Arijit Pasayat ( 1 ) AT an alarmingly high rate cases involving in-laws who behave and act like out-laws are coming to Courts. This is one of those cases where the prosecution alleges that Sunita Dudeja (hereinafter referred to as the deceased), was scarificed at the altar of dowry demand. Appellants Gopali Devi and Suraj Prakash (hereinafter referred to as the accused appellants), are mother-in-law and husband of the deceased respectively. They have been found guilty, convicted and sentenced, details of which we shall indicate infra. ( 2 ) PROSECUTION case in a nutshell is that on 17/02/1988 on receiving information the deceased was lying in a burnt condition in the house of accused appellants, SI Surinder Singh (Public Witness 22), alongwith Constable Attar Singh, Constable Sansar Pal went to the spot and found that the deceased was lying in a burnt condition. They removed her to the hospital. The doctors at the SDN Hospital referred the patient to LNJPN Hospital. MLC of the patient was taken. At that stage Public Witness 22 was told by the doctors that she was unfit to make a statement. After he reached the LNJPN Hospital he was told that deceased was in a fit state to make a statement. Accordingly he informed the Duty Officer, P. S. Shahdara to call the SDM for recording her statement. At about 10 p. m. SDM, Parimal Rai, (Public Witness 14) arrived at the hospital and recorded her statement (Ex. Public Witness 14/a ). A direction was given by the SDM to the SHO for registration of case under Sections 307/498-A/34 of Indian Penal Code, 1860 (for short the Indian Penal Code ). It was also directed that in case the patient expired the case was to be registered under Sections 302/304-B/498-A/34, Indian Penal Code. Accused appellants were responsible for burn injuries on the deceased, as they had set her ablaze after putting kerosene on her. As subsequently deceased succumbed to the burn injuries, a case was duly registered, investigation was undertaken and on completion thereof charge-sheet was filed. Accused appellants were responsible for burn injuries on the deceased, as they had set her ablaze after putting kerosene on her. As subsequently deceased succumbed to the burn injuries, a case was duly registered, investigation was undertaken and on completion thereof charge-sheet was filed. Accused appellants were put to trial for alleged commission of offences punishable under Sections 302/498-A/34, Indian Penal Code.- Learned Additional Sessions Judge, New Delhi (hereinafter referred to as trial Judge), on consideration of the materials on record found both the accused appellants guilty and awarded sentence of life for the offence punishable under Section 302/34, Indian Penal Code with a fine of Rs. 500. 00 each, and in default of payment of fine, further sentence of one month R. I. In respect of the offence punishable under Section 498-A/34, Indian Penal Code, sentence of one year R. I. with fine of Rs. 250. 00 each was imposed and in default of payment of fine, further sentenced to R. I. for fifteen days. It is to be noted that 22 witnesses were examined to further the prosecution version while the accused persons pleaded innocence and eight persons were examined to support their stand of innocence. Learned trial Judge found that the dying declarations recorded by doctor (Public Witness 4) and the SDM (Public Witness 14) were sufficient to fasten guilty on the accused appellants. Accordingly, as aforesaid, accused appellants were found guilty and sentenced. ( 3 ) IN support of the appeal, learned Counsel for the accused appellants submitted that the so-called dying declarations are unreliable and learned trial Judge committed error in placing reliance thereon. It is highlighted that deceased had suffered 90% bums and it is inconceivable that she would be in a position to make a statement. It is further submitted that the two statements before Public Witness 4 and Public Witness 14 were inconsistent. In the first statement only the role allegedly played by accused Gopali Devi was highlighted, while in the subsequent statement recorded by the SDM (Public Witness 14) both the accused appellants were implicated. It is pointed out that at about 8 p. m. Public Witness 4 had found the deceased to be not in a fit condition to make a statement but barely after about 1 hours an in experienced doctor has certified the patient to be in a fit condition to make a statement. It is pointed out that at about 8 p. m. Public Witness 4 had found the deceased to be not in a fit condition to make a statement but barely after about 1 hours an in experienced doctor has certified the patient to be in a fit condition to make a statement. It is also submitted that the SDM (Public Witness 14) did not record his own satisfaction about the patient being in a fit condition to make a statement. Several decisions are cited to substantiate the pleas taken which we shall advert to later-on. Learned Counsel for the State on the other hand submitted that it cannot be laid down as a rule of universal application that whenever a person has suffered 90% or more bums no statement can be given which can be termed as a dying declaration . According to him it would depend upon the views of the doctor who examines the patient and unless it is shown that something was intrinsically wrong in the views of the doctor, it has to be accepted as true and correct. ( 4 ) IT is well-settled principle in law and in fact there is no dispute to the position that dying declaration can form the sole basis of conviction provided it is free from infirmities and satisfies various tests as were laid down by the Apex Court in Khushal Rao v. State of Bombay, AIR 1958 SC 22 . The ratio laid down in the said case was that the statement should be consistent throughout. If the deceased had several opportunities of making such dying declaration, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in a fit mental condition it can be relied upon without even any corroboration. This position was again reiterated by the Apex Court in Kamla v. State of Punjab, 1993 Crl. L. J. 68=11 (1992) CCR 430 (SC ). If a dying declaration is found to be voluntary, reliable and made in a fit mental condition it can be relied upon without even any corroboration. This position was again reiterated by the Apex Court in Kamla v. State of Punjab, 1993 Crl. L. J. 68=11 (1992) CCR 430 (SC ). The dying declaration is a statement of a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32 (1) of the Indian Evidence Act, 1872 (for short the evidence Act ), in a case in which the cause of that person s death comes into question. A dying declaration is not a deposition in Court and it is neither made on oath or in the presence of the accused. Resultantly it cannot be tested by cross-examination on behalf of the accused. A dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence on the principle of necessity. This position was highlighted by the Apex Court in Tapinder Singh v. State of Punjab, 1970 (2) SCC 113 ; and Paparambaka Rosamma v. State of A. P. , (1999) 7 SCC 69 5 =vii (1999) SLT 417=iii (1999) CCR 232 (SC ). ( 5 ) SECTION 32 of the Evidence Act deals with cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant. The general rule is that all oral evidence must be direct viz. , if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might defeat the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. These aspects have been eloquently stated by Iyre LCR in R. v. Wood Cock, (1789) 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain: "have I met hideous death within my view, Retaining but a quantity of life, which bleeds away, even as a form of wax, Resolveth from his figure, against the fire ? What is the world should make me now deceive, Since I must lose the use of all deceit ? Why should I then be false since it is true That I must die here, live hence by truth ? (See King John, Act 5, Scene, 4)" ( 6 ) THE principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri an man will not meet his maker with a lie in his mouth". ( 7 ) THIS is a case where the basis of conviction of the accused is the dying declaration. ( 7 ) THIS is a case where the basis of conviction of the accused is the dying declaration. The situation in which a man is on death bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept in veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. ( 8 ) THOUGH a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The Apex Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat, (1992) (1) SVLR (Crime) 133=1 (1992) CCR 1100 (SC): (I) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Mannu Raja v. State of M. P. , (1976) 2 SCR 764 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See Mannu Raja v. State of M. P. , (1976) 2 SCR 764 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 SC 416 ; and Ramavati Devi v. State of Bihar, AIR 1983 SC 154 ). (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See Ram Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence (See Rasheed Beg v. State of Madhya Pradesh, 1974 (4) SCC 264 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kaka Singh v. State of M. P. , AIR 1992 SC 1021 ). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Manorath v. State of U. P. , 1981 SCC (Cri.) 561 ). (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617 ). (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdev Ora v. State of Bihar, AIR 1979 SC 1505 ). (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion| cannot prevail. (See Nanahu Ram and Another v. State, AIR 1988 SC 912 ). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U. P. v. Madan Mohan, AIR 1989 SC 1519 ). (See Nanahu Ram and Another v. State, AIR 1988 SC 912 ). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U. P. v. Madan Mohan, AIR 1989 SC 1519 ). (xi) Where there are more than one statement in the nature of dying declarations, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be truth worth and reliable, it has to be accepted. (See Mohan Lal v. State of Maharashtra, AIR 1982 SC 839 ). ( 9 ) IN the light of the above principles, we will consider the acceptability of alleged dying declaration in the instant case. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U. P. , JT 1992 (2) SC 417= I (1992) CCR 1064 (SC); Goverdhan Raoji Chayare v. State of Maharashtra, JT 1993 (5) SC 87= III (1992) CCR 310 (SC); Meesala Ramakrishnan v. State of A. P. , JT 1994 (3) SC 232=ii (1994) CCR 385 (SC) and State of Rajasthan v. Kishore, JT 1996 (2) SC 595=ii (1996) CCR 1 (SC ). ( 10 ) WE shall now deal with the plea whether there was inconsistency in the two dying declarations stated to have been made before Public Witness 4 and Public Witness 14. It is not in dispute that in the first statement only name of Gopali Devi was indicated while in the subsequent statement names of both the accused appellants were indicated. An explanation has been offered in this regard by Public Witness 4 who has stated that the deceased only told about the cause of the burns to be due to burning by the accused Gopali. When Public Witness 14 recorded the statement, details were given. An explanation has been offered in this regard by Public Witness 4 who has stated that the deceased only told about the cause of the burns to be due to burning by the accused Gopali. When Public Witness 14 recorded the statement, details were given. Therefore, this cannot be treated to be a case where there is inconsistency between the two statements. ( 11 ) STRONG reliance was placed by learned Counsel for the accused appellants on the decision of the Apex Court in Rosamma s case (supra), State of Gujarat v. Khumansingh Karsan Singh, AIR 1994 SC 1641 ; Kamla s case (supra); and Dandu Lakshmi Reddy v. State of A. P. , (1999) 7 SCC 69 =iii (1999) CCR 190 (SC)=vii (1999) SLT 106 to contend that there was inconsistency. A bare reading of the fact situation indicated in the aforesaid decisions makes them clearly distinguishable on facts. In most of the cases the deceased herself had given inconsistent replies as to the cause of death. In some cases even the cause of injury was stated to be due to accident. Therefore, even if it is accepted, as rightly contended by learned Counsel for the accused appellants that in case of inconsistency in the declarations benefit would go to the accused, we do not think that case at hand is one where that principle is applicable. We do not find any inconsistency in the statements. ( 12 ) COMING to the plea about unacceptability of statement of the doctor (Public Witness 20) who had certified about the fitness of the deceased to give a statement, it is seen that at 8. 00 p. m. Public Witness 4 had certified that the patient was at that point of time not in a fit condition to give a statement. But Public Witness 20 after about 1 hours recorded that deceased was in a fit condition to give her statement. It is to be noted that immediately after the admission the deceased had been given injections and though initially she may not be in a position to give a statement, but because of administration of injections the possibility of her having become fit for giving statement cannot be ruled out, more particularly in view of the statement of Public Witness 20 and Public Witness 14. Public Witness 14 has recorded a detailed statement. Public Witness 14 has recorded a detailed statement. Though it was pleaded that he had not recorded any subjective satisfaction of his own as to the condition of the patient, we find that he had stated as follows while recording the statement of the deceased: "i also asked her as to whether she was fit for statement to which she said she was. I also got it certified from doctor. "since there is no specific form as to in which a Magistrate has to record his satisfaction in order to form his opinion, even if such is a requirement, quoted portion above is sufficient to show that he was satisfied that deceased was in a fit condition to give a statement. In Rosamma s case (supra), a distinction was made by the Apex Court between the certificate given by the doctor to the effect that the patient was conscious and a situation where he is in a fit condition to give a statement. That difference does not arise here because the specific certificate was to the effect that the patient was in a fit condition to give a statement. ( 13 ) WE shall now deal with the plea that with 90% burns the deceased could not have probably given any cohesive statement. It would all depend on the fact situation of each case and it cannot be laid down as a rule of universal application, as rightly contended by learned Counsel for the State, that the condition of the patient and fitness to give a statement would depend entirely on the percentage of burns. In fact in Kamlesh Rani v. State of Haryana, 1998 SCC (Cri.) 713=1 (1998) CCR 235 (SC)=ii (1998) SLT 388, the Apex Court has held that in a case of 90% or more burns a patient can well make a dying declaration. The position was earlier stated by the Apex Court in Suresh v. State of M. P. , (1987) 2 SCC 32 ; and Padmaben Shamalbhai Patel v. State of Gujarat, JT 1991 (1) SC 205. The position was earlier stated by the Apex Court in Suresh v. State of M. P. , (1987) 2 SCC 32 ; and Padmaben Shamalbhai Patel v. State of Gujarat, JT 1991 (1) SC 205. ( 14 ) IN the peculiar circumstances of the case when both the Public Witness 14 and Public Witness 20 have stated that the deceased was in a fit condition to give her statement we do not find any substance in the plea of learned Counsel for the accused appellants that the deceased could not have been in a fit state to give a statement. ( 15 ) ABOVE being the position we find nothing infirm in the conclusions of the learned trial Judge convicting the accused appellants for the offences punishable under Sections 302/498-A read with 34, Indian Penal Code. A plea was raised by learned Counsel for the accused appellants that a case of Section 302, Indian Penal Code is not made out and at the most a case of Section 304-B may be there. We find no substance in this plea particularly in view of the fact that the ingredients necessary to constitute offence punishable under Section 304-B, Indian Penal Code are contextually different from those under Section 302, Indian Penal Code. Learned trial Judge has rightly convicted the accused appellants for the offences as enumerated above. We find no merit in this appeal which is accordingly dismissed. Since the accused appellants are on bail, necessary steps shall be taken by the concerned Court to bring them back to custody. ( 16 ) BEFORE parting with the case, we record our appreciation for the able manner in which Ms. Geeta Luthra, who was appointed as Amicus Curiae rendered assistance to the Court. Appeal dismissed.