Page 1

1

REPORTABLE     IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1974 OF 2012

Shaileshbhai @ Pappu Balubhai Chunara & Anr.               ….. Appellants

Versus

State of Gujrat … Respondent  

J U D G M E N T  

Dipak  Misra, J.

In this appeal, by special leave, the assail is to the judgment of

conviction and order of sentence dated 02/05/2012 passed by the High

Court of Gujarat at Ahmedabad in Criminal Appeal No. 1644 of 2005,

whereby the Division Bench, placing reliance on the dying declaration of

the deceased Champaben, has affirmed the decision of the learned Trial

Judge, who had found the accused-appellants guilty of offence

punishable under Section 302/34, 332 and 114 of the Indian Penal Code,

Digitally signed by Chetan Kumar Date: 2015.08.27 14:06:12 IST Reason: This file is signed by using the card of Mr. Chetan Kumar, Court Master, by Naveen Kumar, Court Master

Signature Not Verified

Page 2

2

1860 (for short, “the IPC”).  

2. The broad essential facts, which need to be stated for the

adjudication of this appeal, are that the deceased, Champaben, was

staying with her mother-in-law, brother-in-law and children in a hut near

the Water Tank, Macchipir Area, Baalvatika, Ahmedabad and the said

hut was sold off by her mother-in-law.  The said transaction had brought

the deceased Champaben and her children to a miserable state of penury

and eventually they were forced to live on the footpath.  As alleged, the

mother-in-law and brother-in-law had left them in the lurch and went to

live elsewhere.  On 13.12.2001, as per the case of the prosecution, the

accused-appellants attacked her and gave her fist and kick blows and

then A-3, namely, Chinabhai caught hold of her and Balubhai Hemabhai

Chunara poured kerosene and set her ablaze.  A-2, Shailesbhai @ Pappu

Balubhai Chunara, aided and abetted the offence.  On the basis of the

statement made by the deceased on 13.12.2001, the criminal law was set

in motion and accused persons were arrested.  The dying declarations of

Champaben were recorded regard being had to her sinking condition.

Eventually, she succumbed to her injuries on 22.12.2001.

3. After completing the investigation, the prosecution laid the

chargesheet under Sections 302/34, 323 and 114 of the IPC before the

competent Court which in turn committed the matter to the Court of

Page 3

3

Session.  The learned Sessions Judge, on the basis of the evidence

brought on record and placing reliance on the dying declarations of

Champaben, convicted the accused persons and imposed the sentence.

Suffice it to say, all of them were convicted under Section 302/34 IPC,

apart from separate sentence imposed under Sections 323 and 114 of the

IPC.  The learned trial Judge repelled the plea of the defence that there

were three dying declarations and there was manifest inconsistency and

hence, they did not deserve acceptance.  

4. On an appeal being preferred, the High Court adverted at length

to the legal acceptability of the dying declarations and found that there

was actually no inconsistency and accordingly affirmed the judgment of

conviction and order of sentence.  

5. We have heard Dr. Sumant Bharadwaj learned counsel for the

appellants and Ms. Hemantika Wahi learned counsel for the State.    

6. There is no dispute that the conviction has been recorded on the

sole basis of the dying declaration.  As the material brought record woule

reveal, on the date of occurrence, the deceased was immediately taken to

L.G. Hospital, where initially she was treated by Dr. Sandip, PW-2, and

there is an endorsement in the case papers that “alleged history of burns

over body by Shailesbhai Chunara’s friends at Water tank, Baalvatika.”

Page 4

4

After the said endorsement, the treatment commenced and about 3.15

p.m. she was taken to Dr. Kunjan Patel, who recorded the history of

injuries and noted that she had suffered severe burn injuries being burnt

by three persons, namely, Balubhai Hemabhai, Shailesbhai Balubhai and

Chinabhai Balubhai. Thereafter, a dying declaration was recorded after

the investigating agency requisitioned the presence of Executive

Magistrate, namely, Binodbhai Mafatbhai Patel (PW-3).  On a perusal of

the said dying declaration, we find that Dr Kunjan Patel had certified that

patient was conscious and fit for making a dying declaration.  The

Executive Magistrate has recorded the dying declaration in the

questionnaire form wherein the deceased had clearly stated that she had

a quarrel with the accused-appellants and they had caused burn injuries

on her legs, chest and other part of the body.  The learned Magistrate has

also deposed that he had taken care that no one else was present at the

time of recording of the dying declaration.   

7. Mr. Bharadwaj learned counsel for the appellant attacking the

acceptability of the dying declaration has urged that when there are more

than one dying declaration, and inconsistency is perceptible, the Court

should be extremely careful before placing reliance on it.  To bolster the

said submission he has drawn inspiration from the decisions in Lella

Page 5

5

Srinivasa Rao v. State of A.P 1, Amol Singh v. State of Madhya

Pradesh2, Sharda v. State of Rajasthan 3 and State of Rajasthan v.

Sharavan Ram & Anr.4.  

8. In Lella Srinivasa Rao (supra) the Court, appreciating the

evidence on record, noticed that there was inconsistency between the two

dying declarations and, therefore, thought it unsafe to base the conviction

on the basis of the second dying declaration.  It is apt to state here that in

the said case, in the first dying declaration there was no mention about

the appellant having treated the deceased with cruelty or of his having

caused harassment to the deceased.  That apart, the Court noticed that

his name did not find place in the relevant portion of the first dying

declaration though the said dying declaration was recorded by a

Magistrate after taking all precautions.

9. In Amol Singh (supra) the Court noticed certain inconsistencies

between one dying declaration and the other.  In that context, it was

opined that the Court has to examine the nature of the inconsistencies,

namely, whether they are material or not and while scrutinizing the

contents of various dying declarations it becomes the duty of the court to

examine the same in the light of various surrounding facts and

1  (2004) 9 SCC 713 2  (2008) 5 SCC 469 3  (2010) 2 SCC 85 4  (2013) 12 SCC 255

Page 6

6

circumstances.  In the said case the Court found several discrepancies

even as regards the manner in which the kerosene was sprinkled and on

facts did not find the dying declaration inspiring credence.

10. In the case of Sharda (supra) the Court observed that a dying

declaration to deserve acceptance should inspire full confidence of the

court of its correctness and the court is required to see that such

statement of the deceased is not a result of either tutoring, prompting or

product of imagination.  Emphasis was also laid on the satisfaction of the

fact that the deceased was in a fit state of mind.

11. In Shravan Ram and another (supra) the Court referred to the

decisions in Kamla v. State of Punjab 5, Kishan Lal v. State of

Rajasthan6, Lella Srinivasa Rao (supra), Amol Singh  (supra) and

State of A.P. v. P. Khaja Hussain 7, and, eventually, came to hold that

there were discrepancies and contradictions between the two dying

declarations and, therefore, the conviction could not be based on such

dying declaration.  

12. In Laxmi (Smt) v. Om Prakash and others 8, the Court after

referring to the maxim “ Nemo moriturus praesumitur mentire”  which

means, “No one at the point of the death is presumed to lie”, opined that: 5  (1993) 1 SCC 1 6  (2000) 1 SCC 310 7  (2009) 15 SCC 120 8  (2001) 6 SCC 118

Page 7

7

-

“If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming a safe basis for conviction.”

13. At this juncture, we may also fruitfully refer to a two-Judge

Bench decision in Kundula Bala Subrahmanyam and another v.

State of Andhra Pradesh9 where the Court observed that: -

“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 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.”

14. Keeping mind the aforesaid principles, we shall scrutinize 9  (1993) 2 SCC 684

Page 8

8

whether the dying declarations withstand the attack made by the learned

counsel for the appellant or they survive the assault to stand erect on the

pedestal of credibility.  To appreciate the controversy, as raised, we

required the learned counsel for the State to read out the statements in

original to us.  That apart, the learned counsel for the State has

translated the same for better appreciation.  On a keen scrutiny of the

same we find that Dr. Sandip had only made an endorsement at the time

of admission.  Dr. Kunjan Patel also had made an endorsement and at

that time he had recorded the three names and thereafter the Executive

Magistrate had recorded the dying declaration.  Emphasis of Dr.

Bharadwaj, learned counsel is that the deceased should have mentioned

all the names to Dr. Sandip.  As is perceivable, Dr. Sandip has not

recorded the dying declaration.  He, at the time of entry to the hospital,

only mentioned the same as a requisite endorsement. In any case, we do

not see any inconsistency in all the recordings, namely, by Dr. Sandip,

Ext. 20, Dr. Kunjan Patel, Ext. 13, and Mr. Vinodbhai Mafatbhai Patel,

Executive Magistrate, Ext. 16.  

15. We are disposed to hold so, as from the endorsement it is

manifest that the deceased had, while availing treatment, said that the

accused persons were totally hostile to her and in order to extinguish her

life spark had poured kerosene on her.  It is also reflectible from the

Page 9

9

hospital records tendered in evidence that the patient was conscious and

well oriented and was in a position to follow the instructions.  While the

patient was in that condition, the Magistrate was called to record the

dying declaration.  About the fitness of the patient Dr. Kunjan Patel had

examined the patient and clearly stated that she was in a fit and

conscious condition to give a dying declaration.  The Executive Magistrate

had taken precautions by removing all the relatives of the injured from

the room and approached the doctor to verify about the fitness of the

patient, and after being satisfied that she was fit enough to give dying

declaration, recorded the same in a questionnaire form.  The deceased

during recording of the statement has categorically stated that she had a

quarrel on the date of occurrence with Balu Hema, Shailesh Balu and

China Balu and, therefore, Balu Hema poured kerosene on her and China

Balu caught hold of her and Shailesh Balu burnt her by igniting a match

stick.  It is submitted by Mr. Bhardwaj that the deceased should have

mentioned all the names before the doctor at the first instance.  The said

submission suffers from fundamental fallacy inasmuch as Dr. Sandip was

only making an endorsement at the time of entry into the hospital.  He

was not recording any dying declaration.  It was only an endorsement

which was required for the hospital record.  As is evident, she has

mentioned the names before Dr. Kunjan Patel who really treated her.

Page 10

10

Nothing has been brought on the evidence to discredit the testimony of

the Executive Magistrate who has recorded the dying declaration in

questionnaire form.  There is no circumstance from which it can remotely

be inferred that she was tutored or her statement was embellished by any

kind of influence.  On the contrary, her testimony has been consistent

and, therefore, the reliance placed on the same by the learned trial Judge

as well as by the High Court is absolutely impeccable and, therefore, we

do not find flaw in the judgment of conviction and order of sentence.

16. Consequently, the appeal, being devoid of merit, stands

dismissed.

....................................J.                                                [Dipak Misra]

....................................J.                                                          [S.A. Bobde]

New Delhi; August 07, 2014.

Page 11

11

ITEM NO.103               COURT NO.8               SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal No(s).  1974/2012 SHAILESHBHAI @ PAPPU BALUBHAI CHUNARA& ANR         Appellant(s)                                 VERSUS STATE OF GUJARAT                                   Respondent(s)

Date : 07/08/2014 This appeal was called on for hearing today. CORAM :      HON'BLE MR. JUSTICE DIPAK MISRA              HON'BLE MR. JUSTICE S.A. BOBDE For Appellant(s) Dr. Sumant Bharadwaj, Adv.

Dr. Sushil Kr. Gupta, Adv.                   Ms. Mridula Ray Bharadwaj, Adv.

Mr. Manoj Kumar, Adv.                       For Respondent(s) Ms. Hemantika Wahi, Adv.                    Ms. Jesal, Adv.

Ms. Puja Singh, Adv.         UPON hearing the counsel the Court made the following                               O R D E R

Appeal is dismissed in terms of the reportable signed judgment.  

(NAVEEN KUMAR)                                (RENUKA SADANA)  COURT MASTER                                  COURT MASTER  

(Signed reportable judgment is placed on the file)