STATE OF MADHYA PRADESHversusDAL SINGH & ORS.

                        [2013] 8 S.C.R. 968


A                STATE OF MADHYA PRADESH
                                 v.
                       DAL SINGH & ORS.
               (Criminal Appeal No. 2303 of 2009)

                          MAY 21, 2013
B
         [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]

       Penal Code, 1860 - ss. 498A and 302 - FIR lodged on
  the basis of statement of deceased - Dying declaration -
C Conviction by trial court - Acquittal by High Court on the
  ground that conviction was solely based on dying declaration
  and the same was not trustworthy - Held: In the facts of the
  case, dying declaration was trustworthy- High Court acquitted
  the accused on flimsy ground without appreciating material
D facts - Order of conviction upheld.
        Evidence Act, 1872:

       s. 32 - Dying declaration - Evidentiary value - Held:
  Evidence of dying declaration must be approached with
E caution - Court not to look for corroboration of dying
  declaration, unless it suffers from any infirmity.

      s.32 - Dy_ing declaration - Recording of- Procedure for
  - Held: Law dae.s not provide form, format, or procedure for
F recording dying declaration - Requirement of certificate by a
  doctor in respect of state of the deceased is not essential in
  every case - Person recording it, must be satisfied as to
  capability and state of mind of the maker of the statement.

       , Criminal Trial - Discrepancies, embellishments and
G, improvements - In the statements of witnesses - Held:
  . Marginal variations not to be dubbed as improvements - The
    omissions which materially affects core of the case alone are
    liable to be discredited.

H                               968
  STATE OF MADHYA PRADESH v. DAL SINGH &                969
                   ORS.

    Appeal - Against acquittal - Appellate court can reverse   A
a judgment of acquittal in exceptional circumstances, if the
judgment is found to be perverse, illegal, leading to
miscarriage of justice, unreasonable, based on erroneous
understanding of Jaw and facts of the case.

    Respondents accused were prosecuted u/ss. 498-A            8
and 302 r/w. s. 34 IPC for having subjected the deceased
to cruelty and killing her by setting her ablaze. FIR was
lodged on the basis of the statement of the deceased
made to the police officer and later she made her dying
declaration to the Executive Magistrate. Trial Court           C
convicted the accused and sentenced them to life
imprisonment. High Court acquitted them of all the
charges. Hence the present appeal by the State.

    Allowing the appeal, the Court                             D
     HELD: 1. In exceptional circumstances, the appellate
court for compelling reasons should not hesitate to
reverse a judgment of acquittal passed by the court
below, if the findings so recorded by the court below are
found to be perverse, i.e. if the conclusions arrived at by    E
the court below are contrary to the evidence on record,
or if the court's entire approach with respect to dealing
with the evidence is found to be patently illegal, leading
to the miscarriage of justice, or if its judgment is
unreasonable and is based on an erroneous                      F
understanding of the law and of the facts of the case.
While doing so, the appellate court must bear in mind the
presumption of innocence in favour of the accused, and
also that an acquittal by the court below bolsters such
presumption of innocence. [Para 6] [977-F-H; 978-A]            G

    Rukia Begum v. State of Karnataka AIR 2011 SC 1585:
2011 (4) SCR 711; Abrar v. State of U.P. AIR 2011 SC 354:
2010 (13) SCR 1217 - relied on.
                                                               H
    970     SUPREME COURT REPORTS                [2013] 8 S.C.R.


A        2. In every criminal case discrepancies,
    embellishments and improvements are bound to occur
    for the reason that witnesses, owing to common errors
    in observation, i.e., errors of memory due to lapse of time,
    or errors owing to mental disposition, such as feelings
8   shock or horror that existed at the time of occurrence. The
    court must form its opinion about the credibility of a
    witness, and record a finding with respect to whether his
    deposition inspires confidence. "Exaggeration per se
    does not render the evidence brittle. But it can be one of
C   the factors against which the credibility of the
    prosecution's story can be tested, when the entire
    evidence is put in a crucible to test the same on the
    touchstone of credibility." Therefore, mere marginal
    variations in the statements of a witness cannot be
    dubbed as improvements, as the same may be
D   elaborations of a statement made by the witness at an
    earlier stage. "Irrelevant details which do not in any way
    corrode the credibility of a witness cannot be labelled as
    omissions or contradictions." The omissions which
    amount to contradictions in material particulars, i.e. which
E   materially affect the trial, or the core of the case of the
    prosecution, render the testimony of the witness as liable
    to be discredited. Where such omission(s) amount to
    contradiction(s), raising serious doubts about the
    truthfulness of a wUness, and other witnesses also make
F   material improvements before the court in order to make
    their evidence acceptable, it cannot be said that it is safe
    to rely upon such evidence. [Para 7] [978-B-H]
      A. Shankar v. State of Karnataka AIR 2011 SC 2302:
G 2011 (6) SCR 999 - relied on.
        3.1. Law does not provide who can record a dying
    declaration, nor is there any prescribed form, format, or
    procedure for the same. The person who records a dying
    declaration must be satisfied that the maker is in a fit state
H
  STATE OF MADHYA PRADESH v. DAL SINGH &               971
                   ORS.
of mind and is capable of making such a statement.            A
Moreover, the requirement of a certificate provided by a
Doctor in respect of such state of the deceased, is not
essential in every case. The subject of the evidentiary
value and acceptability of a dying declaration, must be
approached with caution for the reason that the maker         B
of such a statement cannot be subjected to cross-
examination. However, the court may not look for
corroboration of a dying declaration, unless the
declaration suffers from any infirmity. [Para 14] [981-E-G]

     Mafabhai Nagarbhai Raval v. State of Gujarat AIR 1992
                                                              c
SC 2186; Rambai v. State of Chhatisgarh (2002) 8 SCC 83;
Laxman v. Staie of Maharashtra AIR 2002 SC 2973: 2002
Suppl. SCR 697; Kofi Chunila/ Savji v. State of Gujarat AIR
1999 SC 3695: 1999 (3) Suppl. SCR 284; Babu Ram & Ors.
v. State of Punjab AIR 1998 SC 2808; Laxmi v. Om Prakash      D
& Ors. AIR 2001 SC 2383: 2001 (3) SCR 777; Govindappa
& Ors. v. State of Kamataka (2010) 6 SCC 533: 2010 (6) SCR
962; State of Punjab v. Gian Kaur and Anr. AIR 1998 SC
2809 - referred to.
                                                              E
     3.2. It is a question of fact whether the skin of the
thumb had in fact been completely burnt, and if not,
whether the ridges and curves had remained intact. In the
present case, there is thumb impression of the deceased
on the FIR as well as on the dying declaration. The same      F
has ridges and curves. It is evident from the record that
defence neither put any question in cross-examination to
either the Executive Magistrate, or to the doctor who had
examined the deceased in the hospital, or the doctor,
PW.8, who had conducted the autopsy on the body of the        G
deceased with respect to whether the skin of the thumb
was also burnt, or whether the same was intact. Nor was
any such question put to PW.14, who had recorded the
FIR, which can also be treated as a dying declaration.
[Paras 14, 23 and 24] [982-B; 985-F-H; 986-A]
                                                              H
    972    SUPREME COURT REPORTS                [2013l 8 S.C.R.


A      3.3. As the defence did not put any question either
  to the executive magistrate, or to the 1.0., or to the doctors
  who had examined her or conducted the post-mortem,
  with respect to whether any part of the thumb had skin
  on it or not, as in both the dying declarations, ridges and
B curves had been clearly found to exist, there is no reason
  to dis-believe the version of events provided by the
  exec_utive magistrate and the 1.0., who had recorded the
  dying declarations. No suggestion was made to either of
  them in this regard, nor was any explanation furnished
c with respect to why these two independent persons who
  had recorded the dying declarations, would have
  deposed against the respondents accused. In the event
  that both of them had found the deceased to be in a fit
  physical and mental condition to make a statement, there
  exists no reason to disbelieve the same. In the light of
0
  such a fact-situation, the concept of placing of a thumb
  impression, loses its significance altogether. [Para 26]
  [987-A-D]
       3.4. The contradictions raised by the defence in the
E two dying declarations, as regards who had put the
  kerosene oil on her, and who had lit the fire have been
  carefully examined and explained by the trial court. The
  deceased had been suffering from great mental and
  physical agony. One cannot expect that a person in such
F a physical condition, would be able to give the exact
  version of the incident. Upon proper appreciation of the
  evidence on record, the trial court had found the dying
  declarations to be entirely believable, and worth placing
  reliance upon, but the High Court on a rather flimsy
G ground, without appreciating material facts, has taken a
  contrary view. [Para 26] [986-F-H; 987-A]
       3.5. The trial court however, rejected the suggestion
  made by PW.5, to the effect that the deceased had caught
  fire while preparing food on the ground. Kerosene oil had
H been found on her body and in her burnt clothes and
  STATE OF MADHYA PRADESH v. DAL SINGH &              973
                   ORS.

hair. Evidence has been led by the prosecution witnesses A
to the extent that she had died within a short span of 10
months of her marriage, and that she had been ill-treated
by her parents-in-law as she was not being given proper
food etc. She had been harassed and tortured by her in-
laws, as she was not good looking, could not cook well, B
and had been unable to do household work properly.
She was considered to have a temperamental nature, and
thus had also been slapped. This evidence has not been
challenged by the defence. [Para 25] [986-C-E]

    Modi's Medical Jurisprudence and Toxicology by Lexis
                                                             c
Nexis Butterworths Chapter 20 - referred to.

                   Case Law Reference:
    2010 (13) SCR 1217        relied on          Para 6
                                                             D
    2011 (4) SCR 711          relied on          Para 6
    2011 (6) SCR 999          relied on          Para 7
    AIR 1992 SC 2186          referred to        Para 8
                                                             E
    (2002) 8 sec 83           referred to        Para 8
    2002 Suppl. SCR 697       referred to        Para 9
    1999 (3) Suppl. SCR 284 referred to          Para 10
    AIR 1998 SC 2808          referred to        Para 10     F
    2001 (3) SCR 777          referred to        Para 11
    2010 (6) SCR 962          referred to        Para 12
   AIR 1998 SC 2809           referred to        Para 13     G
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2303 of 2009.

    From the Judgment & Order dated 30.08.2006 of the High
                                                             H
    974      SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A   Court of Judicature of Madhya Pradesh at Jabalpur in Criminal
    Appeal No. 2152 of 2003.

          Vibha Datta Makhija, Archi Agnihotri for the Appellant.

          Nidhi for the Respondents.
B
          The Judgment of the Court was delivered by

          DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
    against the impugned judgment and order dated 30.8.2006,
C   passed by the High Court of Madhya Pradesh at Jabalpur in
    Criminal Appeal No.2152 of 2003, by way of which it has set
    aside the conviction of the respondents under Sections 498-A
    and 302, read with Section 34 of the Indian Penal Code, 1860
    (hereinafter referred to as the 'IPC') and acquitted them.

D         2. Facts and circumstances giving rise to this appeal are:-

        A. That the deceased Kusum Rani got married to Hallu @
    Chandrabhan, the 2nd respondent herein, in the year 2001. In
    her marital home, she was ill-treated by her parents-in-law,
E   respondents 1 and 3 herein. They would constantly tell her that
    she was incapable of doing the house work properly, and her
    mother-in-law did not give her sufficient food to eat.

         B. On 29.11.2002 at noon, when the deceased returned
    home after her bath in the pond, her mother-in-law hurled
F   abuses at her and inquired what she had been doing at the
    pond. When she replied that she had been washing clothes
    there, her mother-in-law gave her few slaps, as a result of which
    the deceased began to cry. Her mother-in-law then directed her
    husband to burn her alive. Her father-in-law had thus poured
G   kerosene on her and had asked his wife to set her on fire, as
    a result of which her mother-in-law lit a matchstick and threw
    the same at her. Since the deceased began to scream, her
    parents-in-law came out of the house and bolted the door from
    the outside. On hearing her shriek, a few villagers sent news
H   of the same to her parents who resided in a neighboring village,
  STATE OF MADHYA PRADESH v. DAL SINGH &                     975
         ORS. [DR. B.S. CHAUHAN, J.]

at a distance of about half a kilometer. Her father, mother and     A
uncle thus came to the place of occurrence. The door was
opened by them, and the deceased was taken out.

     C: The deceased Kusum narrated the said incident to her
parents, and thereafter she was taken in a trolley to the Police    B
Station, Nohta in a severely burnt condition, where she herself
lodged a report narrating the incident, and at about 2 p.m., on
the basis of the complaint, an FIR, Ex.P-17 was recorded.

     D. The Investigating Agency made all the necessary
arrangements in order to record her dying declaration and the C
Executive Magistrate P.K. Chaturvedi (PW.12), was called for
the aforementioned purpose. Her dying declaration was
recorded by the Executive Magistrate and subsequently, the
deceased was admitted to the Government Hospital, Damoh
at 3.25 p.m., where she died at 3.35 p.m. Intimation of her death D
was communicated by the hospital officials to the Police. The
Investigating Agency thus took over the dead body of the
deceased, and sent it for post-mortem. They also seized all the
necessary articles from the spot, prepared the panchnama, and
after recording the statements of the witnesses, submitted a E
charge sheet before the competent court, which in turn,
committed the case to the Court of Sessions. Hence, trial
commenced after framing charges under Sections 498-A, 302
and 306 IPC. The accused persons abjured their guilt.

     E. In order to prove the charges, the prosecution examined F
as many as 17 witnesses, and placed reliance on Ex.P1 to
P24. The respondents-accused took the defence of an alibi in
their statement recorded under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the
'Cr.P.C'), stating that they had been in their agricultural field at G
the time of the said incident and it was here that they had
received information about the incident. The deceased had
committed suicide and they were being falsely been implicated.

    F. The learned Additional Sessions Judge, Damoh, in             H
    976      SUPREME COURT REPORTS                   [2013] 8 S.C.R.


A   Sessions Trial No.305 of 2002, vide judgment and order dated
    6.12.2003, after appreciating the material on record, recorded
    findings of fact to the effect that the deceased had not
    committed suicide, and that the respondents-accused were
    guilty of the offences punishable under Sections 498-A and 302,
B   r/w Section 34 IPC They were convicted and sentenced under
    Section 498-A IPC for two years RI and a fine of Rs.500/- each,
    in default of payment of fine, to further undergo one month RI;
    and under Section 302/34 IPC, to undergo imprisonment for
    life and a fine of Rs.2,000/- each, in default of payment of fine,
c   to suffer further RI for 6 months.

         G. Aggrieved by the aforesaid order of conviction and
    sentence, the respondents-accused challenged the same before
    the High Court, preferring Criminal Appeal No.2152 of 2003,
    which was allowed by the High Court vide its impugned
D   judgment and order, acquitting all the accused.

          Hence, this appeal.

          3. Ms. Vibha Datta Makhija, learned standing counsel has
E   submitted, that the only ground taken by the High Court for
    reversing the judgment and order of the Trial Court was that
    conviction can be based solely upon a dying declaration,
    provided that the same is found to be trustworthy. However, in
    the instant case, as the deceased had 100 per cent burn
    injuries, she would not have in all probability, been in a position
F   to make a statement. Additionally, in the absence of a
    certificate provided by a doctor to the extent that she had in
    fact been fit enough to make such a statement, the said dying
    declaration could not be relied upon, as she had died as a result
    of such injuries on her person, after traveling about 10 k.ms.
G   from the place of occurrence to the Police Station. The High
    Court doubted her ability to speak and also the lodging of the
    FIR. There is sufficient evidence on record to show that Kusum
    had been ill-treated by her parents-in-law, and thus that they
    were responsible for causing her death. A person having 100
H   per cent burns can make a statement, and a certificate of fitness
  STATE OF MADHYA PRADESH v. DAL SINGH &                      977
         ORS. [DR. B.S. CHAUHAN, J.]

provided by a doctor is not a condition precedent for placing        A
reliance upon a dying declaration. Therefore, the appeal
deserves to be allowed.

     4. Per contra, Ms. Nidhi, learned counsel for the
respondents has submitted, that the FIR alleged to have been
                                                                     B
lodged by Kusum, deceased, bore her thumb impression and
has also stated that she had narrated the entire incident, on the
basis of which an FIR was lodged. The High Court has rightly
reached the conclusion that a person with 100 per cent burns
could neither affix a thumb impression, nor manage to speak,
and therefore, the respondents have rightly been acquitted. The      C
parameters laid down by this Court for interference against an
order of acquittal by the High Court do not require interference.
Moreover, the said incident took place about 12 years ago. The
respondents have suffered considerably. Thus, at such a
belated stage, no interference is called for. There are material     D
contradictions in the two dying declarations, as well as in the
depositions of the witnesses. The appeal is liable to be
dismissed.

     5. We have considered the rival submissions made by             E
learned counsel for the parties and perused the record.

Appeal against acquittal:

       6. It is a settled legal proposition that in exceptional
circumstances, the appellate court for compelling reasons            F
should not hesitate to reverse a judgment of acquittal passed
by the court below, if the findings so recorded by the court
below are found to be perverse, i.e. if the conclusions arrived
at by the court below are contrary to the evidence on record,
or if the court's entire approach with respect to dealing with the   G
evidence is found to be patently illegal, leading to the
miscarriage of justice, or if its judgment is unreasonable and
is based on an erroneous understanding of the law and of the
facts of the case. While doing so, the appellate court must bear
in mind the presumption of innocence in favour of the accused,       H
    978      SUPREME COURT REPORTS                     (2013] 8 S.C.R.


A   and also that an acquittal by the court below bolsters such
    presumption of innocence. (Vide: Abrar v. State of U.P., AIR
    2011 SC 354; and Rukia Begum v. State of Karnataka, AIR
    2011 SC 1585).

    Discrepancies:
9
       7. So far as the discrepancies, embellishments and
  improvements are concerned, in every criminal case the same
  are bound to occur for the reason that witnesses, owing to
  common errors in observation, i.e., errors of memory due to
C lapse of time, or errors owing to mental disposition, such as
  feelings shock or horror that existed at the time of occurrence.

       The court must form its opinion about the credibility of a
  witness, and record a finding with respect to whether his
0 deposition inspires confidence. "Exaggeration per se does not
  render the evidence brittle. But it can be one of the factors
  against which the credibility of the prosecution's story can be
  tested, when the entire evidence is put in a crucible to test the
  same on the touchstone of credibility." Therefore, mere
E marginal variations in the statements of a witness cannot be
  dubbed as improvements, as the same may be elaborations
  of a statement made by the witness at an earlier stage.
  "Irrelevant details which do not in any way corrode the
  credibility of a witness cannot be labelled as omissions or
  contradictions." The omissions which amount to contradictions
F in material particulars, i.e. which materially affect the trial, or the
  core of the case of the prosecution, render the testimony of the
  witness as liable to be discredited.

       Where such omission(s) amount to contradiction(s),
G raising serious doubts about the truthfulness of a witness, and
  other witnesses also make material improvements before the
  court in order to make their evidence acceptable. it cannot be
  said that it is safe to rely upon such evidence. (Vide: A. Shankar
  v. State of Karnataka, AIR 2011 SC 2302).
H
   STATE OF MADHYA PRADESH v. DAL SINGH &                     979
          ORS. [DR. B.S. CHAUHAN, J.]

Whether 100 per cent burnt person can make a dying                    A
declaration or put a thumb impression:

      8. In Mafabhai Nagarbhai Raval v. State of Gujarat, AIR
1992 SC 2186, this Court dealt with a case wherein a question
arose with respect to whether a person suffering from 99 per          8
cent burn injuries could be deemed capable enough for the
purpose of making a dying declaration. The learned trial Judge
thought that the same was not at all possible, as the victim had
gone into shock after receiving such high degree burns. He had
consequently opined, that the moment the deceased had seen            C
the flame, she was likely to have sustained mental shock.
Development of such shock from the very beginning, was the
ground on which the Trial Court had disbelieved the medical
evidence available. This Court then held, that the doctor who
had conducted her post-mortem was a competent person, and
had deposed in this respect. Therefore, unless there existed          D
some inherent and apparent defect, the court could not have
substitute its opinion for that of the doctor's. Hence, in light of
the facts of the case, the dying declarations made, were found
by this Court to be worthy of reliance, as the same had been
made truthfully and voluntarily. There was no evidence on record      E
to suggest that the victim had provided a tutored version, and
the argument of the defence stating that the condition of the
deceased was so serious that she could not have made such
a statement was not accepted, and the dying declarations were
relied upon.                                                          F

     A similar view has been re-iterated by this Court in Rambai ·
V. State of Chhatisgarh, (2002) 8 sec 83.

     9. In Laxman v. State of Maharashtra, AIR 2002 SC 2973,
this Court held, that a dying declaration can either be oral or in    G
writing, and that any adequate method of communication,
whether the use of words, signs or otherwise will suffice,
provided that the indication is positive and definite. There is
no requirement of law stating that a dying declaration must
necessarily be made before a Magistrate, and when such                H
    980     SUPREME COURT REPORTS                   (2013] 8 S.C.R


A   statement is recorded by a Magistrate, there is no specified
    statutory form for such recording. Consequently, the evidentiary
    value or weight that has to be attached to such a statement,
    necessarily depends on the facts and circumstances of each
    individual case. What is essentially required, is that the person
s   who records a dying declaration must be satisfied that the
    deceased was in a fit state of mind, and where the same is
    proved by the testimony of the Magistrate, to the extent that the
    declarant was in fact fit to make the statements, then even
    without examination by the doctor, the said declaration can be
c   relied and acted upon, provided that the court ultimately holds
    the same to be voluntary and definite. Certification by a doctor
    is essentially a rule of caution, and therefore, the voluntary and
    truthful nature of the declaration can also be established
    otherwise.
D      10. In Kofi Chuni/al Savji v. State of Gujarat, AIR 1999
  SC 3695, this Court held, that the ultimate test is whether a
  dying declaration can be held to be truthfully and voluntarily
  given, and if before recording such dying declaration, the officer
  concerned has ensured that the declarant was in fact, in a fit
E condition to make the statement in question, then if both these
  aforementioned conditions are satisfactorily met, the
  declaration should be relied upon. (See also: Babu Ram & Ors.
  v. State of Punjab, AIR 1998 SC 2808).

F      11. In Laxmi v. Om Prakash & Ors., AIR 2001 SC 2383,
  this court held, that if the court finds that the capacity of the
  maker of the statement to narrate the facts was impaired, or if
  the court entertains grave doubts regarding whether the
  deceased was in a fit physical and mental state to make such
G a statement, then the court may, in the absence of
  corroborating evidence lending assurance to the contents of the
  declaration, refuse to act upon it.

      12. In Govindappa & Ors. v. State of Karnataka, (2010) 6
  SCC 533, it was argued that the Executive Magistrate, while
H recording the dying declaration did not get any certificate from
  STATE OF MADHYA PRADESH v. DAL SINGH &                     981
         ORS. [DR. B.S. CHAUHAN, J.]

the medical officer regarding the condition of the deceased.        A
This Court then held, that such a circumstance itself is not
sufficient to discard the dying declaration. Certification by a
doctor regarding the fit state of mind of the deceased, for the
purpose of giving a dying declaration, is essentially a rule of
caution and therefore, the voluntary and truthful nature of such    B
a declaration, may also be established otherwise. Such a
dying declaration must be recorded on the basis that normally,
a person on the verge of death would not implicate somebody
falsely. Thus, a dying declaration must be given due weight in
evidence.                                                           c
     13. In State of Punjab v. Gian Kaur & Anr., AIR 1998 SC
2809, an issue arose regarding the acceptability in evidence,
of the thumb impression of Rita, the deceased, that appeared
on the dying declaration, as the trial court had found that there
were clear ridges and curves, and the doctor was unable to          D
explain how such ridges and curves could in fact be
present, when the skin of the thumb had been completely burnt.
The court gave the situation the benefit of doubt.

      14. The law on the issue can be summarised to the effect      E
that law does not provide who can record a dying declaration,
nor is there any prescribed form, format, or procedure for the
same. The person who records a dying declaration must be
satisfied that the maker is in a fit state of mind and is capable
of making such a statement. Moreover, the requirement of a          F
certificate provided by a Doctor in respect of such state of the
deceased, is not essential in every case.

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

    So far as the question of thumb impression is concerned,        H
    982     SUPREME COURT REPORTS                  [2013] 8 S.C.R.


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

         15. The present case requires to be examined in light of
    the aforesaid settled legal propositions.

C      With the help of the learned counsel for the parties, i.e. Ms.
  Vibha Datta Makhija and Ms. Nidhi, we have gone through the
  entire evidence on record, and it may be necessary to provide
  a bird's eye view of the same, particularly of the portion
  provided by the magistrate, who had recorded the deceased's
D dying declaration.

        16. P.K. Chaturvedi (PW.12), the Executive Magistrate had
  recorded the dying declaration of the deceased, and he
  deposed that no doctor had been available at Nohta at the
E relevant time. He had been called by the police, and despite
  this fact he had asked the police officer to call a doctor. He
  further deposed that he had recorded the dying declaration in
  the form of questions and answers and that he had satisfied
  himself that Kusumbai, had in fact been fit enough to make such
F a statement. While making her statement, Kusumbai had been
  fully conscious, and she had placed her thumb impression on
  the same. When her statement was recorded, she was tutored
  by anybody, though some other persons had been present at
  such time. Kusumbai, deceased, had spoken continuously and
  clearly.
G
        17. Similarly, R.S. Parmar (PW.14), the Investigating
  Officer has deposed, that he had recorded the report as had
  been narrated by Kusumbai. He had not added/omitted
  anything in the said report. He had read over the same to her
H after writing it, after which she admitted it to be true, and thus
   STATE OF MADHYA PRADESH v. DAL SINGH &                    983
          ORS. [DR. B.S. CHAUHAN, J.]

put her thumb impression upon the same. He has further              A
deposed that he had called Naib Tehsildar Jabera to record
the dying declaration of Kusumbai, and as no doctor had been
available in Nohta at the said time, a doctor could not be
arranged.
                                                                    B
      18. In the dying declaration recorded by P.K. Chaturvedi
{PW.12), it is stated that the mother-in-law of Kusumbai had
set her on fire by throwing kerosene oil on her, and that her
father-in-law had also set her on fire. Her husband
Chandrabhan, had closed the door. While she screamed in             C
pain, her uncle Hakam Singh had brought her out by opening
the door. While lodging the FIR, it was recorded by RS. Parmar
{PW.14), that her father-in-law Dal Singh had said, 'burn this
bitch'. Her father-in-law had then lifted the kuppi of kerosene
oil, and had poured the same on her, after which he had told
his wife to set her ablaze. Thereafter, her mother-in-law had lit   D
a matchstick and set her on fire. She had started to scream
because of pain. Her husband Hallu had then closed the door
of the room. After hearing the hue and cry raised by her, a
person from the village had informed her family who lived
closeby. Her father Nirpat Singh, uncle Hakam Singh and             E
several other persons had come there, and her uncle Hakam
Singh, had opened the door and had brought her out. There is
thus, some discrepancy in both the dying declarations.

      19. Dr. S.K. Jain {PW.8) deposed on 7.4.2003, stating that    F
he had been the medical officer in the district hospital Damoh
on 29.11.2002. Kusumbai had been brought for medical
examination from the police station in an injured state and he
had examined her. According to him, she had on her person,
100% superficial burn injuries, and the smell of kerosene oil had   G
also been present in the body of the victim. She was
unconscious at the time, and her pulse and blood pressure had
been difficult to detect. She was able to breathe, but with great
difficulty. She had died after some time. In his cross-
examination, he has deposed that at the time of examination
                                                                    H
    984     SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A   at the initial stage, Kusumbai had been unconscious, and had
    been unable to speak. He has further opined that if a person
    suffers 100% burn injuries, then he may not be able to speak.

       20. Burn injuries are normally classified into three degrees.
B The first is characterised by the reddening and blistering of the
  skin alone; the second is characterised by the charring and
  destruction of the full thickness of the skin; and the third is
  characterized by the charring of tissues beneath skin, e.g. of
  the fat, muscles and bone. If a burn is of a distinctive shape, a
  corresponding hot object may be identified as having been
C applied to the skin, and thus the abrasions will have distinctive
  patterns.

        21. There may also be in a given case, a situation where
  a part of the body may bear upon it severe burns, but a small
D par:t of the body may have none. When burns occur on the
  scalp, they may cause greater difficulties. They can usually be
  distinguished from wounds inflicted before the body was burnt
  by their appearance, their position in areas highly susceptible
  to burning, and on fleshy areas by the findings recorded after
E internal examination. Shock suffered due to extensive burns is
  the usual cause of death, and delayed death may be a result
  of inflammation of the respiratory tract, caused by the inhalation
  of smoke. Severe damage to the extent of blistering of the
  tongue and the upper respiratory tract, can follow due to the
F inhalation of smoke. (See: Modi's Medical Jurisprudence and
  Toxicology by Lexis Nexis Butterworths Chapter 20).

       22. FIR (Ex. P-17) - It was recorded by Kusum Bai -
  deceased, on 29.11.2002 at about 2.00 p.m. According to the
  FIR, the said incident had occurred at 10.00 a.m. and the
G distance between the police station and place of occurrence
  is about 10 Kms. The deceased in the FIR, has named all the
  three accused. The deceased has mentioned that her mother-
  in-law had not been giving her adequate meals, and
  continuously harassed her for not working. On that fateful day,
H her mother-in-law had slapped her 2-3 times and she had
   STATE OF MADHYA PRADESH v. DAL SINGH &                     985
          ORS. [DR. B.S. CHAUHAN, J.]

started to cry loudly. Thereafter, her father-in-law had asked the    A
other accused, if this bitch should be burnt alive? He had then
brought a can of kerosene oil and poured its contents over her.
Her mother-in-law lit a matchstick and had thrown its contents
on her, setting her ablaze. She had then begun to scream
owing to the pain. Her husband had locked the door. Her               B
parents-in-law and husband had set her on fire with the
intention of causing her death. She had burns all over her
body.

    There is a thumb impression on the FIR which appears to           C
be normal. It has ridges and curves.

     23. Ex.P-14 is the dying declaration recorded by the
Executive Magistrate, Jabera. The original reveals that the
executive Magistrate had asked the SHO to call a doctor at 2.25
p.m., but there is an endorsement stating that there was no           D
government doctor available at Nohta. What the deceased has
said, is that her mother in law had set her on fire. Her father-in-
law and husband had also been party to the same. She has
also stated that they had never provided her adequate food.
She; in anger, had told them not to harass her everyday and to        E
simply kill her (set me ablaze). Her mother-in-law had poured
kerosene oil on her and had then set her ablaze, (huma; ;;aas
ne mitti ka tal dalkar jalaya). Her father-in-law set her on fire
(Sasur ne aag lagayi). Her husband bolted the door.
                                                                      F
     There is thumb impression of the deceased on the FIR
also. We have carefully seen the thumb impression of the
deceased on the said dying declaration. The same has ridges
and curves.

     24. lt is evident from the record that defence neither put       G
any question in cross-examination to either the Executive
Magistrate, or to the doctor who had examined the deceased
in the hospital, or to Dr. S.K. Jain (PW.8). who had conducted
the autopsy on the body of the deceased with respect to
whether the skin of the thumb was also burnt, or whether the          H
    986     SUPREME COURT REPORTS                 (2013] 8 S.C.R.


A same was intact. Nor was any such question put to R.S. Parmar
  (PW.14), who had recorded the FIR, which can also be treated
  as a dying declaration.

         25. The respondents in their statements under Section 313
8 Cr.P.C. denied their presence at home at the time of incident,
  taking the plea that they had been working in their agricultural
  field. They had rushed to the place of occurrence only after
  learning about the incident. They further took the defence that
  Kusumbai had committed suicide by burning herself, and that
  it was on being tutored by her parents that she had given a
C dying declaration against them. The trial court however,
  rejected the suggestion made by Mannu Singh (PW.5), to the
  effect that Kusumbai had caught fire while preparing food on
  the ground. Kerosene oil had been found on her body and in
  her burnt clothes and hair. Evidence has been led by the
D prosecution witnesses to the extent that she had died within a
  short span of 10 months of her marriage, and that she had been
  ill-treated by her parents-in-law as she was not being given
  proper food etc. She had been harassed and tortured by her
  in-laws, as she was not good looking, could not cook well, and
E had been unable to do household work properly. She was
  considered to have a temperamental nature, and thus had also
  been slapped. This evidence has not been challenged by the
  defence.

F      26. The contradictions raised by the defence in the two
  dying declarations, as regards who had put the kerosene oil
  on her, and who had lit the fire have been carefully examined
  and explained by the trial court. Furthermore, in such a state of
  mind, one cannot expect that a person in such a physical
G condition, would be able to give the exact version of the
  incident. She had been suffering from great mental and physical
  agony. Upon proper appreciation of the evidence on record,
  the trial court had found the dying declarations to be entirely
  believable, and worth placing reliance upon, but the High Court
H on a rather flimsy ground, without appreciating material facts,
   STATE OF MADHYA PRADESH v. DAL SINGH &                     987
          ORS. [DR. B.S. CHAUHAN, J.]

has taken a contrary view. In our opinion, as the defence did        A
not put any question either to the executive magistrate, or to
the 1.0., or to the doctors who had examined her or conducted
the post-mortem, with respect to whether any part of the thumb
had skin on it or not, as in both the dying declarations, ridges
and curves had been clearly found to exist, we do not see any        B
reason to dis-believe the version of events provided by the
executive magistrate and the 1.0., who had recorded the dying
declarations. No suggestion was made to either of them in this
regard, nor was any explanation furnished with respect to why
these two independent persons who had recorded the dying             c
declarations, would have deposed against the respondents
accused. In the event that both of them had found the deceased
to be in a fit physical and mental condition to make a statement,
there exists no reason to disbelieve the same. In light of such
a fact-situation, the concept of placing of a thumb impression,      D
loses its significance altogether.

     27. We cannot accept the submissions made on behalf of
the respondents stating that Kusumbai had been tutored by her
parents, as the evidence on record clearly reveals that the
tractor had been brought at the instance of the respondents,         E.
and that they had been present in the trolley with her parents
and other relatives throughout. Therefore, her parents and other
relatives could have had no opportunity to implicate the
respondents, or to tutor her.
                                                                     F
     28. Thus, in view of the above, the appeal succeeds and
is allowed. The judgment and order impugned before us,
passed by the High Court is set aside, and the judgment and
order of the trial court is restored. The respondents are directed
to surrender within a period of four weeks from today, failing       G
which the learned Chief Judicial Magistrate, Damoh, Madhya
Pradesh, shall take them into custody and send them to jail to
serve out the remaining part of their sentence. A copy of the
order be sent to the CJM by the registry.

K.K.T.                                          Appeal allowed.      H