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Supreme Court of India
Lakhan vs State Of M.P on 9 August, 2010
Author: . B Chauhan
Bench: P. Sathasivam, B.S. Chauhan
                                                         REPORTABLE


           IN THE SUPREME COURT OF INDIA
          CRIMINAL APPELLATE JURISDICTION

           CRIMINAL APPEAL NO. 2297 of 2009


Lakhan                                            ...Appellant

                           Versus

State of M.P.                                     ...Respondent



                      JUDGMENT

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and

order dated 9.7.2008, passed by High Court of Madhya

Pradesh, at Jabalpur, in Criminal Appeal No.2304/2000 by

which the High Court has dismissed the said appeal, affirming

the judgment and order of the Sessions Judge, Sagar, dated

31.8.2000 in Sessions Trial No.180/2000 and convicted the

appellant under Section 302 of the Indian Penal Code, 1860
(hereinafter called “IPC”) and sentenced him to life

imprisonment.

2. Facts and circumstances giving rise to this case are that

the appellant got married to Smt. Savita (hereinafter referred

to as “deceased”) on 22.6.1999. She was brought to the

hospital by her in-laws on 27.2.2000 at about 7 p.m. in a

burnt condition. Dr. Subhash Jain informed the Police

Station, Gopalganj, about the arrival of the deceased, Smt.

Savita, and a police party arrived at the hospital. The dying

declaration was recorded by the Executive Magistrate, Smt.

Madhu Nahar (DW.1), vide Exh.D/2, wherein, the deceased

stated that when she was cooking, kerosene oil had been put

behind her back, and when she moved herself back, her Saree

caught fire. On 29.2.2000, ASI, Damodar Prasad Mahure (PW-

19), on the instructions of the Superintendent of Police

recorded the second dying declaration (Ex.P/2), wherein, the

deceased stated that appellant brought a kuppi (a metallic

container for lighting) full of kerosene and poured it on her

body and as a result of which kerosene oil spread all over her

body. Thereafter, the fire was lit by chimney by him and she

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was burnt. She also stated that she had been brought to the

hospital by her in-laws. After recording the dying declaration

dated 29.2.2000, ASI Damodar Prasad (PW-19), recorded the

Dehati Nalishi (Ex.P/14), at 10.40 p.m. on its basis. The

kupee, as referred to in the dying declaration, was seized from

the house of the appellant on 2.3.2000.

3. Smt. Savita died on 20.3.2000, and thus, there was an

alteration of offences from 307/201 IPC to 302 IPC. After

completing the investigation, charge sheet was filed against

the appellant before the court and the case was committed to

the Court of Sessions where the appellant was tried. During

trial, the prosecution examined as many as 19 witnesses and

in the form of documentary evidence, reliance was placed on

the statement of Savita, deceased, in the form of dying

declaration dated 29.2.2000 (Ex.P/2), Dehati Nalishi

(Ex.P/14), FIR (Ex.20), deposition of ASI (PW-19) dated

29.2.2000 and case diary etc. In defence, appellant placed

reliance on the statement of the deceased dated 27.2.2000

(Ex.D/2), and examined Smt. Madhu Nahar (DW.1). The

appellant made a statement under Section 313 of the Code of

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Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”), that

he was, by no means, involved in the case. However, the

appellant did not explain under what circumstances his wife

was burnt. The trial Court, vide judgment and order dated

31.8.2000, found the appellant guilty of offence under Section

302 IPC and accordingly sentenced him to imprisonment for

life.

4. Being aggrieved, the appellant preferred Criminal Appeal

No. 2304 of 2000 before the High Court of Madhya Pradesh, at

Jabalpur, which has also been dismissed vide judgment and

order dated 9.7.2008. Hence, this appeal.

5. Shri Sudhir Kulshreshtha, learned counsel appearing for

the appellant, has submitted that it is a case of circumstantial

evidence as no eye-witness has been examined by the

prosecution in support of its case. There has been no

allegation of a demand of dowry, though the marriage had

taken place only 9-10 months prior to the death of the

deceased, Savita. The only allegation against the appellant

had been of harassment, as alleged by the parents of the

deceased, who were examined as prosecution witnesses before

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the trial Court. There were two dying declarations in the case.

The first was recorded by Ms. Madhu Nahar, the Executive

Magistrate (DW.1), which should have been accepted in toto,

without raising any doubt to its veracity as compared to the

dying declaration, unauthorisedly recorded by Shri Damodar

Prasad Mahure, the ASI (PW.19), subsequently. Where there

are two dying declarations, the first dying declaration recorded

by the Magistrate should have been relied upon, particularly

when both the witnesses to the second dying declaration had

been declared hostile. Therefore, the appeal deserves to be

allowed.

6. Per contra, Shri Siddharth Dave along with Ms. Vibha

Datta Makhija, learned counsel for the respondent-State, has

vehemently opposed the appeal contending that the first dying

declaration had been recorded by the Executive Magistrate

when the deceased, Savita, had been tutored by her in-laws

who had brought her to the hospital. At that time the

deceased was under duress/influence of her in-laws.

However, there cannot be any doubt regarding contents of the

second dying declaration recorded by the police officer,

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particularly when it stands corroborated with other relevant

evidence. The appeal lacks merit and is liable to be dismissed.

7. We have considered the rival submissions made by

learned counsel for the parties. Counsel from both the sides

have canvassed their submissions solely on the issue as to

which of the dying declarations should have been relied upon

by the courts below. No other issue is being agitated.

Therefore, we restrict ourselves only to examining the limited

issue of which dying declaration can be relied upon in the

facts and circumstances of this case.

8. The doctrine of dying declaration is enshrined in the legal

maxim “Nemo 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

Indian Evidence Act, 1872 (hereinafter called as, “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,

6
therefore, cannot be cross-examined. Such statements

themselves are relevant facts in certain cases.

9. 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 scrutinize the dying

declaration carefully and must ensure that the 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

7
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’s

version differs from the version given in the dying declaration,

the said declaration cannot be acted upon. (vide : Kushal Rao

v. State of Bombay, AIR 1958 SC 22; Rasheed Beg & Ors. v.

State of Madhya Pradesh, AIR 1974 SC 332; K. R. Reddy &

Anr. v. The Public Prosecutor, AIR 1976 SC 1994; State of

Maharashtra v. Krishnamurti Laxmipati Naidu, AIR 1981

SC 617; Uka Ram v. State of Rajasthan, (2001) 5 SCC 254;

Babulal & Ors. v. State of M.P., (2003) 12 SCC 490; Muthu

Kutty & Anr. v. State, (2005) 9 SCC 113; State of Rajasthan

v. Wakteng, AIR 2007 SC 2020; and Sharda v. State of

Rajasthan, (2010) 2 SCC 85].

10. In Munnawar & Ors. v. State of Uttar Pradesh & Ors.

(2010) 5 SCC 451, this Court held that a dying declaration can

be relied upon if the deceased remained alive for a long period

of time after the incident and died after recording of the dying

declaration. That may be evidence to show that his condition

8
was not overtly critical or precarious when the dying

declaration was recorded.

11. A dying declaration recorded by a competent Magistrate

would stand on a much higher footing than the declaration

recorded by officer of lower rank, for the reason that the

competent Magistrate has no axe to grind against the person

named in the dying declaration of the victim, however,

circumstances showing anything to the contrary should

not be there in the facts of the case. [ vide Ravi Chander &

Ors. v. State of Punjab, (1998) 9 SCC 303; Harjit Kaur v.

State of Punjab, (1999) 6 SCC 545; Koli Chunilal Savji &

Anr. v. State of Gujarat, (1999) 9 SCC 562; and Vikas & Ors.

v. State of Maharashtra, (2008) 2 SCC 516.]

12. In Balak Ram v. State of U.P., AIR 1974 SC 2165, the

question arose as to whether a dying declaration recorded by a

higher officer can be discarded in case of multiple dying

declarations. The Court held as under:-

“The circumstances surrounding the dying
declaration, though uninspiring, are not strong
enough to justify the view that officers as high
in the hierarchy as the Sub-Divisional
Magistrate, the Civil Surgeon and the District

9
Magistrate hatched a conspiracy to bring a
false document into existence. The Civil services
have no platform to controvert allegations,
howsoever grave and unfounded. It is therefore,
necessary that charges calculated to impair
their career and character ought not to be
accepted except on the clearest proof. We are
not prepared to hold that the dying declaration
is a fabrication.”

13. In Sayarabano@Sultanabegum v. State of

Maharashtra, (2007) 12 SCC 562, two Dying Declarations had

been recorded. As per the first declaration, the deceased had

met with an accident. She was hit by the kerosene lamp

which fell on her body and caught fire. While recording the

second declaration, the Judicial Magistrate asked her why she

was changing her statement. The deceased replied that her

Mother-in-Law had told her not to give any statement against

the family members of her in-laws and that was the reason,

why she had not involved any person in the earlier statement.

But, in fact, it was her Mother-in-Law who threw the kerosene

lamp on her and thus, she was burnt. She also stated that

her Mother-in-Law was harassing her. In such a situation,

1
this Court held that the second dying declaration was true and

inspired confidence. Ill

treatment of the decreased was clearly established and

completely proved on the basis of the evidence of other

witnesses.

14. In case, there are inconsistent dying declarations, the

Court must rely upon any other evidence, if available, as it is

not safe to act only on inconsistent dying declarations and

convict the accused. [Vide Lella Srinivasa Rao v. State of

A.P., (2004) 9 SCC 713].

15. In Sher Singh & Anr. v. State of Punjab, AIR 2008 SC

1426, a case of bride burning, three dying declarations had

been recorded. In the first dying declaration, the decreased

had denied the role of the accused persons. In second dying

declaration deceased attributed a role to the accused but the

said declaration did not contain the Certificate of the Doctor

that the deceased was in a fit state of mind to make a

declaration, however, the Magistrate, who recorded the

declaration, certified that the deceased was in a conscious

state of mind and was in a position to make the statement to

1
him. The third dying declaration was recorded by a police

officer after the Doctor certified that she was in a fit state of

mind to give the statement. This Court held that the

conviction could be based on the third dying declaration as it

was consistent with the second dying declaration and the oral

dying declaration made to her uncle, though with some

inconsistencies. First declaration was made immediately after

she was admitted in the hospital and was under threat and

duress by her Mother-in-Law that she would be admitted in

hospital only if she would give a statement in favour of the

accused persons.

16. In Paras Yadav & Ors. Vs. State of Bihar (1999) 2 SCC

126, this Court held that a statement of the deceased recorded

by a police officer in a routine manner as a complaint and not

as a dying declaration can also be treated as dying declaration

after the death of the injured and relied upon if the evidence of

the prosecution witnesses clearly establishes that the

deceased was conscious and was in a fit state of health to

make the statement.

1

17. In Chairman & Managing Director, V.S.P. & Ors. v.

Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 468, this

Court, placing reliance upon the earlier Judgment in Kundula

Bala Subrahmanyam & Anr. v. State of Andhra Pradesh,

(1993) 2 SCC 684, held that it is not the plurality of dying

declarations but the reality thereto that aids weight to the

prosecution’s case. If a dying declaration is found to be

voluntary, reliable and made in a fit mental condition, it can

be relied upon without any corroboration. If there is more

than one dying declaration, they should be consistent. In case

of inconsistencies between two or more dying declarations

made by the deceased, the Court has to examine the nature of

inconsistencies namely, whether they are material or not and

in such a situation, the Court has to examine the multiple

dying declarations in the light of the various surrounding

facts and circumstances.

18. In Heeralal v. State of Madhya Pradesh, (2009) 12 SCC

671, this Court considered the case having two dying

declarations, the first recorded by a Magistrate, wherein it was

clearly stated that the deceased had tried to set herself ablaze

1
by pouring kerosene on herself. However, the subsequent

declaration was recorded by another Magistrate and a contrary

statement was made. This Court set aside the conviction after

appreciating the evidence and reaching the conclusion that the

courts below came to abrupt conclusions on the purported

possibility that the relatives of the accused might have

compelled the deceased to give a false dying declaration. No

material had been brought on record to justify such a

conclusion.

19. In State of Andhra Pradesh v. P. Khaja Hussain, (2009)

15 SCC 120, this Court set aside the conviction as there was a

variation between the two dying declarations about the

manner in which the deceased was set on fire and for the

reason that there was no other evidence to connect the

accused with the crime.

20. In view of the above, the law on the issue of dying

declaration can be summarized to the effect that in case, the

Court comes to the conclusion that the dying declaration is

true and reliable, has been recorded by a person at a time

when the deceased was fit physically and mentally to make the

1
declaration and it has not been made under any

tutoring/duress/prompting; it can be the sole basis for

recording conviction. In such an eventuality no corroboration

is required. In case, there are multiple dying declarations and

there are inconsistencies between them, generally, the dying

declaration recorded by the higher officer like a Magistrate can

be relied upon, provided that there is no circumstance giving

rise to any suspicion about its truthfulness. In case, there are

circumstances wherein the declaration had been made, not

voluntarily and even otherwise, it is not supported by the

other evidence, the Court has to scrutinize the facts of an

individual case very carefully and take a decision as to which

of the declarations is worth reliance.

21. The case at hand requires to be examined in the light of

the aforesaid settled legal propositions in this regard. In the

instant case, the first dying declaration reads as under:-

“I was cooking and kerosene was put
behind, I did not see to it. When I turned
back on my knee, my sari caught fire”

1

However, the deceased has further stated that she was

brought to the hospital by her Father-in-Law and Mother-in-

Law. The declaration was recorded by the Executive

Magistrate after getting a certificate from the Doctor that the

deceased was in a fit physical and mental condition to give the

statement.

22. 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
AM, 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 a fire with the help of a
Chimney, due to which I got burnt.”

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.

1
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.

23. 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 buttock 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.

24. After appreciating the evidence on record the High Court

observed as under :-

“It is a matter of common knowledge that
if a person would move back and his/her
body comes in contact of some burning
object, on the front side of the body i.e.
chest, abdominal region, face etc. would
not burn. In the first dying declaration,
the deceased has said that while moving
back, her Sari caught fire. We have also
gone through the reasonings assigned by
learned Sessions Judge in para 17 of the
judgment and we find the reasons to be
quite cogent.”

1

25. 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

her first dying declaration, the trial Court and the High Court

have rightly discarded the same. Even before us, Shri

Kulshreshtha, learned counsel appearing for the appellant,

has not been able to explain under what circumstances in the

accident case as disclosed by the deceased in her first

declaration, the deceased could get the injuries only on the

upper part of the body and smell of kerosene was coming from

her body. The second dying declaration fully stands

corroborated not only by the medical evidence but oral dying

declarations made by the deceased to her parents, i.e. Phool

Singh (PW.1) and Sushila (PW.3) who were examined in the

court.

1

26. Sh. Damodar Prasad Mahure, ASI, (PW.19), in his cross-

examination, has explained that he was not aware of the

factum of recording of the first Dying Declaration of the

deceased on 27.02.2000. Therefore, there was no reason for

him to ask the deceased about the same. More so, it is evident

that Dr. Umesh Kumar Shastri certified the mental and

physical condition of the deceased at the time of recording of

the second Dying Declaration, while at the time of recording of

the first Dying Declaration, Dr. Subhash Jain (PW13) certified

the mental and physical condition of the deceased.

Undoubtedly, the witnesses of the second Dying Declaration

namely, Premchand Jain (PW9) and Sanjay (PW18) turned

hostile and did not support the prosecution case, however,

they have admitted their signatures on the Dying Declaration

and could not give any explanation as to why they had

attested the said Declaration. Thus, in view of the above, the

second Dying Declaration cannot be held to be a fabrication.

27. In the instant case, the deceased Savita was brought to

the hospital by her Mother-in-Law and Father-in-Law and she

was under their influence. The Trial Court is right in making

1
an observation that generally, most women do not accuse their

husbands for sentimental and religious reasons.

28. Thus, in view of the above, we reach the following

inescapable conclusions on the questions of fact :-

(a) After having the burn injuries, Savita, deceased,

was brought to the hospital by her Father-in-Law and

Mother-in-Law and they had tutored not to give any

statement against her family members.

(b) The first Dying Declaration was recorded by the

Executive Magistrate, Smt. Madhu Nahar (DW.1), after

getting a Certificate from the Doctor, in which Savita did

not make allegation against any of her family members,

rather, she said that it was an accident. However, such a

statement is not supported by the medical evidence for

the reason that the injuries on her body were found on

the upper part of her body and it was not possible to

have such burn injuries in case of the kind of accident as

she had disclosed in the first Declaration.

(c) The second Dying Declaration was recorded by a

Police Officer on the instruction of the Superintendent of

2
Police after getting a Certificate of fitness from the

Doctor, which is corroborated by the medical evidence

and 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 (PW3), mother.

(d) A kuppi, the container, was recovered by the

Investigating Officer from the house of the appellant.

(e) Savita, deceased, died on 20.03.2000, after about

21 days of recording of the second Dying Declaration.

Thus, it is evident that she was not in a precarious

condition or unable to make the statement, rather this

fact suggests that she was in a stable condition.

(f) There is nothing on record to show for what reason,

the witnesses would depose falsely against the appellant.

29. In view of the above, we are of the view that in the facts

and circumstances of this case, the concurrent findings of fact

recorded by the Courts below do not warrant any interference

from this Court. The appeal lacks merit and is accordingly

dismissed.

2
…………………………….J.

(P.

SATHASIVAM)

………………………..

…..J.

(Dr. B.S. CHAUHAN)

New Delhi,
August 9, 2010

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