Rajinder Kumar Kindra v Delhi Administration Through Secretary (Labour) and Others
Supreme Court of India

27 September 1984
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2386 of 1984. Appeal by Special leave from the  Judgment and Order dated the 2nd March, 1983 of the Delhi High Court in Writ Petition No. 314 of 1983.
The Judgment was delivered by : D. A. Desai, J.
1. Appellant Rajinder Kumar Kindra was inducted as a peon by M/s Raymond Woolen Mills Ltd. ('employer' for short). In 1972 he was promoted as a salesman and at the relevant time he was serving at the Raymond's retail showroom in Karol Bagh, New Delhi. One Shri R.S. Negi was the Manager-cum-Cashier of the Karol Bagh Show-room of the employer under whom the appellant was working. He was served with a charge-sheet dated December 11, 1975 which reads as under:
"That you, Shri Rajinder Kindra, is hereby informed that you, while working as a salesman at Raymonds' Retail Show-room, 2397/1, Hardhian Singh Road, New Delhi-5
have misappropriated cash and funds from the amounts of Raymonds' Woolen Mills Ltd., to the extent of Rs. 32,196/88 or a part thereof during the period 10.6.75 to 17.10.75 by manipulating false accounts, submitted bogus cheques into the Mills Account or by taking cash from the chest of the Retail Depot along with Shri R.S. Negi, Manager-cum-Cashier of Raymonds' Retail Show- room, 2397/1, Hardhian Singh Road, Karol Bagh, New Delhi.
That you Shri Rajinder Kumar Kindra while acting as a salesman aided, abetted, connived and conspired with the Manager-cum-Cashier Shri R.S. Negi of the said show-room and issued various cheques in the amount of Rs. 15,027/75 from your cheque book with the ulterior motive and design to defraud the Company of the said amount by submitting these bogus cheques into the Mills' Account and thereby causing unlawful gain to yourself and causing unlawful loss to the Company in collusion with Manager-cum-Cashier Shri R.S. Negi.
That you Shri Rajinder Kumar Kindra has willfuly/ negligently permitted the user of the cheques in order to defraud the company of the amount of Rs. 15,027/75 in conspiracy with Shri R.S. Negi and you have been habitually negligent and willfully disobedient in the performance of your duties as salesman."
2. One Shri V.K. Soni was appointed as Enquiry Officer to enquire into the aforementioned charges. In the course of enquiry, the appellant denied the charges levelled against him. He stated that the cash used to remain with Manager- cum-Cashier Shri R.S. Negi and it is for him to explain about some cheques drawn and the statement of account submitted by him. He denied himself having issued any cheque. He denied that he was negligent in performance of his duty. The employer examined Shri O.D. Sharma, Shri G.L. Kapur, Shri V.K. Malhotra and Shri Nandan Singh as witnesses for the management. The appellant gave evidence on his behalf and he was cross-examined on behalf of the employer. He also examined one Shri A.K. Godbole as his witness.
3. The Enquiry Officer Shri V.K. Soni submitted his report dated June 22, 1976. In the report, he Inter alia held that the appellant had been guilty of gross negligence and misconduct in the discharge of his duties and he was 'actively responsible for committing the fraud on the Company with Shri R.S. Negi to the extent of Rs. 15027.75 and all the charges as contained in the charge-sheet against the appellant were held proved.
4. The employer accepted the report and dismissed the appellant from service with effect from August 25, 1916.
5. The appellant raised an industrial dispute inter alia contending that the findings of the enquiry officer were perverse and there was no evidence in respect of either the charge of negligence or embezzlement of funds and that the dismissal from service was wholly unjustified. The employer and the appellant by a written agreement agreed to refer the existing industrial dispute arising out of the dismissal from service of the appellant to an arbitrator, as provided by Sec. 10 (A) (1) of the Industrial Disputes Act (Act for short). The first respondent Delhi Administration pursuant to aforementioned written agreement referred the following dispute to Shri G. C. Jain, Presiding Officer of the Labour Court, Delhi who was selected by the parties to be the arbitrator. It reads as under:-
"(1) Whether the services of Shri R.K. Kindra were terminated illegally and unjustifiably ?
(2) Whether the enquiry proceedings were initiated by the principles of natural justice and equity ?
(3) To what relief if any, is the worker entitled ?"
6. The employer contended before the arbitrator that the enquiry held by him is fair and just and full opportunity was afforded to the appellant to participate in the enquiry, to cross-examine witnesses produced by the management and to lead his evidence. It was further contended that the conclusions reached by the enquiry officer and findings recorded by him are borne out by the evidence and permissible inferences drawn from the evidence and they are such that any reasonable person would reach on the evidence the conclusion of guilt of the appellant. It was submitted that the arbitrator cannot sit in appeal over the findings of the enquiry officer. It was further contended that at any rate there is satisfactory evidence to show that the appellant negligently kept his cheque book in relation to his private banking account in such a manner as to be accessible to any one to misuse the same and this was done intentionally, so as to facilitate the commission of fraud presumably by Manager-cum-Cashier Shri R.S. Negi. In the ultimate analyses this was the only misconduct attributed to the present appellant.
7. The arbitrator held that none of the witnesses of the employer has stated that the appellant misappropriated any amount of the Company or he had manipulated false accounts or had submitted bogus cheques in the account of the employer or had taken away any amount from the chest of the retail depot or had abetted, aided, conspired or connived with Shri R.S. Negi or issued any cheque to defraud the Company. Thus the employer failed to lead any evidence before the arbitrator to impute any misconduct to the appellant as alleged in the charge-sheet. The arbitrator concluded that there was no evidence in support of charge No. 1 and 2 and there was no evidence to prove Charge No. 3. The conclusion reached by the arbitrator may be extracted:
"In conclusion, I hold that the findings of the Inquiry Officer were based on no legal evidence and were, therefore, perverse. The enquiry is, therefore, vitiated. I hold accordingly."
8. On these findings nothing remains save and except the consequential order that the dismissal from service of the appellant must be quashed and set aside and the appellant be reinstated in service with all consequential benefits unless of course the employer had sought an opportunity to lead evidence before the arbitrator to substantiate the charges.
9. No such opportunity was sought and therefore as held by this court in Shanker Chakraborte v. Britannia Biscuits Co. Ltd., 1979 Indlaw SC 17 nothing further was required to be done and the award reinstating the appellant should have followed. Unfortunately making of this consequential order was postponed. The finding of the arbitrator is dated May 24, 1976. It appears that soon thereafter Shri G.C. Jain arbitrator was elevated as a Judge of the Delhi High Court and he consequently before taking his oath did not make the final order which was merely a formal part of his duties.
10. That unfortunately led to a second reference. This time reference was made under Sec. 10 (A) (1) to Shri N.L. Kakkar, retired Additional District and Sessions Judge, Delhi as an arbitrator. The same three points were referred to Shri Kakkar for his decision. Shri Kakkar after narrating the evidence that was led before the enquiry officer summed up his findings as under:-
(a) "That the services of Shri R.K. Kindra, were not terminate illegally or unjustifiably but on account of charges having been successfully proved against him, especially the third charges that is with regard to willfully/negligently permit the user of cheques in order to defraud the company in conspiracy with Shri R.S. Negi and negligence in the performance of his duties as a salesman.
(b) That the enquiry proceedings were not vitiated by the principles of natural justice and equity as full opportunity was given to the workman and no prejudice was caused to him by any act of the management, although he was given full opportunity to lead his evidence and to cross-examine the witnesses of the management and particularly there was no enmity between the work man and the enquiry officer and the dismissal as such was not wrongful.
(c) That the workman is not entitled to any relief, and is not entitled to reinstatement with back wages and continuity of service since he has been gainfully employed with Shri Tara Chand at his coal depot ever since his dismissal.
The reference by way of award is answered accordingly."
11. The appellant filed a writ petition under Art. 226 in the High Court of Delhi questioning the correctness, validity and the legality of the award made by Shri Kakkar.
12. A Division Bench of the High Court dismissed the matter in limine, observing that the matter depends upon assessment of evidence and the Court cannot reappraise the same under Art. 226 of the Constitution. Hence this appeal by special leave.
13. Let it be made absolutely clear at the outset that the only misconduct imputed to the appellant was that he was negligent in keeping his cheque-book in relation to his own private account in such a manner that it enabled Shri R.S. Negi, Manager-cum Cashier of the Branch in which the appellant was a salesman at the relevant time to misuse the cheque forms and thereby defraud the employer. Mr. P.K. Jain learned counsel for employer specifically conceded that the only misconduct alleged against the appellant consists of his negligence in keeping his own cheque-book by which he could operate his own private account in such manner as to enable someone so-minded to misuse the cheque forms. He was repeatedly asked what law, rule, regulation or a standing order, if there be any, which requires an employee to keep his own private cheque-book under lock and key or safe custody so that no one except himself can have access to it and we waited for the answer in vain. It was conceded that the appellant is not guilty of any embezzlement or misappropriation of funds of the employer though a grandiose albeit flamboyant charge was framed that he misappropriated cash and funds from the accounts of the employer to the extent of Rs. 32,196.88 p. or part thereof during the period June 10, 1975 to October 10, 1975 by manipulating false accounts, submitting bogus cheques into the employer's account or by taking cash from the chest of the branch alongwith Shri R.S. Negi, Manager- cum-Cashier of the Branch. There is not a tittle of evidence in support of the allegation of misappropriation or embezzlement of funds or manipulation of accounts by the appellant. This was in terms conceded. The allegation, to be specific, of the employer is that Shri R.S. Negi, Manager- cum-Cashier misused the cheque forms from the cheque-book of the appellant in respect of his private account and embezzled funds of the employer. It was not the case of the employer that applicant drew cheques or embezzled cash from the chest. Another allegation was that the appellant abetted, aided, connived at or conspired with Manager-cum- Cashier Shri R.S. Negi, in charge of the branch and issued various cheques in the amount of Rs. 15,027.75 p. drawn on forms of cheques contained in the cheque-book of the appellant issued to him for operating his own private account with ulterior motive of defrauding the employer by submitting bogus cheques into the account of the employer and thereby caused wrongful gain to himself and wrongful loss to the employer, in collusion with Shri R.S. Negi. Again it was conceded that there is absolutely not an iota of evidence which could indicate that the appellant issued any a cheques himself or that he aided or abetted someone to issue the r bogus cheques. These were the allegations in charges Nos. 1 and 2 and the finding by Mr. Kakkar that they are proved can be styled as perverse on the admission of the employer himself because not a single witness in the course of domestic enquiry so stated. Mr. Jain, learned counsel for the respondent could not point out one single sentence of evidence in support of these two charges.
14. Mr. P.K. Jain urged that the third charge which was to the effect that the appellant permitted the use of the cheques from the cheque-book issued to him by the Bank in which he was maintaining his own private account to defraud the employer to the tune of Rs. 15,027.75 p. in conspiracy with Shri R.S. Negi and that he was negligent and was guilty of wilful disobedience ill performance of his duties as a salesman was substantiated. It is a composite charge. The first limb of the charge refers to negligence in handling his private cheque book so that in conspiracy with Shri R.S. Negi cheque forms contained in the cheque-book issued to the appellant for operating his private account were used by Shri R.S. Negi to defraud the employer. Rejecting the language improperly used the charge is that the appellant kept his private cheque book unattended or not in safe custody so that Mr. R.S. Negi misused the cheque forms from this cheque book. In support of this allegation, the evidence is that the appellant did not keep his cheque-book under lock and key or in safe custody so that no one else except himself will have access to the same We have not been able to understand apart from appreciating this charge. When a cheque book is issued to a holder of an account by the Bank, there is no law which requires him to keep his cheque book in safe custody. He may keep it in any manner and if in the process some one misuses the cheque and withdraws money from the account of the holder, the bank will be able to disown its liability pleading negligence of the holder of the account. A man can keep his cheque book anywhere he likes and even if it is not in safe custody he does so at his own peril. In the event of misuse as a result of negligent handling of the cheque book, the Bank will be able to disown its liability if someone by misuse of the forms of cheques withdraws any amount from the account in respect of which the cheque book is issued. That is not the case here. The accusation is that the appellant kept his cheque book in such a manner as to be accessible to any one and that some one unscrupulously removed the forms of cheques from the cheque book of the appellant and used them to withdraw money from the appellant's account but from the employer's account. Some one so minded to forge cheque and to withdraw money from some one's account may use anybody's cheque book. In such a situation, the owner of the cheque book unless he has participated in the conspiracy in any manner for facilitating withdrawal of the amount cannot be attributed any misconduct for keeping his cheque book unattended or not in safe custody. There fore first limb of the charge No. 3 can be rejected as per se untenable without anything more.
15. The second limb of the third charge is that the appellant was negligent and guilty of wilful disobedience in performance of his duties as a salesman. Not a single witness has spoken of any negligence on the part of the appellant in performance of his duties. There is not the remotest suggestion in the evidence to that effect. Not a single witness has spoken about any wilful disobedience in performance of duty. Some flamboyant charges appears to have been cooked up by the employer without any regard for truth or without any regard for responsibility ill making such heinous allegation and levelling serious accusation without an iota of evidence in support of it We repeatedly asked Mr. P.K. Jain, learned counsel for the employer to show from the evidence led before the inquiry officer which order of the employer was disobeyed much less unwilfully by the appellant, as also acts of omission and commission in performance of duty to spell out negligence. The only reply we received was that the appellant kept his cheque book unattended. Keeping one's own cheque book unattended is no part of performance of duties of the employee and there was no order by the employer how appellant should handle his private cheque book.
16. Let is be made distinctly clear that this Court in this appeal is not re-appreciating evidence. Mr. G.C. Jain, the first Arbitrator who completed a major part of the enquiry in the reference made to him under sec. 10 (A) (1) after meticulously examining the evidence led on behalf of the employer in the enquiry proceedings concluded as under:-
"22. I have carefully examined this entire evidence. None of the witnesses has stated that Shri Kindra had misappropriated any amount of the Company or he had manipulated false accounts, or had submitted bogus cheques in the mills account and had taken away any amount from the chest of the retail depot or had abetted, aided conspired or connived with Shri R.S. Negi or issued any cheque to defraud the company. What PW-1 to PW-3 said is that Shri Negi used five cheques from the cheque book of this workman to defraud the company. There is no evidence to show any fraud on the part of Shri Kindra or to connect him with misappropriation by Shri Negi. The mere fact that his cheques were used is not sufficient to hold that he had entered into conspiracy with Shri Negi or that he wilfully or negligently permitted the use of the cheques in order to defraud the company to the amount of Rs. 15,027.75 p. Or part thereof Management's own witness have stated that these cheques were utilised either with the connivance of Shri R.K. Kindra or because of his negligence in respect of the same. None of them has stated with certainty that Shri Kindra was a party to this misappropriation. No doubt the evidence shows that he was not very careful in keeping his cheque book under lock and key. But this circumstance is not sufficient to hold that he had entered into any conspiracy with Shri R.S. Negi or was a party to the misappropriation. Thus there was no evidence in support of charge No. 1 and 2. There is no evidence that Shri Kindra wilfully permitted the user of his cheque book. There is no evidence that his negligence in keeping the cheque book in a drawer without a lock was with a view to defraud the company. There is no evidence that he was habitually negligent or willfully disobedient in the discharge of his duties. The manner of keeping his personal cheque book was not a part of his duties as salesman. Thus there was no evidence to prove charge No. 3 as well."
17. He further concluded in paragraph 23 of his award that the findings of the enquiry officer were based on no legal evidence and were therefore perverse and the enquiry was vitiated. The employer never sought an opportunity to lead evidence before arbitrator to substantiate the charges. In fact on the conclusion recorded by Mr. G.C. Jain he should have made a consequential order of setting aside the order of dismissal and directing reinstatement with back wages but he unnecessarily procrastinated and then before he could attend to the remainder of the work, he was elevated to the bench of the Delhi High Court leaving the appellant to face the music of a fresh enquiry and a complete sommer sault by the new arbitrator.
18. A fresh reference was made to Sh. N.L. Kakkar, Mr. P.K. Jain, learned counsel for the employer/contended that this Court is only concerned with the award of Mr. Kakkar and the findings recorded by Mr. G.C. Jain are not relevant. We have serious reservations about this submission, but it is not necessary in this case to decide that point. We would now confine ourselves to the award of Shri Kakkar.
19. In Paragraph 1 to 5, the history of the dispute and the charges framed against the appellant have been set out by Mr. Kakkar. Paragraph 6 deals with what the enquiry officer did. Paragraph 7 reproduces the contentions on behalf of the appellant. Paragraph 8 summarises the contentions on behalf of the employer. Paragraphs 9, 10 and 11 deal with the manner in which the enquiry was held. Paragraph 12 refers to the written arguments submitted on behalf of the employer. In the concluding paragraph 13, Mr. Kakkar states that the circumstances of the case and the evidence produced by the parties before the enquiry officer as well as in the present proceedings and on the consideration of the documents filed and proved, it is held as therein stated. He then recorded his ipse dixit not discussing the evidence or the total absence of it. It may be pointed out that in the course of the enquiry held against the appellant by Mr. U.K. Soni, enquiry officer, the employer had examined 4 witnesses namely Shri O.D. Sharma, Shri G.L. Kapur, Shri V.K. Malhotra and Shri Nandan Singh. No witness was examined before Shri G.C. Jain and the employer relied upon the report of the enquiry officer and the evidence of the four witnesses recorded by the enquiry officer. When the matter came up before Mr. Kakkar, the employer had not examined any witness but had submitted the report of the enquiry officer and the evidence of the aforementioned witnesses. Therefore when it was contended before the arbitrator that even accepting the evidence of the four witnesses, as if unchallenged, no reasonable man could ever come to the conclusion that the misconduct imputed to the appellant in charges No. 1, 2 and 3 could be said to be proved, it was incumbent upon him to examine the evidence. We invited Mr. P.K. Jain to point out to us which evidence is being relied upon in support of the charge of embezzlement and the charge relating to alleged misappropriation of funds. He could not lay his hand on any piece of evidence. Conceding that there is no evidence in support of the charge of embezzlement and misappropriation of funds simultaneously conceding that charges No. 1 and 2 are not proved, he repeatedly emphasised that the only conducts of which appellant is guilty is that the appellant had so deliberately left his cheque book unattended as to be accessible to anyone who may misuse it and this constitutes negligence in performance of duty. Even at the cost of the repetition, we must point out that keeping one's private cheque book in any manner is no par. Of the performance of the duty of the employee. To say the least the charge apart from being frivolous is ludicrous and could not have even framed. Even if the allegation in the charge is left unquestioned it does not constitute misconduct. The employer could not have framed such charges without any evidence in support of them yet Mr. Kakkar holds them proved. Therefore Mr. Kakkar accepted the findings of the enquiry officer which were per se perverse. Not only Mr. Kakkar did not apply his mind to the submission of the appellant that the findings were perverse but he merely recorded his ipse dixit without any manner analysing or examining or applying his mind to the evidence only to find out whether there was any evidence to substantiate the charge and whether any reasonable man would arrive at the conclusion which the enquiry officer had reached. The award of Mr. Kakkar, apart from the fact that it is based on no legal evidence suffers from the additional infirmity of total non-application of mind. Any finding of misconduct based on total absence of evidence must fail.
20. Mr. Jain contended that once Mr. Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under Art. 226 nor this Court under Art. 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence. We have not at all attempted to re-appreciate the evidence though in exercise of the jurisdiction conferred by sec. 11-A of the Industrial Disputes Act, 1947 both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the day to contend that the arbitrator has only the power to decided whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to re-appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This court in Workmen of M/s Firestone Tyre Rubber Company of India (P) Ltd. v. Management & Others [1973] 3 SCR 587 1972 Indlaw SC 315, held that since the introduction of sec. 11-A in the Industrial Disputes Act, 1947, the Industrial tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. It is equally well-settled that the arbitrator appointed under Sec. 10-A is comprehended in sec. 11-A. This court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha [1980] 2 SCR 146 1979 Indlaw SC 37, held that an arbitrator appointed under sec. 10-A of the Industrial Disputes Act, 1947 is comprehended in sec. 11-A and the arbitratal reference apart from sec. 11-A is plenery in scope. Therefore it would be within the jurisdiction both of the arbitrator as well as this court to re- appreciate the evidence though it is not necessary to do so in this case. It is thus well-settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under sec. 10-A or this court in appeal under Art. 136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of Powers conferred by sec. 11-A to do so.
21. It is equally well-settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. The industrial tribunal or the arbitrator or a quasi-judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non- application of mind. Viewed from either angle, the conclusion of the enquiry officer as well as of the arbitrator Mr. Kakkar are wholly perverse and hence unsustainable. The High Court, in our opinion, was in clearly error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence.
22. Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost-sight of and the High Court ought not to have short circuited the writ petition.
23. If there is absolutely no evidence in support or the only allegation of misconduct namely negligence in not keeping one's private cheque book in safe custody, the conclusion is not only not a plausible one but it is wholly perverse and we are in complete agreement with findings recorded Mr. G.C. Jain that the findings of enquiry officer were perverse and the enquiry was wholly vitiated.
24. Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non- application of mind the only course open to us is to set it aside and consequently relief of reinstatement must be granted and nothing was pointed to us why we should not grant the same.
25. It was next contended on behalf of the appellant that reinstatement with full back-wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back-wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment E so as to reject the claim for back-wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back-wages and all consequential benefits.
26. Accordingly, the appeal is allowed and the award of the arbitrator Shri Kakkar is set aside and the appellant is re- instated in service with full back-wages and consequential benefits to which he would have been entitled had he not been unlawfully thrown out from service, and the costs of this appeal quantified at Rs. 3,000. The back-wages payable to the appellant and the costs awarded herein shall be paid to him within 2 months from today. The appellant shall be physically reinstated in service within a week from today.
27. The appellant shall be entitled to all the consequential benefits f his continuous service.


State of Punjab v Gian Kaur and Another
Supreme Court of India

5 March 1998
Cr.A. No. 122 of 1991 (Cri. A. No. 13-DB of 1987, D/- 19 July 1988 (Punj & Har).), Dt. 5 March 1998.
The Judgment was delivered by : G. T. Nanavati, J.
1.  The State has filed t his appeal against the judgment of the Punjab & Haryana High Court in Criminal Appeal No. 13/87. The High Court acquitted both the respondents for the offence punishable under Section 302 read with Section 34 IPC.
2.  Both the respondents along with two others were tried for causing death of Rita, Respondents Gian Kaur, Balvinder kaur, Darshan lal and Balbir were the mother-inlaw, sister-in-law, father-in-law and husband respectively of Rita (deceased).
3.  The prosecution case was that they were not satisfied with the dowry given to her by her parents at the time of her marriage and that had often led to quarrels between the accused and Rita and her parents. According to the prosecution, on 21.6.86 at about 6.00 p.m., Gian Kaur and Balvinder Kaur sprinkled kerosene on her and thereafter Gian kaur set her on fire by throwing a lighted match stick on her.
4. It was further alleged that the mother-in-law wanted to get her son re-married and for that reason also she wanted to kill her.
5.  The only evidence which was relied on by the prosecution and on the basis of which the trial court convicted Gian Kaur and Balvinder kaur was the dying declaration recorded by ASI-Darshan Singh PW 5.
6.  The High Court disbelieved the dying declaration on the ground that even thought according to the medical evidence Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt.
7. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view.
8.  This appeal is, therefore, dismissed, Bail bonds are ordered to be cancelled.


Laxmi Smt v Om Prakash and Others
Supreme Court of India

9 July 2001
Appeal (crl.) 717 of 1994
The Judgment was delivered by : R. C. Lahoti, J.
1. Nemo moriturus praesumitur mentire No one at the point of death is presumed to lie. A man will not meet his Maker with a lie in his mouth is the philosophy in law underlying admittance in evidence of dying declaration. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration is the statement of law summed up by this Court in Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684 1993 Indlaw SC 194. The Court added - such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition. The above statement of law, by way of preamble to this judgment, has been necessitated as this appeal, putting in issue acquittal of the accused respondents from a charge under Section 302/34 IPC, seeks reversal of the impugned judgment and invites this court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled: dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A 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 the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.
2. The deceased Janak Kumari died an unnatural death on 8 March 1982 having sustained extensive burn injuries on 7 March 1982. She was aged about 25 years at the time of her death. Six years before the date of the incident she was married to the accused Om Prakash. The couple had a female child aged about 5 years at the time of the incident. They lived with Smt. Ram Pyari and Kumari Shakuntala, the two co-accused and respectively mother and sister of the accused Om Prakash. Unfortunately, Janak Kumari and Om Prakash could not carry on well and their marital relationship suffered a jolt so much so that on 14 November 1980 on a complaint made by Janak Kumari an offence under Section 385 IPC and Section 4 of Dowry Prohibition Act was registered at P.S. Pahar Ganj, Delhi against these three accused persons. However, the case was consigned to record room on 9 March 1982 under the order of the Metropolitan Magistrate. There were divorce proceedings also initiated by Om Prakash against Janak Kumari which ended in a compromise in December 1981 whereunder Janak Kumari joined back the matrimonial home.
3. On 7 March 1982 at about 7.20 a.m. the accused Om Prakash informed the police control room on telephone that his wife had set herself unto fire having poured kerosene oil on herself. This information was received by S.I. Badri Nath, PW 19 who directed the police control room van (PCR Van) to rush to the place of the incident. Simultaneously he conveyed message to P.S. Pahar Ganj where it was recorded in the Roznamcha, Exhibit PW 14/E. SI Ramesh Chand Garg, PW 21 was handed over a copy of Exhibit PW14/E for necessary action. ASI Shiv Charan PW 5 reached the residence of the accused persons along with the PCR van. SI Ramesh Chand Garg, PW 21 along with constable Raghbir Singh had also reached there. The three brought the victim Janak Kumari to LNJP Hospital at 8.10 a.m. Janak Kumari was attended to by Dr. C.M. Khanijau, PW9.
4. On way from the residence of accused persons to the hospital, Janak Kumari made a dying declaration to ASI Shiv Charan, PW 5. This is her first dying declaration. Another dying declaration was made by Janak Kumari to Dr. C.M. Khanijau, PW9 which was recorded by him as Exhibit PW 9/A. SI Ramesh Chand recorded a statement of Janak Kumari between 9 and 10 a.m. This is the third dying declaration, Exhibit PW 21/A. At the request of SI Ramesh Chand, Ajit Shrivastava, Sub-Divisional Magistrate, PW 16 reached the hospital and recorded the statement of Janak Kumari between 1.30 and 1.45 p.m. This statement, Exhibit PW 16/A is the fourth dying declaration. Kishan Lal, PW 3, the brother of the deceased reached the hospital at about 5.30 p.m. and to him Janak Kumari made a statement which is the fifth dying declaration.
5. All the three accused persons were arrested by the police on 7 March 1982 itself. The half-burnt clothes of the deceased which she was wearing at the time of the incident as also the clothes of the accused, Om Prakash which were seized soon after the incident were sent to CFSL. Both the sets of clothes were found to contain residue of water and kerosene oil.
6. Janak Kumari succumbed to her injuries and died at about 12 noon on 8 March 1982. Post-mortem on her body was conducted by Dr. B.N. Reddi, PW12.
7. On completion of the usual investigation, the details whereof are not very material, a challan under Section 302/34 of the IPC was filed against the three accused persons. Charges were framed under Section 302/34 of the IPC against each of the three accused persons who pleaded not guilty. The prosecution examined 21 witnesses. 4 witnesses were examined in defence. We will refer to the relevant parts of the testimony at appropriate places. The learned Additional Sessions Judge having meticulously examined the prosecution evidence and having subjected each of the dying declarations to judicial scrutiny found none of them worthy of reliance so as to base conviction thereon either collectively or individually. On 31 January 1985 the learned Additional Sessions Judge recorded a verdict of not guilty and acquitted all the three accused persons.
8. The State Government has not filed any appeal putting in issue the acquittal of the accused-respondents. However, Smt. Laxmi, the mother of the deceased Janak Kumari, filed a special leave petition under Article 136 of the Constitution before this Court. Leave was granted.
9. Before taking up each of the dying declarations for consideration we will briefly set out the prosecution case as emerging from the evidence adduced so as to appreciate the worth of the dying declarations. We would also set out the nature of the injuries suffered and the condition of Janak Kumari after the incident i.e. during the time when she is said to have made dying declarations.
10. The prosecution case opened with the statement of PW1 Trishla Kumari, aged 23 years, a close neighbour of the accused persons. She was friendly with the deceased being almost of the same age and was often talking to her. She stated that though at one point of time Janak Kumari and the accused Om Prakash had indulged into litigation and Janak Kumari had left the matrimonial home but after her returning back a few months before the date of the incident they were living well having sorted out their differences. At about 7 a.m. on the date of the incident while she was busy collecting water from the tap inside her house she heard the cries of Janak Kumari and she came out. She saw Janak Kumari burning. She threw water from her bucket on Janak Kumari and got the fire extinguished. The accused persons were also trying to extinguish the fire. Om Prakash accused had helped Janak Kumari in putting on a gown in place of her clothes which were burnt. Om Prakash had also put a blanket over Janak Kumari with a view to extinguish the fire. There are two very important disclosures made by her. Firstly, she stated, that before Janak Kumari left Om Prakash and the litigation started, Janak Kumari used to stand in the street and often abuse her in-laws. The other fact, revealed by her, is that after her return although apparently Janak Kumari and Om Prakash were living well having sorted out their differences yet once Janak Kumari had confided in this witness by telling her that she would kill herself and get the accused persons implicated.
11. The five dying declarations made by the deceased on 7 March 1982, i.e. the date of the incident, pressed by the learned counsel for the appellants as reliable so as to provide basis for convicting the accused persons are as under:-
12. Before taking up the individual dying declarations for consideration we would place on record the physical and mental condition of the deceased soon after the incident and before her death, i.e. at the time when the dying declarations are said to have been made. The deceased brought in the PCR van to casualty department of LNJP Hospital was admitted indoors by PW9 Dr. C.M. Khanijau. He examined the patient. According to Dr. Khanijau, Janak Kumari had superficial burns involving front of trunk, both thighs, arms, part of face and neck, scalp and hair. Her pulse was 102 per minute. The pupils were normal and reacting to light. The area of burns was 80- 90% approximately. He gave the patient injection tetanus toxides and injection pathedine 75 ml intra muscular and admitted the patient in burns ward for detailed examination and treatment. On being transferred to burns ward from casualty at 9 a.m., she was placed in charge of PW18, Dr. I.N. Tiwari, Plastic Surgeon. According to Dr. Tiwari, Janak Kumari was admitted as a case of 85% deep burns and dehydration. She was to be inter alia on heavy sedation, anti biotics and intra venus fluids. According to the case sheet of Janak Kumari, maintained in the burn ward of the hospital, Ex.PW18-A, and proved by Dr. I.N. Tiwari, PW18, Janak Kumari was under intense pain. Her tongue was dried. Her hands were burnt and the skin of the hands had peeled off. There was a complete loss of fluid and she was gasping for breath. Her condition was constantly deteriorating. She expired on 8 March 1982 at 12.10 p.m.
13. PW12 Dr. B.N. Reddy, Associate Professor, Department of Forensic Medicine, conducted the post mortem examination on the body of deceased Janak Kumari at 10 a.m. on 9 March 1982. Dr. Reddy found extensive superficial burns spread over almost all the parts of the body. The cuticular layer peeled off from most of the areas of burns and inunpeeled areas, specially over the front of abdomen, was blackish. All the burns were ante-mortem. The diagrams of the body of Janak Kumari marked Ex.PW12-B drawn by Dr. B.N. Reddy go to show that Janak Kumari had 85% burn injuries. Her neck, mouth and both lips were also burnt.
14. The abovesaid condition of the deceased has been noted by the learned trial Judge also and dealt with in his judgment. We will refer back to this aspect and its impact on the credibility of dying declarations where necessary. We now take up and deal with each of the dying declarations individually.
15. First dying declaration - made to PW5 Shiv Charan, ASI, between 7.30 and 8 a.m.
16. PW19 Badrinath, SI, was on duty at Police Control Room at 7.20 a.m. on 7 March 1982 when he received an information from Om Prakash, accused, to the effect that his wife had set herself to fire by sprinkling kerosene oil over herself. The information was recorded as Ex.PW19/A. He sent the PCR van to the place of the incident by instructing PW5 Shiv Charan, ASI. Shiv Charan stated that on his reaching the place of the incident and finding Janak Kumari in a burnt condition, the latter told him that her husband, mother-in-law and husbands sister had burnt her by pouring kerosene oil on her. In the PCR van a register is maintained termed as roznamcha. The messages received and transmitted at and from the PCR van are entered in the register. The witness was asked to produce the register for which purpose he sought for time from the court. The cross- examination was deferred on 12 October 1982 and resumed on 1 August 1984. On the adjourned date of hearing the witness did not produce the roznamcha and stated that the same was not traceable The witness does not explain why it was not traceable. Nothing has been brought on record to show if an important document like roznamcha maintained in PCR Van was missing what was follow up action, if any and whether this fact was brought to the notice of senior officials and any record of such missing of document came into existence.
17. The statement of this witness was recorded during investigation. Shiv Charan, PW5 has admitted during cross-examination that the fact that he had enquired from Janak Kumari as to how she got burnt and what the victim had told him were not stated by him to the investigating officer when his statement was recorded. No reason has been assigned for this material omission, though his statement was recorded belatedly on 31 May 1982.
18. A suggestion was given by defence during cross examination of this witness that he having reached the place of the incident, had made on the spot enquiries from different persons of neighbourhood, including Trishna Kumari, PW1, and he had come to know that Janak Kumari had committed suicide by pouring kerosene oil on herself and it was so recorded in the PCR van roznamcha and that is why it was being withheld from the court. Be that as it may, the fact remains that PW5 Shiv Charan, ASI, had proceeded to the place of the incident on being informed of a suicide having been committed by a woman. If a story to the contrary - a positive information of an attempt to commit murder by burning and that too having been received from the mouth of the victim had come to the knowledge of PW5 Shiv Charan, ASI, then that should have been recorded in the roznamcha and also flashed to the Police Control Room. Neither the PCR van roznamcha has been produced nor such information conveyed to the Control Room and/or police station. If only a dying declaration was made by Janak Kumari to this witness then in the ordinary course of the things, message would have been transmitted promptly by ASI Shiv Charan to the Police Control Room and would have been recorded as a first information report of the incident disclosing commission of a cognizable offence by specified accused persons. The omission in the police statement of Shiv Charan is fatal to his testimony. Ramesh Chand SI, PW21, had reached the place of incident before Janak Kumari was lifted from her house and removed to hospital. The alleged dying declaration made to Shivcharan PW5 must have come to the knowledge of Ramesh Chand SI who sent the rukka Ex. PW14/A to the police station. This rukka also does not make any mention of any such dying declaration having been made by Janak Kumari. In our opinion, the sole testimony of PW5 Shiv Charan, ASI uncorroborated by any other evidence as to a dying declaration, implicating the three accused persons having been made by the victim to him, is difficult to believe in the facts and circumstances of the case. The first dying declaration, therefore, stands discarded.
19. Second dying declaration - made to PW9 Dr. C.N. Khanijau at 8.10 a.m. vide Ex.PW9-A
20. This is a dying declaration, so called; it is no dying declaration in the eye of law. It would be a misadventure to spell out a dying declaration made by the victim from the statement of Dr. C.N. Khanijau. All that he has stated is this much that Janak Kumari was brought to casualty ward by Shiv Charan, ASI with the alleged history of being burnt by husband, mother-in-law and sister-in-law after pouring kerosene oil, after attempting to strangulate her with rope. Dr. Khanijau has nowhere in his statement deposed to having talked to Janak Kumari nor has he deposed to Janak Kumari having made any disclosure or declaration to the witness. A reading of the statement of the witness shows that such history may have been given to him by ASI, Shiv Charan who had accompanied the injured to the casualty ward. Strangely enough, the information given by Shiv Charan, ASI to Dr. Khanijau goes on to add the injured having been attempted to be strangulated with rope before having been set on fire. This misleading information must have had an embellishing effect on the medico-legal examination of the injured by Dr. Khanijau. He went on to record that on local examination of the neck there were marks of rope on the anterior half of the neck. However, Dr. B.N. Reddy, PW12, who performed the autopsy, has completely belied Dr. Khanijau on this point. He has stated that there were no strangulation ligature mark caused by rope on the neck of the victim. There was no evidence of ligature strangulation. There was no bruise in the neck muscles and no fracture of neck bones and cartilages. It is thus clear that there was no dying declaration made by the injured Janak Kumari to Dr. Khanijau. Rather it appears that there was someone attempting to develop a story of Janak Kumari having been attempted to be strangulated before she received burn injuries.
21. Third Dying-Declaration - made to PW21, Ramesh Chand, SI between 9 & 10 a.m. vide Exhibit PW 21/A
22. According to Ramesh Chand, PW21 the police had swung into action on account of an information having been received regarding a woman having set herself on fire. We have disbelieved and discarded the prosecution case as to the injured Janak Kumari having made any declaration to PW5 Shivcharan ASI between 7.30 and 8 a.m. That being so, at the time when Ramesh Chand, SI interrogated Janak Kumari and recorded her statement till then he had not received any information from anyone else as to the injured Janak Kumari having been set on fire by anyone else than herself, that is to say, by her husband, mother-in-law and sister-in-law. On the contrary he admits that when he visited the place of the incident upon an information having been conveyed to him by the PCR van he made enquiries from the neighbours and the persons of neighbourhood present at the scene of the incident who were 3 or 4 persons in number, none had told him of Janak Kumari having been set on fire by the accused persons. When he recorded the statement of Janak Kumari the doctor attending on her was not present in close vicinity of Janak Kumari or this witness but he was certainly present in the burns ward. He did not have the statement Exhibit PW21/A attested by the doctor. The statement is a detailed statement and purports to have been signed by the deceased. Below the statement Ramesh Chand, SI has made an endorsement that the doctor (not named) had given in writing patient is fit for giving statement. However, such an endorsement made by any doctor has not been proved before the Court.
23. Ramesh Chand SI states that at the time of recording the statement Glucose drip was being given to Janak Kumari and the signature was obtained when she was lying on the bed.
24. We have already noted hereinabove that at 9 a.m., before the statement Exhibit PW21/A was recorded by Ramesh Chand, SI the patient had reached under the care of Doctor I.L. Tiwari who had kept her on heavy sedation on account of 85% deep burns and dehydration while her condition was constantly deteriorating. Dr. B.N. Reddy, PW 12 opined that neck, mouth and lips of the deceased were burnt. The records of the burn ward show that the hands of the injured were also burnt and the skin of the hands had peeled off. In such condition of the injured we have grave doubts, as the trial court has also expressed, if the injured could have made a detailed statement to Ramesh Chand, SI and could have put her signature on the same. The learned Sessions Judge, who tried the case, has arrived at the following finding, supported by reasons, based on detailed evaluation of evidence :
25. Until and unless it is proved that at the time of the making of the dying declaration the deceased was also mentally sound and physically fit to make a statement the dying declaration cannot be accepted. It is clear from the evidence on record that at the time of the making of the dying declaration Exts. PW21/A and PW16/A the deceased Smt. Janak Kumari was neithter mentally nor physically fit to make any statement.
26. The learned Sessions Judge has in his judgment noted the question which remained unanswered, as under:
27. Ever since Smt. Janak Kumari was taken to the hospital her general condition remained poor and it continued to deteriorate till she ultimately died by the noon of 8 March 1982. Under these circumstances how could Smt. Janak Kumari make her dying declarations Exts. PW21/A & PW16/A. Then her hands were burnt and the skin of the hands had peeled off, then how could she have signed Exts. PW16/A and PW21/A. So on account of all these facts the dying declarations Exts. PW16/A & PW21/A also do not inspire confidence.
28. Having ourselves evaluated the evidence independently we do not feel inclined to disagree with the finding of the trial court in this regard especially in view of the absence of medical evidence showing that Janak Kumari was in a fit physical and mental condition between 9 and 10 a.m. on the date of the incident to make the statement.
29. Fourth dying declaration - recorded by PW16 Ajit Shrivastava, SDM between 1.30 and 1.45 p.m. vide Exhibit P.W.16/A.
30. According to Ajit Shrivastava he was working for one month as Sub-Divisional Magistrate (SDM). He was holding his court when SI Ramesh Chand came to him in his court and requested him to record the statement of Janak Kumari. There was no request made in writing. It was the first and the last dying-declaration recorded by him till the date of his examination before the Court. He had not recorded any other dying-declaration in any case at the request of the police. Ajit Shrivastava admitted that Ramesh Chand, SI often used to come to him. To test the veracity of the witness he was confronted with the fact that 7 March 1982 was a Sunday and he was not in the court room but at his home and therefore what was being stated by him was false. To this suggestion the witness responded by saying that he could not say if it was Sunday because sometimes he had to go to the court even on Sundays. He was again asked if he could tell any reason for his visit to court on 7 March 1982, a Sunday? The answer was in negative. However, he hastened to add that it was perhaps to clear the pending work. The fact remains that the statement Exhibit PW 16/B recorded by this witness is again a detailed one and in a narrative form. The narration of the incident is generally on the same lines as is to be found contained in the statement Exhibit PW21/A recorded by Ramesh Chand, SI. At the end of the statement Shri Ajit Shrivastava records as the words of Janak Kumari - I have given this statement in my full consciousness and senses. Read over to me and found correct. This statement, Exhibit PW 16/A also does not bear any endorsement by any doctor either in charge of the burns ward attending on the victim or present in the hospital verifying the physical and mental condition of the injured so as to make the statement.
31. While discussing the third dying declaration, Exh. PW 21/A, we have already stated that we have on the material available on record grave doubts if the injured Janak Kumari was in a position to make any statement or to sign the same between 9 & 10 a.m. The same observation applies with added force to the statement Exhibit PW16/B which is said to have been recorded between 1.30 and 1.45 p.m. on the same day. Added force - we say - because the material available on record shows that the condition of the injured Janak Kumari was continuously deteriorating and obviously between 1.30 and 1.45 p.m. she must have been in a condition more worse than what she was in between 9 and 10 a.m.
32. According to the dying declaration Exhibit PW21/A there was a scuffle between the deceased and the accused Om Prakash on the night preceding the date of the incident while according to the dying declaration Exhibit PW16/A such scuffle had taken place in the morning soon before the victim was set on fire. The recital that the statement was being given (by the injured) in full consciousness and senses recorded in Exhibit PW16/A is belied by the medical evidence. These are additional factors casting doubt on credibility of dying declaration Exh. PW16/A.
33. Absence of medical evidence to show if Janak Kumari was in a fit state of mind and physical condition to have at all made a statement and signed the same, doubtful setting of the place - court or home - wherefrom the inexperienced SDM accompanied the investigating officer to record the statement, inconsistency though a bit little with the earlier statement and prima facie unsustainable truth of some of the recitals contained in the statement do not permit the conscience of the Court to accept the dying declaration Exh. PW16/A as safe to act upon.
34. Fifth dying-declaration (oral) - made to PW 3, Kishan Lal between 5.30 and 6 p.m. PW3, Kishan Lal is the brother of the deceased Janak Kumari. According to him, he having learnt of the incident reached the hospital at about 5.30 or 6 p.m. where Janak Kumari was admitted and on her enquiry the injured Janak Kumari revealed to him that her husband, mother-in-law and sister-in-law had poured kerosene on her and set fire unto her. He did not know that any offence was registered regarding the incident and was under investigation. Yet he did not try to contact, or give information to, the police which would have been his ordinary natural conduct on learning such ghastly incident having taken place with his sister. Kishan Lal admitted that he never informed to the police what was told to him by Janak Kumari. Such conduct of the witness is fatal to reliability and acceptance of any dying-declaration by the deceased having been made to him. Moreover, we also have grave doubts if Janak Kumari was in a position to speak and make statement to Kishan Lal at about 5.30 or 6 p.m.
35. A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of heresay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances. [see Tapinder Singh Vs. State of Punjab - 1971 (1) SCJ 871 1970 Indlaw SC 323]. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das Vs. State of Rajasthan - AIR 1957 SC 589 1957 Indlaw SC 17 the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh @ Surendra Singh Vs State of M.P.- AIR 1982 SC 1021 1981 Indlaw SC 16 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh Vs. State of Punjab - AIR 1983 SC 554 1983 Indlaw SC 82 this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 1981 Indlaw SC 49 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present.
36. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer later on relied on as dying declaration. In Munnu Raja and Anr. Vs. The State of Madhya Pradesh - AIR 1976 SC 2199 1975 Indlaw SC 280, this Court observed - investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to be encouraged. The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh Vs. State of Punjab AIR 1979 SC 1173 1979 Indlaw SC 531 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.
37. The principal accused Om Prakash had himself informed the police of the incident. In fact, he was the first to give any information relating to the incident to the police. Unfortunately, none of the accused could have escorted the victim to the hospital nor could remain present by her side as the case diary revealed (as has been noticed by the trial court) that the accused persons were arrested on the same day. The house of the accused persons which is the site of the incident is situated in a thickly populated locality in a narrow lane where the houses are located like a cluster. The neighbours must have collected soon at the place of the incident. This is borne out from the statement of Shiv Charan, ASI who had made on the spot inquiries. None of the neighbours has been examined excepting Trishla Kumari, PW1 to whom the injured Janak Kumari has not made any statement implicating the accused persons although she had the opportunity of doing so. We have also dealt with each of the five dying declarations to find out their worth. We have found the second dying declaration to be no dying declaration, the first and third ones having been made to police officers associated with investigation and also not worthy of credence. We have disbelieved the fifth dying declaration said to have been made to PW3, Krishan Lal. We have found it not safe to act on the fourth dying declaration said to have been made to a Magistrate as we entertain grave doubts if the injured Janak Kumari was in a position to make any statement at the time at which this fourth, as also the third and the fifth dying declarations are alleged to have been made. We have found some inconsistency between the statements said to have been made by the injured Janak Kumari and recorded as third and fourth dying declaration. We have also found that from the beginning there was an effort to develop a story of Janak Kumari having been attempted to be stragulated which story finds a mention in the record as prepared by Dr. Khanijau but which story has been found to be false. None of the five statements attributed to Janak Kumari and coming from the mouth of different witnesses has been held worthy of being accepted and acted upon as dying declaration so as to form a safe basis to base conviction of the accused thereon. We find ourselves not persuaded to reverse the well-reasoned finding of not guilty recorded by the trial court and convert the same into a finding of guilty simply because the statements alleged to be dying declarations are five in number. Needless to say there is no other shred of evidence connecting the accused with the crime.
38. It appears that the marriage between the accused Om Prakash and the victim Janak Kumari proved to be a failure and all efforts at restoring and re-establishing the matrimonial home had failed leading to utter frustration in the mind of Janak Kumari. She probably felt convinced in her mind that she had no other escape except to finish herself which course would also enable her avenging her grievance and settling scores with the accused persons whom she thought were responsible for spoiling her life and leading her into immense misery. She had indicated what was transpiring in her mind to Trishla Kumari, PW1. The possibility of her committing a suicide and implicating the accused persons cannot be ruled out in the facts and circumstances of the case as available on record.
39. For the foregoing reasons, the appeal is dismissed. The judgment of acquittal, along with the findings recorded by the trial court, is maintained.


A. Shankar v State Of Karnataka
Supreme Court of India

9 June 2011
CRIMINAL APPEAL NO. 1006 of 2007
The Judgment was delivered by : Balbir Singh Chauhan, J.
1.   This criminal appeal has been filed under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 against the judgment and order dated 28.2.2007 of the High Court of Karnataka, Bangalore, in Criminal Appeal No.1069 of 2000 by which the High Court has reversed the judgment and order dated 31.10.1998 passed by the XVth Additional City Sessions Judge, Bangalore, in Sessions Case No.366 of 1996, acquitting the appellant of the charges under Sections 302 and 307 of the Indian Penal Code, 1860 (hereinafter called 'IPC').
2.   Facts and circumstances, as per the prosecution case giving rise to this appeal had been that the law was put into motion by younger brother of the deceased, Shankara (PW.8), who lodged a complaint orally on 26.3.1996 that the appellant came to the Barber Saloon of Murthy Prasad, deceased, on 25.3.1996 at about 8 p.m. and demanded Rs.150/- from the deceased. Since the deceased did not give the money demanded, the accused got angry and threatened that he would take care of him later. Appellant accused again came back at 9.30 p.m. to the shop of the complainant, sought shelter therein, had food, and slept there with the deceased and the complainant. At about 2 a.m. the complainant heard sounds and after being awaken he saw that the appellant was hitting his elder brother with a knife on the chest and on shouting of the complainant the appellant hit him also with the same on the left abdomen and hands and ran away. Murthy Prasad died of assault and the complainant got injured, and was taken to the hospital for treatment.
3.   On the basis of the said oral complaint, an FIR No.82/96 dated 26.3.1996 (Ext.P4) was recorded. The investigation ensued and the appellant was arrested on 31.3.1996. After conclusion of the investigation, charge sheet was filed against the appellant and he was put to trial under Sections 302 and 307 IPC. In order to prove the guilt of the appellant, prosecution examined 17 witnesses. The appellant was examined under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") wherein apart from denying the evidence against him given by the witnesses directly, he also denied to have gone to the Saloon of the deceased at all as alleged by the prosecution.
4.   After considering the entire evidence on record, the Trial Court came to the conclusion that prosecution failed to prove beyond reasonable doubt that the appellant had committed murder of Murthy Prasad or made an attempt to kill the complainant Shankara (PW.8). Thus, vide judgment and order dated 31.10.1998, the appellant was acquitted of the charges under Sections 302 and 307 IPC.
5.   Being aggrieved, the State of Karnataka preferred Criminal Appeal No.1069 of 2000 which has been allowed by the High Court convicting the appellant under Section 302 IPC for committing the murder of Murthy Prasad, deceased and awarding him life imprisonment. The appellant also stood convicted under Section 324 IPC for causing injuries to the complainant Shankara (PW.8) and has been awarded six months imprisonment and a fine of Rs.5,000/-. In default of depositing the fine to undergo simple imprisonment for a period of one month. Both the sentences have been directed to run concurrently. Hence, this appeal.
6.   Shri Sanjay Mishra, learned counsel appearing for the appellant has submitted that the High Court has committed an error in interfering with the well reasoned judgment of acquittal by the Trial Court and relying upon the evidence on record while ignoring the material inconsistencies between the evidence of the witnesses; and medical and ocular evidence. No motive was proved by the prosecution to commit the offence. There had been an inordinate delay of 4 hours in lodging the F.I.R. as the murder was alleged to have been committed at 2 a.m. while the complaint was lodged at 6 a.m. on the same day, though the Police Station was at a distance of only one kilometre. There had been discrepancy relating to the seizure and kind of weapon used in the offence. Therefore, the appeal deserves to be allowed.
7.   Per contra, Ms. Rashmi Nandakumar, learned counsel appearing for the State of Karnataka vehemently opposed the appeal contending that the High Court has rightly reversed the findings recorded by the Trial Court being the First Court of Appeal after appreciating the evidence properly. The Court below had misappreciated the material evidence of the witnesses. More so, the trial Court had failed to give due weightage to the evidence of injured witness, namely Shankara (PW.8). Hence, the appeal lacks merit and no interference is required.
8.   We have considered the rival submissions made by learned counsel for the parties and perused the record.
9.   The post mortem examination report dated 26.3.1996 revealed that following injuries were there on the person of Murthy Prasad:
(1) Vertically placed incised wound over the front of tip of right thumb measuring 3 cm x 0-5 cms x 0-5 cms deep;
(2) Incised wound over top of left shoulder measuring 2 cms x 0-5 cms x skin deep;
(3) Incised wound over left side of chest situated 8 cms vertically below left arm fit, measuring 2 cms x 0-5 cms;
(4) Incised wound over left side lower part of chest situated 23 cms below later 1/3rd of left collar bone, vertical measuring 2 cms x 0-5 cms x 5 cms, deep;
(5) Incised wound over left side lower part of chest situated 20 cms below left arm fit, oblique measuring 2.5 cms x 0-5 cms x 0-5 cms, deep;
(6) Incised wound over left side lower part of front of abdomen measuring 2.5 cms x 0-5 cms x 1 cms, deep;
(7) Horizontally placed stab wound present over the left side of hip situated 3 cms behind and 2 cms below the level of left anterior iliac spine measuring 2.5 cms. x 2 cms x 9 cms deep, the front end is pointed and back end blunt, margins are clean cut, the wound is directed backwards, downwards, and to right by cutting sciatic nerve and underlying vessels edged clean cut;
(8) Incised wound over left side upper part of neck situated 2 cms below middle of ramus of mandible, measuring 1 cms x 0-5 cms x 0-5 cms, deep;
(9) Stab incised wound present over left side back of chest situated 12 cms below the level of 7th cervicle spine 5 cms to left of midline measuring 3 cms x 1.5 cms chest cavity deep. The post mortem report further revealed that so far as injury no.9 was concerned, the weapon had cut the skin and muscles of chest had entered the chest cavity in 5th intercostals space, and pierced the lower lobe of left lung on which it measures 2 cms x 0.5 cms x 0.5 cms deep. According to the opinion of the Doctor, the death was due to shock and haemorrhage as a result of the aforesaid injuries.
10.   The medical examination report of complainant Shankara, aged 18 years dated 26.3.1996 revealed the following injuries on his person :
(1) Incised wound seen on the left side of abdomen measuring 1- 1/2 cm x 0.5 cm x just below the last rib on the left side at mid clavicular line;
(2) Incised wound seen on the front of right fore at lower 1/3rd measuring 1-1/2 cm x 1 cm, skin deep;
(3) Incised wound seen on the medial side of left thumb, 2-1/2 cm x 1/2 cm;
(4) Incised wound seen on the left upper arm on the detoid muscle measuring 1-1/2 cm x 1/2 cm skin deep;
(5) Incised wound seen on the left cheek measuring 1-1/2 cm x 1/2 cm skin deep.
11.   Dr. B.R.S. Kashyap (PW.5) who conducted post mortem examination on the body of Murthy Prasad explained in his deposition in the court that it was not normally possible to cause injuries to the deceased with weapon Ext.MO.1 if held with both of its arms together while inflicting the injuries. However, if the sharp edge and tip of the scissors is held open while assaulting, the injuries can be caused. So far as the evidence of Dr. H. Venkatesh (PW.6) who examined Shankara (PW.8) complainant is concerned, he deposed that injuries found on his person could be caused of sharp edged weapon. Thus, in view of the above, there could be no dispute that as per the opinion of Doctors, it was possible to cause the injuries found on the person of the deceased and the complainant with scissors in case the sharp edge and tip of the scissors is held open at the time of assault.
Material Contradictions :
(I) Evidence of Witnesses:
12.  Murthyalappa (PW.2), and Smt. Ramanjanamma (PW.3), the brother-in-law and sister of the deceased, respectively, deposed in the Court that they made a visit to the hospital where Shankara (PW.8) had been admitted and he had told to both of them that the appellant had killed Murthy Prasad, and caused injuries to him. Though Shankara (PW.8) complainant himself deposed in his examination-inchief that he came to know about the death of his brother only after being discharged from the hospital living therein as indoor patient for 15 days.
Shankara (PW.8), while lodging the complaint stated as under:
"On 25.3.1996 at about 8.00 P.M. the accused younger brother of Rudresh came to the Super Hair Style Shop of the deceased, elder brother of the complainant viz., Murthy Prasad and demanded Rs.150/- from him. Since he did not give the money demanded, the accused got angry and threatened that he would take care of him later. He once again came back at 9.30 P.M. to the shop of the complainant and with intent to murder the complainant and his elder brother, he sought shelter in the shop, had food and slept there itself."
But, in the court Shankara (PW.8) deposed:
"Last year on one day at about 8 p.m. the accused came to our saloon and enquired me about my brother. I informed the accused that my brother had gone out and he will be returning soon. Accused stayed in my saloon only. My brother Murthy Prasad returned to Saloon at about 9 p.m. Myself, my brother and accused took meals in the saloon and slept in the saloon."
13.  Thus, it is evident that Shankara (PW.8) in his deposition in court did not mention about the first visit of the appellant and demand of Rs.150/- from Murthy Prasad.
(II) Medical Evidence & Ocular Evidence: As per the medical evidence, injury nos.7 and 9 found on the person of Murthy Prasad deceased had been fatal and could be caused with the pointed part of the scissors, if used holding sharp edge and tip of the scissors open, at the time of assault.
14.  In his oral complaint on 26.3.1996, Shankara (PW.8) had stated that the accused caused the injuries with knife. He deposed in the Court:
"Accused was stabbing my brother with a scissors. He stabbed on the stomach of my brother... Accused also stabbed me from the scissors on my left side of stomach, on right hand and on the left shoulder...Now I see the scissors M.O.1, the accused assaulted me and my brother with M.O.1".
(Emphasis added) Thus, it is apparent from the above that Shankara (PW.8) was not sure as to whether injuries were caused by knife or scissors. No explanation came forward as to whether the complainant, Shankara (PW.8) was capable to understand the distinction between knife and scissors.
(III) Identity of the accused:
"As per Ramanjanamma (PW.3), brother of one Rudresh murdered Murthy Prasad. According to Sriram (PW.4), the brother of Umesh assaulted them: "I do not know who is brother of Umesh. I do not know the accused." Shankara (PW.8) refers to the accused as brother of Rudresh. Abdul Suban (PW.17) stated that "I tried to ascertain and search for Rudresh but he was not found. I did not enquire the father of the accused and his family members about Rudresh".
(IV) FSL Report:
15.  As per Abdul Suban (PW.17), he sent all the seized articles including M.O.1 for FSL examination through Police Constable 2313 on 2.6.1996 and received back on 7.6.1996. However, FSL report was not produced before the Court. Abdul Suban (PW.17) has admitted that he received the Post Mortem report and FSL report and after completing the investigation he submitted the charge sheet on 27.6.1996. No explanation has been furnished as to why this FSL has not been produced before the court as it was necessary to ascertain as to whether M.O.1 was actually used in the commission of offence or not.
(V) Recovery of weapon:
16.  As per Abdul Suban (PW.17) the accused in the presence of panchas had seen the occurrence and also took out a scissors hidden under a stone slab near the saloon. He seized the scissors M.O.1 in the presence of Panchas under Panchnama Exh. P-8. As per the evidence of Ganganarasaiah (PW.9) the scissors was in the bucket which was filled with water. The bucket was inside the shop. The police alone saw it. Narayanaswamy (PW.15) stated that the accused told him that he committed the offence and he took out a scissors kept under a stone slab. Police seized the same and wrapped in a cloth and drawn a mahazar. He signed the mahazar and stated that M.O.1 was the scissors seized by the police.
17.  The trial Court has taken into consideration each and every discrepancy/contradictions referred to hereinabove. However, the High Court has dealt with the case observing that presence of Shankara (PW.8) at the place of occurrence has not been disputed. Injuries found on his person are also supported by the evidence and particularly other statements made by Shankara (PW.8) in the Court which were worth acceptance regarding his staying outside for some time. The High Court came to the conclusion that there was nothing unnatural in his statement. However, the High Court did not deal with the contradictions referred hereinabove.
18.  The contradiction in the statement of Shankara (PW.8) in the court as compared with his statement before the police under Section 161 Cr.P.C. also demolishes the aspect of motive.
19.  There was delay in lodging the FIR. In the present case, the alleged occurrence took place at 2.00 p.m. and the police station was hardly at a distance of 1 K.M. from the place of the occurrence and Shankara (PW.8) had never deposed that he had become unconscious, the delay has not been explained.
20.  Abdul Suban (PW.17), the I.O. consistently deposed that he was searching for Rudresh. Admittedly, even as per the prosecution, author of the crime had been Shankar-appellant and not his brother Rudresh. We fail to understand as for what reason the I.O. was trying to apprehend the brother of the accused.
21.  In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
22.  Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "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., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152 2008 Indlaw SC 1638; Arumugam v. State, AIR 2009 SC 331 2008 Indlaw SC 1620; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 2009 Indlaw SC 223; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287 2010 Indlaw SC 963; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191 2010 Indlaw SC 551; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324 2011 Indlaw SC 169; and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280 2010 Indlaw SC 944]. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106 1998 Indlaw SC 783).
23.  If the case in hand is examined in the light of the aforesaid settled legal proposition, the prosecution has definitely made an attempt to establish the presence of the accused in the shop and Shankara (PW.8) is the only eye witness. His presence also cannot be doubted in view of the fact that he himself got injured in the incident.
24.  However, the question does arise as under what circumstances he has told his sister and brother-in-law that his brother has been killed by accused-appellant when in his substantive statement before the court he has deposed that he came to know about the death of his brother after being discharged from the hospital and he remained there as indoor patient for 15 days. Such a statement made in the court also creates a doubt as to whether he could be the author of the complaint for the reason, that in the complaint lodged by him on 26.3.1996 he has stated that his brother had died. Similarly, non-production of the FSL report in the court by the prosecution is fatal as in absence thereof it was difficult for the court to reach to the conclusion as to whether the offence has been committed with M.O.1. More so, after the incident, Abdul Suban (PW.17) had been busy in searching Rudresh, brother of the accused and he made no attempt to search the accused. These factors clearly indicate that investigation has not been conducted fairly.
25.  It is settled legal proposition that in exceptional circumstances the appellate court under compelling circumstances should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse, i.e., the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case.
26.  While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence. (Vide: Abrar v. State of U.P., (2011) 2 SCC 750 2010 Indlaw SC 1082; and Rukia Begum & Ors. v. State of Karnataka, (2011) 4 SCC 779 2011 Indlaw SC 219).
27.  In view of the above, we are of the considered opinion that the High Court committed an error in recording the finding of fact that the prosecution succeeded in proving the case beyond reasonable doubt. The High Court failed to meet the grounds pointed out by the trial Court discarding the case of prosecution and thus, the findings of fact recorded by the High Court remain perverse.
In view of the above, the appeal succeeds and is allowed.
28.  The judgment and order of the High Court dated 28.2.2007 is hereby set aside and judgment and order of the trial Court dated 31.10.1998 passed in Sessions Case No.366 of 1996 is restored. The appellant has been enlarged on bail by this Court vide order dated 26.7.2010.
The bail bonds stand discharged.
Appeal Allowed


Mafabhai Nagarbhai Raval v State of Gujarat
Supreme Court of India

14 August 1992
Cr.A. No. 317 of 1981 (Cr.A. No. 148 of 1979, D/- 30 January 1981 and 2 February 1981 (Guj).)
The Judgment was delivered by: K. JAYACHANDRA REDDY J.
1.  This is an appeal under Section 379, Cr.P.C. read with Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The sole accused is the appellant before us. He was tried for an offence punishable under Section 302, I.P.C. The gravamen of the charge was that on the night of 9-7-78 at mid night he poured kerosene oil on Bai Gauri the deceased in this case and set fire as a result of which she died on the next day. The case rested mainly on the dying declarations recorded by the Doctor and the Magistrate. The learned Sessions Judge was not prepared to act upon the dying declarations and accordingly acquitted the appellant. The State preferred an appeal. The High Court allowed the appeal and convicted the appellant under Section 302, I.P.C. and sentenced him to undergo imprisonment for life. Hence the present appeal.
2.  Learned counsel for the appellant submitted that the deceased had serious burns on her and it would not have been possible for her to make dying declarations and that P.W. 2 the Doctor who recorded the first dying declaration has not truly recorded the same in the words of the deceased and that his evidence itself shows that the deceased would not have been in a position to make the declaration. It is also his submission that a P.W. 3 the Executive Magistrate who recorded the second dying declaration did not record the same in the form of questions and answers and the statement recorded by him cannot be taken to be the true version alleged to have been given by the deceased.
3.  The deceased aged about 40 years was the widow of one Savaji and was living in a wooden cabin near the maternity hospital in Harij and she was maintaining herself by doing casual work in the maternity hospital. She developed illicit intimacy with the accused. Her grown-up Children were dissatisfied with her character and other members of her community were also dissatisfied. Since then she was living alone in the wooden cabin near the maternity hospital. There was some quarrel between the accused and the deceased. At about midnight on 9-7-78 the accused went to her cabin and sprinkled kerosene oil on her and set fire to her clothes and then fled. The deceased ran from her cabin inside the compound of the maternity hospital raising cries.
4. One Patavala Motibhai came there and put a quilt on her body. The said Patavala Motibhai went and informed the Medical Officer, P.W. 2 of the Government Hospital who immediately ran to the spot and separated the burnt clothes from her body and gave first aid. He questioned as to who had set fire and the deceased replied that the accused was the culprit. P.W. 2 recorded her statement which is the first dying declaration in the case P.W. 2 shifted her to the hospital and he himself went to the police station and gave a report. The police Jamadar also recorded her statement in the hospital which is yet another dying declaration in the case. By that time information was sent to the Taluka Magistrate with a request to record the dying declaration. P.W. 3 the Taluka Magistrate went to the spot and he also recorded the dying declaration. The deceased died in the early morning of 10-7-78.
5.  Inquest was held over the dead body and post-mortem was conducted by P.W. 2. The learned Sessions Judge, in our view, has unnecessarily doubted the veracity of P.W. 2, the Doctor. He observed that the moment the flames had been seen by the deceased on her person she must have received a severe shock and the same must have become "graver and graver" and in that state of mind it is not believable at all that the deceased could keep balance of her mind and full consciousness so as to make the statement. With this initial doubt the learned Sessions Judge proceeded to examine the evidence of the Doctor. The Doctor stated that in some cases mental shock immediately does not develop and that in the instant case the deceased developed the mental shock for the first time at 4 a.m. Thereafter it gradually increased. The learned Sessions Judge called it irresponsible statement. It is in the medical evidence that 99% of the body of the deceased was affected by extensive burns and that the clothes of the deceased were also burnt to ashes.  Therefore, the learned Judge thought that it was not at all possible to believe that the lady might have developed the shock only at 4 a.m. and he gave his firm opinion that the moment the deceased had seen the flames she must have sustained mental shock and these circumstances convinced him that right from the very beginning she must have been under a mental shock and on that ground the learned Judge disbelieved the Doctor. Likewise he has pointed out certain circumstances purely based on surmises and on his inferences. It is needless to say that the Doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion to that of the Doctor.
6.  On the same process of reasoning the learned Sessions Judge has also doubted the evidence of P.W. 3, the Executive Magistrate. The learned Judge found fault with the procedure adopted by the Executive Magistrate namely that he did not record the statement in the form of questions and answers. The learned Judge, in our view, without any basis reached the conclusion that the Executive Magistrate did not record the dying declaration exactly in the words stated by the deceased. There is third dying declaration recorded by the police Jamadar but we need not consider the same.
7.  It must be noted that P.W. 2 recorded the statement within five minutes and noted the time also in the statement. The High Court has rightly pointed out that both the dying declarations are true and voluntary. It is not the case of the defence that she gave tutored version. The entire attack of the defence was on the mode of recording the dying declarations and on the ground that the condition of the deceased was serious and she could not have made the statements. On these aspects as noted above, the evidence of the Doctor is relevant and important. We have gone through the evidence of the Doctor as well as that of the Executive Magistrate. We find absolutely no infirmity worth mentioning to discard their evidence.
8. It therefore emerges that both the dying declarations are recorded by independent witnesses and the same gives a true version of the occurrence as stated by the deceased. The dying declarations by themselves are sufficient to hold the appellant guilty. The High Court has rightly interfered in an appeal against acquittal. The appeal is accordingly dismissed.
Appeal dismissed.