LexKALIYA versus STATE OF MADHYA PRADESH
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A B (2013) 7 S.C.R. 760 KALIYA .. v. ·STATE OF MADHYA PRADESH (Criminal Appeal No. ·228 of 2008) JULY 23, 2013 [DR. B.S. CHAUHAN ANO. S.A. BOBDE, JJ.] . . PENAL CODE, 1860: c s. 302- Married woman· burnt alive by her mother-in~law (appellant) - Conviction and sentence oflife imprisonment - Held: In the dying declaration recorded by the doctor, the deceased stated that her mother-in-law.poured kerosene on her and set her on fire - Carbon copy of dying declaration 0 rightly admitted by trial court as secondary evidence - No objection was raised at that time - As the incident occurred in the house of appellant, and she was present therein at the relevant time, she could have furnished the explanation as to how and under what circumstances the· victim died - The matter was within her special knowledge ""'" Both the courts E below rightly held· that appellant was responsible for causing the death of deceased - Evidence Act, 1872 - ss. 63 and 65. Evidence Act, 1872: F ss. 63 and 65(c) -- 'Secondary evidence' - Witnesses concerned deposing that original dying declaration was not traceable - Trial court granting permission to lead secondary. evidence and permitting carbon copy to be adduced in evidence - Held: In view of provisions of ss. 63 and 65, such G a course is permissible. H The mother-in-law of the deceased (appellant), her husband, and the father-in-law faced· trial for offences punishable u/ss. 302 and 498-IPC, on the allegation that 760 · KALIYA v. STATE OF MADHYA PRADESH 761 they burnt alive the deceased for dowry, The trial court A convicted all the accused of the offences charged. However, the High Court maintained th~<conviction of.the appellant u/s, 302-IPC and acquitted the other accused of the charges. In the instant appeal it was mainly'contended for the appellant that since the original dying declaration was not filed before the trial court, the carbon copy of the· same could not have been exhibited and taken on record. Dismissing the appeal, the Court B c HELD: 1.1. There is ample evidence on record to the effect that the deceased was admitted to hospital on 18.6.1984. However, her case sheet could not be deposited by the Clerk working in the hospital. PW.18, D the doctor who examined the deceased, supported the case of the prosecution with respect to the admission of the deceased in the hospital and further that he recorded her dying declaration wherein she stated that when she was lying on the bed, her mother-in-law poured kerosene E on her and set her on fire and ran away. He further deposed that the .deceased appended her thumb impression on the dying declaration. He also deposed that before recording her dying declaration, the deceased was in a fit mental condition. His statement stands fully corroborated by the evidence of the staff nurse, (PW.5) who was present at the time of recording the dying declaration. The testimony of both these witnesses remained unimpeached. [Para 5] [766-E-H) F 1.2. In the instant case, the dying declaration· G produced before the court was the carbon copy of the original. PW.16 and PW.17 clearly deposed that even after conducting an extensive search, the original dying declaration. could not be traced~ The trial court granted permission to lead secondary evidence and the same was H 762 SUPREME COURT REPORTS [2013] 7 S.C.R. A adduced strictly in accordance with law and accepted by the courts below. In view of the provisions of SS. 63 and 65 of the Evidence Act 1872, such a course of action is permissible. In case an objection was not raised at the time of admission of the secondary evidences, it is B precluded from being raised at a belated stage. (Paras 5, 9 and 10] (766-H; 767-A-B; 768-F-G; 769-0-E] State of Madhya Pradesh v. Dal Singh & Ors. AIR 2013 SC 2059; State of Rajasthan v. Kishore, 1996 (2) SCR 1103 C =AIR 1996 SC 3035; M. Chandra v. M. Thangamuthu & Anr., 2010 (11) SCR 38 = (2010) 9 SCC 712; J. Yashoda v. K. Shobha Rani, 2007 (5) SCR 367 = AIR 2007 SC 1721 - relied on Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 D SC 2186; Laxmi v. Om Prakash & Ors., 2001 ( 3) SCR 777 =AIR 2001 SC 2383 ; Govindappa & Ors. v. State of Karnataka, 2010 (6 ) SCR 962 = (2010) 6 SCC 533; H. Siddiqui (D) by Lrs. v. A. Ramalingam 2011 (5 ) SCR 587 = AIR 2011 SC 1492; Rasiklal Manikchand Dhariwal & Anr. v . . E M.S.S. Food Products, 2011 (14) SCR 1141 = (2012) 2 SCC 196);
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