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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1012 OF 2008

RAJU DEVADE ... APPELLANT

VERSUS

STATE OF MAHARASHTRA ... RESPONDNET

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed by the appellant against

the judgment of the High Court of Bombay dated

13.04.2007, dismissing the appeal filed by the appellant

against the judgment of the Sessions Judge. The

Sessions Judge had convicted the appellant for an

offence under Section 302 IPC and sentenced him to

undergo life imprisonment.

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2. The prosecution case in nutshell is, Baby a girl of

18 years was residing at Mehkar with her parents, sister

and brother. On 04.03.1989 in late evening, she was

alone at house. Her parents had gone out and her

brother and sister had gone to watch an evening movie.

At about 9.30 pm when her brother Dilawarsha returned

to the house from movie, he saw Baby in flames in

bushes near the house. Dilawarsha used a quilt to put

off the fire and thereafter on a push-cart took Baby to

Rural Hospital, Mehkar. There being no doctor available,

waterman Narayan Mahure and maid-servant Smt.

Magar took the Baby in the hospital and cleaned her

wounds and administered I. V. saline.

3. Police Sub-Inspector Meghrajani immediately came

to the hospital and met the Baby. Baby gave a

statement before the police Sub-Inspector that she was

having a love affair with one Raju who was residing

nearby. She was pregnant, she had pregnancy of two

months but the same was aborted. She asked Raju to

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marry her. At 9.00 pm she saw Raju in the bye-lane by

side of her house. On seeing him she again asked him to

marry her. Raju poured kerosene on her person and then

set her on fire with a burning match-stick. Police

Sub-Inspector recorded the oral statement on which left

thumb impression of Baby was also put.

4. On the basis of the above oral statement, a case No.

63/89 was registered for an offence punishable under

Section 307 IPC. On a requisition sent by Police

Sub-Inspector one Ramesh Giri the Executive Magistrate,

Mehkar came to the Rural Hospital and in the presence

of two employees of the Rural Hospital Narayan Mahure

and Smt. Magar recorded the dying declaration of the

Baby. Baby had also put her thumb impression on the

dying declaration.

5. The Executive Magistrate sealed the dying declaration

and sent it to the police. After recording the dying

declaration Baby was shifted to the District Hospital,

Buldhana. On 05.03.1989 one another Executive

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Magistrate, namely, Narayan Tandale came to hospital

and recorded a dying declaration in his own words. In the

statement it was noted that due to burns thumb

impression could not be put by Baby.

6. On 9.03.1989 Baby died in the hospital. On the

same day one doctor, Ashok Surushe, Medical Officer

conducted autopsy on the dead body. The criminal case

was converted under Section 302 IPC. Accused was put

on trial before the Sessions Judge. Prosecution produced

seven witnesses and certain documentary evidences. On

behalf of the defence only one witness, Shri Narayan

Tandale Naib Tehsildar/Executive Magistrate was

produced.

7. Learned Sessions Judge after hearing the parties

and considering the entire evidence on record found that

it was accused who had put the deceased on fire. The

statement of Baby recorded by the Police Sub-Inspector

was treated as dying declaration. Dying declaration

recorded by Mr. Ramesh Giri Naib Tehsildar/Executive

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Magistrate on 04.03.1989 was found acceptable.

Sessions Judge rejected the dying declaration recorded

on 05.03.1989 by Shri Narayan Tandale. The case put up

by the defence that death took place on account of

chimney (kerosene lamp) falling on the Baby while she

was sleeping and death was by accident, was not

accepted.

8. An appeal was filed by the accused before the High

Court. After elaborately considering the submission and

the grounds raised in appeal, the High Court maintained

the conviction. Aggrieved by the judgment, this appeal

has been filed.

9. We have heard the learned counsel for the parties

and perused the record. Learned counsel for the

appellant in support of the appeal contends that there

being three dying declarations on the record, it was

unsafe for courts below to rely on the first two dying

declaration. The third dying declaration which was

recorded by the Executive Magistrate which also had

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certificate of doctor ought to have been relied by the

courts below wherein the victim had exonerated the

accused from any role and it was stated by the victim

that she caught fire from chimney (burning lamp) which

was hanging against the wall.

10. It is submitted that when there is inconsistency

between the two dying declarations as a rule of caution

the court has to take the dying declaration with caution

and in view of the third dying declaration recorded on

05.03.1989 the prosecution theory falls on the ground.

11. It is further submitted that the oral evidence of PW

4 Dilawarsha was relied, which contained the

contradictions and omissions. The Dilawarsha being

brother of the victim was terribly interested witness. The

victim Baby was not able to give the surname of the

accused. Neither in the statement of the Dilawarsha nor

in the dying declaration of the deceased anywhere

accused has been named. Also there is no independent

witness to show that accused had any connection with

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the said Baby. The truth is that deceased Baby was

sleeping in her house, a chimney (kerosene lamp)

hanging against wall fell on the Baby as a result of which

she caught fire, thus the case was one of the accidental

death.

12. PW 5 S. K. Manwar did not support the panchnama

of the spot. As per the dying declaration of Baby, she was

married to the accused four/five months before whereas

PW 4 Dilawarsha has stated that accused was not

married with Baby.

13. Learned counsel appearing for the State has

supported the judgment of the High Court as well as of

the Sessions Judge. It is submitted that courts have not

committed any error in relying on the dying declaration.

For relying on the first two dying declarations of deceased

cogent reasons have been given by the learned Sessions

Judge and the High Court. There were valid reasons for

not accepting the third dying declaration recorded on

05.03.1989.

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14. Learned counsel for the parties has also placed

reliance on the judgments of this court which shall be

referred to hereinafter.

15. The present is the case where both the Sessions

Judge and the High Court have relied on the dying

declaration made by the victim. It has come in the

statement of the PW 4 that when he returned from the

movie alongwith his younger sister at about 9.30 pm, he

heard the cries of his sister, he put off the fire by using

the quilt which was lying there for drying. He on a

push-cart took Baby to the Rural Hospital.

16. The Police Sub-Inspector Meghrajani arrived at the

hospital immediately and met the victim and took her

oral statement. In the oral statement which was duly

signed by victim, she clearly stated that it was Raju the

accused who poured kerosene on her and set her on fire

with a burning match-stick. Police Inspector had already

sent a requisition to the Executive Magistrate before

going to the Rural Hospital and an Executive Magistrate

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Ramesh Giri on same day at about 11.30 pm recorded

the dying declaration. Dying declaration is in question

answer form and answers were recorded in own language

of Baby. The doctor being unavailable, both the

employees of the Rural Hospital were present and in their

presence the dying declaration was recorded by the

Executive Magistrate Giri.

17. Sometime after recording the dying declaration, the

Baby was shifted to district hospital, Buldhana. On

05.03.1989 another Executive Magistrate DW 1 came

and recorded the dying declaration. The dying declaration

recorded by Shri N. P. Tandale as is clear from his

statement made before the court that dying declaration

was recorded in his own words by Shri Tandale and was

not in question answer form. The dying declaration

recorded by Shri Tandale also does not bear the thumb

impression of the deceased. It was mentioned in the

dying declaration that thumb is sustaining burns and

hence thumb impression cannot be obtained. In the

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dying declaration which was given to Shri Tandale,

deceased is claimed to have said that when she was

sleeping in the house chimney (kerosene lamp) which

was hanging against the wall fell on her body as a result

of which she caught fire. She shouted and her brother

came and extinguished the fire.

18. After examining the entire evidence on record, the

cogent reasons were given by learned Sessions Judge for

not accepting the dying declaration recorded by Shri

Tandale. It is useful to refer the observations made by the

learned Sessions Judge at para 28 of the judgment. It is

to the following effect:

“The circumstances brought on record also

do not indicate statement recorded by Shri

Tandale might be true. I have already

pointed out that Dilawarsha and Rani had

gone to cinema show. Mother of Baby had

gone to her mother, while father of Baby

was not at home. The time was only 9 pm.

It was not time for had especially when

other family members were not at home.

Them why Baby should go to bed so early

and how the accident should take place.

Furthermore, the evidence brought on

record indicates that Baby was outside her

house near the bushes. The statement

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recorded by Shri Tandale indicates that

she was inside the house when her brother

put off the fire. This circumstance also

indicates that Shri Tandale has recorded

the statement as per his own whims and

not as per the statement made by Baby.

No reliance can be placed on evidence of

Shri Tandale and Ex. 59 cannot be treated

as dying declaration of Baby. It has to be

discarded.”

19. Before we proceed further it is relevant to refer to

principles enunciated by this court with regard to a case

where there is more than one dying declaration. Learned

counsel for the appellant has relied on judgment of this

court in Bhupan versus State of Madhya Pradesh,

2002 (2) SCC 556.

20. In the above case, there was only one dying

declaration in which name of the appellant was

mentioned with wrong caste. The court convicted the

accused rejecting of almost all evidences produced by

prosecution, however, reliance was placed on the said

dying declaration only against the appellant exonerating

all other accused. The court held that the dying

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declaration as it was, there being difference as to the

description of assailant which creates doubt on the

identification of the assailant hence it was not safe to rely

on the said dying declaration.

21. In the above case following reasons were given by

the court for not placing reliance on the dying

declaration.

“If, as a matter of fact, the deceased knew

the appellant then he would not have

committed the mistake of mentioning the

wrong caste which throws an element of

doubt about his knowledge as to the

possibility of the deceased having

identified the appellant. In this regard,

learned counsel for the appellant placed

reliance on the judgment of this Court in

the case of Bholaprasad v. State of

Maharashtra

1

wherein in a similar case of

identification by a region from where the

accused came, this Court held that the

difference pointed out as to the description

of the assailant was a material difference

casting doubt on the identification of the

assailant. Therefore, we are of the

considered opinion that it is not safe to

rely on this dying declaration to base a

conviction, if this piece of evidence is

eschewed from consideration, then the

mere fact of the prosecution having

recovered a sword at the instance of the

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appellant, on facts and circumstances of

this case, would not permit us to base a

conviction under Section 302 IPC in the

background of the fact that almost all

other evidences produced by the

prosecution are disbelieved by the courts below.”

22. In the facts of the above case, the court has

observed that it is not safe to rely on the dying

declaration which caused doubts on the identity of the

accused. Thus above case, in no manner, helps the

appellant.

23. Another case which is relevant is State of Punjab

versus Parveen Kumar, 2005 (9) SCC 769. The test for

relying on a dying declaration in a case where there is

more than one dying declaration has clearly been laid

down by this court in para 10 following was observed:

“The court must be satisfied that the dying

declaration is truthful. If there are two

dying declarations giving two different

versions, a serious doubt is created about

the truthfulness of the dying declarations.

It may be that if there was any other

reliable evidence on record, this Court

could have considered such corroborative

evidence to test the truthfulness of the

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dying declarations. The two dying

declarations, however, in the instant case

stand by themselves and there is no other

reliable evidence on record by reference to

which their truthfulness can be tested.”

24. An elaborate consideration of whole issue in

context of multiple dying declarations was examined by

this court in Sudhakar versus State of Madhya

Pradesh, 2012 (7) SCC 569. In para 1 of the judgment

this court noted the issue. Following was observed in

para 1:

“An important question of criminal

jurisprudence as to in a case of multiple

variable dying declarations, which of the

dying declarations would be taken into

consideration by the court, what principles

shall guide the judicial discretion of the

court or whether such contradictory dying

declarations would unexceptionally result

in prejudice to the case of the prosecution,

arises in the present case.”

25. In the above case the accused was married to

deceased Ratanmala. Prosecution case was that on

25.7.1995 there was heated arguments between husband

and wife and the accused poured kerosene on her and

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put her ablaze by lighting match-stick. People living

nearby came to the house, seeing the smoke and finding

Ratanmala in burning condition took her to the hospital.

26. The Naib Tehsildar DW 1 recorded the first dying

declaration at 04.35 pm on same day. In the first dying

declaration, she did not implicate her husband but in

second and third dying declaration, which were also

recorded on the same day she clearly stated that accused

poured kerosene on her and sat her on fire. The accused

was convicted under Section 302 Cr. P.C., he in his

statement under Section 313 Cr. P.C. stated that his wife

Ratanmala died in a fire accident. In the above context,

this court proceeded to examine the test in case of

multiple dying declarations. It is useful to refer to para

21, 22 & 23:

“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

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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

matters.”

“22. In Lakhan this Court provided

clarity, not only to the law of dying

declarations, but also to the question as to

which of the dying declarations has to be

preferably relied upon by the court in

deciding the question of guilt of the

accused under the offence with which he is

charged. The facts of that case were quite

similar, if not identical to the facts of the

present case. In that case also, the

deceased was burnt by pouring kerosene

oil and was brought to the hospital by the

accused therein and his family members.

The deceased had made two different

dying declarations, which were mutually

at variance. The Court held as under: (SCC

pp. 518-19 & 522-24, paras 9-10, 23-24,

26 & 30)

“9. The doctrine of dying declaration

is enshrined in the legal maxim nemo

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moriturus praesumitur mentire ,

which means ‘a man will not meet his

Maker with a lie in his mouth’. The

doctrine of dying declaration is

enshrined in Section 32 of the

Evidence Act, 1872 (hereinafter called

as ‘the Evidence Act’) as an exception

to the general rule contained in

Section 60 of the Evidence Act, which

provides that oral evidence in all

cases must be direct i.e. it must be the

evidence of a witness, who says he

saw it. The dying declaration is, in

fact, the statement of a person, who

cannot be called as witness and,

therefore, cannot be cross-examined.

Such statements themselves are

relevant facts in certain cases.

10. This Court has considered time

and again the relevance/probative

value of dying declarations recorded

under different situations and also in

cases where more than one dying

declaration has been recorded. The

law is that if the court is satisfied

that the dying declaration is true and

made voluntarily by the deceased,

conviction can be based solely on it,

without any further corroboration. It

is neither a rule of law nor of

prudence that a dying declaration

cannot be relied upon without

corroboration. When a dying

declaration is suspicious, it should

not be relied upon without having

corroborative evidence. The court has

to scrutinise the dying declaration

carefully and must ensure that the

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declaration is not the result of

tutoring, prompting or imagination.

The deceased must be in a fit state of

mind to make the declaration and

must identify the assailants. Merely

because a dying declaration does not

contain the details of the occurrence,

it cannot be rejected and in case there

is merely a brief statement, it is more

reliable for the reason that the

shortness of the statement is itself a

guarantee of its veracity. If the dying

declaration suffers from some

infirmity, it cannot alone form the

basis of conviction. Where the

prosecution version differs from the

version given in the dying

declaration, the said declaration

cannot be acted upon.”

“The second dying declaration was

recorded by Shri Damodar Prasad

Mahure, Assistant Sub-Inspector of

Police (PW 19). He was directed by the

Superintendent of Police on telephone

to record the statement of the

deceased, who had been admitted in

the hospital. In that statement, she

had stated as under:

‘On Sunday, in the morning, at about

5.30 a.m., my husband Lakhan

poured the kerosene oil from a

container on my head as a result of

which kerosene oil spread over my

entire body and that he (Lakhan) put

my sari afire with the help of a

chimney, due to which I got burnt.’

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She had also deposed that she had

written a letter to her parents

requesting them to fetch her from the

matrimonial home as her husband

and in-laws were harassing her. The

said dying declaration was recorded

after getting a certificate from the

doctor stating that she was in a fit

physical and mental condition to give

the statement.”

“As per the injury report and the

medical evidence it remains fully

proved that the deceased had the

injuries on the upper part of her body.

The doctor, who had examined her at

the time of admission in hospital,

deposed that she had burn injuries on

her head, face, chest, neck, back,

abdomen, left arm, hand, right arm,

part of buttocks and some part of

both the thighs. The deceased was

65% burnt. At the time of admission,

the smell of kerosene was coming

from her body.”

* * *

“Undoubtedly, the first dying

declaration had been recorded by the

Executive Magistrate, Smt Madhu

Nahar (DW 1), immediately after

admission of the deceased Savita in

the hospital and the doctor had

certified that she was in a fit

condition of health to make the

declaration. However, as she had been

brought to the hospital by her

father-in-law and mother-in-law and

the medical report does not support

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her first dying declaration, the trial

court and the High Court have rightly

discarded the same.”

* * *

“Thus, in view of the above, we reach

the following inescapable conclusions

on the questions of fact:

* * *

(c) The second dying declaration was

recorded by a police officer on the

instruction of the Superintendent of

Police after getting a certificate of

fitness from the doctor, which is

corroborated by the medical evidence

and is free from any suspicious

circumstances. More so, it stands

corroborated by the oral declaration

made by the deceased to her parents,

Phool Singh (PW 1), father and

Sushila (PW 3), mother.”

“23. In Nallam Veera Stayanandam v.

Public Prosecutor this Court, while

declining to accept the findings of the trial

court, held that the trial court had erred

because in the case of multiple dying

declarations, each dying declaration has

to be considered independently on its own

merit so as to appreciate its evidentiary

value and one cannot be rejected because

of the contents of the other. In cases where

there is more than one dying declaration,

it is the duty of the court to consider each

one of them in its correct perspective and

satisfy itself which one of them reflects

the true state of affairs.”

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27. This court had clearly laid down that the each

dying declaration has to be considered independently on

its own merit so as to appreciate its evidentiary value and

one cannot be rejected because of the contents of the

other. In cases where there is more than one dying

declaration, it is the duty of the court to consider the

each one of them in its correct perspective and satisfy

itself that which one of them reflects the true state of

affairs.

28. It is also relevant to refer to judgment of this court

in Ranjit Singh and others versus State of Punjab ,

2006 (13) SCC 130 wherein this court has clearly laid

down that the conviction can be recorded on the basis of

the dying declaration alone if the same is wholly reliable.

In the event, if there are suspicions as regards to the said

dying declaration, the court should look for some

corroborating evidences. Court has further observed that

in the event of inconsistencies in the dying declarations

the court should lean towards the first dying declaration.

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Following was observed in para 13:

“It is now well settled that conviction can

be recorded on the basis of a dying

declaration alone, if the same is wholly

reliable, but in the event there exists any

suspicion as regards correctness or

otherwise of the said dying declaration,

the courts in arriving at the judgment of

conviction shall look for some

corroborating evidence. It is also well

known that in a case where

inconsistencies in the dying declarations,

in relation to the active role played by one

or the other accused persons, exist, the

court shall lean more towards the first

dying declaration than the second one.”

29. Learned counsel for the appellant has also referred

to Prem Kumar Gulati versus State of Haryana and

another, 2014 (14) SCC 646 , to buttress his

submission that even if, dying declaration is not in a

question answer form same cannot be rejected. In the

present case, it is relevant to note that the third dying

declaration recorded by Shri Tandale was not in question

answer form. It is true that this court in the above case

has laid down that merely because dying declaration was

not in question answer form sanctity attached to dying

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declaration cannot be brushed aside nor its reliability

can be doubted.

30. The Sessions Judge has rejected the third dying

declaration not merely on the ground that it was not

recorded in the question answer form but the Sessions

Judge has given other valid reasons for not accepting the

third dying declaration as has been extracted above.

31. From the evidence on record, it is clear that all the

witnesses including PW 1 doctor Ashok Surushe who

carried the autopsy of the dead body supported that

deceased died of burns. The case which was put up by

the defence was that the death was on account of the

accidental fire which was caught by falling of chimney

(burning lamp) on the body of the Baby while she was

sleeping in the house.

32. As noted above, within an hour of incident on

04.03.1989 that is as soon as the Baby arrived at the

Rural Hospital at about 10/10.30 pm police inspector

came and took her oral statement in which she clearly

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stated that it was Raju who poured kerosene oil on her

body and ignited the match-stick. Baby the deceased in

her oral statement as well as in her dying declaration

recorded by Shri Ramesh Giri has also stated the motive

of the accused.

33. It has come on the evidence of PW 4 Dilawarsha

that the Baby, her sister was having a love affair with

Raju the accused. She was pregnant and she asked Raju

to marry her. On the day of the incident, she met Raju

and repeated her request to him to marry her. Raju who

was carrying a tin of kerosene then poured kerosene on

Baby to finish her since he never wanted to live with

Baby and wanted to keep her out from his life.

34. The doctor in her statement has recorded about 72

per cent burns. The theory of burn being caused by

chimney (burning lamp) has rightly been rejected by

courts below by giving cogent reasons.

35. We are not inclined to take any different view to

one which has been taken by both Sessions Judge and

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the High Court rejecting the case of the defence that it

was a case of accidental death caused by falling of the

chimney (burning lamp).

36. The dying declaration recorded by Executive

Magistrate was witnessed by two employees of the

hospital, who were present at the relevant time. There

being no certificate of the doctor on 04.03.1989 is of no

consequences since it has come in the evidence that

doctor was not present at the time when victim was

taken to the hospital and there were only two employees

i.e. a waterman and a maid-servant who were present in

the Rural Hospital and attended the victim. The High

Court has expressed its anguish regarding working of the

Rural Hospital, Mehkar. High Court was fully justified in

expressing its anguish over the working of the Rural

Hospital, Mehkar where no trained Para-medical

Staff/Medical Staff was available to attend the patient.

37. Thus submission of learned counsel for the

appellant that in view of the third dying declaration in

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which accused was exonerated no reliance could have

been placed on dying declaration recorded by Shri Giri

the Executive Magistrate, is not acceptable for the

reasons as noted above. The court below observed that

there was no occasion of implicating the accused by the

Police Inspector since there is nothing to indicate that he

had any grudge against the accused or even the accused

was known to the police inspector.

38. Oral statement of victim was recorded by the police

on 04.03.1989 which followed by recording of dying

declaration by the Executive Magistrate in which same

statement was made by victim implicating the accused of

the crime. In the facts and circumstances of the case the

conviction has rightly been recorded relying on the dying

declaration of the deceased recorded by Executive

Magistrate Giri.

39. The death has been caused by burn injuries, which

is proved on record. The theory put up by the defence

that it was accidental death having been rightly rejected

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and the prosecution by cogent evidences having proved

the prosecution case both Sessions Judge and the High

Court have rightly convicted the accused of offence under

Section 302 IPC. We do not see any merit in the appeal.

The appeal is dismissed.

..........................................J.

(ABHAY MANOHAR SAPRE)

..........................................J.

(ASHOK BHUSHAN)

NEW DELHI;

JUNE 29, 2016.