STATE OF ORISSAversusBANSIDHAR SINGH

A                              STATE OF ORISSA
                                      v.
                              BANSIDHAR SINGH

                               DECEMBER 5, 1995

B                   [N.P. SINGH AND FAIZAN UDDIN, JJ.]

         Code of Criminal Procedure, 1973-Section 397-Quashing of Criminal
    Proceedin~Scope of-Veracity of dying declaration-l.P.C. Section--302.


C         1he deceased was admitted in a hospital with 80 per cent bum injury.
    In his dying declaration given to the doctor attending him and recorded on
    the bed head ticket he alleged that the respondent who was his brother-in-law,
    had burnt him by pouring kerosene oil on him.

          The police registered a case of attempt to suicide against the
D deceased on the basis of a written FIR from the son of the respondent.
    After the death of the deceased, a final report was submitted declaring the
    case to have been abated.

         The Magistrate, on the basis of the dying declaration and statement
E of a hospital attendant recorded under section 161 Cr. P.C. found a prima
  facie case under Section 302 I.P.C. against the respondent and took cog·
  nizance of the offence. This was challenged by the respondent before the
   High Court.

        The High Court quashed the proceeding against the respondent
F holding that : (a) The material on record did not indicate that the respon·
  dent had poured kerosene oil on the deceased and set him on fire. (b) the
  statement of the hospital attendant does not indicate that the dying .
  declaration was made in his presence. (c) statements given by the father·
  in-law, wife and daughter-in-law of the respondent showed that the
G deceased was mentally unsound at the time of occurrence. Hence this
  appeal.

          Allowing the appeal, this Court

          HELD : 1. It was not a case where the taking of cognizance of the
H offence against the respondent deserved quashing by the High Court. On
                                         212
                      STATE v. BANSIDHARSINGH                            213

the contrary it is a fit case where the cognizance should be taken against A
the respondent for the alleged offence and the Magistrate was justified
in doing so. [217-D]

        2. The Magistrate in his order has clearly mentioned that the hospi-
 tal attendant has stated in his case diary statement that the victim dis-
                                                                                B
.closed before the doctor that he requested his brother-in-law not to pour
 kerosene oil on him as be may die and therefore, the observations of the
 High Court that hospital attendant did not state the dying declaration was
 made by the victim in his presence, appear to be a mistaken view. [216,F]

      3. The veracity, reliability and truthfulness of the alleged dying        C
declaration would be tested only after the evidence is recorded in the court
and if on proper evaluation of such evidence, the Court comes to the
conclusion that the dying declaration is truthful version of the deceased
relating to the circumstances of his death then there is no question of any
further corroboration as the conviction can be founded only on such dying       D
declaration. But in case the court finds that the dying declaration suffers
any inherent infirmity it is bound to be rejected. In the present case the
High Court rejected the dying declaration before its veracity could be
tested at the Trial. [216-D]

       4. The Court also took into consideration the statements of certain      E
persons for purposes of testing the reliability of the alleged dying declara-
tion. Such evidence could be adduced in the defence during the trial but
the High Court took into account the statement of certain persons to the
effect that the deceased was a person of unsound mind at the investigation
stage itself whose evidence is yet to be recorded at the Trial and made         F
observation that the deceased was a person of unsound mind and therefore
the dying declaration could not be relied on. [217-A-B]

     State of Haryana and Others. v. Bhajanlal and Others., [1992] 1 Supl.
sec 336, referred to.                                                           G

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1600 of 1995.

     From the Judgment and Order dated 28.7.94 of the Orissa High
Court in Cr!. R. No. 271 of 1993.                                 H
    214                  SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A         Indrajeet Roy, Advocate General, Orissa, P.N. Misra for AK. Panda
    for the Appellant.

         K.S. Bhati, AK. Singh, H.G.P. Khattar and Ms. Kusum Sharma for
    the Respondent.

B         The Judgment of the Court was delivered by

           FAIZAN UDDIN, J. 1. Leave granted.

          2. This appeal under Article 136 of the Constitution of India has been
    directed against an Order dated 28th July, 1994 passed by the High Court
C   of Orissa in Criminal Revision No. 271 of 1993 quashing the order dated
    15th April, 1993 passed by the Sub-Divisional Judicial Magistrate, Udala
    taking cognizance of an offence against the respondent herein for an
    alleged offence under Section 302 of the Indian Penal Code.

          3. According tu the prosecution on 8th December, 1992 at about 4.00
D AM. deceased Santush Kumar Nayak, who has the brother-in-law of the
    respondent brother of his wife was admitted in the sub-Divisional Hospital.
    Udala with 80 per cent burn injuries on his body. Dr. P.K. Sahu. Surgery
    Specialist of the said hospital attended the victim and found his condition
    to be serious. Dr. Sahu. therefore, at the first instance recorded his dying
    declaration on the bed-head ticket in which the victim is said to have
E   mentioned that his brother-in-law Bansidhar Singh (respondent herein)
    had set fire by pouring kerosene oil on him. The patient, thereafter was
    referred to the headquater hospital at Saripaca and " the same IL."' !he
    doctor sent W:tirnation to the Officer-in-charge of Udala Police Stal;un in
    writing. The victim came in the hospital same day.
F         4. Shri S.L. Behera, Officer-in-charge. Vdala Police Station con-
    tained a written FIR from the son of the respondent on the basis of which
    case No. 102 of 1992 was registered under Section 309, !PC against the
    victim himself for attempting to commit suicide. But after the victim
    succumbed to burn injuries the investigating officer submitted the final
G   report declaring the case having been abatted.

          5. On perusal of the material available, the dying declaration and the
    statement of one Badal Mukhi, recorded under Section 161, Criminal
    Procedure Code, the learned Magistrate was satisfied that there existed a
    prima facia case under Section 302 IPC against the respondent and taking
H   cognizance of an offence under Section 302, directed on 13th April, 1993
          STATE v. BANSIDHARSINGH[FAIZANUDDIN,J.]                     215

for issuance of summons and non-bailable warrants against him for his A
appearance on 30th April, 1993. The respondent challenged the afore-men-
tioned order of the learned Magistrate in the High Court of Orissa praying
that the said order of the learned Magistrate be queshed or the ground
that condition of the deceased was so serious that he could not have made
any dying declaration which is the only basis for taJ<ing cognizance against
the respondent. The High Court observed that the material on record did B
not indicate that the respondent had poured kerosene oil on the deceased
and set fire and that there was also absence of allegation in the first
information report about the respondent causing death of the deceased in
the manner stated in the dying declaration. The High Court also observed
that the father of the deceased, his father-in-law, wife and daughter of the
respondent had all given statements that the deceased was mentally un-
                                                                             c
sound since a few month prior to the occurrence and that he was treated
for the unsoundness of the mind and, thus there was amble material that
the deceased was mentally unsound on the date of occurrence. The High
Court further observed that the statement of Badal Mukhi, ar attendant of
the Sub-Divisional Hospital, recorded under Section 161 Cr. P.C. did not D
indicate that the deceased had given the dying declaration in his presence.
On these fin dings the High Court took the view that the doctor was the
only witness before whom the deceased is said to have made a dying
declaration and, therefore, it was hazardous to direct prosecution against
the respondent on the basis of this material alone without any prima facie
corroborating material.                                                      E

      6. After hearing the learned counsel for the parties and on perusal
of the order passed by the learned Magistrate taking cognizance of offence
against the respondent as well was the impugned order of the High Court.
We are of the view that the High Court misdirected itself and made a
wrong approach to the facts of the case and the law relating to quashing     F
of the criminal proceedings.

      7. From the facts state above it is distinctly clear that the dying
declaration, said to have been made by the deceased and noted by Dr. Sahu
on the bed-head ticket and the statement of hospital attendant Badal G
Mukhi relating thereto were the material available against the respondent.
The said note by Dr. Sahu runs as follows :

        "Dying Declaration
        4.55 A.M.
        8/12                                                                 H
    216                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A           "Patient is telling that his Vinoi, Mr. Bansidhar Singh sprayed
            kerosene oil on him and out first on him."


         This statement of the deceased has been brushed aside by the High
  Court for the reasons. Firstly, that there is nu mention in the bed head
B ticket about the smelling of the kerosene oil from the body of the dece~sed,
  secondly. Badal Mukhi, an attendant of the hospital did not state in his
  case diary statement that any dying declaration was given in his presence,
  and thirdly, there is no corroborating materiel to the alleged dying decla-
  ration. With great respect to the Learned Judge we are unable to subscribe
C and appreciate these observations. The veracity, reliability and truthfulness
  of the alleged dying declaration would be tested only after the evidence is
  recorded in the Court and if on order evaluation of such evidence, the
  Court comes to the conclusion that the dying declaration is truthful version
  of the deceased relating to the circumstances of his death, than there is no
  question of any further corroboration as the conviction can be founded only
D on such dying declaration. But in case the Court finds that the dying
  declaration suffers from any inherent infirmities it is bound to be rejected.
  In the present case the High Court rejected the dying declaration before
  its veracity could be tested at the trial. As regards the statement of Badal
  Mukhi recorded under Section 161 Cr. P.C. appears that the High Court
E did not care to examine and peruse the order of the learned Magistrate by
  which he took cognizance of the offence against the respondent. The
  learned Magistrate in his order has clearly mentioned that the witness
  Badal Mukhi has stated in his case diary statement that the victim disclosed
   before the doctor that he requested his brother-in-law not to burn kerosene
F oil on him as he may die and, therefore, the observations of the High Court
   that Badal Mukhi did not state that the dying declaration was made by the
  victim in his presence, appear to be a mistaken view. Not only this out the
  learned Magistrates has further indicated in his order that the incident
   accured during the shmt stay of the deceased at the house of respondent.
  The learned Magistrate has also indicated that there are various over-writ-
G ings and manipulations of the date and time made in the written FIR as
   well as the formal FIR drawn up by the police and that inspite of the fact
   that there was a dying declaration and statement of Badal Mukhi in support
   thereof, yet the officer-in-charge. Udala Police Station registered the case
   under Section 309 IPC against the victim himself and later, on his death
H submitted a final report.
           STATE v. BANSIDHAR SINGH [FAIZAN UDDIN, J.]                    217

      8. Apart from the above facts, the High Court also took into con- A
sideration the statements of certain persons for purposes of testing the
reliability of the alleged dying declaration. Such evidence could be adduced
in defence during the trial put surprisingly enough the High Court took
into account the statements of certain person to the effect that the
deceased was a person of unsound mind, at the investigation stage itself         B
whose evidence is yet to be recorded at the Trial and made observation
that the deceased was a person of unsoundmind and, therefore, the dying
declaration could not be relied on. Such an approach to the case cannot
be appreciated. However, after taking into consideration all the facts and
circumstances of the case and on perusal of the alleged dying declaration        C
as well as the statement of Badal Mukhi as pointed out earlier, we·are
satisfied that it was not a case where the taking or cognizance of the offence
against the respondent deserved quashing by the High Court. On the
contrary it is a fit case where the cognizance should be taken against the
respondent for the alleged offence and the learned Magistrate was justified
in~m                                                                             D
       9. It has been repeatedly pointed out by this Court in var10us
pronouncements that the cower of quashing a FIR or criminal proceedings
has to be sparingly exercised by the courts with due regard to the guidelines
laid down in this behalf. Here it would be relevant to refer to a decision E
of this Court in the see of State of Haryana and others v. Bhajanla/ and
Others, [1992] (1) Suppl. SCC 335 wherein this Court observed that though
it may not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases wherein the cower to quash F
the proceedings may be. exercised out this Court observed that the certain
categories of cases can be stated by way of illustration wherein the extraor-
dinary power can be exercised by the High Court either to prevent accuse
of the process of any Court or otherwise to secure the ends of justice.
Those categories of cases in which the FIR and criminal proceeding may
be quashed as pointed out in the aforesaid decision by way of illustration, G
are as follows :

        ( 1) Where the allegations made in the first information report of
        the complaint, even if they are taken at their face value and
        accepted in their entirety do not prima facie constitute any offence H
    218                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A           or make out a case against the accused.

            (2) Where the allegations in the first information report and other
            materials, if any, accompanying the FIR do not disclose a cog-
            nizable offence, justifying an investigation by police officers under
            Section 156(1) of the Code except under order of a Magistrate
B           within the purview of Section 155(2) of the Code.

            (3) Where the uncontrovented allegations made in the FIR or
            complaint and the evidence collected in support of the same do
            not disclose the commission of any offence and make out a case
c           against the accused.

            (4) Where, the allegations in the FIR do not constitute a cog-
            nizable offence but constitute only a non-cognizable offence, no
            investigation is permitted by a police officer without an order or
            a Magistrate as contemplated under Section 155(2) of the Code.
D
            (5) Where the allegations made in the FIR or complaint are so
            assured and inherently improbable or the basis of which no pru-
            dent person can ever reach a just conclusion that there is sufficient
            ground for proceeding against the accused.
E
            (6) Where there is an express legal par engrafted in any of the
            provisions of the Code or the concerned Act (under which a
            criminal proceeding is instituted) to the institution and con-
            tinuance of the proceedings and/or where there is a specific
F           provision in the Code or the concerned Act, providing efficacious
            redress for the grievance of the aggrieved party.

             (7) When a criminal proceeding is manifestly attended with ma/a
            fide and/or where the proceeding is maliciously instituted with an
            ulterior motive for wreaking vengeance on the accused and with a
G           view to spite him due to private and personal grudge.

         10. In the present case, having regard to the material placed before
  the Court it can well be said that the present case does not fall in an;• of
  the illustrated categories mentioned above and on the contrary it :;oes to
H show that there exist a prima facie case against the respondent and hence
          STATE v. BANSIDHAR SINGH [FAIZAN UDDIN, J.]                 219

the impugned order of the High Court could not be sustained.                 A
       11. In the facts and circumstances of the case the appeal succeeds
and is hereby allowed. The impugned order passed by the High Court is
set aside and the order of the learned Magistrate is restored. The learned
Magistrate shall deal with the criminal proceedings against the respondent
in accordance with Law.                                                      B
B.K.M.                                                   Appeal allowed.