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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 427 OF 2007

State of Rajasthan …Appellant

Versus

Shravan Ram & Anr. …Respondents

J U D G M E N T

K.S. Radhakrishnan, J.

1.This is an appeal by the State of Rajasthan against the

Judgment in D.B. Criminal Appeal No. 124 of 2001 passed by

the High Court of Rajasthan. The Additional Sessions Judge

convicted the accused persons under Section 302, IPC and

sentenced them for life imprisonment with fine which was

reversed by the High Court and acquitted the accused persons.

2.The prosecution case is as follows:

Guddi, the deceased, was admitted in the hospital on

11.09.1998 with ninety nine per cent burn injuries. Parcha

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Bayan (Ex.P14A) of the deceased was recorded by ASI, Ram

Kishan and signed by SHO Mohan Lal PW13 in the hospital. On

the basis of the said Parcha Bayan, FIR No. 300/98 was

registered at police station Madanganj (Ajmer) against the

accused persons under Section 307, IPC. During treatment,

Guddi died at about 10AM on the same day and the case was

converted into Section 302, IPC. During the course of

investigation, both the accused persons were arrested on

12.09.1998, first accused is the father-in-law and second

accused is the husband. The accused persons denied the

charges and the case went to trial. On the side of the

prosecution 14 witnesses were examined. The Additional

Sessions Judge, placed considerable reliance on the dying

declaration stated to have been made before PW 3 Prem

Chand, a neighbour which find a place in the statement (Ex. P6)

made by him to the police under Section 161 of Cr.P.C. PW3

has stated that the deceased had raised hue and cry after the

burn injuries and abused the father-in-law - Sharvan Ram and

based on the evidence of PW3 and his 161 statement, the

Session Court found the accused persons guilty.

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3.Following are the circumstances which weighed with the

Additional Sessions Judge:

(i)That Smt. Guddi, aged 19 years died after two years

of her marriage due to 99% burn injuries after

pouring kerosene on her enlightening match stick,

therefore the death is homicidal.

(ii)Deceased was in the custody of accused appellants

and simply on account of going outside the house

were the ‘occurrence took place’ custody will not be

ceased.

(iii)PW1 Nathu Lal (father), PW2 Kailash (uncle) and

PW13 Smt. Suraj Devi (mother) of the deceased in

their statements have deposed that Smt. Guddi was

not allowed by the accused appellants to go to her

matrimonial home.

(iv)The version of Prem Chand, PW3 in his statement

under Section 161 Cr.P.C. was considered as dying

declaration and not the Parcha Bayan. Reliance was

not placed by Additional Sessions Judge on Parcha

Bayan of deceased.

(v)That the previous and subsequent conduct of

accused appellants was not satisfactorily explained in

their statements under Section 313 Cr.P.C as

required under Section 8 of the Evidence Act.

(vi)Since the death was caused in the custody of the

accused, therefore, the accused were also

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responsible for proving the fact of burn which was

specifically within their knowledge as required under

Section 106 of the Indian Evidence Act and further

according to Section 114 of the Indian Evidence Act

presumption has to be drawn against accused

appellants.

4.Shri Abhishek Gupta, learned counsel appearing for the

respondents submitted that the High Court has rightly held that

it is not safe to base conviction on the statement of PW 3 –

Prem Chand recorded under Section 161 Cr.P.C., who was

declared hostile. Further, it was also pointed out that in the

statement under Section 161 Cr.P.C., PW3 had not named the

second accused - Pappu Lal, husband of the deceased. Further,

it was also pointed out that PW4 Smt. Choti and PW5 Narayan,

who are neighbours, did not disclose the cause of death and

have not mentioned the names of any of the accused persons

in their evidence. Therefore, the dying declaration made

before Prem Chand remained uncorroborated and the High

Court has rightly held that no reliance could be placed on

uncorroborated dying declaration. Learned counsel, therefore,

submitted that the judgment of the High Court calls for no

interference.

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5.Shri Shoran Mishra, learned counsel appearing for the

State submitted that the High Court has committed an error in

not placing reliance on the evidence of PW3 and the statement

made by him before the Police under Section 161 Cr.P.C.,

wherein the name of the second accused has been mentioned.

Learned counsel also submitted that the High Court has failed

to notice the fact that the deceased was in the custody of the

respondents and therefore the burden of explaining the fact of

burning is on the accused persons. Further, they have failed to

provide any explanation when examined under Section 313

Cr.P.C. Learned counsel also pointed out that the High Court

has not properly appreciated the evidence by PW1 - Nathu lal

(father of the deceased), PW2 - Kailash (uncle of the deceased)

and PW14 – Suraj Devi (mother of the deceased). PW14 in her

deposition stated that the deceased father in law used to say

that Guddi is his wife and she had deposed that her daughter

had told if the above facts were disclosed she would be killed

by burning. Learned counsel, therefore, submitted that the

evidence of PW1, PW2 and PW14 coupled with the statement

made by PW3 would establish the guilt of the respondents and

the trial court has rightly convicted them.

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6.We notice that there is no eye-witness to the occurrence

and the entire case hinges upon few alleged dying declarations

made by the deceased and circumstantial evidence. PW11 –

Dr. P.C. Patni conducted the autopsy and gave report Ex.P14 in

which it is stated that the deceased had 99% burn injuries.

Post mortem was conducted by members of the board and in

their opinion cause of death was hypovolumic shock as a result

of ante-mortem burn and the death had occurred within 24

hours and there was no evidence of suicide or accidental fire

and therefore the case was homicidal.

7.We are in this case concerned with three dying

declarations which are as follows:

(i)ASI Kishan recorded Parcha Bayan of the deceased

which was signed by PW13 Mohan Lal in the presence

of the doctor who also signed the same. Further, the

accused also stated to have affixed his thumb

impression.

(ii)Dying declaration stated to have been made on

11.09.1998 , signed by the Sub-Divisional Magistrate

but neither the said dying declaration had been

exhibited nor the Sub-Divisional Magistrate had been

produced in evidence.

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(iii)Dying declaration, as made by the deceased, before

PW 3, Prem Chand, which had been stated by him in

his statement under Section 161, Cr.P.C.

8.We find only two dying declarations are on record, the

second one mentioned above was not brought out in evidence.

Parcha Bayan of the deceased, based on which the case was

registered reads as follows:

“I stay in Maliyon ki Dhani Madanganj. Today morning

at around four-five, I had gone from home to near the

drain adjacent Shivji Temple to ease myself and I was

easing myself when at that time a person wearing

white pant and shirt came. And in his hand there was

a kerosene can, and poured over me. And lighting a

match poured over me. My terecot clothes

immediately caught fire. I fell in the drain and coming

out of the drain reached the house being inflamed and

narrated the whole incident to the family members. I

did not recognize the person. I being inflamed fell in

the drain and coming from the drain came being

inflamed and narrated the whole incident to the family

members, who have brought me to the hospital, my

marriage took place two years back.”

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The third dying declaration stated to have been made by the

deceased before PW3 – Prem Chand was referred to in Part A to

B of Ex.P6 reads as follows:

“She was a woman who shouting at the site and was

abusing her father in law Shravan Ram that you be

doomed you ran away setting me on fire.”

9.We may now examine, whether statement of PW3 – Prem

Chand recorded under Section 161, Cr.P.C., marked as Ex.P6

could be accepted as a dying declaration, wherein it was stated

by him that the deceased was raising hue and cry and was

abusing her father in law for ablazing her. PW3 was declared

as hostile. Further, PW4 and PW5, the neighbours, who have

stated to have seen the deceased in a burning state and raising

hue and cry, neither disclosed the cause of death nor

mentioned the names of any of the accused persons.

Consequently, the dying declaration made by Prem Chand

remained uncorroborated. It is trite law that it is unsafe to base

reliance on the statement made under Section 161 Cr.P.C. as

dying declaration without any corroboration. Although

corroboration as such is not essential but it is expedient to

have the same, in order to strengthen the evidentiary value of

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declaration. This court in Arvind Singh v. State of Bihar

(2001) 6 SCC 407 while dealing with the case of oral dying

declaration stated as follows:

“Dying declaration shall have to be dealt with care and

caution. Corroboration is not essential but it is

expedient to have the same, in order to strengthen the

evidentiary value of declaration. Independent

witnesses may not be available but there should be

proper care and caution in the matter of acceptance of

such a statement as trustworthy evidence.”

10.This Court in Bhajju Alias Karan Singh v. State of

Madhya Pradesh (2012) 4 SCC 327 while dealing with

admissibility of dying declaration held as follows:

“The law is well settled that a dying declaration is

admissible in evidence and the admissibility is founded

on the principle of necessity. A dying declaration, if

found reliable, can form the basis of a conviction. A

court of facts is not excluded from acting upon an

uncorroborated dying declaration for finding

conviction. The dying declaration, as a piece of

evidence, stands on the same footing as any other

piece of evidence. It has to be judged and appreciated

in light of the surrounding circumstances and its

weight determined by reference to the principle

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governing the weighing of evidence. If in a given case

a particular dying declaration suffers from any

infirmity, either of its own or as disclosed by the other

evidence adduced in the case or the circumstances

coming to its notice, the court may, as a rule of

prudence, look for corroboration and if the infirmities

are such as would render a dying declaration so infirm

that it pricks the conscience of the court, the same

may be refused to be accepted as forming basis of the

conviction.”

11.Applying the above legal principles and examining the

facts on record, we are of the view that no reliance could be

placed on the statement made by PW3 – Prem Chand under

Section 161 Cr.P.C. before the police in the absence of any

corroboration. Over and above, PW3 has himself turned

hostile.

12.We will now deal with the question whether the dying

declaration stated to have been recorded by ASI Ramkishan,

signed by SHO Mohan Lal (PW13) as well as Dr. Anil Kumar Soni

would be sufficient to base the conviction.

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13.First we will examine whether P14-A, Parcha Bayan, which

was converted into dying declaration is made in consonance

with Rule 6.22 of the Rajasthan Police Rules, 1965. Rule 6.22

of the Rajasthan Police Rules, 1965 reads as follows:

“Dying Declarations – (1) A dying declaration shall,

whenever possible, be recorded by a Magistrate.

(2) The person making the declaration shall, if

possible, be examined by medical officer with a view

to ascertaining that he is sufficiently in possession of

his reason to make a lucid statement.

(3) If no Magistrate can be obtained, the declaration

shall, when a gazetted police officer is not present, be

recorded in the presence of two or more reliable

witnesses unconnected with the police department

and with the parties concerned in the case.

(4) If no such witnesses can be obtained without risk of

the injured person dying before his statement can be

recorded, it shall be recorded in the presence of two or

more police officers.

(5) A dying declaration made to a police officer should,

under Section 162, Code of Criminal Procedure, be

signed by the person making it.”

14.We notice, in this case, the above mentioned Rule is

substantially complied with, still in our view no reliance could

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be placed due to lack of corroboration over and above the fact

that even in Ex. P14-A, the deceased had not named the

accused persons. What she stated is that she did not recognize

the person who has ablazed her. Therefore, in the absence of

any corroboration and also not naming any of the accused

persons in Ex.P14A, no reliance could be placed on the same

even though the provision of Rule 6.22 of the Rajasthan Police

Rules, 1965 has been complied with.

15.This Court had occasion to consider the scope of multiple

dying declarations in Smt. Kamla v. State of Punjab (1993)

1 SCC 1, this Court held as follows:

“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.”

16.In Kishan Lal v. State of Rajasthan (2000) 1 SCC 310,

this Court held has follows:

“Examining these two dying declarations, we find not

only that they gave two conflicting versions but there

is inter se discrepancies in the depositions of the

witnesses given in support of the other dying

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declaration dated 6.11.1976. Finally, in the dying

declaration before a Magistrate on which possibly

more reliance could have been placed the deceased

did not name any of the accused. Thus, we have no

hesitation to hold that these two dying declarations do

not bring home the guilt of the appellant. High Court,

therefore, erred in placing reliance on it by

erroneously evaluating them.”

17.In Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC

713, this Court had occasion to consider the legality and

acceptability of two dying declarations. Noticing the

inconsistency between the two dying declarations, the Court

held that it is not safe to act solely on the said declarations to

convict the accused persons.

18.In Amol Singh v. State of Madhya Pradesh (2008) 5

SCC 468, this Court interfered with the order of sentence

noticing inconsistencies between the multiple dying

declarations. 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

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corroboration but the statement should be consistent

throughout. 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 and 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.

19.In State of Andhra Pradesh v. P. Khaja Hussain

(2009) 15 SCC 120, this Court rejected the appeal filed against

the acquittal holding that it was not a case where the variation

between the two dying declarations was trivial in nature.

20.In Sharda v. State of Rajasthan (2010) 2 SCC 85, this

Court has dealt with three dying declarations. Noticing

inconsistencies between dying declarations, this Court set aside

the sentence ordered by Sessions Judge as well as High Court

and held as follows:

“Though a dying declaration is entitled and is still

recognised by law to be given greater weightage but it

has also to be kept in mind that the accused had no

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chance of cross-examination. Such a right of cross-

examination is essential for eliciting the truth as an

obligation of oath. This is the reason, generally, the

court insists tha the dying declaration should be such

which inspires full confidence of the court of its

correctness. The court has to be on guard that such

statement of the deceased was not as a result of

either tutoring, prompting or 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 aforesaid requirement and also to

the fact that declaration was true and voluntary,

undoubtedly, it can base its conviction without any

further corroboration.”

21. We have gone through both the dying declarations and

there are not only material contradictions in both the

declarations but also inter se discrepancies in the depositions

of the witnesses as well. In the first dying declaration recorded

by ASI, signed by PW13, there is no mention of the names of

any of the accused persons and the deceased had stated that

she could not recognize the person who set her ablaze even

though the declaration was in consonance with Rule 6.22 of the

Rajasthan Police Rules, 1965.

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22.So far as the statement of PW3 – Prem Chand recorded

under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the

deceased was only abusing her father in law and that was not

even corroborated by PW4 or PW5 and PW3 himself turned

hostile. Due to discrepancies and contradictions between the

two dying declarations and also in the absence of any other

reliable evidence, in our view, the High Court is justified in

reversing the order of conviction which calls for no interference

by this Court. In view of above, the appeal is, therefore,

dismissed.

………………………… ..J.

(K.S. Radhakrishnan)

………………………… ..J.

(Dipak Misra)

New Delhi,

May 1, 2013