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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL  APPELLATE JURISDICTION

Criminal Appeal No. 1288 OF 2008

Hiraman  ...    Appellant (s)

Versus  

State of Maharashtra ...     Respondent (s)  

J U D G E M E N T

H.L. Gokhale J.   

This  Criminal  Appeal  raises  the  question  about  the  

relevance of dying declarations, and the approach to be adopted by  

the Courts with respect thereto. The appellant’s wife, Chandrakala  

Hiraman Murkute,  died an unnatural  and a  very painful  death at  

about 2 a.m. on 7.4.2000 in a village in Jamkhed Taluka of District  

Ahmednagar,  State  of  Maharashtra,  having  suffered  91%  burn  

injuries in  the previous night  leading to cardio-respiratory failure.

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The  First  Adhoc  Addl.  Sessions  Judge,  Ahmednagar  held  the  

appellant responsible for the same, principally on the basis of her  

dying declarations, and convicted him for cruelty and murder under  

Sections 498-A and 302 of the Indian Penal Code (I.P.C. for short) by  

his judgment and order dated 16.8.2004 in Sessions Case No.103 of  

2000.   The  conviction  U/s  302  of  IPC  was  confirmed  by  the  

Aurangabad Bench of  the  High Court  of  Judicature at  Bombay in  

Criminal  Appeal  No.31  of  2005,  though  the  one  under  Section   

498-A of I.P.C was set-aside for the lack of sufficient evidence.  The  

Courts below have accepted the two dying declarations of deceased  

Chandrakala as giving the correct cause for  the burn injuries viz.  

that they were caused by the appellant.   They have rejected the  

defence of the appellant that he was nowhere near the deceased at  

the time of  the incident and that  he was not  responsible for  the  

same.   In  view  of  this  conviction  under  Section  302  I.P.C.,  the  

appellant is required to undergo imprisonment for life, and to pay a  

fine of Rs.500/-, in default suffer a rigorous imprisonment for three  

months.  This judgment of the High Court dated 28.6.2005 in Crl.  

Appeal No. 31/2005 is being challenged for being rendered solely on  

the basis of dying declarations.   

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The facts leading to the present appeal are as follows:-

2. Deceased Chandrakala had been married to the appellant  

since a long time, and had three children from the marriage viz.,  

Bapu,  aged  about  20-22  years  and  married  at  the  time  of  the  

incident,  Ramesh  aged  about  14  years,  and  daughter  Shobha  

(whose age has not been mentioned).  As per the charge-sheet, the  

appellant is stated to have poured kerosene on Chandrakala and set  

her on fire at about 8 p.m. on 6.4.2000.  She was admitted in the  

rural hospital, Jamkhed immediately at 9:15 p.m.  One Dr. Eknath  

Mundhe  (PW-5)  was  on  duty  at  that  time,  and  he  recorded  the  

history  of  injuries  (exhibit  33)  at  about  the  same  time  in  the  

following words –  

“H/o Homicidal burns by husband as she was not   willing to perform his marriage with her sister and   he was also demanding gold on 6.4.2000 at about   8 p.m.”   

Thus  as  per  this  writing,  the  appellant  was  insisting  that  

Chandrakala bring gold from her parents, and that he be permitted  

to marry her sister.  Chandrakala refused to acquiesce to either of  

these demands, and, therefore, she was given serious burn injuries  

by the appellant on that fateful night.  According to their younger  

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son Ramesh (DW-1) the deceased was taken to the hospital by her  

family  members.   That  being  so,  this  recording  by  the  doctor  

assumes  significance  since  it  must  have  been  made  in  their  

presence.  After Head Constable Dagadu Baba Kharat (PW-4) came  

for duty to that hospital, the above duty doctor informed him about  

the incident,  and also that  Chandrakala  was still  in  a  position to  

make  a  statement.   PW-4  recorded  the  second  statement  of  

Chandrakala (exhibit 28) in the presence of PW-5 and the staff nurse  

after PW-5 certified that she was in a position to give a statement.  

Chandrakala stated that the appellant poured kerosene on her from  

a  ten liter  drum,  and then set  her  on fire  since  she declined to  

accept his demand of a golden ring of one tola, and transfer of the  

land  belonging  to  her  maternal  uncle  to  him.   According  to  this  

statement one neighbour Baba Saheb Vitekar had extinguished the  

fire,  and  then  she  was  brought  to  the  hospital.   Thereafter,  her  

thumb impression was obtained on the statement after reading it to  

her.   This  second  dying  declaration  was  treated  as  the  First  

Information  Report  (F.I.R.)  and  was  registered  at  10:10  p.m.  as  

Crime No. 44/2000 under Section 307 I.P.C. for attempt to murder.  

Chandrakala was very much in a position to make a statement at  

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that time, and was not under the influence of any drug since she  

was injected with sedatives only at about 10:30 p.m.   At the time of  

recording of this statement her two sons as well as the appellant  

were  present  since,  as  stated  by  Ramesh  (DW-I),  all  the  family  

members  had  taken  her  to  the  hospital.  The  Appellant  has  also  

stated in his statement under Section 313 of Cr.P.C that he too had  

gone  to  the  hospital.   Mother  and  brother  of  Chandrakala  were  

however not present at that time as they could reach the hospital  

only after she had passed away.  After her death the charge was  

altered from the one under Section 307 to the one under Section  

302 I.P.C.  

3. During the trial, the prosecution examined five witnesses.  

PW-1 Dr. Abhijit Boralkar who performed the post-mortem gave the  

cause of death as follows:-

“Death due to cardio-respiratory failure (due)  to   shock due to extensive burns 91% superficial  to   deep.”  

Thus, there is no dispute over the cause of death.  The question is as  

to  how  she  received  the  burn  injuries.   The  mother  (PW-2)  and  

brother (PW-3) of Chandrakala supported her version as to why, she  

suffered the burn injuries viz., that appellant was insisting that she  

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fetch a golden ring, and also to transfer her maternal uncle’s land to  

him for last about two months, and that her refusal has led to this  

gruesome act by him. The defence of the appellant in this behalf  

was, however, inconsistent.  In his statement under Section 313 of  

Cr.PC  he  indicated  the  probability  of  accidental  death  due  to  

bursting of the stove.  The investigating officer P.I. Kandre, however  

categorically  stated  that  during  examination  of  the  place  of  

occurrence no furnace,  stove or cooking articles were found over  

there. The appellant examined three witnesses in his defence.  Their  

younger  son  Ramesh  (DW-1)  stated  on  the  other  hand  that  his  

mother  had  committed  suicide.   The  cause  for  committing  the  

suicide as stated by Ramesh was however very flimsy viz., that he  

had asked his mother to give him Rs.2 for watching a movie, which  

she had declined.  This had led the appellant to scold her, because  

of which she went inside the house and bolted the door.  Later on  

when Ramesh was playing outside the house, and when his elder  

brother and father were also outside the house, his sister Shobha  

who was playing at  the neighbour’s  house raised the alarm that  

Chandrakala  had  set  herself  on  fire.   According  to  Ramesh  the  

appellant climbed on the roof, removed one of the tin sheets and  

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jumped inside, to remove the bolt of the door when it was found that  

the deceased was lying on the floor in a burnt condition.  A close  

relative  of  the  appellant  viz.,  Mhase  Nagu  Vitkar  (DW-2)  was  

examined who also gave similar evidence.  As far as the statement  

of  Ramesh (DW-1) is  concerned,  the same was discarded for  the  

reason that it was a hearsay based on the statement allegedly made  

by  Shobha to  him and Shobha was  not  examined.   Besides,  the  

house of the neighbour where Shobha was supposed to have been  

playing,  was  at  a  distance of  about  150  feet  from the  house  of  

deceased, and there were many houses in between the two houses.  

Therefore, her statement of coming to know that Chandrakala had  

set herself on fire could not be accepted, since Shobha would not  

have been able to know the same from such a distance.  Similarly,  

the statement of Ramesh that his father had jumped into the house  

after removing the tin sheet of the roof could not be accepted for  

the reason that though he is claimed to have suffered an injury in  

the process, at the time of his arrest in the night of 6.4.2000, the  

appellant declined to go to any hospital (as the arrest panchnama  

records) when asked whether he suffered from any pain or injury.  

This leads to the discarding of the statement of Dr. Satpute (DW-3)  

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also,  who  is  said  to  have  examined  the  accused  two  days  

subsequent to the incident, on 8.4.2000, and noticed abrasions on  

his  left  elbow  and  arm,  and  a  burn  injury  on  left  elbow.   The  

statement of DW-2 was also not accepted for the reasons that he  

was a person of 70 years of age who accepted that he could not see  

beyond 15-20 feet.  He would not have come to know of the incident  

when his house is situated at a distance of 150 feet from the place  

of occurrence.

Consideration of the submissions on facts:

4. The question before us is as to how Chadrakala received  

the burn injuries.  There are two versions before us viz., that the  

appellant  poured  the  kerosene  on  her,  and  the  other  that  the  

deceased poured it on herself.  The version given by the deceased is  

contained in her statements recorded at the earliest opportunity by  

two different persons who had no reason to record what they have  

recorded, unless she had stated so.   And considering the solemn  

occasion when she was making the statements, there was no reason  

to  discard  the  same  as  being  untrue.   The  first  statement  was  

recorded at 9:15 p.m., i.e. just one hour and fifteen minutes after  

the incident  when she was brought  to  the hospital.   The second  

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statement  was  also  recorded  within  an  hour  thereafter  at  about  

10:10 p.m. Chandrakala was fully conscious at that time and was  

required  to  be  given  sedatives  only  at  about  10:30  p.m.   This  

statement  assumes  significance  since  it  was  recorded  when  her  

family members including the appellant were present. Besides, her  

brother  and  mother  have  subsequently  confirmed  her  statement  

that  her  husband  was  greedy  and  used  to  harass  her  for  his  

demands.  There was no occasion of their tutoring her since they  

reached  the  hospital  only  after  her  death.   It  was  submitted  on  

behalf of the appellant that the failure of the prosecution to examine  

Baba Saheb Vitekar (who extinguished the fire) was fatal.  In this  

connection,  we must  note that  this  Baba Saheb was not  present  

when kerosene was poured on Chandrakala and the fire started.  He  

came lateron to extinguish the fire and could not have thrown any  

light as to how the incident took place.   

5. The  learned  Counsel  for  the  appellant  principally  

submitted that as far as the two dying declarations of Chandrakala  

are concerned,  there was no corroboration to the same,  and the  

uncorroborated dying declarations could not be accepted.   It  was  

contended  that  there  is  a  variation  between  the  two  dying  

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declarations with respect to the reasons for setting her on fire.  Now  

as far as this variation between the two statements is concerned, it  

is only this much that in her first statement Chandrakala had stated  

that the appellant used to harass and ill-treat her because he was  

demanding gold from her, and was asking her to marry her sister to  

him  for  which  she  was  not  agreeable.   In  the  second  dying  

declaration she had once again stated that he was demanding gold  

from her, but had also added that he had sought the transfer of the  

land belonging to her maternal uncle to him.  This time she has not  

stated about his insisting to marry her sister.   The demand for gold  

is the common factor in both the statements.  In the first statement  

she has additionally referred to his insisting on marrying her sister,  

whereas in the second one she has referred to his demand for the  

agricultural land of her maternal uncle.  The Sessions Court and the  

High Court have not given any importance to this variation, and in  

our  view  rightly  so.   This  is  because  one  must  understand  that  

Chandrakala  had  suffered  91%  burn  injuries.   Earlier,  the  duty-

doctor had asked her as to how the incident had occurred, and later  

on the Head Constable on duty had repeated the query.  Any person  

in such a condition will state only that much which he or she can  

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remember on such an occasion.  When asked once again, the person  

concerned can not be expected to repeat the entire statement in a  

parrot-like fashion.  One thing is very clear in both the statements  

viz.,  the  greed  of  the  appellant  and  her  being  harassed  on  that  

count.  Besides, it is relevant to note that her mother and brother  

have  both  corroborated  her  statement  that  the  appellant  was  

demanding  gold  and  land  from her.   Initially  Chandrakala  spoke  

about this demand for gold and later also for the land.  This cannot  

in any way mean an attempt to improve.  Similarly, the non-mention  

on the second occasion of his insistence to marry her sister cannot  

mean an omission to discredit her statements.   

6.   As against that, as far as the version put up by the appellant  

is  concerned,  it  is  based on the hearsay version of  his  daughter  

Shobha who was supposed to be playing at a house at a distance of  

150 feet from appellant’s house.  She has not been examined and  

her version as reproduced by Ramesh is pressed into service, and an  

attempt is thus made to put up a probable parallel story though the  

story is highly improbable bordering on falsehood.  It is not placed  

on record that  Chandrakala was suffering from any psychological  

disorder  either.   The  Courts  below  rightly  rejected  this  parallel  

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version as there is no foundation to the same.  This is as against the  

one  which  is  propounded  by  the  prosecution,  which  in  the  

circumstances is the only acceptable version.  Initially, the appellant  

took the defence on 19.8.2002 that Chandrakala perhaps died due  

to an accident.  This can be seen from his answer to Question No.20  

in the course of statement U/s 313 of Cr.PC,  where he stated as  

follows:-

“I had done nothing.  Electricity was off.  I was not   present at the house.  She might be doing cooking   at stove.  Whether there was outburst of stove is   not known to me.  My son had told me that his   mother had been injured and then I went at the   hospital.   Thereafter, Police caught me and took   me to jail.  Thereafter, I was there inside.  I had   nothing to say more.”

Thus at that stage he did not state that he jumped into the house to  

rescue his wife.  Besides, he stated that he did not want to lead any  

defence  witness.   Nearly,  two  years  later  he  examined  defence  

witnesses  on  15.7.2004  to  raise  the  plea  of  suicide,  which  was  

clearly an afterthought.  It is very clear that Ramesh (DW-1) was put  

up to save the appellant from the accusation.  It is also relevant to  

note  that  the  appellant  was  absconding  for  a  period  of  over  20  

months during the trial from 26.6.2002 to 14.4.20014, and it was  

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much later that he surrendered himself.  There was no reason for  

him to abscond if he had not indulged in the act of pouring kerosene  

on his wife.

Submissions on Law

7. The  learned  Counsel  for  the  appellant  relied  upon  the  

judgment of a bench of two judges of this Court in  P. Mani Vs.  

State of Tamil Nadu reported in [2006 (3) SCC 161] to canvass  

that uncorroborated dying declaration must not be accepted.  In this  

connection, it must be firstly noted that in that case the son and  

daughter of the deceased lady (who had died due to burn injuries)  

had categorically stated that she was suffering from depression and  

she had made an attempt to commit suicide a week prior to the date  

of the incident.  Besides, there was no material to show that the  

appellant  was  absconding  or  he  could  not  be  arrested  despite  

attempts having been made therefor.  Even in that matter the Court  

specifically observed as follows:-  

“14. Indisputably conviction can be recorded   on  the  basis  of  the  dying  declaration  alone  but   therefore the same must be wholly reliable.”

Thus it must be noted that this decision was rendered in the facts of  

that case where the dying declaration was not found to be wholly  

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reliable.  The judgment does not in any way deviate from the well  

settled proposition that a dying declaration can be the sole basis for  

conviction.

8. A ground has been raised in this appeal by pointing out  

the defect with respect to the statement recorded by the doctor that  

there  is  absence  of  time  of  recording  it,  but  the  time  can  be  

ascertained  from  the  marginal  endorsement  made  thereon.   A  

further  ground  has  been  raised  in  this  appeal  that  the  second  

statement of the deceased recorded by Head Constable Kharat (PW-

4) can also not be treated as a dying declaration and cannot be read  

as an evidence since it was neither recorded by the gazetted officer  

i.e.  Chief  Judicial  Magistrate  nor  in  question-answer  form.   The  

appellant has relied upon observation of this Court in sub-para (5) of  

para 16 of the judgement of a bench of three judges in  Khushal  

Rao Vs. State of Bombay reported in  [AIR 1958 SC 22] in this  

behalf.   The  submission  is  misconceived  for  the  reason  that  the  

proposition in sub-para (5) of para 16 cannot be cut off from the  

other propositions in this para which lay down the other parameters  

governing  the  approach  towards  the  relevance  of  the  dying  

declarations.  When we look to those parameters, there is no reason  

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not to accept that the dying declarations of Chandrakala gave the  

real cause of her burn injuries.  Chandrakala having suffered 91%  

burn injuries, there was hardly any time to secure the presence of  

competent  magistrate  or  to  record  her  statement  in  a  detailed  

question-answer form.  Absence of these factors itself will not take  

away  the  evidentiary  value  of  the  recorded  statement.    The  

parameters from this paragraph are as follows:-

“16. On a review of the relevant provisions of the   Evidence Act and of the decided cases in the different   High Courts in India and in this Court, we have come to   the conclusion,  in agreement with the opinion of the   Full Bench of the Madras High Court, aforesaid, (1) that  it cannot be laid down as an absolute rule of law that a   dying  declaration  cannot  form  the  sole  basis  of   conviction unless it is corroborated; (2) that each case  must be determined on its own facts keeping in view   the circumstances in which the dying declaration was   made;  (3)  that  it  cannot  be  laid  down  as  a  general   proposition that a dying declaration is a weaker kind of   evidence  than  other  pieces  of  evidence;  (4)  that  a  dying  declaration  stands  on  the  same  footing  as   another piece of evidence and has to be judged in the   light of surrounding circumstances and with reference   to the principles governing the weighing of evidence;   (5) that a dying declaration which has been recorded  by a competent magistrate in the proper manner, that   is to say, in the form of questions and answers, and, as   far  as  practicable,  in  the  words of  the  maker  of  the   declaration,  stands on a  much higher  footing than a   dying declaration which depends upon oral testimony   which  may  suffer  from  all  the  infirmities  of  human   memory and human character, and (6) that in order to  

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test the reliability of a dying declaration, the Court has   to keep in view, the circumstances like the opportunity   of the dying man for observation, for example, whether   there was sufficient light if the crime was committed at   night; whether the capacity of the man to remember   the facts stated, had not been impaired at the time he   was making the statement,  by circumstances beyond   his  control;  that  the  statement  has  been  consistent   throughout if he had several opportunities of making a   dying declaration apart  from the official  record of  it;   and that the statement had been made at the earliest   opportunity  and  was  not  the  result  of  tutoring  by   interested parties.”

9. In this behalf we may as well profitably refer to paragraph  

11 of this very judgment with respect to the rationale in accepting  

the version contained in the dying declaration.  This Court (per B.P.  

Sinha, J. as he then was) observed in this para 11 as follows:-

“11. The legislature in its wisdom has enacted in   Section  32(1)  of  the  Evidence  Act  that  “When  the  statement is made by a person as to the cause of his   death,  or  as  to  any  of  the  circumstances  of  the   transaction  which  resulted  in  his  death,  in  cases  in   which  the  cause  of  that  person's  death  comes  into   question”, such a statement written or verbal made by   a person who is dead (omitting the unnecessary words)   is itself a relevant fact. This provision has been made  by  the  legislature,  advisedly,  as  a  matter  of  sheer   necessity by way of an exception to the general rule   that hearsay is no evidence and that evidence which   has  not  been  tested  by  cross-examination,  is  not   admissible. The purpose of cross-examination is to test   the veracity of the statements made by a witness. In   the view of the legislature, that test is supplied by the   solemn occasion when it was made, namely, at a time   

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when the person making the statement was in danger   of losing his life. At such a serious and solemn moment,   that person is not expected to tell lies; and secondly,   the test of cross-examination would not be available. In   such  a  case,  the  necessity  of  oath  also  has  been  dispensed  with  for  the  same  reasons.  Thus,  a   statement made by a dying person as to the cause of   death, has been accorded by the legislature, a special   sanctity which should, on first principles, be respected   unless there are clear circumstances brought out in the   evidence  to  show  that  the  person  making  the   statement  was  not  in  expectation  of  death,  not  that   that circumstance would affect the admissibility of the   statement, but only its weight. It may also be shown by   evidence  that  a  dying  declaration  is  not  reliable   because it  was not made at the earliest opportunity,   and, thus, there was a reasonable ground to believe its   having been put into the mouth of the dying man, when   his power of resistance against telling a falsehood, was   ebbing away; or because the statement has not been   properly  recorded,  for  example,  the  statement  had   been  recorded  as  a  result  of  prompting  by  some  interested parties or was in answer to leading questions   put  by  the  recording  officer,  or,  by  the  person   purporting to reproduce that statement. These may be   some of the circumstances which can be said to detract   from  the  value  of  a  dying  declaration.  But  in  our   opinion, there is no absolute rule of law, or even a rule   of prudence which has ripened into a rule of law, that a   dying  declaration  unless  corroborated  by  other   independent evidence, is not fit to be acted upon, and   made the basis of a conviction.”

       (emphasis  supplied)

10. The  judgment  in  Khushal  Rao has  been  consistently  

referred to and followed.  Thus, after referring to the propositions in  

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Khushal  Rao,  this  Court  observed in  para  7 of  Mannu Raja Vs.  

State of Madhya Pradesh reported in [1976 (3) SCC 104] to the  

following effect:-

“7. It was contended by the learned Counsel for   the appellants that the oral statement which Bahadur   Singh  made  cannot,  in  the  eye  of  law,  constitute  a   dying declaration because he did not give a full account   of the incident or of the transaction which resulted in   his  death.  There  is  no  substance  in  this  contention   because in order that the Court may be in a position to   assess  the  evidentiary  value  of  a  dying  declaration,   what is necessary is that the whole of the statement   made by the deceased must be laid before the Court,   without tampering with its terms or its tenor. Law does  not  require  that  the  maker  of  the  dying  declaration   must  cover  the  whole  incident  or  narrate  the  case   history. Indeed, quite often, all that the victim may be   able to say is that he was beaten by a certain person or   persons. That may either be due to the suddenness of   the attack or the conditions of visibility or because the   victim is not in a physical condition to recapitulate the   entire incident or to narrate it at length. In fact, many a  time, dying declarations which are copiously worded or   neatly structured excite suspicion for the reason that   they bear traces of tutoring.”

      (emphasis  supplied)

11. Khushal  Rao and  Mannu Raja have been referred to  

and followed in  Gulam Hussain Vs. State of Delhi  reported in  

[2000 (7) SCC 254].  In para 8 thereof,  this Court observed as  

follows:-

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“8. Section 32 of the Evidence Act is an exception   to  the general  rule  of  exclusion of  hearsay evidence  and the statement made by a person, written or verbal,   of  relevant  facts  after  his  death  is  admissible  in   evidence if it refers to the cause of his death or any   circumstances of the transactions which resulted in his   death.  To  attract  the  provisions  of  Section  32,  the   prosecution is required to prove that the statement was   made by a person who is dead or who cannot be found  or whose attendance cannot be procured without any   amount of delay or expense or he is incapable of giving   evidence  and  that  such  statement  had  been  made   under  any  of  the  circumstances  specified  in  sub- sections  (1)  to  (8)  of  Section  32  of  the  Evidence   Act…………”

12. In  a  case  almost  identical  to  the  present  one,  in  

Kanaksingh  Raisingh  Vs.  State  of  Gujarat reported  in  [AIR  

2003  SC  691],  this  Court  upheld  the  conviction  in  the  case  of  

pouring kerosene and setting the wife on fire by holding that so long  

as  the  dying  declaration  is  voluntary  and  truthful,  there  was  no  

reason why it should not be accepted.  In  Babu Lal Vs. State of  

State of Madhya Pradesh  reported in  [AIR 2004 SC 846], this  

Court had following to say with respect to dying declaration in para  

7 which is as follows:-

“7………..A person who is facing imminent death,   with  even  a  shadow  of  continuing  in  this  world   practically  non-existent,  every  motive of  falsehood is   obliterated.  The mind gets  altered  by  most  powerful   ethical reasons to speak only the truth. Great solemnity   

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and sanctity is attached to the words of a dying person   because a person on the verge of death is not likely to   tell  lies  or  to  concoct  a  case  so  as  to  implicate  an   innocent person. The maxim is “a man will not meet his   maker  with  a  lie  in  his  mouth”  (Nemo  moriturus  praesumitur mentire). Mathew Arnold said,  “truth sits   on the lips of a dying man”. The general principle on   which the species of evidence is admitted is that they   are declarations made in extremity, when the party is   at  the  point  of  death,  and  when  every  hope  of  this   world  is  gone,  when  every  motive  to  falsehood  is   silenced  and  mind  induced  by  the  most  powerful   consideration to speak the truth;  situation so solemn  that law considers the same as creating an obligation   equal  to  that  which  is  imposed  by  a  positive  oath   administered in a court of justice (See R.V. Woodcock 1   Leach 500).”

13. The  appellant  had  sought  to  create  a  doubt  about  the  

prosecution case.  In this behalf we must note that a doubt sought  

to be raised has to be a credible and consistent one and must be  

one which will appeal to a reasonable mind.  We may profitably refer  

to what this Court has said in this behalf in some of the leading  

judgments.   Thus,  in  Shivaji  Sahebrao  Bobade  Vs.  State  of  

Maharashtra reported  in  [AIR  1973  SC  2622] Krishna  Iyer,  J.  

observed for a bench of three judges in paragraph 6 as follows:-

“6.……..The dangers  of  exaggerated devotion to   the rule of  benefit  of  doubt at  the expense of  social   defence  and  to  the  soothing  sentiment  that  all   acquittals are always good regardless of justice to the   victim and the community, demand especial emphasis   in  the contemporary  context  of  escalating crime and   

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escape.  The  judicial  instrument  has  a  public   accountability.  The  cherished  principles  or  golden  thread of  proof  beyond reasonable doubt  which runs   through the web of  our  law should  not  be stretched   morbidly  to  embrace  every  hunch,  hesitancy  and  degree of doubt......”

“………The evil of acquitting a guilty person light- heartedly  as  a  learned  author  Glanville  Williams  in   ‘Proof  of  Guilt’ has  sapiently  observed,  goes  much  beyond the simple fact that just one guilty person has   gone  unpunished.  If  unmerited  acquittals  become  general, they tend to lead to a cynical disregard of the   law,  and  this  in  turn  leads  to  a  public  demand  for   harsher legal presumptions against indicated ‘persons’   and more severe punishment of those who are found   guilty.  Thus too frequent acquittals of the guilty may   lead to a ferocious penal law, eventually eroding the   judicial protection of the guiltless…...”

“………a miscarriage of justice may arise from the   acquittal of the guilty no less than from the conviction   of the innocent……..”

14. The  propositions  in  Shivaji  Sahebrao  Bobade  were  

quoted with approval in State of U.P. Vs. Krishna Gopal reported  

in [AIR 1988 SC 2154], and further this Court observed as follows  

in  paragraph  13  (per   

M.N. Venkatachaliah, J. as he then was):-

“13.……..  Doubts  would  be  called  reasonable  if   they are free from a zest for abstract speculation. Law   cannot  afford  any  favourite  other  than  truth.  To   constitute reasonable doubt,  it  must be free from an   over emotional  response.  Doubts must be actual  and   substantial doubts as to the guilt of the accused person   

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arising  from the evidence,  or  from the lack of  it,  as   opposed to mere vague apprehensions.  A reasonable   doubt is not an imaginary, trivial or a merely possible   doubt;  but  a  fair  doubt  based  upon  reason  and   common-sense. It must grow out of the evidence in the   case……..”

15. In Gurbachan Singh Vs. Satpal Singh reported in [AIR  

1990 SC 209], this Court observed at the end of para 4 as follows:-

“4.……There  is  a  higher  standard  of  proof  in   criminal  cases  than  in  civil  cases,  but  there  is  no   absolute  standard  in  either  of  the  cases.  See  the   observations of Lord Denning in Bater v.  Bater, (1950)  2  All  ER  458  at  p.459, but  the  doubt  must  be  of  a  reasonable  man.  The  standard  adopted  must  be  the   standard adopted by a prudent man which, of course,   may  vary  from  case  to  case,  circumstances  to   circumstances.  Exaggerated  devotion  to  the  rule  of   benefit  of  doubt  must  not  nurture  fanciful  doubts  or   lingering  suspicions  and  thereby  destroy  social   defence. Justice cannot be made sterile on the plea that   it is better to let hundred guilty escape than punish an   innocent.  Letting  guilty  escape  is  not  doing  justice,   according to law.”

16. These  propositions  have  been  consistently  followed  by  

this Court in Gangadhar Behera Vs. State of Orissa reported in  

[AIR 2002 SC 3633], Sucha Singh Vs. State of Punjab reported  

in  [2003  (7)  SCC  643] and  Lakhan  Vs.  State  of  Madhya  

Pradesh reported in [2010 (8) SCC 514].

Hence, the Conclusion:

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17. Thus as can be seen, by enacting Section 32 (1) in the  

Evidence Act, the legislature has accorded a special sanctity to the  

statement made by a dying person as to the cause of his own death.  

This  is  by  virtue  of  the  solemn  occasion  when  the  statement  is  

made.   Besides,  when  the  statement  is  made  at  the  earliest  

opportunity  without  any  influence  being  brought  on  the  dying  

person, there is absolutely no reason to take any other view for the  

cause of his or her death.  The statement has to be accepted as the  

relevant  and  truthful  one,  revealing  the  circumstances  which  

resulted into his death.  Absence of any corroboration can not take  

away its relevance.  Exaggerated doubts, on account of absence of  

corroboration, will only lead to unmerited acquittals, causing grave  

harm to the cause of justice and ultimately to the social fabric.  With  

the  incidents  of  wives  being  set  on  fire,  very  unfortunately  

continuing to occur in our society, it is expected from the Courts that  

they approach such situations very carefully, giving due respect to  

the dying declarations, and not being swayed by fanciful doubts.  

18. In  the  present  case  there  are  two  dying  declarations  

recorded at the earliest opportunity.  They contained the motive for  

the crime, and the reasons as to why the deceased suffered the  

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burn injuries viz., the greed of the appellant to which the deceased  

had refused to succumb.  As far  as her statements viz.,  that the  

appellant  had poured kerosene and set  her  on fire is  concerned,  

there is no reason to discard it considering the fact that it was made  

at the earliest opportunity and on a solemn occasion.  The defence  

put up a story which is totally inconsistent with the facts which have  

come  on  record,  and  is  a  clear  afterthought  and  therefore  

unacceptable.  In fact this case clearly shows an attempt to put up a  

totally false defence.  The prosecution has undoubtedly proved its  

case beyond any reasonable doubt.

19. In view of the above legal position and facts on record, we  

see no reason to interfere in the judgment and order rendered by  

the learned Sessions Judge as modified and confirmed by the High  

Court.   

20. The appeal is, therefore, dismissed.

  …………………………………..J.     ( A.K. Patnaik )

      …………………………………..J.     ( H.L. Gokhale  )

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New Delhi Dated: January 31, 2013

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