Judgement A N Jindal, J [1] Surender @ Tony and Mahender Singh, both were indicted for culpable homicide, amounting to murder of Mukesh @ Bhola on the evening of 21.7.2000. Consequently, vide judgment dated 23.4.2002, they were convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.3,000/- under Section 302 IPC each and to further undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/- under Section 452 IPC each. [2] Brief resume of the facts is that on 21 st July, 2000 at about 1.45 p.m. Mukesh was present in his one room tenement and was watching a movie, when both the accused trespassed into the house; poured kerosene upon him; set him ablaze and fled away. The occurrence was witnessed by his wife Meenu (PW-5) and the accused was seen running immediately after the occurrence by Shanti (PW-7), mother of the deceased, (both having been declared hostile). However, after the occurrence Mukesh immediately went to his parental house at a small distance from where his brother Rakesh shifted him to the civil hospital, Sirsa where Dr. G.S. Somani sent ruqa Ex.PB to the police station, upon which ASI Roshan Lal reached the residence of Ms. Ritu Bahl, JMIC, Sirsa (PW-14) and moved an application Ex. PM before the Magistrate for recording the statement of Mukesh. [3] Thereafter, he moved another application Ex. PE before the doctor for seeking his opinion about the condition of the injured, over which the doctor opined Ex. PE/1 that the injured was fit to make the statement. At this Ritu Bahl, JMIC, Sirsa, recorded the statement of Mukesh at 4.45 p.m. who stated as under:- "I have asked the patient some general questions about his name, home and family. He is conscious and is giving correct answers. I now proceed to record his statement. Sd/-Ritu Bahl, D/JMIC, 21.7.2000 at 4.45 p.m. Statement of Mukesh @ Bhola son of Om Parkash, aged 20 years, resident of Thehar Mohalla, near Subhash Chakiwala, Sirsa. Q. What happened to you? How have your burnt? Ans. I had previous enmity with Manohar Journalist. I had gone to my in-laws house at Bhiwani. I had gone there on Saturday falling prior to 1 st July. It was perhaps 29 th . Q. What happened to you? How have your burnt? Ans. I had previous enmity with Manohar Journalist. I had gone to my in-laws house at Bhiwani. I had gone there on Saturday falling prior to 1 st July. It was perhaps 29 th . My brothers Rajesh, Mukesh his friend and my brothers Kaka and Bittu had quarrelled with Mahinder, Toni, Ashoki, Gulla, Ganga Ram and their father Manohar journalist. I do not know what happened. I had returned on 9 th July. My brothers etc. did not compromise the matter. My brothers had got bail, therefore, they were inimical. Today at 1/1.15 p.m. my wife was cleaning the utensils and I was watching the movie. My landlord Subhash and his family members were also not present. He had gone to Fatehabad with one of his sons from vend of Cinema and his second son Amar Nath was also away. His wife was also out of station. My room was having access through two gates. Mohinder and Toni had come through one of the gates and after pouring kerosene on me, set me ablaze and ran away. I raised hue and cry and wore a blanket. My wife poured water to put off the fire. I went to my parents, who were residing at a small distance. I was separate and living on rent. My brother Rakesh and his friend then shifted me in rickshaw to the hospital. Other family members reached later there. Q. Whether your brothers have any enmity with Rakesh etc? Ans. My mother kept on seeing the enemies coming out of my house. I do not know about their enmity because I never quarreled with any one and I was afraid of it. Q. Do you want to say something more? Ans. No. [4] Statement was concluded at 5.05 p.m. on 21.7.2000 ASI Roshan Lal (PW-15) collected certified copy of the statement of Mukesh @ Bhola. He also visited the spot, prepared the rough site plan Ex. PN, recorded the statements of the witnesses. On the same day, he took into possession the clothes of the injured, vide memo Ex. PK. [5] On 28.7.2000, on receipt of the ruqa Ex. PO regarding the death of Mukesh @ Bhola, SI/SHO Tara Chand (PW-16) sent a special report to the senior officers through Constable Shishpal. He himself went to Civil Hospital, Sirsa, prepared inquest report Ex. On the same day, he took into possession the clothes of the injured, vide memo Ex. PK. [5] On 28.7.2000, on receipt of the ruqa Ex. PO regarding the death of Mukesh @ Bhola, SI/SHO Tara Chand (PW-16) sent a special report to the senior officers through Constable Shishpal. He himself went to Civil Hospital, Sirsa, prepared inquest report Ex. PD/1, recorded the statements of the witnesses and moved an application Ex. PD to the Medical Officer, General Hospital, Sirsa, for autopsy. [6] On completion of the investigation, challan against the accused was presented in the court. On finding prima facie case against the accused, charges under Sections 452/302/34 IPC were framed to which they pleaded not guilty and claimed trial. [7] Initially on 21.7.2000 Dr. G.S.Somani, PW1, who had medico legally examined Mukesh @ Bhola had observed 40% burns on his body. [8] He proved his report Ex. PA and diagrams showing seats of injuries Ex. PA/1. He had also sent the ruqa Ex. PB to the SHO informing him about the arrival of the injured. Dr. Y.K. Chaudhary PW.2, alongwith Dr. H.R. Godara, had conducted autopsy on the deceased on 28.7.2000. They had observed 60% of deep to superficial burns on his body. According to their opinion, Mukesh @ Bhola had died on account of burns and their complications, which were ante-mortem and sufficient to cause death in the ordinary course of nature. He has proved autopsy report Ex. PC and diagram showing the seats of injuries Ex. PC/1. PW3 Dr. C.P. Daditch, Medical Officer, General Hospital, Sirsa, testified that on 21.7.2000 at 4.45 p.m. he had declared the patient fit to make the statement, vide his opinion Ex. PF/1. He has further stated that the patient remained fit during the period his statement was recorded by Ms. Ritu Bahl, JMIC, Sirsa. [9] PW5 Meenu, wife of Mukesh @ Bhola, PW7 Shanti (mother of the deceased), PW8 Sushil and PW10 Rakesh, brother of deceased, did not support the prosecution case. Therefore, they were declared hostile. [10] PW4 C. Amar Nath, PW6 Chander Singh, DSP, PW12 Constable Bajrang Lal are the formal witnesses. PW9 Rajesh is the witness to the memo Ex. PK, vide which the police had taken into possession all the clothes of the deceased. PW11 ASI Diwan Singh had recorded the formal FIR Ex. PB/1 on receipt of ruqa Ex. PB. [10] PW4 C. Amar Nath, PW6 Chander Singh, DSP, PW12 Constable Bajrang Lal are the formal witnesses. PW9 Rajesh is the witness to the memo Ex. PK, vide which the police had taken into possession all the clothes of the deceased. PW11 ASI Diwan Singh had recorded the formal FIR Ex. PB/1 on receipt of ruqa Ex. PB. PW13 Constable Mohan Lal, Draftsman had prepared the scaled site plan Ex. PK of the place of occurrence. PW14 Miss Ritu Bahl, JMIC had recorded the statement of the deceased Ex. PL/2. PW15 SI/SHO Roshan Lal, PW16 SI/SHO Tara Chand are the investigating officer. PW17 Constable Shispal had handed over the special report of the case to the Duty Magistrate. [11] On closure of the prosecution case, when examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. [12] However, they further pleaded that they are innocent. The deceased was tutored by the inimical persons and he made false statement to implicate them in the case. In defence, the accused examined Inderaj DW.1, who stated that on 21.7.2000 at 1 p.m. on hearing the cries of the wife of Mukesh @ Bhola he entered their house and saw two ladies pouring water on him, who had caught fire, while working on a stove. He also came to know later on that the deceased had named Mohinder and Surinder being the perpetrators of the crime. [13] Arguments heard. Record perused. [14] No doubt, PW5 Meenu, wife of Mukesh @ Bhola, PW7 Shanti, mother of the deceased, PW8 Sushil and Rakesh (PW10), (brother of deceased), did not come forward to depose against the accused, may be for variety of reasons. Obviously when the life was lost they had lost the love and affection but still the glaring facts surfacing on the record directly point finger of guilt towards the accused. There is no denying the fact that the incident took place in the presence of Shanti and Meenu but they had their own reasons not to support the prosecution case. Obviously when the life was lost they had lost the love and affection but still the glaring facts surfacing on the record directly point finger of guilt towards the accused. There is no denying the fact that the incident took place in the presence of Shanti and Meenu but they had their own reasons not to support the prosecution case. Though the Investigating Officer did not lift the burn articles i.e. ashes and the burnt strings of the cot from the spot, yet, since the case is based on the dying declaration corroborated by other evidence and the occurrence at the one room tenement has not been disputed, therefore, these circumstances cannot be overlooked. [15] DW1 Inderraj has stated that on hearing the cries, he entered the house of Mukesh and saw Meenu and Shanti pouring water on Mukesh as he had already attracted the fire. DW1 has also admitted that occurrence had taken place at 1 p.m, as set up by the prosecution. It has also been proved on record that the injured was shifted to the hospital by Rakesh. This fact was also corroborated by PW1 Dr. G.S. Somani, who has also stated that the injured was brought to the hospital by Rakesh, his brother. It is apparently proved on record from the evidence that Mukesh died due to burn injuries. [16] PW2 Dr. Y.K. Chaudhary has categorically stated that Mukesh had died due to shock as a result of burns described and its complications, which were ante-mortem and sufficient to cause death in the ordinary course of nature. The clothes of the injured were taken into possession by the police and were sent to Forensic Science Laboratory, Madhuban, Haryana for examination. Dr. V. Singh, vide his report Ex. PM opined that kerosene residue were detected on partially burnt grey coloured T-shirt and partially burnt light grey coloured pant, belonging to the deceased. [17] Now coming to the part played by the accused, we have sufficient evidence in the shape of dying declaration as proved by Ms. Ritu Bahl, JMIC, that it was the accused who set the deceased ablaze. Before Ms. Ritu Bahl recorded her statement, ASI Roshan Lal, vide his application Ex. PE had sought the opinion of the doctor, who, vide his opinion Ex. PE/1 opined that at 4.45 p.m the injured was fit to make the statement. Ms. Ritu Bahl, JMIC, that it was the accused who set the deceased ablaze. Before Ms. Ritu Bahl recorded her statement, ASI Roshan Lal, vide his application Ex. PE had sought the opinion of the doctor, who, vide his opinion Ex. PE/1 opined that at 4.45 p.m the injured was fit to make the statement. Ms. Ritu Bahl, JMIC, Sirsa, (PW-14) testified that she asked some general questions to Rakesh Kumar @ Bhola and satisfied herself about his fitness to make the statement. Thereafter, she asked him questions and he answered and whatever was stated by him was recorded. There is no evidence of tutoring or prompting the deceased before his statement was recorded. As a matter of fact, the dying declaration made before Ms. Ritu Bahl, JMIC by the deceased is not under challenge. [18] The version of the accused that Mukesh has levelled false allegations on account of tutoring, does not stand substantiated by any evidence on record. Though, no enmity of the deceased or his brother with the accused could be brought on record, yet, it is hardly circumstance to doubt the dying declaration as it is a unique type of case where even the mother, wife and brother of the deceased joined hands with the accused, but the accused have failed to shatter the unblemished evidence of dying declaration by the deceased. Even after recording the statement of the deceased on 21.7.2000, Dr. C.P. Daditch, vide his endorsement Ex. PF/1, testified that the patient remained fit during the period he made the statement i.e. between 4.45 p.m. to 5.05 p.m. No such suggestion or evidence was brought on record in order to establish that the injured was ever fainted or was not fit to make the statement. No allegations of bias were raised against the Investigating Officer for manipulating the dying declaration nor challenge has been made to the credibility of Ms. Ritu Bahl, who recorded the statement of the deceased. The deceased having suffered burns and he hoping least chance of his survival and as asked by the Investigating Officer to disclose the cause of death, Mukesh made the statement. Ultimately, his that statement was rightly treated as dying declaration. Ritu Bahl, who recorded the statement of the deceased. The deceased having suffered burns and he hoping least chance of his survival and as asked by the Investigating Officer to disclose the cause of death, Mukesh made the statement. Ultimately, his that statement was rightly treated as dying declaration. [19] As a matter of fact, juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, as it is believed that the person who is at the verge of death and having lost his every hope of survival in the world would not tell lie and falsehood would not come to his tongue to accuse him in the next world. Therefore, emphasis has been given to believe his testimony provided the same is free from any such tampering by way of prompting, tutoring since he would be no more in the world for cross-examination. Therefore, the law in its wisdom made such statement admissible in evidence by dispensing the statement from cross-examination. [20] While discussing the aforesaid aspect of the case and theme behind placing reliance over the dying declaration, the Apex Court in Laxman v. State of Maharashtra, 2002 4 RCR(Cri) 149 observed as under:- "The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of crossexamination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." [21] The mere fact that the deceased had died after six days does not in any way enable us to hold that the statement was not recorded when the injured was on the verge of his death and it cannot be termed as dying declaration. Actually there is no evidence on record that the deceased at any stage of time, during his ailment and admission in the hospital, had any occasion to make a different improved or contradictory statement or make such statement implicating some other person than the accused. At the time, statement was recorded, Roshan Lal was not the Investigating Officer. He was not in any way connected with either of the parties. He was heading towards searching the cause of injuries, therefore, there is reason to disbelieve him and state that the statement recorded by him was tainted. [22] The argument that the Investigating Officer did not lift the burnt bed sheet, strings of cot is also of no consequence. [23] We are oblivious to the fact that the Investigating Officer should have picked up such pieces of evidence yet in view of the fact that the defence witness has not denied that the deceased had caught fire inside the house, the possibility of deceased having started running on attracting fire in order to save himself cannot be ruled out. In any way, this much fact is not sufficient to discard the dying declaration made by the accused immediately after the occurrence. [24] No other arguments has been advanced. [25] Keeping in view the fact that dying declaration made by Mukesh @ Bhola stands corroborated by the medical evidence as well as by the other evidence on record and the deceased also had no reason to implicate the accused falsely in the case, we hesitate to differ with the finding of guilt recorded by the trial court against the accused/appellants. [26] Resultantly, finding no merit in the appeal, the same is dismissed. Appeal dismissed.