REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 967 OF 2015

JAGBIR SINGH   ...  APPELLANT(S)

VERSUS

STATE (N.C.T. OF DELHI)       ... RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. The appellant stands convicted under Sections 302

and 506 of the Indian Penal Code, 1860 (hereinafter

referred  to  as  ‘the  IPC’,  for  short)  by  the  Trial

court, and the appeal carried by him before the High

Court being unsuccessful and is, therefore, before this

Court.  

2.  Briefly, the case of the prosecution against the

appellant is as follows:

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The deceased was married to the appellant in

the year 1999. He was unemployed at that time.

Later, he secured employment in the C.R.P.F.. He

did not take his wife on the basis that he could

not take her far away. Wife continued to reside

with  the  mother  of  the  deceased  at  her  house.

Appellant used to harass his wife and had illicit

relationship  with  the  wife  of  his  brother.  A

Panchayat was held. A settlement was arrived at,

pursuant  to  which,  after  four  years,  when  the

appellant was transferred to Delhi, he assured the

mother of the deceased that he will not harass his

wife and he started residing at the house along

with his wife and mother-in-law. It is the further

case  of  the  prosecution  that  the  appellant

continued to have an affair with the wife of his

brother. On 23.01.2008, the mother of the deceased

went to the matrimonial home of another daughter.

On 24.01.2008, at about 06.00 P.M., the appellant

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came to the house under influence of liquor, and

in short, poured kerosene oil upon his wife and

also some kerosene oil over himself and threw a

lighted matchstick on his wife. Initially, both,

the appellant and the deceased, were taken to the

hospital. Initially, the wife gave statement which

did  not  implicate  the  appellant.  However,  on

27.01.2008, a dying declaration was made by the

deceased pointing the finger of blame clearly at

the appellant and attributing the act of pouring

kerosene and setting her ablaze to him. Initially,

a  First  Information  Report  was  lodged  on

27.01.2008 on the basis of the dying declaration

dated  27.01.2008  under  Section  307  of  the  IPC,

which  was,  upon  the  deceased  succumbing  to  the

burn  injuries,  converted  to  Section  302  of  the

IPC. This is besides a charge under Section 506 of

the IPC for extending threat to his wife.  

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3. 31  witnesses  were  examined  by  the  prosecution.

After  closure  of  prosecution  evidence,  appellant  was

questioned under Section 313 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as ‘the Code’

for short).

FINDINGS BY THE TRIAL COURT

4. It  is  a  case  where  there  are  two  dying

declarations, viz., one made on 24.01.2008 and another

on 27.01.2008. In regard to the statement on 24.1.2008

it is actually the history which is recorded in the

M.L.C. of the deceased and it is stated  that it has

noted  history  of  sustaining  thermal  burns  when  her

husband was trying to ignite a match stick for smoking;

accidently a fire erupted due to petrol leaking from

the  tank  of  the  motorcycle  as  told  by  the  patient

herself.  Patient got burnt along with her husband.

Patient is unable to tell the cause of kerosene smell

from her body.

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5. The Trial Court noticed the contention that PW29-

Investigating Officer admitted that, on 25.01.2008, the

mother of the deceased also made a statement on the

lines of what her daughter had made which appeared to

clear the appellant of any wrong doing.  

6. Commenting on PW10-Smt. Indrawati, the Court wades

through her evidence and found that the witness has

reached the place after the incident and seen both the

deceased as well as the accused in the burnt condition.

She was not an eyewitness to the incident. The same was

found  true  about  Chhoto  Devi-PW7-the  mother  of  the

deceased. The statement is of no avail with regard to

the dying declaration made on 24.01.2008. We may advert

to paragraph 49 in regard to the first version:

“49. As per the first version, it was leaking of petrol pipe of the motorcycle, which was the cause of fire and sustaining of burn injuries by both the accused and the  deceased,  and  in  this  regard,  the testimony of PW-30 is very material. PW-30 Dr. Thakur Thussu has stated that as per MLC  Ex.  PW-30/A  of  accused  Jagbir  and Ex.PW-30/B  of  deceased  Santosh,  the alleged history given was of thermal burns when the accused was trying to ignite the

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matchstick for smoking and accidentally a fire erupted and probably due to nearby leaking of petrol tank, they got engulfed in fire, but at that very time, Dr. K.K. Sharma, who had examined them and who had left  the  hospital  (and  his  present whereabouts could not be ascertained and because of the same reason, request was sent to Medical Superintendent, Safdarjung Hospital, to depute any doctor or doctor or doctors conversant with the handwriting and signature of Dr. K.K. Sharma and who can depose about the contents of the MLC. PW-30  Dr.  Thakur  Thussu,  Sr.  Resident, Deptt.  Of  Burns  and  Plastic  Surgery, Safdarjung Hospital, was called), in the MLC itself, the history was disbelieved by the doctor, who has specifically mentioned that both the husband and wife were unable to  tell  the  cause  of  kerosene  oil emanating  from  their  body  and  on examination,  smell  of  kerosene  was emanating from the body, and special note in this regard was appended by Dr. K.K. Sharma that the patient is not giving a proper history.”

7. The  differentiation  between  smell  of  petrol  and

kerosene  oil  has  been  explained  by  PW31-Senior

Scientific Assistant (Chemistry). It was further found

that the deceased had deep burns present over her face,

neck,  anterior  trunk,  lower  part,  both  upper  limbs,

portions of both lower limbs. The study of the injuries

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ruled out sustaining burn injuries from leaking petrol

of a motorcycle as it was highly unlikely that upper

portion  of  the  body  will  be  burnt  so  as  the  fire

travelled from downward to upward. Only a very small

quantity would have leaked out in case of the petrol

leaking. The biri has not been recovered. Clothes were

seized from the house which were in burnt condition and

kerosene oil was present in the house immediately after

the incident and much before the recording of the dying

declaration dated 27.01.2008, demolished completely the

defence of the appellant. The appellant has not given

any explanation in regard to the presence of kerosene

oil in the house or how the clothes contained residue

of  kerosene  oil.  The  case  set  up  by  the  appellant

regarding  the  conspiracy  of  other  sisters  of  the

deceased and his brother-in-law with the mother of the

deceased to deprive him of the property, is found to be

frivolous.  The  argument  that  dying  declaration  dated

27.01.2008 was a long one, and therefore, should not be

relied upon, was rejected.  

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8. Regarding the Investigating Officer not obtaining

certificate from Doctor about the medical fitness of

the  deceased  to  make  the  dying  declaration,  it  was

found, not material. It was not a case where at any

point of time, the deceased was declared unfit for the

statement. No question was asked from PW30-the Doctor

that considering the nature of the burn injuries and

the  medicines  given  to  the  deceased,  it  was  not

possible  for  her  to  give  a  statement  without  being

certified.  MLC-Exhibit  30/B  does  not  show  that  the

patient is unfit to give a statement. Evidence of PWs

1, 7 and 29 are relied upon to repose faith in the

dying declaration. No cross-examination was conducted

in regard to PW29-Investigating Officer with reference

to his going to the hospital on the basis of the call

received from the hospital. Discrepancy in the timings,

as  emerged  from  the  testimony  of  PW29  and  dying

declaration No. 20B, is overcome by the finding that

timings will not be remembered exactly. Regarding the

inconsistency in evidence as to whether deceased was in

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the ward or in the Intensive Care Unit (ICU), assurance

was drawn from the dying declaration wherein reference

is made to the ICU Ward. The dying declaration was got

recorded without noting as to what is the statement to

be  made  on  the  basis  of  a  call.  PW1  and  PW7  have

supported the recording of the dying declaration, being

witnesses. The testimony of mother of the deceased-PW7

would  reveal  that  though  her  daughter  was  under

sedation, she was competent to make the statement. The

first  dying  declaration  dated  24.01.2008  was  also

recorded  by  the  Investigating  Officer  without

certificate  issued  by  the  Doctor.  The  evidence  of

Dinesh (neighbour) was found to corroborate the dying

declaration.  The  appellant  was  found  guilty  under

Sections  302  and  506  of  the  IPC  and  convicted

thereunder.  He  was  awarded  substantive  sentence  of

rigorous  imprisonment  for  life  and  fine  for  the

offence. Further, the appellant was also sentenced to

rigorous  imprisonment  for  two  years  for  the  offence

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under Section 506 of the IPC. Both the sentences were

to run concurrently.

FINDINGS BY THE HIGH COURT  

9. There  are  three  dying  declarations  given  by  the

victim. At about 09.30 P.M. on 24.01.2008, the first

dying  declaration  was  given  in  the  form  of  history

given by the patient to the Doctor. It was recorded in

the MLC. No role was attributed to the appellant. The

history was recorded as one of sustaining thermal burns

when her husband was trying to ignite matchstick for

smoking  and  accidentally  a  fire  erupted  due  to  the

petrol leaking from the tank of the motorcycle. This is

stated  to  be  told  by  the  patient  herself.  It  was

further recorded therein that the patient is unable to

tell the reason for kerosene smell from her body. What

is referred to as the second dying declaration and is

recorded by PW10 in his case diary on 25.01.2008, is

extracted by the High Court.  The Court held:

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“22. The second dying declaration of the  victim was recorded by the  Investigating Officer in his daily  diary on 25.01.2008. The relevant  extract of this reads herein as  under:-

“Time  01:31  P.M..  it  is entered  that  I,  the  SI alongwith  accompanying  Ct. Ram  Kumar  have  come  to  the Police  Station  after investigation vide DD No. 50- A,  dated  24/01/08.  On  the receipt  of  the  call,  I reached  the  place  of occurrence  i.e.  H.No.  RZ-40, Mataji  Line,  Sultan  Puri Road,  (sic)  School,  Gopal Nagar,  Najafgarh  where  many burnt  clothes  were  lying  in the gallery of the house. The seat of a passion motorcycle bearing Regn. No. HR-14B-1992 was found burnt and one burnt cream  coloured  jeans  shirt was  also  lying  behind  the motorcycle.  And  one  ladies” Kurta,  one  cardigan,  a salwar,  shawl  were  lying burnt near the front wheel of the  motorcycle.  The  foul smell  of  kerosene  oil  was coming from the whole house. The SHO arrived at the spot and  after  enquiry  it  was learnt that one Jagbir Singh lived  in  the  house  as “gharjamai”  (son-in-law living at the in-laws” home) alongwith  his  wife  Santosh

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and  mother-in-law  Chhoti Devi.  The  mother-in-law Chhtoi Devi had gone to the matrimonial  home  of  their younger  daughter  Rakesh  at Rohtak.  And  as  per  the neighbourers,  husband-wife were living all alone in the house and the motorcycle got fire  due  the  leakage  of petrol  from  the  motorcycle. Jagbir  works  as  sweeper  in CRPF. G-91 Mobile Crime Team was  called  on  wireless.  The photographs  of  the  place  of the occurrence were taken by the  Crime  Team  and  all  the burnt clothes and the can of the  Kerosene  oil  which  was kept  near  the  drum  in  the interior  room  and  a  lot  of kerosene which was also lying outside and on the floor were taken  into  the  police possession  as  a  piece  of evidence by means of a memo. Thereafter, I, the SI reached S.J. Hospital after receiving the  information  where  Jagbir s/o  Sh.  Devi  Singh  and Santosh w/o Sh. Jagbir Singh were  admitted  vide  MLC  Nos. 17608/08  and  17609/08 respectively.  Jagbir  was  45% burnt  and  Santosh  was  60% burnt.  The  doctor  wrote  in (sic…)  that  when  Jagbir ignited  the  match-stick  for smoking,  the  motor-cycle caught fire accidently as its

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petrol tank had been leaking. The  patient  was  unable  to tell  the  cause  of  kerosene oil  smell  from  his  body. Santosh Devi w/o Jagbir Singh deposed that I reside with my husband  Jagbir  and  mother Chhoti  Devi  in  the  house. Earlier  there  had  been  some problem  between  me  and  my husband. I had got married in the  year  1999.  But  for  the last  one  year,  I  have  been living  with  my  husband happily.  There  is  no  such quarrel between us. Today on 24/01/08  my  mother  had  gone to the matrimonial home of my younger  sister  Rakesh  at Rohtak.  My  husband  Jagbir came back in the evening from his duty as sweeper in CRPF. We  have  had  our  dinner  and were  preparing  to  go  for sleep.  I  locked  the  gate while my husband was smoking “Bidi”  near  the  motorcycle. All  of  a  sudden,  the motorcycle  caught  fire. Jagbir  was  trying  to extinguish  the  fire  and  his clothes  also  caught  fire. Both  of  us  screamed  and shouted  for  help.  Our neighbours  saved  both  of  us by jumping the wall (of our house). No one has done this intentionally.  You  have recorded  my  statement  and read over the same to me. I

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have heard the statement and the same is correct.  

LTI of Santosh Devi

Thereafter,  the  statement  of Jagbir Singh s/o Lt. Sh. Devi Singh  was  recorded  who  also gave  the  aforesaid  statement and  Mrs.  Chhoti  Devi  also deposed  the  same  and  told that  there  was  no  dispute between both of them and they were living together happily. Both  the  husband-wife  had caught  fire  because  of  the catching of the fire by the motorcycle due to the smoking “Bidi” by Jagbir and leakage of  petrol  from  the motorcycle.  No  one  has intentionally done this. I do not  suspect  anyone.  All  the facts  were  apprised  to  the SHO  and  the  call  was  held pending.”  

(Emphasis supplied)

10. Thereafter,  the  court  referred  to  the  dying

declaration on 27.01.2008, which we will refer to later

on.

11. The first dying declaration is discarded by noting

that it was in the presence of her husband. PW30-the

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Doctor who was examined to identify the signatures of

another Doctor, viz., Dr. K. K. Sharma who had actually

prepared the MLC and who could not be examined, has

specifically  stated  that  the  smell  of  spirit  and

kerosene is different. No possible explanation could be

given as to why kerosene smell was emanating from the

body  and  clothes.  The  presence  of  the  appellant/her

husband inhibited the deceased from speaking the truth.

Second dying declaration, which was recorded at 01.30

P.M. on the next day 25.01.2008, was also discarded for

the  same  reason,  viz.,  her  husband  was  in  the  same

hospital and it was recorded in his presence. The court

discussed  the  evidence  of  the  Investigating  Officer-

PW29  who  recorded  the  third  dying  declaration.  The

court  also  discussed  the  contents  of  the  dying

declaration and finds support from the fact that the

evidence  of  PW29  is  supported  by  PWs  1  and  7.  The

deceased was fully conscious and well-oriented going by

the MLC dated 24.01.2008. Her mental faculties to make

a  statement,  was  never  in  challenge.  The  deceased,

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being  fit  to  make  the  statement  on  27.01.2008,  it

cannot be doubted. The defence set up by the appellant

was found to be palpably false. The dying declaration

was an answer found worthy of acceptance. The kerosene

can  and  also  clothes  were  sent  for  scientific

examination and CFSL Report found that kerosene oil was

detected  on  the  clothes  of  the  appellant.  No

explanation  from  the  appellant  is  forthcoming  about

kerosene.  Site  plan  and  also  the  photographs  were

relied upon.  

12. The High Court found no merit in the appeal and

dismissed the same.

13. We have heard learned counsel for the appellant.

14. The  learned  counsel  for  the  appellant  would

undoubtedly emphasise that this is a case where there

are three dying declarations. In the first two dying

declarations, which were given by the deceased herself,

no incriminatory role is attributed to the appellant.

Rather, the cause of her catching fire is attributed to

an  accident  generated  by  the  appellant  lighting  his

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biri. It is submitted that there is evidence of PW1-

husband  of  the  sister  of  the  deceased  visiting  the

deceased at the hospital on 26.01.2008. It is on the

very  next  day,  i.e.  27.01.2008,  as  a  result  of  the

tutoring and prompting by PW1, that the deceased comes

up with a completely different version in the dying

declaration.  The mother of the deceased-PW7 was also

in the hospital. The theory of conspiracy to sabotage

the claim to the property is pressed into service.

15. In  other  words,  the  argument  is  painting  the

appellant as the murderer, his claim to the property

would stand extinguished, thus enabling the other two

daughters to claim exclusive right. In this regard, he

would point out that PW29 has deposed that he went to

the  hospital  on  27.01.2008  and  recorded  the  dying

declaration on the basis of a telephone call which came

from the hospital. He points out that the call did not

come from any Doctor as ordinarily would have been the

case  if  the  patient  wanted  to  make  the  dying

declaration but strangely it came from his co-brother,

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viz., PW1. PW1 has admitted in his evidence that he did

indeed made the call to the Police to come and record

the  statement  of  the  sister-in-law.  Therefore,  the

dying declaration, in other words, is the brain child

of  PW1  in  pursuance  to  the  conspiracy  to  oust  the

appellant from property rights. He next points out that

the very case of homicide is irreconcilable with the

appellant himself suffering burn injuries to the extent

of 40 per cent. In the dying declaration, it is stated

that  after  pouring  kerosene  on  the  deceased,  the

appellant  poured  less  kerosene  oil  on  himself.  The

medical  evidence  establishes  that  the  appellant

suffered 40 per cent burns. A reference is made to the

evidence of PW15 who is a Police Constable working with

the Police Control Room (PCR) as in cross-examination,

she has this to state:

“It  is  correct  that  as  per  further proceedings mentioned in Ex.PW15/DA, it is mentioned that the husband was smoking a biri inside the room and lid of the petrol tank  of  a  motorcycle  lying  nearby  was lying  open  as  a  result  of  which  the husband  got  fire  and  wife  tried  to

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extinguish the fire, she also caught fire and that Indrawati who is their relation had also stated so and both husband and wife were conscious.”

16. He,  therefore,  would  point  out  that  the  said

statement, which is recorded at the earliest point of

time after the incident, corroborates the first and the

second  dying  declaration  and  the  case  of  accidental

burn injuries is clearly probablised.

17. The learned counsel for the State, on the other

hand,  would  submit  that  it  is  not  correct  to

characterise the first statement as dying declaration.

There  is  only  one  dying  declaration  and  that  dying

declaration  was  recorded  on  27.01.2008.  This  dying

declaration  is  believable.  The  case  of  tutoring  is

sought to be rebuffed. As far as the Officer recording

the dying declaration without the certificate from the

Doctor is concerned, it is pointed out that the very

fact that the dying declaration was recorded when the

patient  was  in  the  ward,  itself  shows  that  her

condition had not deteriorated to such an extent as

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otherwise she would have been in the ICU. PWs 1 and 7

have witnessed the recording of the dying declaration.

They have stood by the dying declaration and evidence

of  PW29-Investigation  Officer.  The  dying  declaration

dated 27.01.2008 brings out the truth. The statements

contained therein could not have been made up. Presence

of  kerosene  is  made  conspicuous  by  being  smelt  by

witnesses and also being found on the clothes by PW31-

Senior  Scientific  Assistant  (Chemistry)  and  also  the

admitted fact that the can from which the kerosene was

used  being  also  sent  for  forensic  report,  squarely

establishes prosecution case.  

THE LAW RELATING TO DYING DECLARATION

18. A  Dying  declaration  is  relevant  evidence  as

declared  by  Section  32  of  the  Indian  Evidence  Act,

1872.  A  distinction  exists,  however,  between  English

Law and Indian Law in regard to dying declaration.  We

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may, in this regard, note the declaration of the law

contained in Kishan Lal v. State of Rajasthan  1:  

“18. Now  we  proceed  to  examine  the principle  of  evaluation  of  any  dying declaration.  There  is  a  distinction between  the  evaluation  of  a  dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when a person making such  a  statement  is  in  a  hopeless condition and expecting an imminent death. So  under  the  English  law,  for  its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have  had  a  full  apprehension  of  this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man's mind the  same  feeling  as  that  of  a conscientious and virtuous man under oath. The  general  principle  on  which  this species of evidence are 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  the  mind  is  induced  by  the  most

1 AIR 1999 SC 3062

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powerful considerations to speak only the truth. If evidence in a case reveals that the declarant has reached this state while making  a  declaration  then  within  the sphere of the Indian law, while testing the credibility of such dying declaration weightage  can  be  given.  Of  course depending  on  other  relevant  facts  and circumstances of the case.”

(Emphasis supplied)   

19. But when a declaration is made, either oral or in

writing,  by  a  person  whose  death  is  imminent,  the

principle attributed to Mathew Arnold that “truth sits

upon the lips of a dying man” and no man will go to

meet his maker with falsehood in his mouth will come

into play. The principles relating to dying declaration

are no longer res integra and it would be apposite that

we refer to the decision of this Court in Paniben (Smt)

v. State of Gujarat  2   wherein the concepts are summed up

as follows:

“(i) There is neither rule of law nor of prudence that dying declaration cannot be  acted  upon  without  corroboration. (Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )

2 (1992) 2 SCC 474

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(ii) If the Court is satisfied that the dying declaration is true and voluntary it can  base  conviction  on  it,  without corroboration.  (State  of  U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] ; Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] ).

(iii) This Court has to scrutinise the dying  declaration  carefully  and  must ensure  that  the  declaration  is  not  the result  of  tutoring,  prompting  or imagination. The deceased had opportunity to observe and identify the assailants and was  in  a  fit  state  to  make  the declaration.  (K.  Ramachandra Reddy v. Public  Prosecutor [(1976)  3  SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] ).

(iv)  Where  dying  declaration  is suspicious  it  should  not  be  acted  upon without  corroborative  evidence.  (Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.  (Kake  Singh v. State  of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021]  

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.  (Ram  Manorath v. State  of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581])

(vii)  Merely  because  a  dying declaration does not contain the details

23

as  to  the  occurrence,  it  is  not  to  be rejected.  (State  of Maharashtra v. Krishnamurti  Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617])

(viii) Equally, merely because it is a brief statement, it is not be discarded. On  the  contrary,  the  shortness  of  the statement  itself  guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] )

(ix)  Normally  the  court  in  order  to satisfy  whether  deceased  was  in  a  fit mental  condition  to  make  the  dying declaration  look  up  to  the  medical opinion.  But  where  the  eye  witness  has said that the deceased was in a fit and conscious  state  to  make  this  dying declaration,  the  medical  opinion  cannot prevail.  (Nanahau  Ram v. State  of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912])

(x)  Where  the  prosecution  version differs from the version as given in the dying  declaration,  the  said  declaration cannot  be  acted  upon.  (State  of U.P. v. Madan  Mohan [(1989)  3  SCC  390  : 1989 SCC (Cri) 585 : AIR 1989 SC 1519])”

Also, in paragraph 19, it was held as follows:

24

“19. In  the  light  of  the  above principles,  we  will  consider  the  three dying declarations in the instant case and we will ascertain the truth with reference to  all  dying  declarations  made  by  the deceased  Bai  Kanta.  This  Court in Mohanlal  Gangaram  Gehani v. State  of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839] held:

“where  there  are  more  than  one statement  in  the  nature  of  dying declaration, one first in point of time must be preferred.”

Of  course,  if  the  plurality  of  dying declarations  could  be  held  to  be  trust worthy  and  reliable,  they  have  to  be accepted.”

The problem of multiple dying declarations has engaged

the attention of this Court.

20. In  Kundula Bala Subrahmanyam and another v.  State

of Andhra Pradesh  3, this Court held as follows:

“18. Section  32(1)  of  the  Evidence Act is an exception to the general rule that  hearsay  evidence  is  not  admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy.

3 (1993) 2 SCC 684

25

Under Section 32, when a statement is made by a person, as to the cause of death or as  to  any  of  the  circumstances  which result in his death, in cases in which the cause of that person's death comes into question,  such  a  statement,  oral  or  in writing,  made  by  the  deceased  to  the witness  is  a  relevant  fact  and  is admissible in evidence. The statement made by  the  deceased,  called  the  dying declaration,  falls  in  that  category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that  solemn  moment,  a  person  is  most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying  declaration,  therefore,  enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the  witnesses  testifying  to  the  same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable  piece  of  evidence  and  if  the court  is  satisfied  that  the  dying declaration  is  true  and  free  from  any embellishment such a dying declaration, by itself,  can  be  sufficient  for  recording conviction  even  without  looking  for  any corroboration. If there are more than one dying declarations then the court has also to scrutinise all the dying declarations

26

to find out if each one of these passes the test of being trustworthy. The Court must  further  find  out  whether  the different  dying  declarations  are consistent  with  each  other  in  material particulars before accepting and relying upon the same…”

(Emphasis supplied)   

21. In  Lella Srinivasa Rao v.  State of A.P.  4, in the

dying declaration which was recorded by the Magistrate,

there was no mention about appellant having treated the

deceased with cruelty or having caused harassment. His

name did not figure in the declaration. The deceased

was in a position to make the statement. Five minutes

thereafter, another statement was recorded by the Head

Constable. Allegations were made against the appellant.

It  related  to  the  immediate  cause  which  led  to  the

deceased  committing  suicide.  Court  found  that  the

witnesses including the father of the deceased did not

support the case of the prosecution that the deceased

was treated with cruelty by the accused. The Court did

not act upon the second dying declaration.  

4 (2004) 9 SCC 713

27

22. In  Sayarabano  Alias  Sultanabegum v.  State  of

Maharashtra  5, the offence involved was under Section 302

of  the  IPC.  There  was  a  quarrel  between  the

appellant/accused  and  the  deceased,  during  which,  it

was the case of the prosecution that appellant poured

kerosene from the lamp on the deceased which resulted

in the deceased catching fire and finally succumbing to

death.  In  the  first  dying  declaration,  the  deceased

attributed  her  catching  fire  to  an  accident.  She

absolved all the inmates of her husband family of any

wrong doing. When the Special Judicial Magistrate was

called on the next day for dying declaration, she set

up  a  different  version  whereunder  the  accused  was

alleged to have thrown the kerosene lamp on her and

also that her husband used to beat her after listening

to his mother. The deceased was asked by the Magistrate

as to why she was changing the statement. The deceased

told the Magistrate that she was told that she should

not give any statement against family members and she

reiterated  that  the  appellant/  mother-in-law  of  the

5 (2007) 12 SCC 562

28

deceased  had  thrown  the  kerosene  lamp  and  she  was

burnt. The deceased died almost a week thereafter. This

Court took the view that the judgment of this Court

in Lella Srinivasa Rao v.  State of A.P.  6 (supra), was

distinguishable noticing that in the said case there

was no other evidence, and this Court in Sayarabano v.

State of Maharashtra 2007 (12) SCC 562 also finally

held as follows:

“16. In our opinion, criminal cases are decided on facts and on evidence rather  than  on  case  law  and precedents. In the case on hand, there is  ample evidence  to show  that even prior to the incident in question, the appellant  used  to  beat  the  deceased and ill-treat her. It is in the light of the said fact that other evidence requires  to  be  considered.  In  our view,  both the  courts were  right in relying  upon  the  second  dying declaration  of  the  deceased  treating it as true disclosure of facts by the deceased Halimabi. In the light of the evidence  of  parents  of  the  deceased (PW 2 and PW 3), Dr. Kishore (PW 6) and  Special  Judicial  Magistrate  (PW 5), it cannot be said that the courts

6 (2004) 9 SCC 713

29

below had committed any error and the conviction deserves to be set aside.”

23. In  Amol Singh v.  State of M.P.  7, the High Court

rejected the plea on the basis that there being more

than one dying declaration and on the basis that the

extent of difference between the two declarations was

insignificant:

  “13. Law relating to appreciation of

evidence  in  the  form  of  more  than  one dying  declaration  is  well  settled. Accordingly, 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 corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration  they  should  be  consistent. (See     Kundula  Bala  Subrahmanyam     v.     State of A.P.     [(1993) 2 SCC 684 : 1993 SCC (Cri) 655]  )  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. While scrutinising the contents of various dying

7 (2008) 5 SCC 468

30

declarations,  in  such  a  situation,  the court has to examine the same in the light of  the  various  surrounding  facts  and circumstances.”

(Emphasis supplied)

24. The court finally, in the facts of the said case,

took  the  view  that  the  discrepancies  made  the  last

declaration doubtful and it was found unsafe to convict

the accused.

25. In  Heeralal v.  State of M.P.  8, in the first dying

declaration  recorded  by  the  Tehsildar,  the  deceased

stated clearly that she tried to set herself ablaze by

pouring  kerosene  on  herself.  The  second  dying

declaration, however, contained the contrary statement.

The Court held, inter alia, as follows:   

“9. Undisputedly, in the first dying declaration recorded by a Naib Tahsildar, it has been clearly stated that she tried to set herself ablaze by pouring kerosene on  herself,  but  in  the  subsequent declaration,  recorded  by  another  Nayab

8 (2009) 12 SCC 671

31

Tahsildar, a contrary statement was made. It  appears  that  one  dying  declaration earlier was made before the doctor. The trial court referred to the evidence of Dr.  Chaturvedi  who  stated  that  the deceased was admitted on Bed No. 8, but the father of the deceased stated that her daughter was admitted on some other bed number.

10. The trial court and the High Court came  to  abrupt  conclusions  on  the purported possibility that the relatives of  the  accused  may  have  compelled  the deceased  to  give  a  false  dying declaration.  No  material  was  brought  on record to justify such a conclusion. The evidence  of  the  Nayab  Tahsildar  who recorded Ext. D-4 was examined as PW 8. His statement was clear to the effect that nobody  else  was  present  when  he  was recording the statement. That being so, in view of the apparent discrepancies in the two dying declarations it would be unsafe to convict the appellant.”

(Emphasis supplied)

The  Conviction  of  the  appellant  came  to  be  set

aside.

32

26. In Lakhan v. State of M.P.  9, this Court was dealing

with the case of death as a result of burn injuries

suffered by the wife. In the first dying declaration

before the Magistrate, the deceased stated that when

she was cooking, kerosene oil had been put behind her

back. In the next dying declaration, it was stated that

the appellant/accused brought a metal container full of

kerosene and poured it on her body and the fire was lit

by  him  and  she  was  burnt.  This  Court,  after  going

through all the decisions, held as follows:  

”21. In view of the above, the law on the  issue  of  dying  declaration  can  be summarised 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 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,

9 (2010) 8 SCC 514

33

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 scrutinise the facts of an individual case very carefully and take a decision as to which  of  the  declarations  is  worth reliance.”

27. In the course of its discussion, the Court found

that the second dying declaration was reliable  inter

alia on  the  ground  that  it  was  corroborated  by  the

earlier declaration made by the deceased to her parents

who were examined as PW1 and PW3.

28. We may also notice the judgment in  Sher Singh v.

State of Punjab  10. This is also a case of burn injuries

suffered by the deceased/wife of the appellant. Upon

being  taken  to  the  hospital,  the  Police  Officer

recorded a statement wherein it was stated that the

fire  was  accidental  and  it  happened  when  she  was

preparing tea. When her uncle met her on the next day,

she informed that the accused had burnt her.  On the

10  (2008) 4 SCC 265

34

very next day he moved an application for recording a

statement  which  came  to  be  recorded.   Yet  another

application was moved requesting for re-examining the

matter  as  the  deceased  had  made  a  wrong  statement

before  the  police  officer  initially  and  another

statement was accordingly recorded.

29. In  the  second  dying  declaration,  deceased  had

stated that she was burnt by her in-laws. It was stated

that her father-in-law, mother-in-law and sister-in-law

poured oil on her and burnt her. She further stated

that  her  husband  was  not  with  her  but  in  the  next

sentence, she stated that there were four. The fourth

person was her husband. She further stated that they

had stated that unless she made a wrong statement, they

would not take her to the hospital. It was thereafter

that she made a third declaration. The Court went on to

hold as follows:

“17. In the present case, the first dying  declaration  was  recorded  on  18-7- 1994 by ASI Hakim Singh (DW 1). The victim did not name any of the accused persons

35

and  said  that  it  was  a  case  of  an accident. However, in the statement before the court, Hakim Singh (DW 1) specifically deposed that he noted that the declarant was  under  pressure  and  at  the  time  of recording  of  the  dying  declaration,  her mother-in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW 7) on 20-7-1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong  statement.  This  was  reiterated  by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (PW 8) on 22-7-1994. The first  dying  declaration  exonerating  the accused persons made immediately after she was  admitted  in  the  hospital  was  under threat  and  duress  that  she  would  be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The  second  dying  declaration  was  more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to  give  the  dying  declaration  but  the Magistrate who recorded the statement had certified  that  she  was  in  a  conscious state of mind and in a position to make the statement to him. Mere fact that it

36

was  contrary  to  the  first  declaration would not make it untrue. The oral dying declaration  made  to  the  uncle  is consistent  with  the  second  dying declaration  implicating  the  accused persons stating about their involvement in the commission of crime.  The third dying declaration  recorded  by  the  SI  on  the direction  of  his  superior  officer  is consistent  with  the  second  dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies.  The  third  dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement.”

(Emphasis supplied)   

30. A  survey  of  the  decisions  would  show  that  the

principles can be culled out as follows:

a. Conviction of a person can be made solely on

the basis of a dying declaration which inspires

confidence of the court;

b. If  there  is  nothing  suspicious  about  the

declaration, no corroboration may be necessary;

c. No  doubt,  the  court  must  be  satisfied  that

there is no tutoring or prompting;

37

d. The court must also analyse and come to the

conclusion that imagination of the deceased was

not at play in making the declaration. In this

regard, the court must look to the entirety of

the language of the dying declaration;

e. Considering  material  before  it,  both  in  the

form of oral and documentary evidence, the court

must be satisfied that the version is compatible

with the reality and the truth as can be gleaned

from the facts established;

f. However, there may be cases where there are

more  than one  dying declaration.  If there  are

more  than  one  dying  declaration,  the  dying

declarations may entirely agree with one another.

There  may  be  dying  declarations  where

inconsistencies between the declarations emerge.

The extent of the inconsistencies would then have

to  be  considered  by  the  court.  The

inconsistencies may turn out to be reconciliable.

38

g. In such cases, where the inconsistencies go to

some  matter  of  detail  or  description  but  is

incriminatory in nature as far as the accused is

concerned, the court would look to the material

on  record  to  conclude  as  to  which  dying

declaration is to be relied on unless it be shown

that they are unreliable;

h. The third category of cases is that where there

are  more  than  one  dying  declaration  and

inconsistencies  between  the  declarations  are

absolute  and  the  dying  declarations  are

irreconcilable being repugnant to one another. In

a  dying  declaration,  the  accused  may  not  be

blamed  at  all  and  the  cause  of  death  may  be

placed  at  the  doorstep  of  an  unfortunate

accident.  This  may  be  followed  up  by  another

dying declaration which is diametrically opposed

to the first dying declaration. In fact, in that

scenario,  it  may  not  be  a  question  of  an

inconsistent  dying  declaration  but  a  dying

39

declaration which is completely opposed to the

dying declaration which is given earlier.  There

may be more than two.  

i. In the third scenario, what is the duty of the

court?  Should  the  court,  without  looking  into

anything else, conclude that in view of complete

inconsistency,  the  second  or  the  third  dying

declaration which is relied on by the prosecution

is demolished by the earlier dying declaration or

dying declarations or is it the duty of the court

to  carefully  attend  to  not  only  the  dying

declarations  but  examine  the  rest  of  the

materials in the form of evidence placed before

the  court  and  still  conclude  that  the

incriminatory  dying  declaration  is  capable  of

being relied upon?  

 OUR CONCLUSION ON MULTIPLE DYING DECLARATION  

31. We would think that on a conspectus of the law as

laid down by this court, when there are more than one

40

dying  declaration,  and  in  the  earlier  dying

declaration, the accused is not sought to be roped in

but in the later dying declaration, a summersault is

made by the deceased, the case must be decided on the

facts of each case. The court will not be relived of

its duty to carefully examine the entirety of materials

as also the circumstances surrounding the making of the

different dying declarations. If the court finds that

the  incriminatory  dying  declaration  brings  out  the

truthful position particularly in conjunction with the

capacity of the deceased to make such declaration, the

voluntariness with which it was made which involves, no

doubt, ruling out tutoring and prompting and also the

other  evidence  which  support  the  contents  of  the

incriminatory dying declaration, it can be acted upon.

Equally,  the  circumstances  which  render  the  earlier

dying  declaration,  worthy  or  unworthy  of  acceptance,

can be considered.  

CONSPIRACY  

41

32. It is strenuously argued before us by the learned

counsel for the appellant that the dying declaration

dated 27.01.2008 is the result of conspiracy. PW7-the

mother-in-law  of  the  appellant  is  the  owner  of  the

property. She is a widow. She had three daughters, one

of whom was the deceased. The other two daughters were

married. PW1 is the husband of one of the daughters. It

was to eliminate the chance of appellant succeeding to

the property that PW1-the co-brother of the appellant

visits the hospital where the deceased was admitted.

She  is  tutored.  The  result  of  tutoring  is  the

controversial declaration dated 27.01.2008. This fact

receives support from the admission made by PW1 that it

was he who made the call to the Police Officer, viz.,

PW29,  and  PW29,  without  any  call  from  the  hospital

authorities, came and recorded the dying declaration.

No doubt, the cross-examination of the deposition of

PW7-mother of the deceased shows her as a witness whose

deposition  exposes  omissions  with  reference  to  her

statement to the Police. Likewise, there are certain

42

omissions brought out in the evidence of PW1. But for

reasons, as stated hereinafter, it would not be fatal.

33. The Trial Court has brushed aside this contention

as frivolous. The property belonged to PW7-mother-in-

law  of  the  appellant.  It  is  inconceivable  how  the

appellant  would  have  any  right  either  during  her

lifetime or even upon her dying intestate to get the

property under the Hindu Succession Act, 1956. Having

regard to Sections 15 and 16 of the Hindu Succession

Act, 1956, it is clear that the appellant cannot claim

any right. No doubt, it is always open to the person to

bequeath the property. Therefore, we would think that

that  the  submission  in  this  regard  is  totally  ill-

founded.  

THE DYING DECLARATOIN DATED 27.01.2008

34. The  dying  declaration  dated  27.01.2008  reads  as

hereunder:

“I reside at my parental house along with my mother Chhpoto Devi and husband Jagbir Singh.  My marriage took place in year 1999.  In the meanwhile, for about four years, there were differences between me and my husband, after a settlement took

43

place  in  Panchayat,  I  along  with  my husband had been residing in my parental house.

On 24.01.2008 in the afternoon, my mother left  for  matrimonial  home  of  Rakesh  at Rohtak.   My  husband  Jagbir  works  as  a Sweeper in CRPF, who came from his duty at about 6 p.m. in a drunken position and said to me.  “You want to live with me”. I said ‘Yes’, then Jagbir took me to a big room and picket up a ‘can’ of kerosene oil and  poured  kerosene  oil  upon  me.   He poured  kerosene  oil  upon  me  and  poured less kerosene oil upon him.  Then, I got myself free from the clutches of Jagbir and ran towards a small room, and he came to  me  after  following  me,  and  then  he ignited a matchstick and threw it upon me, and  immediately  my  clothes  caught  fire. After  that  when  I,  in  order  to  save myself, ran towards main gate, he caught me from behind as a result, I fell down near a handpump, which was installed at the house.  Thereafter, my husband brought out  the  pipe  of  petrol  tank  of  the motorcycle, which was lying in the Chowk, as a result of which fire erupted near the motorcycle,  and  Jagbir  also  caught  fire and when I raised hue and cry to save, the one boy namely Dinesh Jain, who resides in the neighbourhood, came inside by jumping the main gate and broke the lock placed inside  the  main  gate  with  the  help  of ‘Hathi’ of the handpump.  Then all the neighbourers  saved  me  and  Jagbir  while burning.   As  my  husband  had  extended threat  to  me,  I  could  not  give  my statement  on  the  same  very  day.   My

44

husband has tried to kill me by pouring kerosene oil upon me because of the reason that  he  has  illicit  relations  with  his ‘Bhabhi’ namely Babita.  You have recorded my  statement  in  presence  of  my  mother Chhoto Devi and my ‘Jija’ Vinod, which I have been read over and is correct.”

PHYSICAL AND MENTAL CONDITION OF DECEASED  

35. We have noticed the contents of the MLC concerning

the  deceased.  Her  condition  was  characterised  as

critical.  She  had  suffered  deep  burns.  The  injuries

were understood as dangerous. The patient, no doubt,

died only on 02.02.2008, i.e., on the ninth day after

admission on 24.01.2008.

36. As far as the dying declaration made on 27.01.2008

is concerned, particularly, when Doctors were near at

hand, the Investigating Officer ought to have taken the

caution of obtaining a certificate after the Doctor put

questions  to  the  patient  for  ascertaining  her

condition. It is equally true that a declaration does

not  appear  to  be  preceded  by  questions  put  by  the

Investigating  Officer  to  the  deceased  from  which  he

45

could  ascertain  details  from  which  he  could  have

received verification about her condition.

37. The  first  question,  one  must  bear  in  mind,  is

whether  the  deceased  was  in  a  physical  and  mental

condition to make a dying declaration. It is not in

dispute that in the dying declaration dated 27.01.2008,

there is no certificate by the Doctor certifying that

the  patient  was  conscious  or  that  the  patient  was

mentally or physically fit to give the declaration. The

patient was, in fact, admittedly lying in the hospital.

Even in the narrative of the dying declaration, there

are  no  questions  seen  put  by  PW29  to  ascertain  her

condition. Undoubtedly, it is true that the certificate

by a Doctor about the patient being conscious and fit

to give a dying declaration would go a long way in

inspiring  confidence  of  the  court.  However,  the

Constitution Bench in Laxman v. State of Maharashtra  11,

has held as follows:  

“……Where  it  is  proved  by  the testimony  of  the  Magistrate  that  the

11 (2002) 6 SCC 710

46

declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court  ultimately  holds  the  same  to  be voluntary and truthful.  A certification by the doctor is essentially a rule of caution  and  therefore  the  voluntary  and truthful nature of the declaration can be established otherwise.”

(Emphasis supplied)

38. We can proceed on the basis that even absence of

the certificate by a Doctor is not fatal to act upon a

dying  declaration.  However,  the  requirement  remains

that the person who records the dying declaration must

ensure that the patient was in a fit condition, both

mentally and physically, to give the declaration.  

39. Turning to the facts of this case, the following

features are most important:

A. The  patient  was  brought  to  the  hospital  on

24.01.2008  at  about  09.30  P.M.  where  MLC  was

recorded.  The  MLC  specifically  records  that  the

patient  was  conscious,  oriented,  follows  verbal

command  and  able  to  speak.  This  material

undoubtedly  would  show  that  as  on  24.01.2008  at

47

09.30  P.M.,  the  patient  was  fully  conscious  and

oriented. In fact, the statement, which is made by

her/deceased, is sought to be made use of by the

appellant himself as a dying declaration. If that

is so, it would be illogical to not proceed on the

basis  that  the  patient  was  capable  of  making  a

dying declaration. Deceased also made a statement

at                   01.30 P.M. on 25.01.2008 which

is the next day. Again, it was relied upon by the

appellant himself. This means that the appellant is

also proceeding on the basis that on 25.01.2008,

the  deceased  was  in  a  condition  to  make  the

statement.

B. It  is  on  27.01.2008  that  the  controversial

dying  declaration  is  made  implicating  the

appellant. It is recorded by a Police Officer. We

have set out the entirety of the dying declaration.

We have to undoubtedly proceed on the basis that

the  Police  Officer  was  performing  his  official

functions.  There is no acceptable material to show

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that he was interested in implicating the appellant

or that he was showing any undue favour to PW1 or

PW7. Even though, it may be true that he may not

have put questions to ascertain her condition, the

declaration,  which  is  seen  made,  in  our  view,

sufficiently assures us of the physical and mental

condition of the deceased to make the declaration.

In this regard, we may notice that there is no case

for  the  appellant  that  after  24.01.2008  and

25.01.2008, the condition of the deceased took a

turn  for  the  worse.  It  is  further  important  to

notice that the death took place only on the sixth

day  after  making  the  declaration  on  27.01.2008.

Therefore, we are of the considered opinion that

the  deceased  was  in  a  position  to  make  the

declaration.  

WHETHER DECLARATION BETRAYS IMAGINATION LET LOOSE?  

40. However, question which would arise is whether the

declaration  was  vitiated,  it  being  tutored,  prompted

and result of her imagination running wild. Taking the

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last point first, namely, that the dying declaration

must  not  be  the  figment  of  the  imagination  of  the

deceased, nothing is established by the appellant to

show that the facts which have been stated in regard to

the  physical  places  and  things  spoken  of  by  the

deceased in regard to the rooms, etc., do not match

with the reality on the ground. In fact, there is no

material before us to hold that the dying declaration

is a creation of her imagination.  

WHETHER  STATEMENTS  MADE  ON  24.01.2008  AND  25.01.2008 ARE DYING DECLARATION?

41. We are not much impressed by the contention of the

State  that  the  statements  made  at  the  hospital  on

24.01.2008 and to the Police Officer on 25.01.2008, are

not  dying  declarations.  Under  Section  32  of  the

Evidence Act any statement made by a person as to the

cause  of  his  death  or  to  any  circumstance  of  the

transaction  which  resulted  in  his  death  would  be

relevant.  Once it is proved that such statement is

made by the deceased then it cannot be brushed aside on

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the basis that it is not elaborate or that it was not

recorded  in  a  particular  fashion.   We  have  already

noted that the principle that the statement is brief,

would not detract from it being reliable.  Equally,

when there are divergent dying declarations it is not

the  law  that  the  court  must  invariably  prefer  the

statement which is incriminatory and must reject the

statement  which  does  not  implicate  the  accused.  The

real point is to ascertain which contains the truth.

FURTHER ANALYSIS  

42. On  24.01.2008,  the  appellant  and  the  deceased

suffered burn injuries. A call was made to the Police

Control  Room.  PW22-Police  Constable  deposed  about

taking the appellant and the deceased to the hospital.

Investigation Officer-PW29 has spoken about immediately

coming to the site of the incident. He states he made

inquiries. He stayed there for about two hours. It is

not in the region of dispute that the deceased and the

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appellant, who had suffered the injuries, were in the

hospital, viz., the Safdarjung Hospital. PW13-ASI, has

deposed  about  responding  to  the  call  received,

inspecting the spot on 24.01.2008. Photographs were got

taken. PW14-the Police Photographer has been examined.

He  speaks  about  going  to  the  site  on  24.01.2008  at

about 09.00 P.M.. He took nine photographs. Two of the

photographs  were  washed  out.  He  has  produced  the

negatives. He speaks about photographs of plastic can

as also the matchstick. On the MLC of the deceased, the

time of arrival is shows as 09.30 P.M.. It is further

noted that the patient was not giving proper history.

Thereafter, it is stated, alleging a case of accidental

fire when husband was trying to ignite matchstick for

smoking  probably  due  to  nearby  bike  leaking  petrol

tank. It is stated, as told by patient self. Patient

got  burn  injury  with  her  husband.  It  was  further

stated, patient unable to tell the cause of kerosene

smell from her body. She was brought to the casualty by

the PCR Van. She had deep burns present over her face,

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neck,  anterior  trunk,  lower  part,  both  upper  limbs,

portions of both lower limbs. It is further stated that

patient  is  very  critical.  However,  it  is  written,

patient is conscious, oriented, follows verbal command,

able  to  speak.  It  is  also  stated,  kerosene  smell

present  in  body  of  the  patient.  The  nature  of  the

injuries was classified as ‘dangerous’. The Doctor is

Dr. K.K. Sharma. It is thereafter that on the next day

on 25.01.2008 at 01.30 P.M., a statement was given to

the Investigating Officer by the deceased which we have

already  extracted.  It  is  thereafter  that  the  dying

declaration dated 27.01.2008 (extracted above) came to

be recorded.

43. It is found by two courts to be witnessed by PW1-

the co-brother of the appellant and PW7-the mother-in-

law of the appellant. PW29 is the Police Officer who

has recorded the statement. He has also deposed that on

receiving a call, which is no doubt, a call made by

PW1,  he  had  come  to  the  hospital  and  recorded  the

statement.

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44. Let us look at the circumstances emerging from the

facts. There can be only two possible causes for fire

which finally resulted in the death of the deceased. It

is either accidental or homicidal. If it is found to be

accidental, certainly, it would rule out homicide. The

converse is also true.  

LANGUAGE IN WHICH DYING DECLARATOIN RECORDED

45. The  dying  declaration  dated  27.01.2008  is  seen

recorded in Hindi. There is no case that the deceased

was not familiar with Hindi and we can safely conclude

that the dying declaration was recorded in a language

with which the deceased was familiar. There can be no

doubt in regard to the same.

THE DYING DECLARATION IS A DETAILED NARRATIVE

46. The dying declaration dated 27.01.2008 is a fairly

lengthy  narration.  It  contains  details  about  what

happened  on  the  fateful  day,  viz.,  24.01.2008  in  a

fairly graphic manner including details regarding the

54

place  where  it  happened,  the  manner  in  which  it

happened, the specific role played by the appellant,

even  things  (presence  of  the  motorcycle),  the  door

being locked, are reflected. Even reference was made to

the relationship which the appellant was having with

his sister-in-law.

THE SMELL OF KEROSENE

47. There is evidence on record, both in the form of

oral  testimony  and  documentary  evidence,  to  suggest

that there was kerosene kept in the premises. The can

is found, the photograph of the can is taken. It is

also sent for forensic examination.

48. There  is  reference  to  the  smell  of  kerosene

available  in  evidence.  The  very  first  document

available, viz., the MLC is dated 24.01.2008. In the

same,  it  is  clearly  stated  that  there  is  smell  of

kerosene from the body of the deceased. In the second

statement recorded by the Investigating Officer on the

very next day, i.e., on 25.01.2008, it is stated that

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the patient was unable to tell the cause of kerosene

oil  smell  from  her  body.  This  is  in  regard  to  the

statement by the appellant which has also come to be

recorded.  As  far  as  further  evidence  indicating

presence  of  kerosene  oil  is  concerned,  there  is

evidence  of  PW1  who  speaks  about  being  told  about

pouring  of  kerosene  oil  by  the  appellant  over  the

deceased.  PW7-mother-in-law  of  the  appellant  states

that her daughter told her while in the hospital that

kerosene oil was kept behind in a small container meant

for storing grains. The appellant poured kerosene oil

over  her.  He  also  sprinkled  some  kerosene  oil  on

himself also. She, no doubt, states that she had stated

before the Police that she had no ration card, that

they never used to purchase kerosene oil or never used

to keep kerosene oil and the kerosene oil must have

been  purchased  from  outside.  She  was,  no  doubt,

confronted about such omission in the statement. PW8

conducted the post-mortem. She does not, undoubtedly,

note the smell of kerosene. But here we cannot ignore

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the submission of the counsel for the State that post-

mortem  was  conducted  on  03.02.2008,  almost  ten  days

after the incident.

49. PW-29 is the Investigating Officer. He deposes that

the  can  of  kerosene  oil  was  lying  and  kerosene  was

lying spread on all the sides of the can. He has spoken

about  seizing  the  burnt  matchstick  and  matchbox.  He

reiterates that in the report, he has mentioned about

the smell of kerosene oil emanating from the clothes

seized by him.  

50. PW30 is the Doctor who identified the handwriting

of Dr. K. K. Sharma who took down the statement of the

deceased  inter  alia on  24.01.2008.  He  says  that  on

24.01.2008,               Dr. K. K. Sharma also

examined  the  deceased  with  alleged  history  of

sustaining  thermal  burns  when  patient’s  husband  was

trying  to  ignite  matchstick  for  smoking  and

accidentally fire erupted, probably due to nearby bike

leaving petrol tank, as told by the patient by herself.

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He  also  says  that  patient  got  burnt  along  with  her

husband and was unable to tell the cause of kerosene

smell present on her body.  More significantly, it is

stated,  Dr.  K.K.  Sharma  also  appended  a  note  that

patient is not giving proper history. In the cross-

examination, a suggestion was made that since spirit

was  used  in  the  hospital,  the  Doctor  may  have  been

under misapprehension that kerosene oil was present on

the body. This suggestion was denied as incorrect by

PW30  and  he  went  on  to  say  that  even  the  smell  of

spirit and kerosene is different. It may be noticed

that the suggestion is not that the Doctor was confused

between the smell of kerosene and petrol. Though, PW30

goes on to state that kerosene oil is the product of

petroleum. PW30 also denied as incorrect a foul smell

was wrongly treated as kerosene smell.

51. PW31  is  the  Senior  Scientific  Assistant

(Chemistry), C.F.S.L.. He has stated that on chemical

and gas chromatographic examination, Exhibits 1A, 1B,

2A,  2B,  2C,  2D  and  2F  and  Exhibit  3  were  found  to

58

contain residue of kerosene oil. Residue of kerosene

oil, diesel and petrol could not be detected in Exhibit

4 and Exhibit 5. He further states as follows “only in

case,  in  a  mixture  of  petrol  and  kerosene,  if  the

quantity of kerosene is more, it will emanate smell of

kerosene. The residue can remain even for about one

year or so unless the article is placed in Sun and is

not properly preserved”.  

52. Exhibit 1A, which is found containing the residue

of kerosene oil, is brown colour shirt. Exhibit 1B is

the blue colour jeans. Exhibit 2A, which is found to

contain kerosene oil, is a printed scarf with black

border.  Exhibit  2B  is  the  glittering  printed  shawl

partially burnt. Exhibit 2C which again is found to

contain  residue  of  kerosene  oil  is  mustard  colour

cardigan pieces which were partially burnt. Exhibit 2D

is the yellow colour cloth piece stated to be kurta in

semi-burnt  condition.  Exhibit  2F  is  a  green  colour

partially burnt cloth stated to be the bra. It also

contains residue of kerosene oil. Exhibit 4 consists of

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two burnt matchsticks which did not contain kerosene

oil, diesel or petrol. This is not inconsistent with

the case of kerosene being used in the manner canvassed

by the prosecution. Exhibit 5 contains scissors of iron

and copper metal. Overwhelming evidence relating to the

presence of kerosene starting with the can, kerosene

being found by PW29 on the spot near the can on his

inspection on the same day, the presence of kerosene

residue on the clothing belonging both to the deceased

and the appellant, as found by the Scientific Expert,

would  clearly  establish  that  kerosene  was  used  in

causing  the  fire.  This  completely  fortifies  the

prosecution.  It  equally  clearly  rules  out  the  case

ought to be set up by the appellant that it was a case

of accidental fire which was brought about when the

appellant was lighting his  biri and a leak from the

motorbike  causing  the  fire.  As  deposed  by  the

Scientific  Expert,  the  possibility  of  kerosene  smell

would be there only if kerosene content is more in the

petrol. Secondly, we must also remember that the leak

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would not have been of such an extent as to lead to the

incident of this nature.  

OTHER CIRCUMSTANCES

53. As  against  this,  we  may  also  examine  what

circumstances  can  be  culled  out  in  favour  of  the

appellant. In the first two statements, which have been

made by the deceased to the Police, the blame is placed

at the doorstep of an unfortunate accident, which the

appellant while trying to light his biri and the leak

from the motorcycle, caused. This version is repeated

in the statement to the Police on 25.01.2008 also. PW1

states, and it is not disputed by the counsel for the

State, that the deceased had put her footmark in the

dying  declaration  dated  27.01.2008.  PW29,  however,

speaks about the thumb impression. This is apparently a

lapse of memory of the Officer.

54. Coming to tutoring and prompting, there is no doubt

that  it  is  on  PW1-the  co-brother  of  the  appellant

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informing the Police Officer, the Police Officer-PW29

came on 27.01.2008 and took down the declaration. It is

true that the presence of PW1 and PW7, at the time of

making the dying declaration, cannot be doubted. Their

proximity with the deceased, before PW29 came to take

the declaration, can be easily assumed.  

55. It is a double-edged sword. On the one hand, if the

Police  Officer  recording  the  statement  was  to  call

somebody else as witness, when the mother and the other

relatives are near at hand, it can be challenged on the

ground that it is unnatural. On the other hand, if such

close relatives are made witnesses and it turns out

later  on  that  a  case  is  set  up  that  they  had  an

interest in the declaration being made in a particular

manner, again, the prosecution would be in trouble. In

this case, however, the nature of the case set up by

the appellant to bring the dying declaration under a

cloud, on account of the interest shown by PW1, is the

conspiracy theory mainly to prevent the appellant from

succeeding to the property. We have already dealt with

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the same and found that the said version is totally

unacceptable. If that be so, in the facts of this case,

we cannot read much into the presence of PW1 playing a

role he did, namely, calling the Police Officer and

being a witness in the dying declaration. PWs 1 and 7

were  witnesses  to  the  dying  declaration.  They  have

spoken about the dying declaration and about it being

recorded by PW29.  

56. The  question  then  arises  about  the  fact  of  the

previous statements which have been attributed to the

deceased contained in the MLC dated 24.01.2005 and in

the statement of the deceased recorded on 25.01.2008.

The view taken by the courts is that the deceased and

the appellant were admitted in the same hospital, the

presence of the appellant would have come in the way of

the deceased speaking of the truth.  

57. We are of the view that the courts below were not

in error in disregarding the statement attributed to

the  deceased  in  the  MLC  dated  24.01.2008  and  the

63

statement taken on the next day, i.e., on 25.01.2008.

The  incident,  admittedly,  took  place  towards  in  the

evening of 24.01.2008. The appellant and the deceased

were taken by the Police in the PCR vehicle to the

hospital. It is the proximity of the appellant, which

apparently stood in the way of the deceased, disclosing

the truth of the matter. The appellant and the deceased

continued  to  be  in  the  same  hospital  on  25.01.2008

also. In this regard, in the dying declaration, relied

upon by the prosecution, the deceased has stated that

as the appellant had extended threat to her, she could

not give a statement on the very same day. Apparently,

this means that she has proceeded on the basis that the

declaration  made  on  27.01.2008  is  the  first  dying

declaration  which  she  is  making.  She  has,  in  other

words, not treated the statement made on 24.01.2008 at

the time when she was admitted, as a declaration. So

also,  the  statement  made  on  25.01.2008,  she  was

operating under the threat extended by her husband.  

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58. Further, the motive of the appellant to kill her,

has  been  stated  by  her  to  be  that  he  had  illicit

relations with his Bhabhi (sister-in-law). She has also

spoken about differences which she had with her husband

and  the  settlement  which  had  taken  place  in  the

Panchayat. PW7-mother of the deceased has also spoken

about the affair, which appellant had with his sister-

in-law. Thus, the motive attributed to the appellant by

the deceased, is not the figment of her imagination.

She is very coherent and clear in this regard.

59. In dying declaration dated 27.01.2008, she speaks

of  one  boy,  viz.,  Dinesh  Jain,  a  neighbour  coming

inside by jumping the main gate and breaking the lock

placed  inside  the  main  gate  with  the  help  of  hathi

(handle) of the handpump. Dinesh Jain has been examined

as PW24. He states that on 24.07.2008, at about 08.00

P.M., he heard the sound of loud cries. He saw the

appellant and the deceased both engulfed in fire. He

tried to push the gate of the house of PW7 but it could

65

not be opened. He climbed the wall. He found that the

gate was locked from inside. After reaching inside the

house, he found the handpump in the house. He pulled

down the handle, and with it, broke open the lock. By

the time he came out of the house, certain persons had

gathered there. In the cross-examination, he says that

Police did not record his statement either on the date

of the incident nor on any other date. A motorcycle was

lying seen near the handpump. He was unable to tell the

number of rooms in the house. It is for the first time

that he is going there. He did not try to extinguish

the fire. The handle of the handpump could be removed

easily as there was no nut and only a nail was there.

It is difficult to find that the deceased could have

given the detail about PW24 doing what he did only on

the basis of any tutoring or prompting by PW1 or PW7.

Thus, this portion of the statement stands fortified by

the corroborative evidence of PW24.

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60. Let us also examine the content of the actual case

of the defence as is sought to be established through

the  statement  in  the  MLC  dated  24.01.2008  and  the

statement on 25.01.2008. The case set up in the MLC is

that deceased suffered burns when the appellant tried

to ignite a matchstick for smoking and the fire erupted

due to petrol leaking from the tank of the motorcycle.

As already noted, there is no smell of petrol. However,

what is to be noted is the presence of kerosene. In

fact, in the very statement, which is ascribed to the

deceased  on  24.01.2008,  it  is  recorded  that  the

deceased was unable to explain the cause of kerosene

smell from her body. This, apparently, shows that the

deceased was hoping that she would survive, and if she

explained  the  cause  of  the  smell  of  the  kerosene,

necessarily  implicating  the  appellant,  the  chance  of

her married life surviving would come to an end. As

already noted, there is a note of Dr. K. K. Sharma that

the patient was not giving proper history. There is

also the aspect of the threat explained. Whether it is

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her desire or the threat, both prevented the disclosure

of the truth. In the statement of 25.01.2008, it is

stated that the deceased deposed that she resides with

the appellant and mother. Earlier, there had been some

problem between the appellant and the deceased. She was

since last one year living with the appellant happily.

There is no such quarrel between them. Mother had gone

on 24.01.2008 for matrimonial home of Rakesh, younger

sister, at Rohtak. Appellant came back in the evening.

They had dinner and were preparing to go for sleep. She

locked the gate while the appellant was smoking  biri

near the motorcycle. All of a sudden, the motorcycle

caught  fire.  Appellant  was  trying  to  extinguish  the

fire and his clothes also caught fire. Both of them

screamed. Neighbours saved both of them. No one had

done this intentionally. The above case is founded on a

premise which eliminates the possibility of kerosene.

We  have,  however,  noted  that  there  is  overwhelming

evidence  that  the  fire  was  caused  by  the  use  of

kerosene. In the statement, there is no reference to

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the appellant being drunk. Everything was normal till

the  accidental  fire  erupted  upon  the  motorcycle

catching fire. Deceased states that the appellant was

trying  to  extinguish  the  fire  and  his  clothes  also

caught fire. The deceased, however, does not state that

she went to extinguish the fire and thereby sustained

the burn injuries. In other words, the statement on

25.01.2008 does not contain any reason as to how the

deceased caught fire. There was no statement that she

suffered the extensive (65 per cent) burn injuries when

she tried to put out the fire. Secondly, the version

involves  the  motorcycle  catching  fire.  There  are

photographs of the motorcycle. It is only the part of

the seat of the motorcycle which was burnt. In this

regard,  it  is  apposite  to  notice  that  PW14-Police

Photographer  has  deposed  about  reaching  the  spot  on

24.01.2008 at 09.00 P.M. and taking the photographs,

inter alia, of the motorcycle. Statement of 25.01.2008

does  not  appear  to  indicate  the  cause  of  the  burn

injuries  suffered  by  the  deceased,  for  the  reasons

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stated above. This version also is incompatible with

the presence of the kerosene can which is proved by the

evidence  of  PW29-Investigating  Officer,  PW-14-

photographer and the photograph. The statements made on

24.01.2008 and 25.01.2008 will not explain the cause of

smell of kerosene emanating from the body, both of the

deceased and from the appellant, as also the clothes

smelling of kerosene. PW30 apparently spoke about the

clothes  smelling  (MLC  recorded  by  Dr.  K.K.  Sharma).

That  the  appellant  was  unable  to  tell  the  cause  of

kerosene smell from his body. It is found that kerosene

smell was present in the body of the patient.

61. It  must  be  remembered  that  in  the  statement  on

27.01.2008, the deceased had spoken about the appellant

coming drunk. He poured kerosene over the deceased. He

also poured some kerosene on himself. The cause of fire

was by lighting matchstick after pouring the kerosene.

The  deceased  runs  and  trips  over  the  handpump.  The

presence  of  the  handpump  is  corroborated  by  the

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evidence of PW24-neighbour. No doubt, the action of the

appellant  in  pulling  out  the  petrol  pipe  is  also

referred to by the deceased in the dying declaration

dated 27.01.2008. The fire erupting near the motorcycle

is,  thus,  explained  in  the  declaration  dated

27.01.2008. It is here that the role of alcohol in the

whole incident, which must be borne in mind.

62. In  the  declaration  dated  27.01.2008,  it  is  true

that the deceased states that the appellant poured less

kerosene  oil  upon  himself.  It  must  be,  at  once,

remembered that deceased had stated that the appellant

had come on the said day in the drunken position. The

appellant’s act in bringing out the pipe of the petrol

tank of the motorcycle resulting in fire erupting and

him also catching fire, does establish that fire did

erupt near the motorcycle. What the deceased has stated

is  compatible  with  the  motorcycle  itself  not  being

burnt as such which is in accord with the evidence.  

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63. As to why the appellant would bring out the pipe of

the  petrol  tank,  is  one  question  which  may  require

consideration. The Trial Court holds that it was in

order to show it to be an accident, that he brought out

the petrol pipe and took the defence that because of

the leaking pipe, the fire engulfed and both of them

caught  fire,  which  defence  was  found  absolutely

improbable. The High Court, in the impugned order, on

the other hand, would state that the appellant suffered

40 per cent injuries on his face, neck and both upper

limbs, was found compatible with the dying declaration

dated  27.01.2008  wherein  the  deceased  has  explained

that when she tried to flee, the appellant caught her

trying to prevent her from running out. It is how the

burn injuries occurred on his face and upper trunk and

upper limbs. It is true, a question may arise that if

this version is accepted and the appellant caught fire

from catching the deceased from behind, why would he

pull out the petrol pipe when both of his upper limbs

(hands) had caught fire. In the dying declaration, the

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deceased has stated that the appellant caught fire when

the fire erupted near the motorcycle as a result of the

pipe  of  the  petrol  tank  being  taken  out  by  the

appellant. It is to be remembered that the case of the

appellant is that the fire occurred when he had lit a

biri. He had no case that the pipe of the petrol tank

had been taken out thereby causing the fire. But PW29-

Investigating Officer, visited the site on 24.01.2008,

has deposed that the petrol pipe of the motorcycle had

been detached from the place where it should be. As

already noticed, he has also stated that in the inner

room, a can of kerosene oil was lying and the kerosene

was lying spread on all the four sides of the can. We

have no reason to disbelieve PW29 when he speaks about

kerosene oil lying in the inner room and the can also.

The  version,  as  projected  in  the  declaration  dated

27.01.2008, is clinchingly proved by this circumstance

that kerosene was indeed the fuel used which caused the

burn injuries and its position in the inner room is

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entire  compatible  with  the  dying  declaration  dated

27.01.2008.  

64. In the above facts and circumstances, we see no

ground to interfere. The appeal will stand dismissed.

Since, appellant has been released on bail, his bail

bonds shall stand cancelled and he shall be taken into

custody.

..................J.                    (SANJAY KISHAN KAUL)

..................J.                                     (K.M. JOSEPH) New Delhi, September 4, 2019.

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