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2017 DIGILAW 305 (JK)

Mohd. Sadeeq v. State of J&K

2017-07-11

JANAK RAJ KOTWAL, MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : Janak Raj Kotwal, J. 1. This is appeal by one Mohd. Sadeeq against the judgment dated 18.09.1998, whereby learned Sessions Judge, Udhampur has convicted him under section 302 RPC and the order of sentence dated 19.08.1998 whereby he has been sentenced to undergo imprisonment for life and to pay fine of Rs. 50,000/-. Heard. We have perused the record. 2. The prosecution case as it was set up before the learned trial court is that Mst. Babli (hereinafter to be referred as the deceased) fell in love with the appellant (hereinafter to the referred as the accused). They married in the year 1991 against the wishes of her parents and the members of brotherhood. The marriage caused snapping of the deceased's ties with her parental family and brotherhood. Their marriage procreated a female child. Their love, however, did not last long and in the year 1994, they decided to part company of each other. The accused divorced the deceased by virtue of a written deed (Ex. PW-JU). The deceased shifted to the house of her real sister, PW-5, Shanti as she could not fall back to her parents. Even after their divorce, the accused, however, continued visiting the deceased at her place of residence despite protest by her. The prosecution case is that on 6.04.1994 the accused had come at the residence of the deceased at 7 P.M. He asked her to prepare meals for him. The deceased, however, replied that she was unable to serve meals to him as the wheat flour available with her was hardly sufficient to prepare food for her daughter and she had no money with her. The accused, however, insisted for serving meals to him. The deceased minced the flour available with her and started making the chapatis. She had prepared one chapati only when the accused picked up the stove, poured the kerosene upon her and set her ablaze. The accused thereafter bolted the door from outside and ran away. PW-3, Koushalya, noticed smoke coming out of the room of the deceased, she called PW-5 and went to the room of the deceased. PW-3 extinguished the fire by pouring water on the deceased. Other witnesses also reached there. The deceased was shifted to the District Hospital, Udhampur at 8:45 P.M. At 8:45 P.M., Police Post, Rehmbal received telephonic information about admission of the deceased in the hospital. PW-3 extinguished the fire by pouring water on the deceased. Other witnesses also reached there. The deceased was shifted to the District Hospital, Udhampur at 8:45 P.M. At 8:45 P.M., Police Post, Rehmbal received telephonic information about admission of the deceased in the hospital. PW-10, Head Constable, Parkash Chand proceeded to the hospital. He recorded statement of the deceased (Ex. PW-PC) in presence of the doctor. She stated inter alia that she was set ablaze by the accused. On his return, PW-10 entered report No. 9 dated 06.04.1994 in the daily diary of the Police Post and on its basis FIR No. 177/1994 was registered at Police Station, Udhampur and investigation was taken up. 3. The Investigating Officer (IO) proceeded to the place of occurrence and prepared sketch map (Ex. PW-KE/I) of the crime scene on 07.04.1994. The deceased succumbed to burn injuries on 08.04.1994. The IO took charge of the dead body on the same day and after post-mortem on the dead body handed it over to PW-1, Baldev for last rites. On completion of investigation charge sheet under section 302 RPC was preferred against the accused in the committal court which on committal came up for trial before the learned Sessions Judge, Udhampur. 4. Learned trial Court after finding prima facie case under Sections 302 RPC against the accused framed charge against him on 22.08.1994. Accused denied the charge and claimed to be tried. Prosecution entered its evidence and examined 14 witnesses, namely, Baldev Raj (PW-1). Girdhari Lal (PW-2), Koushalya (PW-3), Bansi Lal (PW-4), Shanti (PW-5), Jia Lal (PW-6), Mohan Lal (PW-7), Mst. Durga (PW-8), Vidya Dhar Sharma, Advocate (PW-9), Parkash Chand, Head Constable (PW-10), Dr. M.L. Menia, (PW-11), Dr. Subhash Chander Pathologist (PW-12), Isher Dass (PW-13) and Kaka Ram, ASI (PW-14). The statement of the deceased (EX. PW-PC) supra, was used by the prosecution as the dying declaration of the deceased. The defence also examined two witnesses, namely, Ashok Kumar S/o. Krishan Chand and Ashok Kumar S/o. Duni Chand. 5. Learned trial court accepted and relied upon the prosecution evidence rendered by PW-11, Dr. M.L. Menia, who had attended the deceased and provided initial treatment to her in the casualty section of the hospital on 06.04.1994, Dr. The defence also examined two witnesses, namely, Ashok Kumar S/o. Krishan Chand and Ashok Kumar S/o. Duni Chand. 5. Learned trial court accepted and relied upon the prosecution evidence rendered by PW-11, Dr. M.L. Menia, who had attended the deceased and provided initial treatment to her in the casualty section of the hospital on 06.04.1994, Dr. Subhash Chander (PW-12), who conducted post-mortem on the dead body, PW-14, Kaka Ram, ASI, who had effected seizures of the articles including broken bangles, match box and the stove from the crime scene and the report of chemical examiner, Jagdish Singh, Assistant Director Chemistry Toxicology, J & K FSL, who had chemically examined the seized articles sent to him for examination to the effect that the deceased was admitted in the District Hospital, Udhampur on 06.04.1994 with 95 per cent burn injuries on all over her body surface except her feet, that kerosene had been used in burning the deceased and that the deceased had succumbed to burn injuries on 08.04.1994. Impugned judgment would show that the prosecution case and evidence to this extent was not questioned by the defence and similarly has not been assailed on behalf of the appellant in this appeal also. It is thus proved that the deceased had suffered 95 per cent burn injuries in the evening on 6.4.1994 caused by burning with kerosene and she succumbed to her injuries on 8.4.1994. 6. Having found as above, learned trial court proceeded to decide the vital question, 'as to how the deceased Babli came to be burnt by use of kerosene oil'. There is no direct evidence of the occurrence. To prove the charge against the accused the prosecution relied upon circumstantial evidence only, including the dying declaration of the deceased. Learned trial court enumerated the circumstances, which the prosecution had sought to prove to connect the accused with commission of the crime by him. These are: "(1) That on the day of occurrence the accused visited the house of the deceased. (2) The deceased was seen burning on the same evening on which the accused had visited the deceased. (3) Oral dying declaration made by the deceased to her relations immediately after the occurrence. (4) Recorded dying declaration made by the deceased in the hospital on 6.4.1994 while being admitted there for treatment. AND (5) Medical evidence showing that deceased died of the burn injuries." 7. (3) Oral dying declaration made by the deceased to her relations immediately after the occurrence. (4) Recorded dying declaration made by the deceased in the hospital on 6.4.1994 while being admitted there for treatment. AND (5) Medical evidence showing that deceased died of the burn injuries." 7. Learned trial court accepted and relied upon the evidence of PW-3, Koushalya and PW-5, Shanti in proof of the fact that on the day of occurrence, immediately before the occurrence at around 7 P.M. the accused had come to the house (room) in which the deceased was residing. Learned trial court accepted the evidence of PW-3 that the accused had called her from outside her house and informed her that the deceased has burnt. Trial court also accepted and relied upon the evidence of P.Ws. 3 and 5 to the extent that on their reaching at the room of the deceased, they found the deceased burning inside her room, PW-3 doused the fire by throwing water on her and they brought her out of the said room. Learned trial court, however, did not accept their evidence to the extent that immediately after the occurrence when they were bringing the deceased out of the room, the public had apprehended and brought the accused back to the place of occurrence. Learned trial court also did not accept and rely upon the prosecution evidence including the depositions of PWs-3 and 5 to the extent that deceased when she was being brought out of the room had made a statement/dying declaration saying that she was set ablaze by the accused. Learned trial court also did not accept and rely upon the evidence of PW-1, Baldev Raj, PW-2, Girdhari Lal and PW-7, Mohan Lal that any oral dying declaration about involvement of the accused was made by the deceased in the hospital when they had gone there after getting information about the occurrence on the next day. 8. Learned trial court accepted and relied upon the evidence of PW-10, Parkash Chand, Head Constable and PW-11, Dr. M.L. Menia in regard to the recording of the statement of the deceased (Ex. PW-PC) by PW-10 on the day of occurrence in the casualty section of the District Hospital, Udhampur, which the prosecution used as her dying declaration at the trial. Learned trial court accepted and relied upon the evidence of PW-10, Parkash Chand, Head Constable and PW-11, Dr. M.L. Menia in regard to the recording of the statement of the deceased (Ex. PW-PC) by PW-10 on the day of occurrence in the casualty section of the District Hospital, Udhampur, which the prosecution used as her dying declaration at the trial. After analysing and evaluating the evidence of these two witnesses and reading their evidence in juxtaposition with the opinion of PW-12, Dr. Subhash Chander, who had conducted post mortem on the dead body of the deceased, that a person with 95 per cent injuries can remain mentally conscious even up to 24-36 hours, learned trial court held that the dying declaration of the deceased was recorded in presence of Dr. M.L. Menia in which she had implicated the accused as being assailant. Contextually, in corroboration of the recording of the dying declaration of the deceased by PW-10, learned trial court also accepted and relied upon the evidence of Dr. M.L. Menia that he had admitted the deceased in the hospital at 9 P.M. and on asking about the cause of the burns, she had replied that her husband has burnt her and on this he had informed the police. 9. Besides aforementioned evidence, learned trial court relied upon the evidence showing that accused had divorced the deceased as she was not ready to convert and embrace Islam in proof of the fact that relationship between the deceased and the accused had strained because of the refusal of the deceased to convert to the religion of her husband. Learned trial court thus held that prosecution has succeeded in bringing home the guilt to the accused completely, cogently and conclusively as the accused was enraged by the refusal of the deceased to entertain him even after the dissolution of their marriage. Learned trial court thus convicted and sentenced the accused for offence under section 302 RPC. Hence, this appeal by the accused. 10. It can be summarized that according to the trial court the prosecution had succeeded in proving that the deceased was set ablaze inside her residential room at around 7 P.M. on 06.04.1994. The accused was seen in the room of the deceased shortly before the occurrence and after the occurrence he had informed PW Koushalya that the deceased has burnt. It can be summarized that according to the trial court the prosecution had succeeded in proving that the deceased was set ablaze inside her residential room at around 7 P.M. on 06.04.1994. The accused was seen in the room of the deceased shortly before the occurrence and after the occurrence he had informed PW Koushalya that the deceased has burnt. The deceased had made a dying declaration at District Hospital, Udhampur at 10 P.M. implicating the accused. 11. The appellant (accused) assails the judgment rendered by the trial court on various grounds. It is contended that the prosecution evidence does not establish the case against the appellant beyond reasonable doubt but the learned trial court has mis-appreciated the evidence. It is contented also that the judgment suffers from illegality as incriminating circumstances appearing in the prosecution evidence were not put to the accused in the statement under section 342 Cr.P.C. It is contended also that learned trial court has erred in relying upon the alleged dying declaration ignoring that the same had not been recorded in accordance with the law and is shrouded in reasonable doubts. Contextually, it is contended that there was no evidence to prove that the deceased was in a fit state to make a statement inasmuch as learned trial court had committed error in permitting the prosecution to produce a document (fitness certificate) at the closure of the prosecution evidence without supplying its copy to the accused. 12. In regard to the circumstances prevailing immediately prior to the occurrence at village, Majalta and after that till the deceased was shifted to the District Hospital, Udhampur, learned trial court has relied upon the depositions of PW-3, Koushalya and PW-5, Shanti. We may give resume of the relevant in their evidence. 13. PW-3, Koushalya stated before the trial court that the deceased was sister of her aunt. The accused had divorced the deceased a month prior to her death and after her divorce, deceased had started living in an independent room in the house of her sister, Shanti, at Majalta. The accused had visited the deceased in her room twice. For the first time, he came there 5/6 days after her assuming residence there. He came for the second time 8/9 days after his first visit at about 7 in the evening. The accused had visited the deceased in her room twice. For the first time, he came there 5/6 days after her assuming residence there. He came for the second time 8/9 days after his first visit at about 7 in the evening. Her house falls at a distance of 250 feet from the room in which deceased was residing. The accused had called her from a distance of 15 feet from her house and informed that the deceased has burnt. She informed deceased's sister, Shanti, in this regard and both of them ran towards the room of the deceased. She saw that the room of the door was bolted and smoke was coming out of the room. She opened the bolt of the door and saw the deceased lying on the floor in a burnt condition. She threw water on her. She or Shanti did not ask the deceased anything at that time about the cause of fire. Having been declared hostile at this stage, the witness has stated in cross-examination that the residents of the mohalla had caught and brought back the accused before the deceased was shifted to the hospital. On cross-examination by defence, she, however, admitted as true the portion of her statement recorded under Section 161 Code of Criminal Procedure (hereinafter to be referred as the Code) in which she had narrated the incriminating statement against the accused made by the deceased to her. Further she stated that on having been informed by the accused, she and her husband had run towards the place of occurrence. A bucket full of water was lying inside the room which she had thrown on the deceased. The deceased was talking at that time. The residents of the mohalla had taken the accused to the police post. Deceased was residing in a room of the same house in which Shanti used to reside. In cross-examination, she stated that her husband had reached on spot after two minutes of her reaching there. The deceased was talking at that time. She has also stated that relatives of the deceased had come in the hospital. 14. PW-5, Shanti Devi, the real sister of the deceased, has stated that the deceased had married with the appellant 3/4 years back of her own, she and her parents had not joined that marriage. After her marriage, deceased was living with the appellant at village, Rouan Domail. 14. PW-5, Shanti Devi, the real sister of the deceased, has stated that the deceased had married with the appellant 3/4 years back of her own, she and her parents had not joined that marriage. After her marriage, deceased was living with the appellant at village, Rouan Domail. Deceased had been visiting her house and used to say that appellant asks her to convert as a Muslim and has refused to convert himself as Hindu which he had promised before the marriage. She (witness) had enquired from the appellant that he has refused to convert as Hindu. The marriage between the appellant and the deceased was dissolved 3/4 years after the marriage. After their divorce, deceased had come to her and had started residing in her (witness) second house which comprises of one room only. That room is located at a distance of about 250 feet from her residential house. House of PW-Koushalya is located near her residential house. The appellant visited the deceased eight days after her assuming residence in that room. He stayed with her for the night. She (witness) enquired from the appellant as to why he has come to the deceased after having divorced her. The appellant had replied that he has come once only and will not come again. Five/seven days after Baisakhi, the appellant came for the second time to the deceased at about 7 in the evening. She at that time had gone to the room of the deceased for fetching a medicine as she was sick. She enquired from the appellant as to why he has come there, who replied that he can remarry the deceased. She (witness) returned to her house. Ten to fifteen minutes later Koushalya and 2/4 others raised noise saying that the deceased has burnt. She ran to the room of the deceased. Koushalya had reached there prior to her. She found the deceased inside the room. She was burnt and was in a bad condition. Prior to her reaching there, Koushalya had thrown water on the deceased. On her asking, deceased told her that she was preparing chapattis when the appellant poured kerosene from the stove on her and set her on fire by lighting matchstick and has run away after bolting the room from outside. Accused was caught and brought back on spot. Prior to her reaching there, Koushalya had thrown water on the deceased. On her asking, deceased told her that she was preparing chapattis when the appellant poured kerosene from the stove on her and set her on fire by lighting matchstick and has run away after bolting the room from outside. Accused was caught and brought back on spot. She, her husband and Koushalya shifted the deceased to Hospital at Udhampur by a matador. All of them stayed there for the night and after that persons from her parents' side came there. In cross-examination, she has stated that she cannot name the other persons who had raised noise about burning of the deceased. None other than her had objected appellant's visits to the deceased. On her reaching at the place of occurrence, she had found the child of the deceased weeping on the cot. Houses of Brahmins falls at a distance of about 250 feet from her house. They had also come on spot. Her husband had reached there at the time when they were bringing the deceased out of the room. Other persons were present when the deceased had narrated the incident to her and PW-Koushalya. She had not stated before the police that the appellant had come to her and had said that the deceased has set herself on fire after putting kerosene on her. They had taken the deceased to Hospital via Police Post, Rehmbal and police had accompanied them to Hospital. They did not narrate the incident to the police at Police Post, Rehmbal because the appellant had already been brought there and the police did not ask anything to the deceased at that time or from her. Police had enquired from her and had recorded her statement at the Hospital. Police did not record the statement of the deceased in the hospital in her presence. To a court question, she stated that the deceased had narrated the incident when she was brought out of her room which was heard by 10/12 others present there. 15. Learned trial court has recorded reasons for accepting the evidence relating to the appellant having been seen in the room of the deceased immediately before the occurrence and his presence in the area immediately after that. Likewise, learned trial court has recorded reasons for accepting the evidence relating to the making of dying declaration by the deceased. 16. 15. Learned trial court has recorded reasons for accepting the evidence relating to the appellant having been seen in the room of the deceased immediately before the occurrence and his presence in the area immediately after that. Likewise, learned trial court has recorded reasons for accepting the evidence relating to the making of dying declaration by the deceased. 16. Learned counsel appearing on behalf of the appellant, Mr. P.N. Raina, Senior Advocate, made various submissions before us to make out a point that neither PW-3 nor PW-5 had actually seen the appellant in the room of the deceased or in that area on the day of occurrence and that they have made false depositions in this regard being interested witnesses. Learned counsel made an effort to probabilize the occurrence as a case of suicide by the deceased and false implication of the appellant by the interested persons. Referring to the sketch map of the place of occurrence (Ex. PW-KR/I), learned counsel pointed out that, while as the evidence of PWs-3 & 5 indicates that the deceased had been residing in one of the rooms of the house of PW-5, the room occupied by her has been indicated as an isolated room in the sketch map and that the house of PW-5 does not figure anywhere. Learned counsel, thus, argued that possibility of PWs-3 & 5 having reached on spot is shrouded in doubt and their evidence cannot be treated as trustworthy evidence. Learned counsel also raised a question about veracity of the say of PW-5 that she had gone to the room of the deceased to fetch a medicine. Argument of learned counsel was that it is quite improbable that a person having a settled house would have gone to fetch medicine from a destitute lady. Likewise, learned counsel assailed veracity of the evidence of PW-3 arguing that it is quite unnatural to say and hard to believe that the appellant after committing the crime had gone to inform PW-3 as in such a situation the appellant would have run away without letting his presence in the area known to someone else. Learned counsel further assailed veracity of the evidence of these two witnesses arguing that they are interested witnesses because of their being close relatives of the deceased and annoyance due to the appellant first having married the deceased against their wish and after that having divorced her. 17. Learned counsel further assailed veracity of the evidence of these two witnesses arguing that they are interested witnesses because of their being close relatives of the deceased and annoyance due to the appellant first having married the deceased against their wish and after that having divorced her. 17. We on examining the sketch map of the place of occurrence (EX. PW-KR/I), prepared by the I.O. in light of the evidence of PWs-3 & 5, could not find any substance in the submissions of learned Senior Advocate on the point. PW-5, Shanti, the real sister of the deceased, has clarified in her cross-examination that the deceased was residing in her house, that comprises of one room only, other than her residential house. Deposition of PW-3 is on similar line too. We have not found any rebuttal to this aspect of the evidence rendered by these two witnesses. We have rather noticed that this aspect of the evidence has not been tested in cross-examination of PW-5 nor denied in the statement of the accused recorded under Section 342 of the Code. Merc failure on the part of I.O. to indicate the residential house of PW-5 in the sketch map has no significance in face of the evidence rendered by PW-5. 18. We find no reason to entertain any doubt in regard to the visit of PW-5, Shanti, to the room of the deceased immediately before the occurrence when she had seen the accused there. We do not see any unusualness in one approaching his neighbour or a nearby house in search of some medicine in case of its sudden requirement in rural areas. We also do not find any sufficient ground for rejecting the evidence that after the occurrence accused had informed PW-3 about the incident, before running away from the spot. Learned Senior Advocate no doubt has a point in saying that normally the accused should have run away instead of approaching PW-3 and proving his presence in the area but we are not inclined to accept the view expressed by learned counsel in toto or as a thumb rule. We may say briefly, how a person reacts after commission of a crime is not universal phenomenon. Reaction of a wrongdoers in the spur of moment after commission of a crime may differ from case to case and situation to situation. We may say briefly, how a person reacts after commission of a crime is not universal phenomenon. Reaction of a wrongdoers in the spur of moment after commission of a crime may differ from case to case and situation to situation. We cannot disagree with the view taken by the learned trial court that the accused might have decided to camouflage it as a case of suicide. This view is strengthened when considered in light of the fact that the accused was knowing that his presence in the room of the deceased was known to PW-5 as the preferable escaping route for him in that situation was to camouflage it as a case of suicide. 19. Admittedly, PW-5 is the real sister of the deceased and PW-3 is also related to the deceased, though distinctly. Such a relationship, however, is not a sufficient ground for doubting veracity of their depositions to the extent they inspire confidence of the court. We may state briefly that it has quite often been pointed out in various decisions of the Supreme Court and has developed as a settled principle that a close relative of the victim of an offence, and especially victim of murder, generally would not bail out real culprit and fabricate a false case even against hardest of his adversaries. Plea of false implication by closely related witnesses, therefore, cannot be entertained unless a strong indication in this regard is available from the record of the case. Close relationship with victim of an offence per se is not a ground for branding a person as interested witness and discarding his evidence. Nonetheless, evidence of close relatives of the victim is to be scrutinized and considered with great care so as to rule out the plea of false implication. 20. We find sufficient reason to rule out the theory of suicide as propounded on behalf of the accused on the basis of the unrebutted evidence of PW-3 to the effect that when she reached on spot the door of the room was bolted from outside, she opened the bolt (kundi) and entered the room. There cannot be any possibility of the deceased herself bolting the door of the room from outside before/after setting herself on fire for committing suicide. The bolting of the door from outside establishes the presence of a third hand in the occurrence. There cannot be any possibility of the deceased herself bolting the door of the room from outside before/after setting herself on fire for committing suicide. The bolting of the door from outside establishes the presence of a third hand in the occurrence. Learned trial court has recorded cogent reasons for accepting and relying upon the evidence of PWs-3 & 5 to the extent it establishes presence of the accused in the room of the deceased immediately prior to the occurrence and his having informed PW-3 about the deceased having caught fire immediately after the occurrence. We do not find any support from the evidence for believing that the said two witnesses would have thought of falsely implicating the appellant. Dying Declaration 21. It is well settled that in order to use a statement, verbal or written, as dying declaration of a person who is dead and rely upon it as substantive evidence, prosecution must prove the same as a fact. Prosecution has to prove that the dying declaration was made by the deceased. The most important is that the evidence led by the prosecution should be of such nature that the dying declaration inspires full confidence of the court that it was truthful and voluntary statement of the deceased and was made in a fit state of mind. See Kans Raj v. State of Punjab, AIR 2000 SC 2324 and Vinay D. Nagar v. State of Rajasthan, AIR 2008 SCW 1709 . 22. Learned five-Judge Bench of the Supreme Court in Laxman v. State of Maharashtra (2002) 6 SCC 710 , while underlining juristic theory regarding acceptability of a dying declaration, have emphasized the requirement of great caution to 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 its truth. Their Lordships inter alia have emphasized as essential requirement that "the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind." The Constitution Bench in this case has also referred to a three-Judge Bench decision of the Supreme Court in Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 432, where it has been held that the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given and it was also held that the officer concerned must find that the declarant was in a fit condition to make the statement in question. 23. If prosecution in a case proves a dying declaration as a fact, the consideration by the court would shift to its reliability and value as evidence about the cause of the death of its maker. Court, having regard to the prosecution evidence and the principles of caution governing consideration of dying declaration, has to determine whether the dying declaration is truthful and voluntary. It goes without saying that dying declaration is an exception to general rule against hearsay. It is something stated by a person who cannot be brought before the court and the accused against whom the declaration is going to be used as evidence cannot be provided opportunity to cross-examine him. The Court has therefore to be guarded to see that the statement was not the result of tutoring or prompting or a figment of imagination. The Court must be satisfied that the deceased was in a fit state of mind at the time of making the declaration. Judicially evolved principles of caution governing dying declaration have been summed up by Their Lordships in Paniben v. State of Gujarat (1992) 2 SCC 474 , as under:- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (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. (ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But whether the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon." 24. In regard to the dying declaration of the deceased (Ex. PW-PC) recorded by PW-Parkash Chand, Head Constable, the submissions of the learned Senior Counsel appearing on behalf of the accused were in two folds. It was submitted that the dying declaration was recorded by a police personnel in violation of Rule 609 of the J & K Police Rules though there was sufficient time to secure presence of a Magistrate to record the same. Learned counsel relied upon a Division Bench judgment of this Court in Darshan Kumar v. State 1996 SLJ 264 and a Supreme Court judgment in Dalip Singh & Ors. v. State of Punjab, (1979) 4 SCC 332 . Learned counsel relied upon a Division Bench judgment of this Court in Darshan Kumar v. State 1996 SLJ 264 and a Supreme Court judgment in Dalip Singh & Ors. v. State of Punjab, (1979) 4 SCC 332 . The other submission was that the prosecution had not produced any certificate issued by the doctor about the mental fitness of the deceased to make a statement as at the time of recording the dying declaration but the learned trial court committed error of law in allowing such a certificate to be produced at a later stage during the trial, which was allowed to be proved, though subject to the objection raised by the defence. Learned counsel argued that the certificate produced at a late stage during trial is liable to be rejected and in absence of proof in this regard the dying declaration is liable to be rejected. Learned counsel relied upon Ramilaben Hasmukhbhai Khristi v. State of Gujarat, (2002) 7 SCC 56 . 25. Per contra learned AAG supported the judgment. He relied upon Surinder Kumar v. State of Punjab, (2012) 12 SCC 120 and State of Madhya Pradesh v. Dal Singh, AIR 2013 SC 2059 . 26. It needs to be observed that neither the Code nor the Evidence Act provides for the mode or procedure for recording a dying declaration and also do not exclude from admissibility a dying declaration recorded by the police. Rather in view of Sub-section (2) of Section 162 of the Code, it is permissible to use as dying declaration any statement recorded by a Police Officer. In Dalip Singh's case (supra) relied upon by the learned counsel for the appellant, the dying declaration of the deceased recorded by a Head Constable of the police was not excluded from consideration on that score. The Supreme Court, rather, left the dying declaration out of consideration for the reason that it was found bit doubtful. The Supreme Court held in this regard that "the dying declaration could not be rejected on the ground that it was recorded by a Police Officer as he was in a critical condition and no other person could be available in the village to record the dying declaration" of the deceased. The Supreme Court held in this regard that "the dying declaration could not be rejected on the ground that it was recorded by a Police Officer as he was in a critical condition and no other person could be available in the village to record the dying declaration" of the deceased. The Supreme Court, however, has observed in this case that "although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Evidence Act in view of exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor". 27. In Dal Singh's case (supra), Supreme Court has held that "law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement". In Darshan Kumar's case (supra), the learned Division Bench of this Court has in context of that case referred to Rule 609 of the Jammu and Kashmir Police Rules, 1960 (for short, the Police Rules), which categories the persons who should record the dying declaration. It is noticed that the Police Rules have been framed by the Government in exercise of the Rule making powers under the Police Act, which, while issuing advisory to the investigating officers as to how a dying declaration should be recorded, do not exclude a dying declaration recorded by a police officer from admissibility as evidence. 28. What the prosecution is required to prove for relying upon a dying declaration is that the person making the dying declaration was in a fit state of mind and was capable of making the statement. Further, the prosecution has to prove that the statement was true and voluntary and was not the result of tutoring or prompting by a third hand. 29. Further, the prosecution has to prove that the statement was true and voluntary and was not the result of tutoring or prompting by a third hand. 29. In Ramilaben Hasmukhbhai Khristi's case (supra), one of the factors responsible for rejecting the dying declarations of the deceased was that none of those dying declarations contained any certificate by the doctor about the mental fitness of the deceased to make a statement. It was noticed by the Supreme Court that in two dying declarations, it was indicated only that deceased was conscious. On this point, the Supreme Court in Laxman v. State of Maharashtra (supra) has held that "it is indeed a hyper-technical view that the certification of the doctor was to the effect that patient is conscious and there was no certification that the patient was in a fit of mind." In regard to the law relating to admissibility and sufficiency of a dying declaration, it is useful to refer to and reproduce paragraph 14 of the judgment in State of Madhya Pardesh v. Dal Singh (supra): "14. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provide by a Doctor in respect of such state of the deceased, is not essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in cases of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in cases of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact." 30. We have examined, analysed and tested the dying declaration (EX. PW-PC) said to have been made by the deceased in the District Hospital, Udhampur in light of the submissions and principles stated and discussed above. Evidence rendered by PW-11, Dr. M.L. Menia and PW-10, Parkash Chand, Head Constable, is relevant on the point. According to PW-11, the deceased was brought in the causality ward of the hospital at about 9 P.M. She was having burn injuries. He had informed the police. A police Head Constable had recorded the statement of the deceased at about 10:10 P.M. in his presence. He has also stated that the patient at that time was talking and was conscious. The police officer had inquired from him before recording the statement as to whether the patient was fit to make any statement and he had opined that the lady was fit to render the statement and had issued a certificate in this regard (EX. PW-ML). Contextually, according to PW-10, he had reached at the hospital at 9/9:15. The deceased was identified by the relatives of the deceased and after filling up her injury form and obtaining fitness certificate from the Doctor, he recorded her statement. Evidence of these two witnesses to this extent is not diluted, much less shaken in their cross-examination by the defence. 31. The contention raised on behalf of the accused primarily is that the deceased allegedly having suffered 90 to 95% burn injuries could not have been in a fit state to make any statement to the police. The statement recorded by the police was imaginary and based upon the false information given by relatives of the deceased. 31. The contention raised on behalf of the accused primarily is that the deceased allegedly having suffered 90 to 95% burn injuries could not have been in a fit state to make any statement to the police. The statement recorded by the police was imaginary and based upon the false information given by relatives of the deceased. Issuance of fitness certificate by the doctor has been questioned on behalf of the accused on the ground that no such certificate was produced along with the charge sheet nor was available on the file at the time of recording the statement of PW-10, the scribe of the dying declaration and was introduced by the prosecution during recording of the statement of Doctor, PW-11. 32. It is not denied that the fitness certificate (EX. PW-ML) was not produced at the time of filing of the charge sheet and was not available on the file at the time of the record of the evidence of the scribe of the dying declaration, PW-10 and was produced by the prosecution during the recording of the evidence of the Doctor, PW-11. In his certificate, the doctor has certified that the patient (deceased) was "Fit for statements". Production of the certificate at a later stage during the trial needs to be looked into in backdrop of the evidence of the scribe, who has stated that he had obtained fitness certificate from the Doctor. Even the doctor, has stated that he had issued the fitness certificate. The prosecution indeed is required to produce all the documents to be relied upon at the trial along with the charge-sheet in terms of Section 173 Cr.P.C. of the Code, but there is no bar to take on record a document even at a later stage. A document, which could have been produced along with the charge-sheet, can be entertained at a later stage if the same is beyond suspicion about its existence and genuineness. The certificate issued by the doctor, in this case cannot be rejected merely on the ground that it was not produced along with the charge sheet for the reason that the scribe in his evidence had clearly stated that such a certificate was obtained by him. 33. The certificate issued by the doctor, in this case cannot be rejected merely on the ground that it was not produced along with the charge sheet for the reason that the scribe in his evidence had clearly stated that such a certificate was obtained by him. 33. Even if the written certificate issued by the Doctor is excluded from consideration, there is sufficient evidence to prove that the deceased was fit to make a statement at the time her statement was recorded by PW-10. The Doctor, PW-11, has very categorically stated that the deceased was talking and was conscious and in cross-examination has explained that his opinion that the patient was fit to make statement was based on the facts that the patient was talking and was conscious and was understanding the questions and making answers. Most importantly, the doctor has stated also that when the patient was admitted in the casualty ward, he had inquired from her as to the cause of the burn injuries and she had replied that she has been burnt by her husband and on this he had conveyed the information to the police. The statement of PW-11 sufficiently establishes that the deceased was fit to make the statement at the time her statement was recorded by PW-10. 34. Another ground on which the dying declaration has been questioned on behalf of the accused is that the same has been recorded by a Police Officer without arranging any Magistrate or even allowing the Doctor to record the same. In this regard the say of the scribe, PW-10 is that he could not get time to bring a Magistrate for recording the statement of the deceased as the Doctor had told him that condition of the deceased was critical so his statement should be immediately recorded. He has further stated that he did not ask the doctor to record the statement as the doctor was giving treatment to the deceased. Contextually, PW-11 has stated in cross-examination that he did not suggest to the Head Constable to arrange the presence of the Magistrate as he was apprehending that the deceased will die as patients with 90 to 95% burn injuries generally die. He, however, has stated also that he had asked the Head Constable to record the Statement but the latter did not want him to do so. He, however, has stated also that he had asked the Head Constable to record the Statement but the latter did not want him to do so. What is thus sufficiently established from evidence of these two witnesses and is supported by the volume of burn injuries suffered by the deceased is that, given her condition and apprehension of imminent death, it was not possible to bring any Magistrate in the Hospital for recording the dying declaration. Even though, the Doctor was available on spot but the scribe, that is, PW-10 did not ask him to record the dying declaration as according to him he was giving treatment to the deceased. However, there is unflinching evidence that the dying declaration was recorded in presence of the Doctor. Having regard to the circumstances as they were and in face of the fully reliable evidence of the Doctor, the dying declaration recorded by PW-10 cannot be rejected or excluded from consideration only for the reason that same was recorded by a Police Officer. 35. Yet another ground on which veracity of the dying declaration has been assailed is that the same was not voluntarily made and the PW-10 recorded imaginary statement on the basis of information given to him by relatives of the deceased. The contention, however, is liable to be rejected in view of the evidence of the doctor that the same was recorded in his presence and there being no indication that any of the relatives of the deceased was present there. Given the condition of the deceased, it cannot be imagined that she was in a position to narrate what she would have been tutored by someone else. The only safe inference to be drawn would be that whatever stated by her was her own version and that could have been nothing other than the truth. 36. To conclude, prosecution in this case has succeeded in proving beyond any doubt the presence of the accused along with the deceased in the room in which the occurrence took place immediately prior to the occurrence as also his presence in the area immediately after the occurrence when he had given information to PW-3 that the deceased has burnt. 36. To conclude, prosecution in this case has succeeded in proving beyond any doubt the presence of the accused along with the deceased in the room in which the occurrence took place immediately prior to the occurrence as also his presence in the area immediately after the occurrence when he had given information to PW-3 that the deceased has burnt. In addition and most importantly, prosecution has succeeded in proving the dying declaration of the deceased in which she inter alia stated that she was set on fire by the accused after dousing her in kerosene from the stove lying in the room. The facts thus proved are sufficient to connect the accused with the commission of offence, that is, setting the deceased ablaze and thereby causing her death. We, therefore, find no ground for disagreeing with the judgment of conviction recorded by the learned trial court. 37. For all that said and discussed above, this appeal has no merit and is dismissed. The sentence imposed by the learned trial court is confirmed. Bail of the accused granted by this Court is now cancelled. 38. Record of the trial Court be remitted back along with a copy of this Judgment in terms of Section 425 of the Code. Learned trial Court shall take steps to execute the sentence. Appeal and the confirmation disposed of accordingly.