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,
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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
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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
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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 District9
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,
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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
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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.
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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
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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
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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”
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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.
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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.”
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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.
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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
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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
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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.
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…………………………….J.
(P.
SATHASIVAM)
………………………..
…..J.
(Dr. B.S. CHAUHAN)
New Delhi,
August 9, 2010
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