [SWATANTER KUMAR, J.]

considerations to speak the truth. Once the Court is satisfied      A
that the declaration was true and voluntary, it undoubtedly can
base its conviction on the dying declaration, without requiring
any further corroboration. It cannot be laid down as an absolute
rule of law that the dying declaration cannot form the sole basis
ofconviction unless it is corroborated by other evidence.           B

      11. There is a clear distinction between the principles
governing the evaluation of a dying declaration under the
English law and the Indian law. Under the English law, credence
and relevancy of a dying declaration is only when the person C
making such a statement is in hopeless condition and expecting
an imminent death. So under the English law, for its
admissibility, the declaration should have been made when in
the actual danger of death and that the declarant should have
had a full apprehension that his death would ensue. However,
under the Indian law, the dying declaration is relevant, whether D
the person who makes it was or was not under expectation of
death at the time of such declaration. The dying declaration is
admissible not only in the case of homicide but also in civil
suits. The admissibility of a dying declaration rests upon the
principle of nemo meritorious praesumuntur mentiri (a man E
will not meet his maker with a lie in his mouth)

       12. The law is well-settled that a dying declaration is
admissible in evidence and the admissibility is founded on the
principle of necessity. A dying declaration, if found reliable, can F
form the basis of a conviction. A Court of facts is not excluded
from acting upon an uncorroborated dying declaration for
finding conviction. The dying declaration, as a piece of
evidence, stands on the same footing as any other piece of
evidence. It has to be judged and appreciated in light of the G
surrounding circumstances and its weight determined by
reference to the principle governing the weighing of evidence.
If in a given case a particular dying declaration suffers from any
infirmity, either of its own or as disclosed by the other evidence
adduced in the case or the circumstances coming to its notice, H
    58        SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A   the Court may, as a rule of prudence, look for corroboration and
    if the infirmities are such as would render a dying declaration
    so infirm that it pricks the conscience of the Court, the same
    may be refused to be accepted as forming basis of the
    conviction.
B
          13. Another consideration that may weigh with the Court,
    of course with reference to the facts of a given case, is whether
    the dying declaration has been able to bring a confidence
    thereupon or not, is it trust-worthy or is merely an attempt to
    cover up the latches of investigation. It must allure the
C   satisfaction of the Court that reliance ought to be placed thereon
    rather than distrust.

         14. In regard to the above stated principles, we may refer
    to the judgments of this Court in the cases of Ravikumar @
D   Kutti Ravi v. State of Tamil Nadu (2006) 9 SCC 240, Vikas
    and Others v. State of Maharashtra (2008) 2 SCC 516, Kishan
    Lal v. State of Rajasthan (2000) 1 SCC 310, Laxmi (Smt.) v.
    Om Prakash & Ors. (2001) 6 SCC 118, Panchdeo Singh v.
    State of Bihar (2002) 1 SCC 577.
E
         15. In the case of Jaishree Anant Khandekar v. State of
    Maharashtra (2009) 11 SCC 647, discussing the contours of
    the American Law in relation to the 'dying declaration' and its
    applicability to the Indian law, this Court held as under: -

F        "24. Apart from an implicit faith in the intrinsic truthfulness
         of human character at the dying moments of one's life,
         admissibility of dying declaration is also based on the
         doctrine of necessity. In many cases victim is the only
         eyewitness to a crime on him/her and in such situations
G        exclusion of the dying declaration, on hearsay principle,
         would tend to defeat the ends of justice.

         25. American law on dying declaration also proceeds on
         the twin postulates of certainty of death leading to an
         intrinsic faith in truthfulness of human character and the
H
    BHAJJU @ KARAN SINGH v. STATE OF M.P.                    59
           [SWATANTER KUMAR, J.]
    necessity principle. On certainty of death, the same strict     A
    test of English law has been applied in American
    jurisprudence. The test has been variously expressed as
    "no hope of recovery'', "a settled expectation of death". The
    core concept is that the expectation of death must be
    absolute and not susceptible to doubts and there should         B
    be no chance of operation of worldly motives."

     16. It will also be of some help to refer to the judgment of
this Court in the case 0f Muthu Kutty and Another v. State by
Inspector of Police, T.N., (2005) 9 SCC 113 where the Court, C
in paragraph 15, held as under:-

    "15. Though a dying declaration is entitled to great weight,
    it is worthwhile to note that the accused has no power of
    cross-examination. Such a power is essential for eliciting
    the truth as an obligation of oath could be. This is the D
    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 the deceased was not as a result of
    either tutoring, or prompting or a product of imagination. E
    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 assailant. Once the court is satisfied that
    the declaration was true and voluntary, undoubtedly, it can
    base its conviction without any further corroboration. It F
    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. This Court has laid down in
    several judgments the principles governing dying G
    declaration, which could be summed up as under as
    indicated in Paniben v. State of Gujarat [(1992) 2 SCC
    474: 1992 sec (Cri) 403: AIR 1992 SC 1817] (SCC pp.
    480-81, paras 18-19)

          (i) There is neither rule of law nor of prudence that     H
    60        SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A        dying declaration cannot be acted upon without
         corroboration. (See Munnu Raja v. State of MP.)

                (ii) If the Court is satisfied that the dying declaration
         is true and voluntary it can base conviction on it, without
         corroboration. (See State of U.P. v. Ram Sagar Yadav
B
         and Ramawati Devi v. State of Bihar.)

                (iii) The Court has to scrutinise the dying declaration
         carefully and must ensure that the declaration is not the
         result of tutoring, prompting or imagination. The deceased
c        had an opportunity to observe and identify the assailants
         and was in a fit state to make the declaration. (See K.
         Ramachandra Reddy v. Public Prosecutor)

              (iv) Where dying declaration is suspicious, it should
D        not be acted upon without corroborative evidence. (See
         Rasheed Beg v. State of M.P.)

                 (v) Where the deceased was unconscious and could
         never make any dying declaration the evidence with regard
         to it is to be rejected. (See Kake Singh v. State of M.P.)
E
              (vi) A dying declaration which suffers from infirmity
         cannot form the basis of conviction. (See Ram Manorath
         v. State of U.P.)
               (vii) Merely because a dying declaration does not
F
         contain the details as to the occurrence, it is not to be
         rejected. (See State of Maharashtra v. Krishnamurti
         Laxmipati Naidu.)

                (viii) Equally, merely because it is a brief statement,
G        it is not to be discarded. On the contrary, the shortness of
         the statement itself guarantees truth. (See Surajdeo Ojha
         v. State of Bihar.)

              (ix) Normally the Court in order to satisfy whether
H        deceased was in a fit mental condition to make the dying
    BHAJJU @ KARAN SINGH v. STATE OF M.P.                   61
           [SWATANTER KUMAR, J.]

    declaration look up to the medical opinion. But where the A
    eyewitness said that the deceased was in a fit and
    conscious state to make the dying declaration, the medical
    opinion cannot prevail. (See Nanhau Ram v. State of
    M.P.)
                                                               B
          (x) Where the prosecution version differs from the
    version as given in the dying declaration, the said
    declaration cannot be acted upon. (See State of U.P. v.
    Madan Mohan.)

          (xi) Where there are more than one statement in the C
    nature of dying declaration, one first in point of time must
    be preferred. Of course, if the plurality of dying declaration
    could be held to be trustworthy and reliable, it has to be
    accepted. (See Mohan/al Gangaram Gehani v. State of
    Maharashtra.)"                                                 D

     17. Learned counsel for the parties have relied upon the
judgments in the case of Ravikumar @ Kutti Ravi (supra),
Kishan Lal (supra); Laxmi (Smt.) (supra),; Panchdeo Singh
(supra). These judgments do not set any other principle than E
what we have already spelt above. The first attempt of the court
has to be, to rely upon the dying declaration, whether
corroborated or not, unless it suffers from certain infirmities, is
not voluntary and has been produced to overcome the latches
in the investigation of the case. There has to be a very serious
doubt or infirmity in the dying declaration for the courts to not F
rely upon the same. Of course, if it falls in that class of cases,
we have no doubt in our minds that the dying declaration cannot
form the sole basis of conviction. However, that is not the case
here.
                                                                  G
     18. Then, it was also vehemently argued that the two main
witnesses PW2 and PW3 as well as the brother of the
deceased PW4, had turned hostile and, therefore, the case of
the prosecution has no legs to stand, much less that they have
proved their case beyond any reasonable doubt. This H
      62         SUPREME COURT REPORTS                   [2012] 5 S.C.R.


 A     submission looks to be attractive at the first glance but when
       examined in depth, is without any merit. Firstly, there is no
      witness to the dying declaration who has turned hostile. None
       of the witnesses, i.e. PW2 to PW4, were witnesses to or were
      even remotely involved in the recording of the three different
 B    dying declarations, i.e. Ex.P4, P16 and P18. Reliance by the
      learned counsel appearing for the appellant/accused upon the
      judgment of this Court in the case of Munnu Raja and Another
      v. The State of Madhya Pradesh (1976) 3 SCC 104 to
      contend that a dying declaration cannot be corroborated by the
c     testimony of hostile witnesses is hardly of any help. As already
      noticed, none of the witnesses or the authorities involved in the
      recording of the dying declaration had turned hostile. On the
      contrary, they have fully supported the case of the prosecution
      and have, beyond reasonable doubt, proved that the dying
D     declaration is reliable, truthful and was voluntarily made by the
      deceased. We may also notice that this very judgment ·relied
      upon by the accused itself clearly says that the dying declaration
      can be acted upon without corroboration and can be made the
      basis of conviction. Paragraph 6 of the said judgment reads
      as under:-
E
           "6 ...... It is well settled that though a dying declaration must
           be approached with caution for the reason that the maker
           of the statement cannot be subject to cross-examination,
           there is neither a rule of law nor a rule of prudence which
F          has hardened into a rule of law that a dying declaration
           cannot be acted upon unless it is corroborated (see
           Khushal Rao v. State of Bombay). The High Court, it is
           true, has held that the evidence of the two eyewitnesses
           corroborated the dying declarations but it did not come to
G          the conclusion that the dying declarations suffered from any
           infirmity by reason of which it was necessary to look out
           for corroboration."

          19. Now, we shall discuss the effect of hostile witnesses
      as well as the worth of the defence put forward on behalf of the
1-1
    BHAJJU @ KARAN SINGH v. STATE OF M.P.                  63
           [SWATANTER KUMAR, J.]
appellanUaccused. Normally, when a witness deposes contrary A
to the stand of the prosecution and his own statement recorded
under Section 161 of the Cr.P.C., the prosecutor, with the
permission of the Court, can pray to the Court for declaring that
witness hostile and for granting leave to cross-examine the said
witness. If such a permission is granted by the Court then the B
witness is subjected to cross-examination by the prosecutor as
well as an opportunity is provided to the defence to cross-
examine such witnesses, if he so desires. In other words, there
is a limited examination-in-chief, cross-examination by the
prosecutor and cross-examination by the counsel for the          c
accused. It is admissible to use the examination-in-chief as well
as the cross-examination of the said witness in so far as it
supports the case of the prosecution. It is settled law that the
evidence of hostile witnesses can also be relied upon by the
prosecution to the extent to which it supports the prosecution
                                                                  0
version of the incident. The evidence of such witnesses cannot
be treated as washed off the records, it remains admissible in
trial and there is no legal bar to base the conviction of the
accused upon such testimony, if corroborated by other reliable
evidence. Section 154 of the Act enables the Court, in its
discretion, to permit the person, who calls a witness, to put any E
question to him which might be put in cross-examination by the
adverse party. The view that the evidence of the witness who
has been called and cross-examined by the party with the leave
of the court, cannot be believed or disbelieved in part and has
to be excluded altogether, is not the correct exposition of law. F
The Courts may rely upon so much of the testimony which
supports the case of the prosecution and is corroborated by
other evidence. It is also now a settled cannon of criminal
jurisprudence that the part which has been allowed to be cross-
examined can also be relied upon by the prosecution. These G
principles have been encompassed in the judgments of this
Court in the cases :

     a.    Kofi Lakhmanbhai Chanabhai v. State of Gujarat
           (1999) a sec 624                                      H
    64         SUPREME COURT REPORTS             [2012] 5 S.C.R.


A         b.    Prithi v. State of Haryana (2010) 8 SCC 536

          c.    Sidhartha Vashisht @ Manu Sharma v. State
                (NCT of Delhi) (201 O) 6 sec 1

          d.    Ramkrushna v. State of Maharashtra (2007) 13
s               sec 525
        20. PW2 and PW3 were the persons who had met the
  deceased first after she was put on fire. They were not the eye-
  witnesses to the occurrence. It is an admitted case that they
c were the first persons to meet the deceased after she suffered
  the burn injuries and had taken her to the hospital. This was
  their consistent version when stated before the police and even
  before the court. Contrary to their statement made to the
  Investigating Agency, in the Court, they made a statement that
0 the  deceased had told them that she had caught fire by chimney
  and her burn injuries were accidental. This was totally contrary
  to their version given to the police where they had stated that
  she had told them that Bhajju had poured kerosene on her and
  put her on fire. To the extent that their earlier version is
E consistent with the story of the prosecution, it can safely be
  relied upon by the prosecution and court. The later part of their
  statement, in cross-examination done either by the accused or
  by the prosecution, would not be of any advantage to the case
  of the prosecution. However, the accused may refer thereto. But
  the court will always have to take a very cautious decision while
F referring to the statements of such witnesses who turn hostile
  or go back from their earlier statements recorded, particularly,
  under Section 164 of the Cr.P.C. What value should be
  attached and how much reliance can be placed on such
  statement is a matter to be examined by the Courts with
G reference to the facts of a given case.

       21. PW4, brother of the deceased, is another witness who
  has made an attempt to help the accused. He stated that
  Medabai had died and Bhajju was his brother-in-law and she
H got burnt while cooking food and that Medabai had told him that
     BHAJJU @ KARAN SINGH v. STATE OF M.P.                     65
            [SWATANTER KUMAR, J.]

Bhajju used to keep her nicely. Firstly, we must notice that all     A
these witnesses who had turned hostile or attempted to support
the accused are the neighbours or close relations of the
deceased and also that of the appellant/accused. Their
somersault appears to be founded on the consideration of
saving a relation from receiving punishment at the hands of          B
justice. They appear to have lied before this Court, more out
of sympathy for the appellanUaccused. The very opening part
of the statement of PW4, where he says "Medabai mari ja chuki
hai" and "Medabai ko khana pakate samay aag lagi thi" is
sufficient indicator of his sympathy and the fact that his sister    c
has already died and that he would not like to lose his brother-
in-law and secondly, that it is also not clear from his statement
as to who told him that Medabai had caught fire while cooking.

     22. These are matters of serious consequences and
render the statement of all these three witnesses unreliable and     D
undependable. Thus, these statements we would refer and rely
(examination-in-chief) only to the extent they support the case
of the prosecution and are duly corroborated, not only by other
witnesses but even by the dying declaration and the medical
evidence.                                                            E

     23. Coming to the credibility of the defence witnesses, we
 have already noticed that Ex.01 is a document created by the
defence just to escape the punishment under law. If that is what
the deceased wanted to say, she had a number of                      F
opportunities to say so, freely and voluntarily. However, in
presence of the Tehsildar and twice in presence of the Police,
she made the same statement implicating her husband Bhajju
of pouring kerosene oil on her and putting her on fire. Where
was the necessity of typing an affidavit and getting the same        G
thumb-marked by the deceased when she was suffering 60%
burn injuries. If the version given in this affidavit was true, we
see no reason why the deceased should have stated before
the police and the Tehsildar what she did. The two defence
witnesses, namely Prabhat Kumar Sharma, DW1 and Laxmi
                                                                     H
    66       SUPREME COURT REPORTS                [2012] 5 S.C.R.


A Prasad Yadav, DW2, were examined by the defence to prove
  its innocence. DW1, the Notary Public, does not state as to
  where, when and at whose instance the affidavit was typed. This
  witness has completely failed to explain as to why the
  photograph of the deceased was fixed on the affidavit. If it was
B the requirement of law, then why the photograph of a date prior
  to the date on which the affidavit was sworn and attested, was
  affixed on the affidavit. This witness also admitted in his cross-
  examination that he knew that the affidavit was being sworn for
  belying a statement made earlier, but he made no enquiries
c from the deceased or from any other proper quarters to find
  out what was the previous statement of the deceased. It will not
  be safe for the Court to rely on the statement of this witness.
  DW2, is the person who had typed the affidavit, Ex.01. He
  knew Medabai. According to this witness, the contents were
  typed on the basis of what Medabai had stated. There are
0
  contradictions between the statements of DW1 and DW2. We
  do not think that these witnesses are reliable and their
  statements are trustworthy. We would expect a Notary Public
  to maintain better professional standards rather than act at the
E behest of a particular party.

         24. For these reasons, we find no ground to interfere in
    the concurrent judgments of conviction and order of sentence.
    The appeal is without merit and is dismissed accordingly.

F B.B.B                                        Appeal dismissed.