JUDGMENT
H.N. Narayan, J.
1. This appeal is directed against the judgment of the learned Additional City Civil and Sessions Judge, Bangalore, dated 27.6.1998 in S.C. No. 342 of 1996 on his file. By the impugned judgment, the learned Sessions Judge convicted the accused for the offence punishable under Section 302, I.P.C., and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000/-, in default to pay the said fine, to undergo rigorous imprisonment for six months.
2. The case of the prosecution as disclosed from the judgment of the Trial Court, in brief, is as follows :
Deceased Lakshmamma was earlier married to P.S. 7-Krishnappa and she gave birth to two daughters – Padma and Nagamani, aged 19 and 16 years respectively. He deserted her 20 years prior to the date of her death due to some differences. The accused who came in contact with her, married her on a false statement that he was unmarried. However, she lived with him till her death. As the accused was not looking after the family, she was maintaining the family by working as a maid servant. The accused was working as a driver. It is the further case of the prosecution that on 3.2.1996, at about 8.30 p.m., accused came home and paid some amount from the salary for the family maintenance. Since the amount paid by him was very small, deceased-Lakshmamma asked him as to why he was paying very less amount, and a quarrel ensued between them. The daughters of the deceased-Lakshmamma were not present in the house at that time. Father of deceased-P.W. 2, who was getting himself prepared to sleep outside the house, heard the quarrel and the bawling of his daughter. He went inside the house and found that the accused poured kerosene upon his daughter and lit fire to her as a result of which she sustained burn injuries. Since there was no help from the neighbours, he took her to the house of C.W. 12-Devamma-sister of the deceased, where P.W. 4-Boregowda @ Raju, was present. P.W. 2 informed them of the incident. Thereafter, P.W. 4 Raju and C.W. 12-Devamma took the injured Lakshmamma to Victoria Hospital, where she was admitted to Burns Ward. P.W. 9-M.K. Uttappa, who was the PSI of Byatarayanapura Police Station, directed P.W 8-Muniyellappa, ASI, at abut 6.00 p.m., to go to the Victoria Hospital, where Lakshmamma was admitted with burn injuries, to record her statement. P.W. 8 – Muniyellappa and Constable-C.W. 23, went to Victoria Hospital, met P.W. 12 – Dr. Thrishula, and recorded the statement of the injured Lakshmamma in the presence of the Doctor-P.W. 12. P.W. 8 came back to the police station, and gave the statement of Lakshmamma to P.W. 9. On the basis of the said statement, P.W. 9-M.K. Uttappa registered a criminal case in Crime No. 57/1996 against the accused, for the offence punishable under Section 307 of I.P.C., and submitted the F.I.R. to the Court. P.W. 9 recorded the statements of C.Ws. 12, 14, P.Ws. 2 and 4 on the same day. On the next day, he visited the place of incident, namely the house of the accused and drew up a Spot Mahazar as in Ex. P3, and seized the burnt cotton, bed clothing, a plastic can along with its lid, a broken match box under the said Mahazar, in the presence of witnesses. He received a Death Memo on 7.2.1996, and, therefore, he altered the offence to one punishable under Section 302, I.P.C., and submitted the altered F.I.R., to the Court. On 8.2.1996, he conducted inquest proceedings as in Ex. P4 and recorded the statements of blood relatives of the deceased. P.W. 10K. Ramesh Babu, the Police Inspector of the Byatarayanapura Police Station, took up further investigation on 8.2.1996. On the same day, the accused was produced before him at 6.10 p.m. He arrested the accused, and found that accused had sustained burn injury on his hand, and, therefore, he was sent to the hospital for treatment. P.W. 11-Dr. B. Sadashiva Murthy, who was working as the Head of the Department of Plastic Surgery at Victoria Hospital, examined the accused on 9.2.1996 and found burn injury on his right hand, which was aged about a week. P.W. 11 issued a Wound Certificate as per Ex. P10. After completing the formalities of investigation. P.W. 10 K. Ramesh Babu submitted the charge sheet against the accused for the said offence.
3. The learned Magistrate before whom the charge sheet is laid, after following the formalities of the provisions of Section 207 of the Code of Criminal Procedure, committed the accused to the City Civil and Sessions Court, Bangalore, as the offence under Section 302, I.P.C. is exclusively triable by the Court of Sessions.
4. The accused was charged and tried for the offence of murder punishable under Section 302, I.P.C. The accused denied the charge and claimed to be tried. In proof of the charge, the prosecution examined 1.3 witnesses, and got marked 20 documents and three material objects. The learned Sessions Judge, recorded the statement of the accused under Section 313, Cr. P.C. found sufficient material against the accused, and as the accused failed to adduce any defence evidence, proceeded to hear the arguments. The learned Sessions Judge, considered the evidence of P.W. 2, 4 and the dying declaration Ex. P5, and in his opinion, this material was sufficient in proof of the charge against the accused, therefore, recorded the finding of guilt against the accused and passed the impugned judgment. The legality and correctness of this judgment is assailed in this case.
5. We have heard the arguments of Mr. M.T. Nanaiah, learned Counsel for the appellant, and Mr. B.C. Muddappa, learned Additional S.P.P. for the State and perused the evidence.
6. Mr. M.T. Nanaiah, learned Counsel for the appellant, contended before us that there is inordinate delay in the registration of the case for which no satisfactory explanation is offered by the prosecution. The denying declaration Ex. P5, said to have been given by the deceased, is not proved and no reliance can be placed on this statement of the deceased. The evidence of P Ws. 2 and 4 suffers from serious contradictions and that these two people who were aware of the cause of the injuries to the deceased, had not chosen to inform the police, till their statements were recorded by the Investigation Officer on the next day. The evidence of the doctors and other witnesses is not reliable in view of the serious condition of the injured who had sustained 85% burn injuries. There is also delay in shifting the injured to the hospital, which is not explained by the prosecution. The case of the prosecution bristles with contradictions and the evidence let is in not consistent and firm. It is further contended by the learned Counsel for the appellant that P.W. 12 Dr. Trishula, who attested the dying declaration-Ex. P5, has not certified that the deceased was in a fit condition to make a dying declaration. Ex. P5 has not passed the test of legal requirement enunciated by the Apex Court in a catena of decisions and, therefore, the dying declaration-Ex. P5, cannot be relied upon. The judgment of the learned Sessions Judge, who recorded a finding upon this infirm evidence, is not sustainable in law.
7. Mr. B.C. Muddappa, learned Additional S.P.P. drew our attention to the evidence of P.W. 2 and certain answers elicited in the cross-examination, which support the case of the prosecution. He also relied upon the dying declaration – Ex. P5 recorded by P.W. 8, and submitted that the evidence of P.W. 12-Dr. Trishula, clearly shows that the deceased was in a fit condition to make statement as in Ex. P5 and the accused has not imputed any interestedness to this witness, who examined the deceased-Lakshmamma at the earliest point of time. Learned Additional S.P.P., further contended that Ex. P5 in the form of a complaint recorded by the Investigating Officer before registration of the case and certification of fitness by the doctor is not necessary. Therefore, he submitted that there are no good grounds calling for interference in the impugned judgment.
8. In the light of these contentions, the question that falls for our consideration is :
Whether the judgment of conviction and sentence recorded by the learned Sessions Judge is not sustainable in law ?
9. The defence has not disputed before us the homicidal death of Lakshmamma as a result of burn injuries, which she sustained on the night of 3.2.1996 at about 8.30 p.m. Though she was brought to the Victoria Hospital on the early morning of 4.2.1996 with burn injuries on her body, the evidence of P.W. 2 clearly shows that she sustained burn injuries around 8.30 p.m. on 3.2.1996. According to P.W. 1-Dr. Nisar Ahamad, who conducted the post-mortem examination on the dead body of Lakshmamma, the cause of death was due to Toximia as a result of infection consequent upon burns sustained.
10. The question which needs consideration is – whether the accused is responsible for causing those burn injuries found on the dead body of Lakshmamma ?.
11. According to the prosecution, the deceased was brought to the Victoria Hospital at about 3.30 a.m., by P.W. 4 and his sister-C.W. 12 – Devamma. She was admitted to Burns Ward wherein she furnished the history of the incident to Duty Doctor as ‘Self-immolation’ due to detachment in life on 4.2.1996 at about 12.30 a.m., at No. 196, Padarayapalya. This was statement recorded by one Dr. B. Krishnappa, as disclosed in Ex. Dl – the Summary Sheet maintained by the Victoria Hospital, Bangalore. This information recorded by Dr. B. Krishnappa does not show at what time the same was recorded. Though the particulars in the case sheet disclosed that the patient was conscious, her general condition was not good. She sustained 70% burn injuries. According to the prosecution, P.W. 8-Muniyellappa, A.S.I., upon the instruction of P.W. 9-Uttappa, visited the hospital at about 5.45 p.m. P.W. 12 – Dr. Trishula was the Duty Doctor at that time. P.W. 12 – Dr. Trishula has made a note in the case sheet at about 5.45 p.m., on 4.2.1996 that A.S.I. Muniyellappa, was permitted to take the statement of the injured. She also recorded that patient says that her husband – M. Raju poured Kerosene on her and set her ablaze at 8.30 p.m. in the house, when she asked him to give more money. She also certified that patient was conscious and well oriented and was in a fit condition to make a statement. It is noted by P.W. 12 – Dr. Trishula that the injured wanted to give second history. P.W. 8 recorded the statement marked at Ex. P5 Lakshmamma breathed her last in the Victoria Hospital on 7.2.1996. The Investigating Officer has not made efforts to secure either Judicial Magistrate or Executive Magistrate to record her dying declaration. The general condition of the patient continued to be poor on the next two days, but there is no mention of her consciousness or orientation to speak. It is in this background that the prosecution treated Ex. P5 as the dying declaration and requested the Court to rely upon the same under Section 32 of the Evidence Act. We will consider the genuineness and reliability of Ex. P5 at a later stage. Here, we pause for a moment and refer to the oral evidence let in by the prosecution to explain the circumstances which led to this incident.
12. It is undisputed that the deceased left her former husband – P.W. 7 – Krishnappa, about twenty years prior to the date of incident. P.W. 7 has admitted that he deserted her due to some differences with her. Thereafter, she was residing with the accused who was a (B.T.S. Driver) as his mistress. She had two daughters through her first husband, aged 19 and 16 years at the time of incident. This is also spoken to by P.W. 2 and P.W 7. The statement made by P.W. 7 in the cross-examination shows that once the deceased insisted him to go to her house and accordingly, he visited her house and she had prepared chicken and when himself and deceased were taking food in her house, accused came and questioned the deceased as to who he was and when he came to know that P.W. 7 was her former husband, he started quarrelling. Perhaps, the accused was suspecting her renewed relationship with her former husband. The fact that he was not giving enough money for the maintenance of the family, is revealed by the deceased in Ex. P5. No such evidence is forthcoming either from the statements of P.W. 2 or P.W. 4. The evidence of P.W. 2 shows that the deceased was working as a maid servant to maintain her family.
13. P.W. 2 – Chikkananjegowda, who is none other than the father of the deceased, was aged about 70 years. According to him, on the date of incident, he was very much present in the house and accused came to the house when the deceased was alone. Then, the deceased asked the accused as to why he has given lesser money out of his salary and in that regard, there was a quarrel between them. He, therefore, came out of the house and sat outside the house. It is his further say that at about 8.00 p.m., the accused fold the deceased that he will do something to her and the accused told him that his daughter has set fire to herself and went away from the house. He, therefore, went inside the house and saw the deceased burning with fire. Therefore, he poured water on her and took her to C.W. 12 – Devamma. Devamma with the help of P.W. 4-Raju, took the deceased to the hospital where she died after five days. He has further stated that at the time of incident, accused and the deceased were alone in the house. The evidence of P.W. 2 is assailed on the ground that Ex. P5-the statement made by the deceased does not disclose his presence in the house. But, certain answers are elicited in the cross-examination of P.W. 2 at para-5 in particular, which go to show that P.W. 2 was very much present in the house of deceased at the time of incident. While suggesting on behalf of the accused that P.W. 2 came to the house of the deceased to verify the well-being of his grand-daughters, who were not present in the house on that day, the defence further elicited that the deceased was eking her livelihood as a maid servant and she was telling the accused that the income she was getting was not sufficient to maintain the family and the accused had to help her by paying some more money. It is also suggested to P.W. 2 that the accused on that day paid Rs. 500/- to the deceased and the deceased had demanded more money telling that the money paid was not sufficient to meet the family needs and that accused had told her that he cannot pay more than what he has paid. It is further suggested to this witness, that the deceased herself got the kerosene poured on her. It is further suggested to him that deceased was telling that she would set fire to herself and the accused thinking that she might lit fire to herself, put off the kerosene lamp. It was admitted that there was no electricity in the house and they were using the kerosene lamp for the light. It is further suggested that the deceased was searching for match-box to set fire to herself and the accused told him not to give the Match-box to her. Witness has stated that he does not know, whether – after putting off the lamp, the accused and deceased were sitting inside the house for about 10 to 15 minutes, as the door was closed. It is further suggested to him that after consoling her, the accused himself lighted the lamp and hung it on the wall and when the accused came out, the deceased set fire to herself and the accused told P.W. 2 that the deceased set fire to herself and went away. These suggestions are denied by P.W. 2. The witness has also stated that he had poured water over her. He took her to the house of C.W. 12- Devamma at Chandra Layout, which is at a distance of 3 kms., from the house of the deceased. Therefore, the presence of P.W. 2 at the time of incident cannot be disputed by the defence at all in view of the suggestions made to this witness. Though P.W. 2 is cited as an eye-witness to the incident, he has not supported the prosecution’s case to the required extent. Therefore, he was treated as hostile only to the extent of seeing the incident, which he has denied. He has denied having made such a statement before the Investigating Officer. It is true that there is some delay in shifting the injured to the Victoria Hospital. The story given by P.W. 2 that he brought his daughter in that condition by walk to a distance of 3 kms., itself raises certain doubt. It is not known as to why this old man took so much of time to bring her to the house of C.W. 12. But, he has stated that the neighbours were not co-operating and being an old man, perhaps he had no option except to take her to the house of C.W. 12-Devamma.
14. P.W. 4-Boregowda @ Raju-brother of the deceased, has admitted in his evidence that P.W. 2 brought the deceased to his house at about 2.00 a.m., on the said night and thereafter, C.W. 12 and himself took her to the Victoria Hospital. When he questioned her, the deceased told him that the accused gave little money out of his salary and that she asked for more money, he told that he would do something to her where the deceased would meet consequence, and poured kerosene or. her and set fire to her. Nothing serious is elicited in the cross-examination to discredit his evidence. It is no doubt stated by him that the deceased was suffering from pain and that he has asserted in his evidence that the deceased was very much conscious and she was speaking. The patient was brought to the Casualty Ward and was immediately referred to the Burns Ward.
15. The evidence let in by the prosecution shows that deceased Lakshmamma was admitted to Burns Ward at about 3.30 a.m., and that she was conscious when she made the statement before the Duty Doctor, which finds a place in the Case Sheet-Ex Dl. It is in his further evidence that A.S.I. – Muniyellappa-P.W. 8, met the Duty Doctor-P.W. 12 – Dr. Trishula, who was in charge of the ward from 2.00 p.m. to 9.00 p.m. on that day, and obtained her permission and according to the Doctor, the ASI recorded the dying declaration of the injured as in Ex. P5. P.W, 12 has also recorded her statement in brief in Case Sheet-Ex. Dl. Muniyellappa, thereafter, came to the police Station and handed over the statement of the injured to P.W. 9- M.K. Uttappa, PSL, who registered a criminal case in Crime No. 57/1996 for the offence punishable under Section 307 of I.P.C. No effort is made by the Investigating Officer in this case to summon either the Executive Magistrate or the Judicial Magistrate to record the statement of the injured as that would have given authenticity to her statement, The Investigating Agency has also suppressed certain material facts including Ex. Dl. It is not the case of the prosecution that history of incident is not entered in the Accident Register. The Court is at a loss to know whether entries are made in the Accident Register when the deceased was brought to the Casualty Ward at 3.30 a.m., on 4.2.1996. Though father of the deceased – P.W. 2-Chikkananjegowda, is said to be an eye-witness to the incident, and even though P.W. 4-Raju and C.W. 12-Devamma – sister of the deceased, came to know of the incident through the injured, conspicuously they kept mum till the ASI came to the hospital at 5.45 p.m. The incident was revealed for the first time by the injured only to the ASI P.W. 8 in the presence of P.W. 2-Dr. Trishula, around 6.00 p.m., on that day, after a delay of 22 hours. P.W. 9-M.K. Uttappa, PSI of Byatarayanapura Police Station, has not whispered in examination-in-chief regarding the information received by him from the Victoria Hospital and the same is elicited in the cross-examination. He has stated that he had received information from Out Patient of Victoria Hospital before he deputed P.W. 8 for recording the statement. In his opinion, it was not necessary to record such information in the Station House Diary. This “Investigating Officer, who visited the hospital on 4.2.1996, enquired regarding the admission of the patient to the hospital and the person who admitted, but did not ascertain from the doctor as to who admitted the patient to the hospital and with what history she was admitted. He has denied the suggestion that during the course of investigation, he came to know that deceased herself lit fire by pouring kerosene on her (self-immolation). This witness has admitted that P.W. 7-Krishnappa-the former husband of the deceased, learnt from the deceased, who told him that she had got the kerosene poured and lit fire. The investigation of this witness is much to be desired. He has not even looked into the Case Sheet maintained in the Victoria Hospital. He has not attempted to obtain the necessary reports from the hospital in this case. Either he was ignorant of these facts or he has deliberately suppressed these facts. Therefore, the important question which arises for our consideration is as to the reliability of the statement made by the deceased as in Ex. P5. It is true that her statement is not in a question and answer form. It is not always necessary for the police to record the statement in question and answer form. It is enough if the declaration contains a brief statement of the incident. P.W. 8-Muniyellappa, has not recorded the statement of the victim in his hand, but dictated it to the Police Constable – C.W. 28, who accompanied him. After recording the statement, he went to the doctor and took her signature. This statement of P.W. 8 also suggests that P.W. 12-the doctor was not present at the time of recording the statement of the injured. P.W. 12-Dr. Trishula has certified that the patient was conscious and she was in a fit condition to make a statement. The dying declaration of the injured does not disclose the presence of her father P.W. 2 inside her house at the time of incident. This also raises a serious doubt as to his presence. If we eliminate the evidence of P.W. 2, then the only evidence, which needs consideration is the oral dying declaration made by the deceased before C.W. 12-Devamma and P.W. 4-Raju, and the dying declaration – Ex. P5 recorded by P.W. 8.
16. The alleged disclosure of the incident to C.W. 12 and P.W. 4 was made by these witnesses before P.W. 9, after P.W. 8 recorded the statement of the injured as in Ex. P5. Therefore, no such credence can be given to the statement of P.W. 4. C.W. 12 is not examined by the prosecution for reasons not explained.
17. The next point which calls for our consideration is the admissibllity of Ex. P5. In this case, there is no certificate appended to Ex. P5-the statement of the deceased. P.W. 12. Dr. Trishula has written the following in Ex. P5 :
“6.15 p.m.
Before me.
(Signature),
Dr. (Mrs.) Trishula.”
The doctor has only asserted in her evidence before the Court that the injured was in a fit state of mind to make such a statement. P.W. 8 has not appended any certificate as to the condition of the maker of the statement. Therefore, if Ex. P5 is to be considered as dying declaration, it cannot be relied upon in the absence of certific?tion by the Duty Doctor. The doctor who admitted her and treated her at 3.00 a.m., is not cited as a witness and is also not summoned before the Trial Court.
18. In Arvind Singh v. State of Bihar, 2001 CLJ 2556, the Apex Court held that the certificate appended to the dying declaration at the end by Dr. K. Vishnupriya Devi did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the statement. In view of this, it would not be safe to accept the dying declaration.
19. In Paparambaka Rosamma and Ors. v. State of Andhra Pradesh VII , the Apex Court held that if the prosecution solely rests its case on the dying declaration, then the prosecution has to prove it free from all doubts and that it was recorded when the injured was in a fit state of mind. The dying declaration, in fact, was recorded in that case by a Judicial Magistrate, who was summoned to the hospital by a Duty Doctor. The question which came up before the Apex Court for consideration was as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration, in the absence of certificate by the doctor certifying the state of mind that existed before recording the dying declaration ? The Apex Court held as follows
“In our opinion, in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. It is a case of circumstantial evidence and only circumstance relied upon by the prosecution is dying declaration.”
The Apex Court further held at para-9 as follows :
“It is true that the Medical Officer Dr. K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified “patient is conscious while recording the statement”. It has come on record that the injured Smt. Venkataramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who performed the post mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K. Vishnupriya Devi (P.W. 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the statement”. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P14) as true and genuine and was made when the injured was in a fit state of mind. From the judgments of the Courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex. P14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Courts below.”
20. The Apex Court in Munnu Raja and Anr. v. State of Madhya Pradesh, , observed as follows :
“It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration.”
21. In K. Ramachandra Reddy and Anr. v. The Public Prosecutor, , it is observed by the Apex Court as follows :
“The dying declaration is undoubtedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.”
22. Now, having regard to the importance of the dying declaration and its reliability without seeking corroboration for conviction, the next question which calls for our consideration in this matter is – whether Ex. P5 is only a complaint and not a dying declaration ? It is a fact that the prosecution has in fact relied on Ex. P5 as a dying declaration and not as a complaint. However, this question came up for consideration before the Apex Court, which was considered in the two judgments, namely in Jai Prakash and Ors. v. State of Haryana, 1999 AIR SCW 244, and in Gulam Hussain and Anr. v. State of Delhi, V (2000) SLT 769, 2000 (5) Supreme 381. In Jai Prakash’s case, it was urged by the learned Counsel for the appellant that no reliance whatsoever should have been placed upon the alleged dying declaration-Ex. PJ., as it was recorded on 7.10.1990 and even though the injured -Sushma, survived till 11.10.1990, for a period of four days, no further attempt was made to get her regular dying declaration recorded by a Magistrate. While considering this contention, the Apex Court at para-3 held as follows :
“In our opinion, the submission made by the learned Counsel is misconceived. As Sushma was taken to the hospital with burns, the Hospital Authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was a matter for cross-examination of the Investigating Officer. In absence of such cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7.10.1990.”
It was nextly contended before the Apex Court in that case that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. Upon consideration of this contention, the Apex Court held as follows :
“This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the Police Office was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him.”
The Apex Court has also held in that case that the pronouncements made in Munna Raja v. State of M.P., ; Daip Singh v. State of Punjab, AIR 1979 SC 1173; and State (Delhi Administration) v. Laxman Kumar, , have no relevance to the facts of that case. The Apex Court observed that in those cases dying declarations were recorded by the Police Officer during the course of investigation and were found to be suffering from defects of the kind submitted by the learned Counsel. Therefore, in that case, the Apex Court has clearly laid down that where a statement of the injured is recorded by a Police Officer which is the basis for registering a criminal case, it was only a complaint and no certification by the Doctor as to the fitness of the maker of such a statement was necessary. Since it was not recorded by the Investigating Officer during the course of investigation, such statement cannot be considered as a dying declaration. ,
23. In Gulam Hussain and Anr. v. State of Delhi (supra), the Apex Court held a contrary view. The discussion is found at paras 7 and 8, which is as follows :
“Exhibit PW 22/B was recorded by P,W. 22 ASI Balwan Singh in the hospital on 14.10.1989 at about 6.30 a.m, after getting an opinion from the doctor that the injured was fit for statement. The endorsement of the doctor is. recorded as Exhibit PW 22/A. Learned Counsel appearing for the appellants submitted that as the statement was recorded by the Investigating Officer which was treated as F.I.R., the same could not be treated as dying declaration and was inadmissible in evidence. The submission has no substance because at the time of recording the statement P.W. 22 Balwan Singh did not possess the capacity of an Investigating Officer as the investigation had not commenced by then. Such a statement can be treated as a dying declaration which is admissible in evidence under Section 32(1) of the Evidence Act. After critically scanning the statement of P.W. 22 ASI Balwan Singh and details of Exhibit PW 22/B, we have no hesitation to hold that the aforesaid statement was voluntarily made by the deceased which was reduced to writing and have rightly been treated as dying declaration after the death of the maker.”
At para-8, the Apex Court further held as under :
“Section 32 of the Evidence Act is an exception to the general rule of exclusion of hearsay evidence and the statement made by the person written or verbal of relevant facts after his death is admissible in evidence if it refers to the cause of his death or any circumstances of the transactions which resulted in his death. To attract the provisions of Section 32, the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without any amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in Sub-sections (1) to (8) of Section 32 of the Evidence Act. It cannot be disputed that Islamuddin who made a statement PW 22/B has died and in his deposition he has referred to the circumstances which ultimately proved to be the cause of his death. Nothing has been pointed out by the defence side which could create any doubt in our mind regarding the making or admissibility in evidence of the statement Exhibit PW 22/B.”
Thus, a statement made initially which was considered as complaint becomes the dying declaration after the death of its maker and it is admissible under Section 32 of the Evidence Act. In Jai Prakash’s case, the Apex Court has not specifically considered this question in detail. In that case, there was no certification by the doctor as to the fitness of the maker of the statement. But, in Gulam Hussain’s case, the Apex Court held that there was a statement by the doctor as to the mental condition of the patient to make the statement. It is also held that where the injured makes a statement, which was the basis for registering the case, and dies subsequently, the statement which speaks about the cause of the death of the maker is admissible under Section 32 of the Evidence Act. Therefore, in our opinion, in the present case on hand, Ex. P5 is admissible under Section 32 of the Evidence Act as the dying declaration of the deceased-Lakshmamma, who died four days after the incident.
24. We have already pointed out the deficiency in the statement of the deceased, in not mentioning the presence of P.W. 2 inside the house at the time of incident. At this distance of time, we do not propose to probe the reason for such an omission. The story of the prosecution as revealed through P.W. 2-father of the deceased, in not explaining the delay in taking the injured from her house to the house of C.W. 12; and that the deceased who sustained 70% burns was allowed to walk a distance of 3 kms., from her house to the house of C.W. 12 – Devamma; and the subsequent conduct of P.Ws. 2 and 4 and C.W. 12 in not furnishing this information to the doctors or filing a complaint to the nearest Police Station, namely, Victoria Hospital Police Out Post are all factors which cast a serious doubt as to the genuineness and truthfulness of the dying declaration so made. There is no evidence that the accused had any role in suppressing any material in the hospital records. He sustained some burn injuries on his hand, which were noticed by P.W. 11-Dr. B. Sadashivamurthy, who examined him after his arrest. According to him, the injury is perhaps as old as one week and, therefore, dates back to the date of the incident. The accused has, offered an explanation before the Court, which are also relevant to explain his defence. The first statement of the deceased recorded in the Case Sheet-Ex. Dl, in this background, raises a serious doubt not only to the genuineness of the dying declaration, but also as to the condition of the patient who made this statement. The Case Sheet shows that her condition was serious. In the background of this doubtful circumstance, the prosecution has requested this Court to confirm the judgment of conviction and sentence recorded by the Trial Judge.
25. We have examined the findings of the learned Sessions Judge. Firstly, the learned Sessions Judge has not considered the fact that the dying declaration – Ex. P5 is not certified by the doctor as to the condition of the maker. Therefore, the legal requirement in this case is not complied with. The evidence of P.Ws. 2 and 4 is suspicious, having regard to the long delay in making the statement, even though such statement is admissible in evidence. The learned Sessions Judge has not scrutinized the evidence on record while appreciating these facts. Therefore, in our opinion, the judgment of the Trial Judge does not stand to legal scrutiny and hence, it is liable to be set aside.
26. In the result, this appeal is allowed. The Judgment of conviction and sentence recorded by the learned Sessions Judge in S.C. No. 342/1992 dated 27.6.1998 is set aside.