Allahabad High Court
Surendra Singh vs State Of U.P. on 2 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 4646
Bench: Pritinker Diwaker, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 25.10.2018 Delivered on 02.11.2018 Court No. - 3 CRIMINAL APPEAL No.-5525 of 2015 Surendra Singh : Appellant Versus State Of U.P. : Respondent _______________________________________________________________ For Appellant : S/Shri Rajiv Lochan Shukla, Ramanuj and Sharique Ahmad. For Respondent : Shri Amit Sinha, Addl. Govt. Advocate. _______________________________________________________________ Hon'ble Pritinker Diwaker,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Per: Pritinker Diwaker, J.
1. This appeal arises out of the impugned judgment and order dated 30.04.2015 passed by the Additional Sessions Judge, Court No.2, Mahoba in S.T. No.111 of 2013 (State of U.P. Vs. Surendra Singh and others), arising out of Case Crime No.481 of 2013, convicting the appellant under Section 302 of I.P.C. and sentencing him for life imprisonment and to pay a fine of Rs.40,000/- in default thereof to undergo additional rigorous imprisonment for two years.
2. In the present case, name of the deceased is Rubi, wife of the accused appellant. Their marriage was solemnized on 25.04.2012 and she suffered burn injury in her matrimonial house on 27.04.2013. Immediately after the incident, Rubi was taken to the hospital where she was medically examined vide Ex. Ka-2 and 70% burn injuries have been noticed by the doctor examining her. On 27.04.2013 itself, dying declaration of the deceased was recorded by PW-7 Ompal Singh, the Executive Magistrate. Considering her critical condition, from Mahoba she was taken to Jhansi on 27.04.2013 itself where she was hospitalized in Medical College, Jhansi. On 28.04.2013, she was taken to Gwalior in a private hospital where she remained till 04.05.2013 where she succumbed to her burn injuries. At Gwalior, yet another dying declaration of the deceased was recorded by PW-11 Umesh Chandra, Executive Magistrate vide Ex. Ka-12. On 11.05.2013, a written report Ex. Ka-1 was made by PW-1, Indrapal Singh, father of the deceased, alleging that since the date of marriage, there was demand of dowry on the part of the accused persons and that she was subjected to cruelty. He further alleged that the deceased has been burnt by the accused persons. Based on this report, FIR Ex.Ka-3 was registered against as many as five accused persons, namley, Surendra Singh, present appellant, Pushpendra, brother-in-law (Dewar) of the deceased, Brijendra @ Shivpal, uncle-in-law of the deceased, Ramrati, mother-in-law of the deceased and Sangeeta, married nanad of the deceased, under Sections 498-A/304-B of I.P.C. read with Section 3/4 of Dowry Prohibition Act. In the meanwhile, on 15.05.2013 inquest on the dead body of the deceased was conducted vide Ex.Ka-13 and the dead body was sent for postmortem, which was conducted by PW-10 Dr. Nikhil Agrawal vide Ex. Ka-11. The autopsy surgeon has noticed 80% burn injuries on the body of the deceased and according to him, the cause of death is due to cardiac respiratory failure.
3. While framing charge, the trial Judge has framed charges against all the accused persons under Sections 498-A, 304-B of I.P.C. read with Section 4 of the Dowry Prohibition Act and alternate charge under Section 302/34 of IPC.
4. So as to hold the accused persons guilty, prosecution has examined 13 witnesses, namely, PW-1 Indrapal Singh, PW-2 Smt. Sunita, PW-3 Vanshgopal Yadav, PW-4 Dr. R.B. Arya, PW-5 Constable Roop Singh, PW-6 Dr. Sudhir Kumar, PW-7 Ompal Singh, Executive Magistrate, PW-8 Dr. Keshav Rajpoot, PW-9 Sub Inspector Ramsharan Singh, PW-10 Dr. Nikhil Agrawal, PW-11 Tehsildar Umesh Chandra Kaurav, PW-12 Smt. Hardevi, Circle Officer and PW-13 Rajesh Kumar, Circle Officer, whereas two defence witnesses, namely, Pushpa and Sirawan Deen have been examined by the accused persons.
5. The statements of the accused persons were recorded under Section 313 of Cr.P.C. in which they pleaded their innocence and false implication.
6. After hearing the counsel for the respective parties and considering the material available on record, by the impugned judgment, the trial Judge has acquitted the other accused persons of all the offences. The appellant has also been acquitted under Section 498-A, 304-B of I.P.C. read with Section 4 of Dowry Prohibition Act. However, he has been convicted under Section 302 of I.P.C. Hence, this appeal.
7. Heard Shri Rajiv Lochan Shukla, Shri Ramanuj Yadav and Shri Sharique Ahmad for the appellant and Mr. Amit Sinha, learned A.G.A. for the State.
8. Learned counsel for the appellant submits as under:
(i) that there is no eye witness account to the incident and the appellant has been convicted solely on the basis of circumstantial evidence, in particular the second dying declaration Ex. Ka-12 of the deceased. However, the chain of circumstantial evidence is not complete and the dying declaration is not reliable.
(ii) that it is a case of multiple dying declaration made by the deceased and considering the inconsistency in the dying declaration, the dying declaration Ex.Ka-12 is required to be discarded and no conviction can be made on the basis of the said dying declaration.
(iii) that in the first dying declaration Ex. Ka-6 recorded by the Executive Magistrate, allegations have been levelled not only against the appellant but also against the acquitted accused persons for pouring kerosene oil on the deceased and then setting her ablaze, whereas in the second dying declaration the allegation is only against the accused.
(iv) that once the first dying declaration, which was also recorded by the Executive Magistrate, has been disbelieved by the trial court, it creates a question mark on the second dying declaration recorded on 28.04.2013 by another Executive Magistrate. It has been argued that there was absolutely no occasion for the prosecution to record two dying declarations especially when the earlier one was also recorded by the Executive Magistrate.
(v) that the first dying declaration has been disbelieved by the trial court and based on the same, the other co-accused persons have been acquitted and, therefore, the subsequent dying declaration automatically looses its significance and possibility of the deceased being tutored by her relatives, cannot be ruled out.
(vi) that the defence witness DW-2 Sirawan Deen was undisputedly saw the entire occurrence, which is clear from the spot map Ex. Ka-14. He was also witness of recovery and in his spot map also his presence has been shown wherein he has categorically deposed that he saw the deceased in the terrace roaming from one place to another in burning condition. It has been argued that attached to the said terrace, there is a kitchen and possibility of the deceased being either accidentally burnt or committing suicide, cannot be ruled out.
(vii) that before her marriage, the deceased was having illicit relation with someone and at the time of marriage, she was carrying pregnancy. She had also delivered a child after about 4 months of the marriage. According to the defence counsel, though this fact was within the knowledge of the accused and other family members that she was carrying pregnancy with someone else but yet the accused persons have accepted her, and this could be the reason for the deceased to commit suicide as she could be under mental stress and/or in inferiority complex.
(viii) that soon after the incident, the deceased was medically examined vide Ex. Ka-2 and though 70% burn injury has been noticed by the doctor, but no smell of kerosene oil was found either on the body of the deceased or on her cloths. Likewise when she was taken to Jhansi, no such kerosene oil or its smell was noticed by the treating doctor.
(ix) that as per the two dying declarations Ex. Ka-6 and Ex. Ka-12 and as per oral dying declaration made before PW 1, 2 and 3, the accused persons had first poured kerosene oil and then set her ablaze. In such eventuality there was every possibility of finding the smell of kerosene oil on the body of the deceased or on her clothes was there but no such evidence has been collected by the prosecution. Likewise, the nature of the burn injury has been opined by the doctor as thermal burn and there is no opinion by the doctor that the injury sustained by the deceased was because of kerosene oil.
(x) that at the time of occurrence, the appellant was outside the house in and around 'bayare' and as soon as he came to know of the incident, he rushed to the house. It is the appellant who hospitalized the deceased and made all possible best efforts to save her.
(xi) that the deceased also made a dying declaration before the DW-2 and DW-3, but the said dying declaration has not been considered by the trial judge. There is an interpolation in the dying declaration Ex. Ka-12 recorded at Gwalior and as per dying declaration Ex. Ka-12, the deceased sustained burn injuries at her parental house at village Chikera, whereas as per prosecution case the incident occurred in her matrimonial house at village Gyodi.
(xii) that on the same set of evidence once the appellant has been acquitted under Sections 498-A, 304 B of I.P.C., he could not have been convicted under Section 302 of I.P.C.
9. In support of his argument, learned counsel for the appellant has placed reliance on the following cases:- (i) Gurdial Singh vs. State of Punjah, AIR 1995 SC 2468/1995 Law Suit (SC) 792, (ii) Krishna Govind Patil vs. State of Maharashtra, AIR 1963 SC 1413/1963 Law Suit (SC) 10, (iii) Laxman vs. State of Maharashtra, (2002) 45 ACC 1062/2002 Law Suit (SC) 805, (iv) Sudhakar vs. State of Madhya Pradesh, (2012) 3 SCC (Cri) 430, (v) Raju Devade vs. State of Maharashtra, AIR 2016 SC 3209, (vi) Kamlesh Prabhudas Tanna vs. State of Gujrat, 2014 CrLJ 443 (SC),(vii) Ram Narain vs. State of U.P., 2015 (90) ACC 975, (viii) Laxman vs. State of Maharashtra, 2002 Law Suit (SC) 805 and (ix) Bhim @ Uttam Ghosh vs. State of West Bengal, 2010 Law Suit (SC) 1156.
10. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:
(I) that the first dying declaration made by the deceased Ex. Ka-6 has been disbelieved by the trial court as there is some discrepancy in the same in respect of the timing.
(ii) that there is no bar in law to record the second dying declaration by the Executive Magistrate. He submits that the second dying declaration was recorded at Gwalior i.e. in the State of Madhya Pradesh and the doctor examining the deceased may not be aware of the fact that the first dying declaration has already been recorded. He further submits that considering the percentage of burn injury sustained by the deceased, if in its wisdom the doctor has decided to have a dying declaration of the deceased, it cannot be questioned by any one.
(iii) that in the second dying declaration, the deceased has categorically stated that she was burnt by the appellant. He further submits that having disbelieved the first dying declaration, the trial court was justified in placing its reliance on the second dying declaration.
(iv) that apart from dying declaration recorded by the Executive Magistrate, the deceased also made oral dying declaration before the PW-1, PW-2 and PW-3 and all the three witnesses have supported the same.
(v) that so called overwriting in the second dying declaration Ex. Ka-12 is of no help to the accused because the fact remains that the second dying declaration has been signed by the deceased.
(vi) that even assuming that kerosene oil has not been found on the body of the deceased or on her clothes, it is of no help to the accused.
(vii) that once the dying declaration inspires the confidence of the Court, the same can be made basis for conviction of the appellant.
(viii) that the defence witnesses are nothing but an after thought and they have been examined before the court just to ensure the acquittal of the accused.
11. In support of his argument, the State Counsel has placed reliance on the following cases:- (i) Khushal Rao vs. State of Bombay, AIR 1958 SC 22, (ii) Raju Devade vs. State of Maharashtra, AIR 2016 SC 3209, (iii) Smt. Paniben vs. State of Gujarat, AIR 1992 SC 1817, (iv) State of Maharashtra vs. Nizar Ramzan Sayyed, AIR 2017 SC 2363 and (v) Shaileshbhai alias Pappu Balubhai Chunara and another vs. State of Gujarat, AIR 2015 SC (Supp) 652.
12. Heard counsel for the respective parties and perused the material brought on record.
13. Indrapal Singh, PW-1 is the father of the deceased and is lodger of the written report. He has stated that marriage of the deceased was solemnized with the accused appellant and that from the date of marriage there was demand of dowry like four wheeler, golden ornaments and other articles. Several times her daughter visited his house and informed him about the ill treatment given to her. He states that after receiving the information about the burn incident of his daughter, he rushed to her house, took her to Government Hospital at Mahoba and there in the hospital she informed her that she was burnt by the accused appellant and her husband Surendra, brother-in-law (dever) Pushpendra, father-in-law (sasur) Brijendra alias Shivpal, mother-in-law (saas) Ramrati and sister-in-law (bhabhi) Sangita. He further states that the statement of the deceased was recorded by the Executive Magistrate. After considering her grievous condition, she was referred to Jhansi where she remained for a day and then a decision was taken by him to take the deceased to Sahara Hospital, Gwalior where she succumbed to her burn injuries on 4.05.2013. He stated that at Gwalior where his daughter was hospitalized, her in-laws and their family members used to visit there and thereafter he states that after one day they have not visited. He further states that his real sister has been married in the family of the appellant some time in the year 1990 and that she is not having any dispute in her in-laws house. He states that in the initial function of marriage there was no demand of dowry and everybody was happy. He further states that when the deceased returned to his house, she did not make any complaint against the accused persons. He admits that the deceased had delivered a child who immediately died after one hour but he has not stated after how many months of the marriage, the said child was born.
14. Sunita, PW-2 is the mother of the deceased. She states that thrice after the marriage the deceased came to her house. She informed that she was being subjected to cruelty for demand of vehicle and golden ornaments. She states that on 27th April, 2013 she received telephonic information about the burn incident and that she was hospitalized at Mahoba by her husband, the appellant. When she reached to the Hospital, she was informed by the deceased that she was burnt by all the accused persons after pouring kerosene oil on her. She further states that after her death, the deceased was cremated in her matrimonial village by the accused persons. She admits that her jeth, Kshtrapal Yadav who is the resident of Mahoba is an influential person and that no Panchayat meeting was called including meetings of the relatives on the complaint made by the deceased. She further states that even she did not inform the said fact to her sister-in-law, Pushpa. She states that statement of the deceased was recorded by the doctors at Jhansi and Gwalior. It is relevant to note that no such statement is there on the record. There appears to be material contradiction in the statement of these witnesses from that of her diary statement.
15. Bansh Gopal Yadav, PW-3 is a grandfather of the deceased. He has also made general allegations against the accused persons. He admits that no Panchayat meeting was called. He further states that he is a known figure in the vicinity and likewise Kshetrapal is his relative who is also politically influential person and one of the relatives is a Panchayat President. He further states that the complaint made by the deceased was never discussed by him with his relatives. He states that the typed report was lodged by Indrapal, PW-1 but he is not aware from where the said report was typed. He admits that during the lifetime of Rubi, no complaint was made to Police. In his statement also there are material contradictions from his case diary statement.
16. Dr. R.B. Arya, PW-4 medically examined the deceased at Mahoba vide Ex. Ka-2 on 27th April, 2013 and noticed 70% burn injury. He states that the deceased was hospitalized by her husband. He has categorically stated that there was no smell of kerosene oil from the body of the deceased.
17. Dr. Sudhir Kumar, PW-6 medically examined the deceased at Jhansi on 27th April, 2013. He has stated that initially treatment was given by him to the deceased and on the next date she was discharged as her relatives wanted to take her to some other Centre. He has stated that 80% thermal burn injury was noticed by him on the body of the deceased.
18. Sri Om Pal Singh, PW-7 recorded the first dying declaration of the deceased vide Ex. Ka-6 on 27th April, 2013 at Mahoba. He states that in her dying declaration, the deceased has stated that for demand of dowry she was burnt by all the accused persons after pouring kerosene oil on her and that she was hospitalized by the appellant.
19. Dr. Keshav Rajpoot, PW-8 treated the deceased as a duty doctor at Sahara Hospital, Gwalior. He states that in his presence the Executive Magistrate recorded the dying declaration of the deceased and he certified the same.
20. Ram Sharan Singh, PW-9 assisted during investigation.
21. Dr. Nikhil Agarwal, PW-10 did the post mortem of the deceased vide Ex. ka-11 on 5th May.
22. Cause of death is due to cardiorespiratory failure due to burn and its complications.
23. Umesh Chandra, PW-11 recorded the second dying declaration (Ex. ka-12) on 28th April, 2013 at Gwalior. He stated that after obtaining the certificate from the Doctor he recorded the statement, wherein she has stated that she was burnt by her husband. He states that in the dying declaration two names have been mentioned i.e. Rashmi and Rubi, but he has not written the name of Rashmi.
24. Smt. Hardevi Singh, PW-12 is an investigating officer who did the initial part of the investigation.
25. Rajesh Kumar, PW-13 filed the challan.
26. Pushpa, DW-1 is aunt (bua) of the deceased whose marriage was solemnized in the family of the accused persons. She states that in the marriage no dowry was settled and that the deceased delivered an illegitimate child. However, considering the old relationship in the family, no dispute was made and it was decided to accept the deceased. She further states that immediately after coming to know about the burn incident, her husband Pushpendra and the appellant Surendra immediately rushed to the spot and saw the deceased in a burning condition, by the time the fire was already extinguished by her neighbour Sirawan Deen DW-2 and other persons. When the deceased was inquired as to how she suffered burn injury, she informed that while cooking food she sustained burn injury. Information was given to the father of the deceased and then the deceased was admitted. She further states that she made statement before the Police Officers that the accused persons have been falsely implicated but if her statement was not recorded by the Circle Officer, she could not tell the reason.
27. Sirawan Deen, DW-2 is a neighbour of the accused. He states that from his roof, he saw the deceased in a burning condition. He immediately rushed to the spot and at that time the appellant was not in the house and was working in his 'bayare'. He extinguished the fire with the help of other persons and by that time the accused appellant and other family members also reached there.
28. Before dealing with the facts and evidence of the present case, it would be apposite to consider the legal position in respect of dying declaration, in particular multiple dying declarations.
29. In the matter of State of Gujarat Vs. Jayrajbhai Punjabhai Varu [(2016) 14 SCC 151] the Hon'ble Supreme Court held as under:
"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
16. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying declaration made by the deceased before her father who was examined as PW-1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW-1.
17. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.
18. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approachb to the law of dying declaration has to be shunned.
19. On appreciation of evidence on record, we are of the considered view that the dying declarations of the deceased recorded by the police officer as well as the Executive Magistrate are fully corroborated and there is no inconsistency as regards the role of the respondent herein in the commission of offence. From a perusal of the statement recorded by Bhiku Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased) which had been identified by her father-Sri Vala Jaskubhai Suragbhai as also his cross-examination in which he admitted that police had already come there and he had identified her thumb impression and Mamlatdar had gone inside to record statement, there is no reason as to why Rekhaben would give names of her husband and her inlaws in the alleged statement given to her father. A dying declaration is entitled to great weight. The conviction basing reliance upon the oral dying declaration made to the father of the deceased is not reliable and such a declaration can be a result of afterthought. 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 tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
20. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."
30. In the matter of Kamla (Smt.) Vs. State of Punjab [(1993) 1 SCC 1] it has been observed by the Apex Court as under:
"5. It is well-settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests, (vide Khushal Rao v. The State of Bombay 1958 SCR 552). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
7. There is no dispute that when the deceased made these dying declarations she was in a fit mental condition. Ex.PB/2 is the earliest statement made before Dr. Rupinder Singh, P.W. 2 and which was reduced to writing. Apart from this the deceased made two more statements on 29.9.79. The second one is said to have been made before Dr. Jaison Chopra who was examined as C.W. 1. This statement is incorporated in the patient record and is marked as Ex. DA. The third statement Ex.PJ made by her on that day was recorded by S.I. Vidya Sagar, C.W. 2 at about 8 P.M. in the presence of Satpal, examined as D.W.I and Kirpal Singh. Then the fourth dying declaration is said to have been made by her on 30.9.79 before a team of Doctors consisting of Dr. Abraham Thomas, P.W. 7, Dr. Bhupen Dass, P.W. 3 and Dr. Jaison Chopra, C.W. 1. The same is marked is Ex.PD. Both the courts below have relied on the earliest dying declaration ignoring the inconsistencies when compared to the other dying declarations. We think it is necessary to extract these dying declarations as found in the records. Ex.PB/2 a dying declaration recorded by Dr. Rupinder Singh, P.W. 2 reads as follows:
"Patient informed now that her mother-in-law sprinkled kerosene on her from behind and burnt her. Then, her husband came and caught her and dragged her outside. After that, she was brought to the hospital. There had been a fight in the morning between the mother-in-law and father-in-law and the patient."
Ex. DA, another dying declaration recorded by Dr. Jaison Chopra, C.W.I, which is incorporated in the patient record, reads as follows:
"History of present illness:
Patient was alright before 8 A.M. when she claims to have got burnt by her clothes catching fire from a stove. She was brought to the hospital at 9.30 A.M. and admitted right away."
The third dying declaration Ex. PJ was recorded at 8 P.M. on the same day by S.I. Vidya Sagar, C.W. 2 and the relevant portion of it reads as follows:
"Somebody had put me on fire from behind. It can be possible that it might have been set in by my parents-in-law (mother-in-law and father-in-law). No injury or burning has been caused with the fire to my son Runnu. All the neigh borers of vicinity had arrived at the spot, but on account of semi-unconsciousness, I could not tell anything to anybody. As my hand and most the entire body have been burnt, therefore neither I can append signatures nor thumb impression can be affixed."
The fourth dying declaration Ex. PD made on the next day before a team of three doctors consisting of Dr. Abraham Thomas, P.W. 7, Dr. Bhupen Dass, P.W. 3 and Dr. Jaison Chopra, C.W.I, reads as follows:
"My father-in-law and mother-in-law used to fight with me ever since my marriage asking for more dowry. Yesterday morning they quarrelled with me again. It was late for food, so I went to the kitchen to cook chenas. I was turned to the store when I heard my father-in-law and mother-in-law talking behind me. Suddenly they poured Kerosene over me and there was a noise. I turned down to see what it was and a jug had fallen on the poor. At the same time they set fire on me and I was pushed. I do not know what happened after wards."
8. If we examine all these dying declarations one by one we notice glaring inconsistencies as to who exactly poured kerosene oil and set fire or whether she caught fire accidentally. Suicide however is ruled out. In Ex. PB/2 recorded by P.W. 2 the deceased stated that her mother-in-law sprinkled kerosene oil from behind and burnt her. In the next statement Ex. DA recorded by Dr. Jaison Chopra, C.W. 1, she is alleged to have stated that her clothes got burnt catching fire from the stove, thereby indicating that it was an accident. In the third statement Ex. PJ recorded by C.W. 2 she was rather vague as to who exactly poured kerosene oil and set fire on her and she only stated that it could be possible that her mother-in-law and father-in-law might have set the fire after pouring kerosene oil. On 30.9.79 Ex.PD was recorded in the presence of three doctors, P.W. 7, P.W. 3 and C.W.I wherein she stated that she turned to the store and she heard her mother-in-law and father-in-law talking behind her and suddenly they poured kerosene oil and they set her on fire. The trial court and the High Court discarded the other statements and relied only on Ex.PB/2 recorded by P.W. 2 wherein she implicated only her mother-in-law. So far Ex. DA recorded by C.W.I is concerned, the High Court pointed out that C.W. 1 was also present when Ex.PD was recorded and that at any rate there was no occasion for C.W. 1 to record such statement and that he must have done the same at the instance of the accused. After having carefully examined the, record and facts and circumstances, we do not think that a remark of this nature against C.W. 1, a responsible doctor is called for. The mere fact that C.W. 1 Dr. Jaison Chopra was present when Ex. PD was recorded on the next day does not necessarily mean that he could not have recorded Ex. DA-on the previous day. As a matter of fact, even in Ex. PD recorded by a team of doctors, she implicated both mother-in-law and father-in-law whereas in Ex.PB/2 she implicated only her mother-in-law. This itself shows that she was bent upon implicating both of them at a later stage. In this context it is also noteworthy that D.W. 2, the husband of the deceased supported the plea of the accused. He deposed that both the accused namely his mother and father were away to Dandi Swami Mandir on the day of occurrence and that at about 8.15 A.M. He heard the shrieks raised by the deceased from the kitchen. He picked up a blanket and went running into the kitchen apprehending that she might have caught fire due to busting of the gas cylinder. He covered her with the blanket and brought her out and his clothes also caught fire and he became unconscious and regained consciousness in the hospital. In the cross-examination by the prosecution he denied the suggestion that he made a false statement with a view to save his parents. The deceased in all her dying declarations has clearly stated that her husband namely D.W. 2 came and rescued her. Therefore, D.W. 2's evidence cannot simply be brushed aside on the ground that he might have given such a version to save his parents and his evidence further shows that the occurrence could be due to accident. Viewed from this angle also the version given in the statement made before C.W. 1 in Ex. DA that it was due to accident, is not improbable. In Ex. PJ she only expressed a suspicion against both her mother-in-law and father-in-law. The accused examined D.W. 1 Satpal an attesting witness of the statement Ex. PJ. He supported the defence version. Thus it can be seen that there are glaring inconsistencies in these dying declarations. Both the courts below, however, held that P.W. 2 Dr. Rupinder Singh is a reliable and independent witness, therefore the statement recorded by him has to be accepted and accordingly convicted the appellant. We must observe that P.W. 2 simply recorded the statement of the deceased but the contents of that statement have to be subjected to a close scrutiny in the light of many other circumstances since the conviction has to be based on the sole dying declaration Ex.PB/2. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars. Just like P.W. 2, P.W. 7, P.W. 3 and C.W.I are also respectable doctors and independent witnesses who spoke about the contents of Ex. PD in which she implicated both her father-in-law and mother-in-law specifically as having participated in the crime. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation we just cannot pick out one statement namely Ex.PB/2 and base the conviction of the appellant on the sole basis of such a dying declaration. The courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her. The inconsistency between Ex.PB/2 and Ex. PD is enough to manifest the same. That being so, we do not think that either Dr. Jaison Chopra, C.W. 1 or S.I. Vidya Sagar, C.W. 2 who claimed to have recorded Ex. DA and Ex. PJ should be blamed. Having given our earnest consideration, we feel that under these circumstances it is highly unsafe to convict the appellant on the sole basis of the dying declaration Ex.PB/2 recorded by P.W. 2. In the result the conviction and sentence passed against the appellant are set aside and the appeal is allowed. If she is on bail, her bail bonds shall stand cancelled."
31. In the case of Gaffar Badshaha Pathan Vs. State of Maharashtra [(2004) 10 SCC 589] it was held as under:
"5. Dr. A.U. Masurkar was the Chief Medical Officer of the hospital at the relevant time. The High Court has held that the recording of the dying declaration and story stated therein apparently appears to be false and concocted for the various reasons noticed in the impugned judgment. It has to be borne in mind that the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted. The fact that the statement of the deceased was recorded at about 9.00 p.m. by the Head Constable cannot be doubted though an attempt to the contrary seems to have been made by the prosecution. The statements of the prosecution witnesses (PW 5 and PW 11) also show that the statement was recorded by the Head Constable. According to PW 5, it was only a show made by the Head Constable of recording statement, since according to the said witness, the deceased was not in a position to speak at that time. Even PW 11, a doctor in the hospital, has deposed about the recording of the statement by the Head Constable though he has not formally proved the dying declaration but has certified the correctness of the endorsement of Dr. A.U. Masurkar on the dying declaration. PW 11 was shown the dying declaration. He has deposed that the certificate recorded on the dying declaration is in the handwriting of Dr. Masurkar, Chief Medical Officer of the hospital. He has further deposed that Dr. Masurkar is in the hospital since the last 12 to 15 years and that he had degree in MS and was estimated to be an honest and expert surgeon of the area. One of the reasons which had strongly weighed with the High Court in rejecting the dying declaration is that the endorsement of the doctor is only about the deceased lady being conscious and not that she was in a fit condition to make the statement. The High Court went into distinction between consciousness and fitness to make statement. On the facts of the present case, we are unable to sustain the approach adopted by the High Court. It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. Under these circumstances, the dying declaration could not have been rejected on the ground that it does not contain the endorsement of the doctor of the fitness of the lady to make the statement as the certificate of the doctor only shows that she was in a conscious state. The endorsement of the doctor aforequoted is not only about the conscious state of the lady but is that she made the statement in a conscious state."
32. In Mehiboobsab Abbasabi Nadaf Vs. State of Maharaashtra [(2007) 13 SCC 112] while dealing with the case of multiple dying declarations it was held as under:
"4. The deceased had made four dying declarations: two before the medical officers, one before the Executive Magistrate and one before the police officer. In her statements before the medical officers, she alleged that while she had been cooking in her house in the morning at 1100 hrs on 29-5-2004, accidentally, the stove burst and she sustained burn injuries. In her dying declaration recorded by Parappa Gurappa Thotagi, ASI, Doddawada Police Station on 30-5-2004 at about 8.30 a.m, she alleged:
"I have been married with Shri Mehbooba Saheb Mamadapur 6 years ago. I have three children. My husband is a driver. He was again and again troubling me, beating me. My mother-in-law, father-in-law and husband were forcing me to bring golden chain. They have been giving harassment to me in this manner.
On 29-5-2004, in the morning at about 9.30 when I was in the house again my father-in-law, mother-in-law and husband started abusing me. My husband thrashed me on my back. As soon as I fell down, they poured kerosene which was in the stove on my body and by lightening the matchbox they burnt me. I do not know what happened thereafter. Now I came to know that I have come to KLE Hospital and am availing medical treatment here. I came to know that my body has been fully burnt. As my husband, father-in-law and mother-in-law are responsible for pouring kerosene and burning me. I am giving this statement for getting appropriate punishment to my father-in-law, mother-in-law and to my husband and written on my telling and heard."
6. We have been taken through the evidence of PW 13, Dr. Balappa Basappa Oni, PW 14, Dr. Rajashekara Chennabasappa Angadi and PW 16, Parappa Gurappa Thotagi before whom the aforementioned purported dying declarations were made. From a bare perusal of their depositions in regard to recording dying declarations of the deceased, it is evident that whereas in one, she attributed the incident to have taken place accidentally, in another, attributed the act of abusing and setting her on fire by her parents-in-law and only in one of the dying declarations she attributed the act of pouring kerosene and lighting the same leading to her death on all the accused.
7. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.
9. In Mohd. Arshad v. State of Maharashtra [(2006) 12 SCC 293] this Court opined as under: (SCC p. 299, paras 21-23) "21. So far as the appeal preferred by Mohammed Arshad is concerned, we are of the opinion that he is entitled to benefit of doubt. He was not named in the first two dying declarations. He was named only in the third dying declaration. No injury by stick was found on the back of the deceased. The motive ascribed as against him did not find place in the first information report. Evidently, the deceased made improvement in his third dying declaration before the police officer.
22. Keeping in view the backdrop of events, we fail to see any reason as to why appellant Mohammed Arshad would not have been named in the first or second dying declarations if the motive for his involvement was non-payment of a sum of Rs 60,000 as was disclosed by the deceased.
23. This Court in Balbir Singh v. State of Punjab 2006 12 SCC 283 relying upon several decisions of this Court including State Of Maharashtra v. Sanjay S/O Digambarrao Rajhans 2004 13 SCC 314 and Muthu Kutty v. State 2005 9 SCC 113 held: (Balbir Singh case, SCC p. 291, para 34) ''34. We are of the opinion that whereas the findings of the learned Sessions Judge as also the High Court in regard to the guilt of Appellant 1 must be accepted, keeping in view the inconsistencies between the two dying declarations, benefit of doubt should be given to Appellant 2. We, however, uphold the conviction and sentence of both the appellants under Section 498-A IPC.' "
33. In the matter of Samadhan Khudaka Koli Vs. State of Maharaashtra [(2008) 16 SCC 705], it has been held as under:
"12. A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person. Why the prosecution had suppressed the dying declaration recorded by the Judicial Magistrate is not known. Prosecution must also be fair to the accused. Fairness in investigation as also trial is a human right of an accused. The State cannot suppress any vital document from the court only because the same would support the case of the accused.
13. The learned Sessions Judge as also the High Court, in our opinion, committed a serious illegality in refusing to consider the said question in its proper perspective. The prosecution did not explain as to why the said dying declaration was not brought before the court. The learned Sessions Judge as also the High Court surmised about the contents thereof. Not only the contents of a dying declaration, but also the manner in which it is recorded and the details thereof play a significant role in the matter of appreciation of evidence.
14. The veracity of depositions of the parents of the deceased should be considered having regard to the entire backdrop of the case. In none of the dying declarations the deceased stated that her husband had poured hot tea on her body. If the relationship between the couple became strained from that time, it was expected that the same would have been stated by the deceased in her dying declaration. Why such a statement had been brought on record for the first time before the court by the parents of the deceased is difficult to comprehend. Only because such a statement was made by them, the same should not have been considered to be a circumstance against the appellant, particularly when no allegation about harassment meted out to her at an earlier point of time was made by the deceased herself.
15. Evidently, there are a few inconsistent and contradictory dying declarations. The court while appreciating evidence on the basis of such dying declarations is required to take into consideration inconsistencies between two statements. In this case, the learned Sessions Judge and the High Court proceeded on the basis that out of the three dying declarations, in two of them the deceased did not make any allegation against her husband.
16. A judgment of conviction can be recorded on the basis of a dying declaration alone, but the court must have been satisfied that the same was true and voluntary. Indisputably, for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to look into the other circumstances but the converse may not be true.
18. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record. . In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka [2007 (9) SCALE 473] where four dying declarations were recorded, this Court opined:
"7 Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied." The court noticed that as the deceased attributed the acts primarily on her parents-in-law and they having been acquitted, it was difficult to hold that appellant alone was responsible for causing her death."
34. In Harish Kumar Vs. State of Haryana [(2015) 2 SCC 601], the Supreme Court observed as under:
"23. PW-1 Dr. M.L. Kalra, Medical Officer of Civil/General Hospital, Hansi, in his cross-examination, has stated as under: -
"The patient was brought to the hospital by her husband Harish Bhatia. She was not unconscious when she was brought to the hospital...."
In the examination-in-chief of this witness it has been stated by him, - "she gave history of accidental burn injuries". This fact recorded by PW-1 in the medico legal report (copy Annexure P-1) further corroborates the dying declaration recorded on the next day (on 14.9.1993) by the Naib Tehsildar. Needless to say that DW-1 Dr. Surender Singh and DW-2 Baru Ram, Naib Tehsildar, are not interested witnesses. Rather they are independent public witnesses who have discharged their duties after the police approached Tehsildar in response to memorandum (Ruqa) received from PW-1 Dr. M.L. Kalra.
24. Considering the above facts and circumstances, we find that the dying declaration dated 14.9.1993, made by the deceased, before Naib Tehsildar in the presence of Medical Officer, is voluntary and truthful. In Surender Kumar v. State of Punjab, (2012) 12 SCC 120, this Court has observed, in para 20, as under: -
"20. It is also not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that there is evidence available to show that the dying declaration is voluntary and truthful. There could be occasions when persons from the family of the accused are present and in such a situation, the victim may be under some pressure while making a dying declaration. In such a case, the court has to carefully weigh the evidence and may need to take into consideration the surrounding facts to arrive at the correct factual position."
35. In Nallam Veera Stayanandam and others v. Public Prosecutor, High Court of A.P., (2004) 10 SCC 769, in the similar facts and circumstances of the case, this Court, at the end of para 6, has observed as under: -
"6. ... In cases where there is more than one dying declaration, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs."
36. In the case of Dalip Singh and others Vs. State of Punjab [(1979) 4 SCC 332] it has been held as follows:-
"8. There were two dying declarations of Ram Singh one oral and the other written which was recorded by the Assistant Sub Inspector of Police, PW 28 on 12-12-75. The oral dying declaration was made to PW 11 Tara Singh. Neither of the dying declarations was relied upon by the High Court because he had named Baldev Singh also. We may also add although a dying declaration recorded by a Police Officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in Sub-section (2) of Section 162 of the CrPC, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it is not recorded by a Magistrate or by a Doctor. As observed by this Court in Munnu Raja and Anr v. The State of Madhya Pradesh (1976) 3 SC 104, the practice of the Investigating Officer himself recorded a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time of facility available to the prosecution for adopting any better method.
9. There is a dying declaration of Teja Singh, Ext. PFF recorded by Harcharan Singh, PW 10 He was the Head Constable of the Police Post Chhenarta. At the direction of the Assistant Sub Inspector of Police PW 28 he recorded the statement of Teja Singh at the spot. This dying declaration has been relied upon by the High Court. It 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 Teja Singh. But we find that there is a difficulty in relying upon this dying declaration. Jetha Singh and Ram Singh were attacked by the appellants after having raised a Lalkara at the house of Teja Singh to murder them. No body actually saw them murdering either of them. The place where the said two persons were murdered was about a furlong away from the house of Tejasingh. Teja Singh in his statement recorded by PW 10 Ext. PFF which is also signed by the Assistant Sub- Inspector stated:-
Dalip Singh, Kundan Singh, sons of Vir Singh and Binder, son of Dalip Singh, who are from our brotherhood have caused injuries to me and the male and female members of my family and my elder brother Jetha Singh with Kirpans, and spears on account of dispute over the property of Jetha Singh. They have murdered Jetha Singh and Sucha Singh by inflicting injuries to them.
The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is, therefore, safe to leave out of consideration this dying declaration. It is important to remember that if the dying declarations both oral and written of Ram Singh are discarded so also the dying declaration of Teja Sing, then no direct evidence remains on the record in regard to the murder of Jetha Singh and Ram Singh by the appellants. In all probability they had committed the murder of these two person also because after having raised the Lalkara they went towards the field where Jetha Singh and Ram Singh were. But in absence of a direct evidence on the point and also for want of conclusive chain of circumstantial evidence, legally it is not possible to hold that the three appellants were responsible for committing the murder of Jetha Singh and Ram Singh."
37. In the matter of Kishan Lal Sethi Vs. Jagan Nath and others [(1990) 3 SCC 45] it has been held as under:-
"6. A perusal of the judgment of the Sessions Court shows that the learned Judge mainly relied on the particulars of the scene recorded by Dr. Chugh P.W. 14, the Inspector recovered a piece of skin sticking to the door of the bathroom and rubber band, wax and burnt hairs. The learned Sessions Judge also referred to the particulars of the bathroom and it was opined that the doors of the bathroom were bolted from outside and not from inside. Dr. Chugh in his observation report has also noted that the deceased was caught fire or was burnt in the bathroom and on the basis of these findings the trial court ruled out the theory of accident and also the theory of suicide. The learned Sessions Judge, as already noted, excluded the dying declaration and relying on these circumstances held that the chain is complete and is sufficient to hold the accused guilty. The High Court dealt with the dying declaration elaborately and disagreed with the trial Judge that the deceased at the time of making the statement was under the influence of the accused. It held that the declaration was voluntary.
7. The dying declaration reads thus :
"I caught fire while preparing tea. I was preparing tea today the 28th June, 1983, at 6.30 A.M. None else was present in the kitchen. Nobody had put me ablaze. When I caught fire all had come to my rescue. My husband, my mother-in-law, and the sister of my husband had come. My mother-in-law etc. had brought me to the hospital. My Sarce had caught fire from the Stove. On catching fire when I raised shrieks all had reached there. I do not know if any neighbour had come or not.
I am making this statement with full senses and without any outside pressure.
Sd/-
Randhir Singh, J.M.I.C. (Duty) 28.6.83 9 A.M."
The statement is recorded by a responsible Judicial Officer. P.W.1, the Doctor deposed that when he was on casualty duty the deceased was brought to the hospital in a seriously burnt condition and she was followed by her husband, mother-in-law etc. He examined her and sent an intimation to the police. He also deposed that the Magistrate also came at about 9 A.M. The Magistrate, who is examined as P.W.3, deposed that he went to the casualty ward and recorded the dying declaration of the deceased in the presence of the Doctor and that before recording the dying declaration he obtained the opinion from the Doctor that the deceased was in a fit condition to make a statement. In his cross-examination he also asserted that he was satisfied that the deceased made the statement voluntarily without any fear, persuasion or pressure.
9. Having examined the contents of the dying declaration carefully we are unable to see any reason to interfere with the findings of the High Court particularly this being an appeal against acquittal. The learned Sessions Judge excluded the dying declaration under the impression that it was made in a sense of fear. We do not find any basis for the same particularly in view of the evidence of the Magistrate referred to above. We find no merits in this appeal. It is therefore dismissed."
38. Recently, in the matter of Mukesh and another Vs. State for NCT of Delhi and others reported in (2017) 6 SCC 1, it has been observed as under:-
"31. Multiple Dying Declarations: In cases where there are more than one dying declarations, the Court should consider whether they are consistent with each other. If there are inconsistencies, the nature of the inconsistencies must be examined as to whether they are material or not. In cases where there are more than one dying declaration, it is the duty of the Court to consider each one of them and satisfy itself as to the voluntariness and reliability of the declarations. Mere fact of recording multiple dying declarations does not take away the importance of each individual declaration. Court has to examine the contents of dying declaration in the light of various surrounding facts and circumstances. This Court in a number of cases, where there were multiple dying declarations, consistent in material particulars not being contradictory to each other, has affirmed the conviction. [Vide Vithal v. State of Maharashtra (2006) 13 SCC 54].
32. In Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468, while discarding the two inconsistent dying declarations, laid down the principles for consideration of multiple dying declarations as under:-
"13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684). However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
33. In Ganpat Mahadeo Mane v. State of Maharashtra (1993) Supp.(2) SCC 242, there were three dying declarations. One recorded by the doctor; the second recorded by the police constable and also attested by the doctor and the third dying declaration recorded by the Executive Magistrate which was endorsed by the doctor. Considering the third dying declaration, this Court held that all the three dying declarations were consistent and corroborated by medical evidence and other circumstantial evidence and that they did not suffer from any infirmity.
34. In Lakhan v. State of M.P. (2010) 8 SCC 514, this Court considered a similar situation where in the first dying declaration given to a police officer was more elaborate and the subsequent dying declaration recorded by the Judicial Magistrate lacked certain information given earlier. After examining the contents of the two dying declarations, this Court held that there was no inconsistency between two dying declarations and non-mention of certain features in the dying declarations recorded by the Judicial Magistrate does not make both the dying declarations inconsistent."
39. In Sudhkar Vs. State of Maharaashtra [(2012) 3 SCC (Crl) 430] while dealing with the case of multiple varying or contradictory dying declarations, it was held by the Apex Court in paragraphs 16 to 21 as under: -
"16. We may, now, refer to some of the judgments of this Court in regard to the admissibility and evidentiary value of a dying declaration. In the case of Bhajju @ Karan v. State of M.P. [(2012) 4 SCC 327], this Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes statement of the deceased admissible, which has been generally described as dying declaration. The court, in no uncertain terms, held that: (SCC p. 336, para 24) '24. ... it cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence."
The dying declaration, if found reliable, could form the basis of conviction. This principle has also earlier been stated by this Court in the case of Surinder Kumar v. State of Haryana (2011) 10 SCC 173 wherein the Court, while stating the above principle, on facts and because of the fact that the dying declaration in the said case was found to be shrouded by suspicious circumstances and no witness in support thereof had been examined, acquitted the accused. However, the Court observed that when a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration.
17. In the case of Chirra Shivraj v. State of Andhra Pradesh [(2010) 14 SCC 444], the Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.
18. In the case of Laxman (supra), the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows:-
''3. 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 the deathbed 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 cross-examination, the courts 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 always to 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 looks 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 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 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."
19. In Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr. [(2012) 4 SCC 722], the court inter alia discussed the law related to dying declaration with some elaboration: -
23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:
a) wholly reliable;
b) wholly unreliable; and
c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.
25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.
26. Reference in this regard can be made to Joseph v. State of Kerala (2003) 1 SCC 465 and Tika Ram v. State of M.P. (2007) 15 SCC 760. Even in Jhapsa Kabari v. State of Bihar (2001) 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.
27. In Jhapsa Kabari (supra), this Court noted the fact that simply because one of the witnesses (a fourteen-year-old boy) did not name the wife of the deceased in the fardbeyan, it would not in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of an eyewitness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy.
28. In the present case, the sole eyewitness is stated to be a police officer i.e. PW 1. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of this witness. The contention raised on behalf of the appellant is that the police officer, being the sole eyewitness, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out.
29. Therefore, the first question that arises for consideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution.
30. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.
31. This Court in Girja Prasad (2007) 7 SCC 625 while particularly referring to the evidence of a police officer said that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be [pic]recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."
20. The ''dying declaration' is the last statement made by a person at a stage when he in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.
21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matter.
40. Keeping in view the above principles of law, we now advert to examine the facts of the present case. There are as many as two dying declarations recorded by the Executive Magistrates and an oral dying declaration made by the deceased before PW-1, PW-2 & PW-3. The first dying declaration made by the deceased before the Executive Magistrate, Mahoba Ex. KA-6 reads as under:
"Smt. Ruby is in her complete sense. She is in a condition to get her dying declaration recorded.
Sd/illegible illegible 27/4/2013 4:15 p.m. Smt. Ruby, w/o Surendra, R/o Gyodi, Age 20 approx. stated that after taking ---, she was sitting. (He) had been harassing me for six months. Surendra and his brother used to harras me to bring vehicle. When they demanded vehicle then I said that my father does'not have this much money that he can give you a vehicle. When I denied then all the five people Surendra, Pushpendra, Brijendra, mother-in-law Ramrati and sister-in-law Sangita poured kerosene oil on me from a container. My husband has admitted me in hospital.
Ext ka-6 illegible
T.I. Smt. Ruby ... Mahoba
27/04/2016
4:15 p.m.
After giving her statement, Smt. Ruby is in her complete sense.
Sd/- illegible
27/07/2013
41. The second dying declaration made by the deceased at Gwalior Ex. KA-12 before the Executive Magistrate reads as under:
"Dying Declaration Place- Sahara Hospital Eye Plung Ward Plung No. 2 Date 28/04/2013 Time:- 8:35 p.m. Patient is in condition to give her statement.
Sd/ illegible Dr. Keshav Rajpoot 28/04/2013 8:35 p.m. What is your Name- Ruby Yadav W/o Surendra Age- 25 years Description of disease- got burnt How you got burnt- Husband burnt me by putting oil.
Date and time of incident- 27/04/2013 at 12 noon At which place- Village Sikera, District- Mahoba, U.P. at home Sd/ Ruby Sd/ illegible 28/4/2013 8:45 p.m. (Umesh (Sic)) Tehsildar Nazool Gwalior Ext ka-12 Patient was in her complete sense at the time of recording statement.
Sd/ illegible Dr. Keshav Rajpoot 28/04/2013 at 8:45 p.m. SAHARA HOSPITAL GWALIOR
1. No relative and police were present at the time of recording statement.
2. Put her signature in my presence.
3. She was in her complete sense at the time of recording statement Sd/ illigible 28/04/2013"
42. A bare look of the above two dying declarations makes it clear that in the first dying declaration made by the deceased at Mahoba, she has stated that since last six months she was being subjected to harassment by the accused-appellant and his other family members for bringing vehicle and when she refused to do so, five accused persons caught hold her, poured kerosene oil on her and then burnt her. In the second dying declaration made by the deceased on the next day i.e. on 28.4.2013 at Gwalior which was also recorded by the Executive Magistrate, she has stated that after pouring kerosene oil on her by her husband, she was set into fire. Both the dying declarations have been recorded by the Executive Magistrates but they are not consistent. In the first dying declaration, the deceased implicates the appellant and his other family members whereas in the second dying declaration she only implicates the appellant. The first dying declaration has already been disbelieved by the trial Judge holding the same to be unreliable because there was some discrepancy in respect of timing in recording the dying declaration and calling the Magistrate. When the first dying declaration has been disbelieved by the trial court after recording the specific finding which has not been challenged by the State before this Court, the said finding remains as it is which even otherwise according to this Court cannot be termed as perverse finding.
43. Now question arises whether the second dying declaration can be believed? True it is in the second dying declaration, the deceased has made allegation against the appellant that she was burnt by the appellant by pouring kerosene oil on her but this dying declaration also becomes doubtful in view of the fact that within the gap of one day, the deceased has made two different dying declarations. This inconsistency in the dying declaration has not been clarified by the prosecution by adducing any evidence in this respect. As already stated, both the dying declarations had been recorded by the Executive Magistrates who in the Court have categorically stated that they recorded these dying declarations. The doctor has duly certified the condition of the deceased. Firstly, it is difficult to understand as to why the second dying declaration was recorded on 28.4.2013 when the first dying declaration was already recorded by the Executive Magistrate. In the given facts and circumstances of the case, it is difficult to hold as to which dying declaration is correct and which is not. In the trial Court, both the Executive Magistrates PW-7, Ompal Singh and PW-11, Umesh Chandra have authentically stated that the deceased made dying declaration before them. Yet another important aspect, which creates doubt on the second dying declaration as well, is that the deceased has stated that she was burnt by the appellant after pouring kerosene oil on her whereas no such kerosene smell was found either on her body or on her clothes by the doctors who first attended her or who subsequently treated/examined her.
44. PW-4, Dr. R.B. Arya, who attended the deceased at Mahoba, has categorically stated that while examining the deceased, he did not notice any kerosene smell. If the first dying declaration of the deceased can be turned as tutored one or has been recorded on account of the influence of the family of the deceased then by applying the same principles and facts, the second dying declaration also becomes doubtful.
45. Considering the legal position as enumerated in the forgoing paragraphs, the defence has at least succeeded in creating doubt on the authenticity of the two inconsistent dying declarations made by the deceased and of course, the benefit has to be passed on to the appellant.
46. So far as the oral dying declaration made by the deceased before PW-1 to 3 is concerned, the statement of PW-1 to 3 in respect of harassment by the accused for demand of dowry has already been negatived by the trial Judge and all the accused persons including the appellant has already been acquitted in respect of Sections 304B and 498 of IPC read with Section 4 of the Dowry Prohibition Act. The statements of the witnesses have not been found reliable by the trial Judge and, therefore, the possibility that these witnesses while deposing in the Court have exaggerated their version, cannot be ruled out.
47. In respect of offence under Section 302 of IPC, the only evidence against the appellant is the second dying declaration made by the deceased Ex. Ka-12 at Gwalior before the Executive Magistrate. We are of the considered view that the said dying declaration is not trustworthy and does not inspire confidence of this Court and if the said evidence goes, there remains nothing concrete or clinching evidence against the appellant.
48. Yet another important aspect of the case is the evidence of DW-2, Sirawan Deen. It is the prosecution case that Sirawan Deen from the roof of his house saw the deceased in a burning condition in her roof and this is evident from the site map Ex. Ka-14 filed by the prosecution along with the case. Though Sirawan Deen has not been examined as prosecution witness but while he was being examined as defence witness DW-2, he has categorically stated that he saw the deceased in her roof in a burning condition and that she was running from one place to another. He further states that when he raised the cries, the appellant who was working in 'bayare' rushed to the spot. Considering the fact that the presence of DW-2, Sirawan Deen near the place of occurrence has been admitted by the prosecution, his statement needs greater importance and cannot be ignored just because he appears as defence witness.
49. Yet another evidence which is to be given sufficient weight is the statement of DW-1 Pushpa, sister of the father of the deceased. She has stated that the couple was living happily and that delivery of the deceased took place within four months of her mariage. Here also, if the other evidence is also considered alongwith the specific defence of the accused appellant that the deceased was carrying pregnency even before marriage, the same would also raise suspicioun on the prosecution case.
50. From the evidence, it has also come that there was a kitchen adjacent to the roof, thus possibility of accidental burn or suicide by the deceased on account of her pregnency with someone else prior to her marriage cannot be ruled out. Further more, the nature of burn which has been found by PW-6, Dr. Sudhir Kumar, is a thermal burn.
51. Another important aspect which requires consideration is that on the spot, a small earthen lamp has been seized. It is, thus, dificult to accept the argument of the prosecution that the said article has been used for pouring kerosene oil on the body of the deceased. Normally, in the village such small earthen lamps are available but these earthen lamps conain very small quantity of kerosone oil and to say that from the said small article, the kerosone oil was poured on the body of the deceased creates doubt. Even it is not clear that whether the said earthen lamp was empty or not. No cane of kerosone oil or any such bottle has been seized from spot. Likewise, there is absolutely no evidence that in which room the deceased was burnt by the appellant. The evidence only reflects that she was seen running from one place to another in her roof in a burn condition.
52. Considering the law laid down by the Apex Court and the factual matrix of the case, we are of the view that the prosecution has failed to prove its case beyond all reasonable doubt against the appellant. The appellant who is in jail since 20.5.2013 is entiteld to get benefit of doubt.
53. Resultantly, the appeal is allowed. The impugned judgment dated 30.04.2015 is hereby set aside acquitting the appellant of the charge under Section 302 of IPC. He is reported to be in jail, therefore, he be released forthwith, if not required to be detained in connection with any other offence.
Order Date :- 02.11.2018 nethra