G.S.Ahluwalia, J. - This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 19-5-1999 passed by 1st A.S.J., Dewas in S.T. No. 85/1996, by which the appellant has been convicted under Section 306 of I.P.C. and has been sentenced to undergo the rigorous imprisonment of 5 years and a fine of Rs. 100/- with default imprisonment.

2. The necessary facts for the disposal of the present appeal in short are that the appellant had abetted his wife, Smt. Sangeeta Bai to commit suicide and accordingly, She committed suicide on 27-2- 1995 by setting herself ablaze. According to the prosecution, the appellant had performed love marriage with the deceased, therefore, he was residing separately with the deceased and there used to be some dispute between the appellant and the deceased as the deceased was apprehending that the appellant has extra marital ties and accordingly on the date of incident, the appellant instigated the deceased to commit suicide by saying that "the deceased is not related to him and she should die and accordingly brought a kerosene oil stove and kept it in front of the deceased". Accordingly, the deceased committed suicide by setting herself on fire. The deceased was taken to the hospital, where dying declaration was recorded by the Doctor. Intimation to the police was given by the Doctor. The postmortem of the dead body of the deceased was conducted on 28-2-1995. The statements of the witnesses were recorded and after completing the investigation, the police filed the charge sheet against the appellant for offence under Section 306 of I.P.C.

3. The Trial Court by order dated 18-1-1997 framed charge under Section 306 of I.P.C.

4. The appellant abjured his guilt and pleaded not guilty.

5. The Prosecution in order to prove its case, examined Anjurani Das (P.W.1), Kiran (P.W.2), Rampyari @ Pyaribai (P.W.3), Dr. Shubhanshu Dagawankar (P.W.4), Dr. P.C. Jain (P.W.5), Mohanalal (P.W.6), R.S. Chudawat (P.W. 7), Ramesh Singh Yadav (P.W.8), Madan (P.W.9), Kailash (P.W.10), Kamta Prasad (P.W.11), R.R. Malviya (P.W.12) and Vikram Singh (P.W.13). The appellant did not examine any witness in his defence.

6. The Trial Court by judgment and sentence dated 19-5-1999, passed in S.T. No.85/1996, convicted the appellant for offence under Section 306 of I.P.C. and sentenced him to undergo the rigorous imprisonment of 5 years and a fine of Rs. 100 with default imprisonment.

7. Challenging the conviction and sentence passed by the Court below, it is submitted by the Counsel for the appellant, that the entire prosecution story is based on the dying declaration, Ex.P.3 and in absence of any corroborative piece of evidence and in view of the serious condition of the deceased, it is clear that the dying declaration recorded by Dr. Shubhashu Dagawankar (P.W.4) is not reliable. Further, it is submitted that the dying declaration was purportedly recorded by Dr. Subhanshu at 10:25 A.M., and intimation by Dr. Subhanshu (P.W.4) was given to the police at 10:30 P.M. and there is no mention of dying declaration of the deceased, thus, it is clear that the dying declaration made by the deceased is doubtful and suspicious. It is further submitted that there is nothing in the postmortem report to indicate, that any ink was found on the thumb of the deceased, therefore, it is clear that the thumb impression of the deceased on the dying declaration is doubtful and the dying declaration appears to have been created by the prosecution, in order to falsely implicate the appellant. Further, it is submitted that Anjurani Das (P.W.1) has stated that when She noticed the smoke coming out from the room of the deceased, then She found that the door was locked from inside and the appellant was not there and he came there at a later stage. Thus, it is clear that the appellant had never instigated the deceased to commit suicide. It is further submitted that even if the entire prosecution story is accepted, then it would be clear that the appellant had merely said that the deceased is not related to him and She may die and this conduct of the appellant would not amount to abetment of suicide.

8. Per contra, it is submitted by the Counsel for the appellant that it is not the simple case of uttering some words by the appellant thereby suggesting the deceased to commit suicide but subsequently, there is a positive act on the part of the appellant in bringing the kerosene oil stove and keeping the same in front of the deceased, which clearly suggests that the words uttered by the appellant to the effect that the deceased is not related to him and she may die, were intentional and in fact the appellant had instigated the deceased to commit suicide by providing her the kerosene oil. So far as the dying declaration is concerned, the appellant has not alleged any mala fides on the part of the Doctor and since, the Doctor is an independent witness, therefore, there was no reason for him to prepare a false dying declaration. It is well established principle of law that if the dying declaration is found reliable, then the same may be a sole basis for conviction.

9. Heard the learned Counsel for the parties.

10. The Trial Court in para 16 of its judgment has come to a conclusion that the deceased Sangita was not the married wife of the appellant, therefore, no presumption can be drawn against the appellant under Section 113-B of Evidence Act. Thus, it is clear that the deceased Sangeeta was not the wife of the appellant. However, Anjurani Das (P.W.1), is the landlady of the appellant, who has stated that the appellant and his wife, deceased Sangeeta were her tenants. The deceased Sangeeta has also described the appellant as her husband. Kiran (P.W.2) who is the elder sister of the deceased Sangeeta, has stated that the deceased Sangeeta was married to Amritlal but after her marriage, She came back to her parental home, because of disputes with Amritlal however, the divorce had not taken place and about 1 years prior to her death, She had started living with the appellant without marriage. Rampyari (P.W.3) is the mother of the deceased. She has also stated that the deceased was living with the appellant, without getting married to him. Madan (P.W.9) who is the brother of the deceased has also stated that the deceased was living with the appellant, without getting married to him. Thus, it is clear that the deceased Sangeeta and the appellant were living in live-in-relation.

11. Although Kiran (P.W.2), Rampyari (P.W.3) and Madan (P.W.9) have stated that since, the appellant had relations with another lady, therefore, there used to be some dispute between the deceased and the appellant, however, these witnesses, have denied of giving any case diary statements Ex. D-1, D-2, and D-9 to the police. Therefore, the allegations made by the witnesses in the Court with regard to the reasons for the deceased to commit suicide cannot be accepted, without corroboration.

12. Now the entire prosecution case, hinges around the dying declaration, Ex.P.3, recorded by Dr. Subhanshu (P.W.4). Dying declaration, Ex. P.3 reads as under :-



13. Challenging the correctness and genuineness of the dying declaration, Ex.P.3, it is submitted by the Counsel for the appellant, that the Doctor has not certified that the deceased was in a fit state of mind. There is no certificate on the dying declaration to that effect. The dying declaration was recorded at 10:25 A.M., whereas the Doctor had sent an intimation to the police at 10:30 A.M., but there is no mention of making of dying declaration by the deceased.

14. Considered the submissions made by the Counsel for the appellants.

15. In the present case, the dying declaration has been recorded by the Doctor himself. Dr. Subhanshu (P.W.4) has specifically stated, that the dying declaration, Ex.P.3 was made by the deceased and Compounder on duty namely D.S. Pawar and Nurse on duty namely Naseem have signed as witnesses. This witness was crossexamined and a question was put to him as to why there is no mention of dying declaration, Ex.P.3, in the police intimation Ex.P2 sent by this witness after the recording of dying declaration, and in reply it was stated by this witness that he had merely sent the intimation to the police and had not sent the dying declaration. He also admitted that the dying declaration was not sealed in an envelop. He also admitted that a person who has suffered 100% burn injuries would be in deep pains, however, without the record was unable to state that whether any injection of painkiller was ever given to the deceased, prior to recording of evidence or not

16. So far as the submission that Dr. Subhanshu (P.W.4), prior to and after recording the dying declaration, Ex.P.3 had not given any certificate as to the mental condition of the deceased is concerned, this Court is of the considered opinion that since, the dying declaration was recorded by the Doctor himself, therefore, if the person recording the dying declaration is of the view that the maker of the dying declaration is in a fit state of mind, to make a dying declaration, then the dying declaration cannot be discarded/ disbelieved only on the ground of want of certificate.

17. In Lallubhai Devchand Shah And Ors. vs The State of Gujarat, (1972) AIR SC 1776 on 3 November, 1971 the Supreme Court has laid special stress on the fact that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind and observed as follows:-

"The Court, therefore, blamed Dr Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a fit state of mind to make the statement. The fit state of mind referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding."

In the case of Laxman Vs. State of Maharashtra, (2002) 6 SCC 710 , the Supreme Court has held 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 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. 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.

Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh, (1999) 7 SCC 695 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart form the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji & Another vs. State of Gujarat, (1999) 9 SCC 562 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander vs. State of Punja, (1998) 9 SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur VS. State of Punjab, (1999) 6 SCC 545 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma & Ors. vs. State of Andhara Pradesh, (1999) 7 SCC 695 to the effect that "in the absence of a 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" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma &Ors. vs. State of Andhra Pradesh, (1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji & Another vs. State of Gujarat, (1999) 9 SCC 562 case."

The Supreme Court in the case of State of M.P. Vs. Dal Singh, (2013) 14 SCC 159 has held as under :-

"Whether 100 per cent burnt person can make a dying declaration or put a thumb impression:

8. In Mafabhai Nagarbhai Raval v. State of Gujarat, (1992) AIR SC 2186, this Court dealt with a case wherein a question arose with respect to whether a person suffering from 99 per cent burn injuries could be deemed capable enough for the purpose of making a dying declaration. The learned trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns. He had consequently opined, that the moment the deceased had seen the flame, she was likely to have sustained mental shock. Development of such shock from the very beginning, was the ground on which the Trial Court had disbelieved the medical evidence available. This Court then held, that the doctor who had conducted her post-mortem was a competent person, and had deposed in this respect. Therefore, unless there existed some inherent and apparent defect, the court could not have substitute its opinion for that of the doctors. Hence, in light of the facts of the case, the dying declarations made, were found by this Court to be worthy of reliance, as the same had been made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon.

A similar view has been re-iterated by this Court in Rambai v. State of Chhatisgarh, (2002) 8 SCC 83.

9.In Laxman v. State of Maharashtra, (2002) AIR SC 2973, this Court held, that a dying declaration can either be oral or in writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual 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, and where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.

10.In Koli Chunilal Savji v. State of Gujarat, (1999) AIR SC 3695, this Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also:Babu Ram &Ors. v. State of Punjab, (1998) AIR SC 2808).

11.In Laxmi v. Om Prakash &Ors., (2001) AIR SC 2383, this court held, that if the court finds that the capacity of the maker of the statement to narrate the facts was impaired, or if the court entertains grave doubts regarding whether the deceased was in a fit physical and mental state to make such a statement, then the court may, in the absence of corroborating evidence lending assurance to the contents of the declaration, refuse to act upon it.

12.In Govindappa &Ors. v. State of Karnataka, (2010) 6 SCC 533 , it was argued that the Executive Magistrate, while recording the dying declaration did not get any certificate from the medical officer regarding the condition of the deceased. This Court then held, that such a circumstance itself is not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence.

13.In State of Punjab v. Gian Kaur &Anr., (1998) AIR SC 2809, an issue arose regarding the acceptability in evidence, of the thumb impression of Rita, the deceased, that appeared on the dying declaration, as the trial court had found that there were clear ridges and curves, and the doctor was unable to explain how such ridges and curves could in fact be present, when the skin of the thumb had been completely burnt. The court gave the situation the benefit of doubt.

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 provided by a Doctor in respect of such state of the deceased, is not essential in every case."

The Supreme Court in the case of Kaliya Vs. State of M.P., (2013) 10 SCC 758 has held as under :-

"9. Shri S.K. Dubey has placed much reliance on the judgment of this Court in Narain Singh & Anr. v. State of Haryana, (2004) AIR SC 1616, wherein the court acquitted the accused persons only on the ground that the dying declaration itself was not proved and, therefore the question of acting on it could not arise. The ratio of the said judgment has no application in the instant case as mentioned herein-above. In the instant case, the Trial Court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the courts below.

10.Section 65(c)of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, (2011) AIR SC 1492; and RasiklalManikchand Dhariwal &Anr. v. M.S.S. Food Products, (2012) 2 SCC 196 ). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: Roman Catholic Mission v. The State of Madras, (1966) AIR SC 1457; Marwari Khumhar&Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., (2000) AIR SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswamiand V.P. Temple & Anr., (2003) AIR SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, (2004) AIR SC 4082; and Life Insurance Corporation of India & Anr. v. Rampal Singh Bisen, (2010) 4 SCC 491.

11.In M. Chandra v. M. Thangamuthu &Anr., (2010) 9 SCC 712 , this Court considered this aspect in detail and held as under:

"We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible.

However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party." A similar view has been re-iterated in J. Yashoda v. K. Shobha Rani, (2007) AIR SC 1721.

12. Dr.Nirmal Kumar Gupta (PW.18), deposed that 100% burnt patient can also be in a fit mental and physical condition to give statement. Dr. V.K. Deewan (PW.14), who performed the post-mortem of deceased Guddi, deposed that she was completely burnt and the burn injuries were anti-mortem. She had died due to Asphyxia, due to burn injuries, her death was homicidal.

In view thereof, both the courts below were of the considered opinion that the appellant was responsible for causing the death of Guddi, deceased."

The Supreme Court in the case of P.V. Radhakrishna Vs. State of Karnataka, (2003) 6 SCC 443 has held as under :-

"At this juncture, it is relevant to take note of Section 32of the Indian Evidence Act, 1872 (in short Evidence Act) which 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 32are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32makes 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 deflect 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 Lyre 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, Sect.4) The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturusproesumiturmentiri a man will not meet his maker with a lie in his mouth."

This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed 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 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.

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 assailant. 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. This 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) AIR SC 1817:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja &Anr. v. The State of Madhya Pradesh, (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 and Ors., (1985) AIR SC 416 and Ramavati Devi v. State of Bihar, (1983) AIR SC 164]

(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 an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, (1976) AIR 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., (1982) AIR SC 1021]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P., (1981) 2 SCC 654 ]

(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. KrishnamurthiLaxmipati Naidu, (1981) AIR 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 Surajdeo Oza and Ors. v. State of Bihar, (1979) AIR 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 Nanahau Ram and Anr. v. State of Madhya Pradesh, (1988) AIR 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 and Ors., (1989) AIR SC 1519]

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehaniv.State of Maharashtra, (1982) AIR SC 839] In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. 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., (1992) 2 JT 417 (SC), Goverdhan v. State of Maharashtra, (1993) 5 JT 87 (SC), Meesala Ramakrishan v. State of Andhra Pradesh, (1994) 3 JT 232 (SC) and State of Rajasthan v. Kishore, (1996) 2 JT 595 (SC)] There is no material to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility. It was observed by a Constitution Bench of this Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710 that where the medical certificate indicated that the patient was conscious, it would not be correct to say that there was no certification as to state of mind of declarant. Moreover, state of mind was proved by testimony of the doctor who was present when the dying declaration was recorded. In the aforesaid background it cannot be said that there was any infirmity. Further if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such dying declaration will not be invalid solely on the ground that is not certified by the doctor as to the condition of the declarant to make the dying declaration. [See Rambai v. State of Chhattisgarh, (2002) 8 SCC 83 ].

The residuary question whether the percentage of burns suffered is determinative factor to affect the credibility of the dying declaration and the improbability of its recording. There is no hard and fast rule of universal application in this regard. Much would depend upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. As noted in Rambais case physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement."

18. Thus, it is clear that obtaining a fitness certificate before and after recording of dying declaration is not the requirement of law and if the authority, recording the dying declaration is satisfied about the mental fitness of the victim, then the dying declaration cannot be disbelieved only on the ground that the medical fitness certificate was not obtained. However, in the present case, the dying declaration was recorded by the Doctor himself. Therefore, it was not necessary for one Doctor to obtain the mental fitness certificate of the victim, from another Doctor.

19. It is next contended by the Counsel for the appellant, that since, according to the Doctor, the deceased had suffered 100 % burns and no ink mark was found on the thumb of the deceased, therefore, it is clear that the dying declaration, Ex.P.3 does not contain the thumb impression of the deceased Sangeeta. To buttress his contentions, the Counsel for the appellant has relied upon a judgment dated 20th September, 2013 passed by this Court in the case of Garibdas alias Pappu Choudhari vs. The State of Madhya Pradesh passed in Criminal Appeal No. 1993/2005.

20. It have gone through the evidence of Dr. P. C. Jain (P.W.5), who had conducted the postmortem of the deceased as well as the evidence of Dr. Subhanshu (P.W.4) who had recorded the dying declaration of the deceased. Not a single question has been put to these witnesses, as to whether the thumb of the deceased was having any skin or not and no question has been put to Dr.P. C. Jain (P.W.5) as to whether he had found any ink mark on the thumb of the deceased or not Furthermore, undisputedly, some treatment was given to the deceased, therefore, even if the ink mark is wiped out from the thumb, then no hard and fast rule can be laid down that unless and until an ink mark is found on the thumb of the deceased, it cannot be presumed that the thumb impression on the dying declaration is of the deceased.

21. It is next contended by the Counsel for the appellant, that as the deceased had suffered 100 % burns, therefore, it cannot be said that She was in a fit state of mind. As already held by the Supreme Court in the case of Dal Singh , it is clear that extent of burns are not the determinative factor, but the fitness of the mind of the victim, is the determinative factor to find out that whether the deceased was in a fit state of mind or not Even otherwise, in the present case, not a single question has been put to Dr. Subhanshu (P.W.4) with regard to the mental fitness of the deceased. Thus, where the satisfaction of the Doctor with regard to the mental fitness of the deceased was never challenged by the defence/ accused, it cannot be said that only because of extensive burns suffered by the deceased, She was not in a fit state of mind.

22. Thus, this Court is of the considered opinion, that the dying declaration, Ex.P.3, recorded by Dr. Subhanshu (P.W.4) is a reliable document and was in fact made by the victim in a fit state of mind.

23. It is next contended by the Counsel for the appellant, that even if the entire allegations are accepted in its entirety, it would be clear that the appellant had never abetted the deceased to commit suicide. The utterance of words by the appellant, that the deceased had no relations with appellant and She may die are not sufficient to draw an inference, that the appellant, in any manner, had abetted the deceased to commit suicide. To buttress his contentions, the Counsel for the appellant has relied upon the judgments passed by the Supreme Court in the cases of Sanju @ Sanjay vs. State of M.P., (2002) 5 SCC 371 and Swamy Prahlad Das vs. State of M.P., (1995) SCC(Cri) 943.

24. The Supreme Court in the case of Swamy Prahlad Das has held as under:-

"3. At the time of framing of charge, the trial court thought it appropriate to associate the appellant herein as accused because of the words he uttered to the deceased. We think that just on the basis of that utterance, the Court of Session was in error in summoning the appellant to face trial. In the first place, it is difficult, in the facts and circumstances, to come to even a prima facie view that what was uttered by the appellant was enough to instigate the deceased to commit suicide. Those words are causal in nature which are often employed in the heat of the moment between quarrelling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that these words would be carried out in all events.Besides the deceased had plenty of time to weigh the pros and cons of the act by which he ultimately ended his life. It cannot be said that the suicide by the deceased was the direct result of the words uttered by the appellant."

25. The answer to the submission made by the Counsel for the appellant, lies in the judgment passed by the Supreme Court in the case of Swamy Prahlad Das .In the said case, it was held by the Supreme Court, that where the words go and die are uttered in a heat of moment, without there being any intention behind it and with no mens rea, then it cannot be said that by uttering the words go and die, the accused had abetted the deceased to commit suicide. However, the facts of the present are distinguishable. Merely uttering the words go and die without there being any mens rea behind it, may not amount to abetment of suicide, but in the present case, the appellant, not only scolded the deceased that She has no relations with the appellant and should die, but also brought a kerosene oil stove and kept it in front of the deceased, thus, not only he instigated the deceased to die but, also instigated her by putting a kerosene oil stove in front of her. Thus, it is clear that the words "that the deceased should die" were uttered by the appellant with a mens rea/intention that the deceased must commit suicide because it is an admitted position that the deceased was living with the appellant in a live-in-relation as She had some disputes with her husband. Thus, it is clear that the deceased was residing separately from her husband because of some dispute and started living in live-in-relation, because She could not have married the appellant, as the divorce had not taken place between the deceased and her husband. It appears that as the appellant had developed physical relations with some other lady, then the deceased started objecting to it, and when the appellant told the deceased that She has no legal status and should die and further kept the kerosene oil stove in front of her, then it can be safely held that the appellant had instigated the deceased to commit suicide.

26. Section 306 of I.P.C. reads as under :-

"306. Abetment of suicide.-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. "

"Abetment" is defined under Section 107 of I.P.C. which reads as under :

"107. Abetment of a thing.-A person abets the doing of a thing, who-

First.-Instigates any person to do that thing;

or

Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration

A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."

27. The Supreme Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 while dealing with the term "instigation" held as under :-

"16. ... instigation is to goad, urge forward, provoke, incite or encourage to do an act. To satisfy the requirement of instigation, though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an instigation may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

17. Thus, to constitute instigation, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by goading or urging forward. The dictionary meaning of the word goad is a thing that stimulates someone into action; provoke to action or reaction ... to keep irritating or annoying somebody until he reacts...."

The Supreme Court in the case of Praveen Pradhan Vs. State of Uttaranchal, (2012) 9 SCC 734 held as under :-

"17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh, (1991) 3 SCC 1 ), Surender v. State of Haryana, (2006) 12 SCC 375 , Kishori Lal v. State of M.P., (2007) 10 SCC 797 and Sonti Rama Krishna v. Sonti Shanti Sree, (2009) 1 SCC 554 )

18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 CrPC."

The Supreme Court in the case of Sanju @ Sanjay Singh Sengar Vs. State of M.P., (2002) 5 SCC 371 has held as under :-

"6. Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing."

Further, in para 12 of the judgment, it is held as under:

"The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation."

28. Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act.

29. In the present case, the appellant had not only told the deceased about her legal status and suggested her to die, but also provided with the kerosene oil stove, thus, it is clear that the appellant had abetted the deceased to commit suicide.

30. Accordingly, the appellant is held guilty of committing offence under Section 306 of I.P.C.

31. So far as the question of sentence is concerned, it appears that the appellant took advantage of the dispute of the deceased with her husband and started living in live-in-relation with the deceased and later on had some relations with another lady and when it was objected by the deceased, then he abetted the deceased to commit suicide.

32. Under these circumstances, the sentence of rigorous imprisonment of 5 years, awarded by the Trial Court, cannot be said to be excessive.

33. Accordingly,The judgment and sentence dated 19-5-1999 passed by 1st A.S.J., Dewas in S.T. No. 85/1996, is hereby affirmed.

34. The appellant is on bail. His bail bonds and surety bonds are cancelled. He is directed to immediately surrender before the Trial Court, for undergoing the remaining jail sentence.

35. The appeal fails and is hereby Dismissed.