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       REPORTABLE

IN THE SUPREME COURT OF INDIA                 CRIMINAL APPELLATE JURISDICTION                  CRIMINAL APPEAL NO. 1236 OF 2010

State of Gujarat .... Appellant(s)

Versus

Jayrajbhai Punjabhai Varu                       .... Respondent(s)

                  J U D G M E N T

R.K. Agrawal, J.

1) This  appeal  has  been  filed  against  the  judgment  and

order dated 16.07.2009 passed by the High Court of Gujarat

at Ahmedabad in Criminal Appeal No. 976 of 2003 whereby

the  High  Court  allowed  the  appeal  filed  by  the  respondent

herein  against  the  judgment  and  order  dated  30.06.2003

passed by the  Court  of  Sessions  Judge,  Amreli  in  Sessions

Case No. 20/2003.   

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2) Brief facts:

(a) Rekhaben  (since  deceased)  was  married  to  Jayrajbhai

Punjabhai  Varu-the  respondent  herein  and  was  residing  at

Gopalgram, Taluka Chalala,  Gujarat along with her in-laws,

viz.,  Punjabhai  Lakhabhai  Varu-father-in-law,  Manuben

Punjabhai-mother-in-law  and  Ramjuben

Punjabhai-sister-in-law.   

(b) On  10.03.2003,  Rekhaben  was  admitted  to  the

Government Hospital, Amreli with 90 per cent burn injuries.

A First Information Report (FIR) being No. 7/03 got registered

under Section 307 of the Indian Penal Code, 1860 (in short

‘the IPC’) wherein she stated that on 10.03.2003, at about 5

o’clock in the morning, when all other family members were

sleeping in the house, an unknown person came near her and

told her that he had come to take her.  By saying so, he took

her into the kitchen, poured kerosene on her and by lighting

the matchstick set her on fire and went away from the place

and, consequently, she started burning in flames. She further

gave a statement that the unknown person was an outsider

who was wearing white clothes.  On hearing her cries, other

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family members also woke up and admitted her in the hospital

at Amreli.  It may be mentioned here that the above said FIR

was  registered  on  the  basis  of  the  statement  given  by  the

deceased herself  on 10.03.2003,  at  about 7:30 a.m.,  in the

hospital to Shri Bhikhu Karsanbhai, P.S.O., Amreli City which

was treated as a complaint.  In the said statement, the thumb

impression  of  Rekhaben  was  identified  by  Vala  Jaskubhai

Suragbhai – the father of the deceased.

(c) On  the  very  same  day,  at  8:25  a.m.,  she  made  a

statement  before  the  Executive  Magistrate,  Amreli  and

narrated  the  whole  incident.  In  the  afternoon,  Rekhaben

succumbed to  her  injuries.   On the  basis  of  the  statement

given  by  the  deceased,  Jayrajbhai  Punjabhai  Varu-the

respondent  herein,  Punjabhai  Lakhabhai  Varu-father-in-law,

Manuben  Punjabhai-mother-in-law  and  Ramjuben

Punjabhai-sister-in-law  were  arrayed  as  accused  and  a

chargesheet was filed under Sections 302, 201 and 34 of the

IPC and the case was committed to the Court of Sessions and

numbered as Sessions Case No. 20/2003.

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(d) The Sessions Judge, Amreli, vide order dated 30.06.2003,

convicted the husband of the deceased under Section 302 of

the IPC and sentenced him to suffer rigorous imprisonment for

life while acquitting the other accused persons.    

(e) Being aggrieved, the respondent herein filed a Criminal

Appeal No. 976 of 2003 before the High Court of Gujarat.  The

Division  Bench  of  the  High  Court,  vide  order  dated

16.07.2009, allowed the appeal.

(f) Aggrieved by the order dated 16.07.2009 acquitting the

husband of the deceased of all the charges, the State has filed

this appeal by way of special leave before this Court.

3) Heard learned counsel  for  the parties and perused the

record.

4) Learned counsel for the respondent-State submitted that

the relations between the deceased and the respondent herein

were strained and the deceased was compelled to withdraw

from her matrimonial home several times.  The deposition of

Jaskubhai  Suragbhai  (PW-1)-father  of  the  deceased  shows

that she was subjected to torture, both mental and physical,

before she succumbed to the injuries.  It was contended that

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the  deceased  was  compelled  to  give  false  and  wrong

statement/declaration before the police as well as before the

Executive  Magistrate  by  the  accused.   It  was  further

contended that the accused persons caused physical cruelty to

the deceased during the intervening night of the incident and

poured kerosene upon her and set her on fire.  The statement

given  by  P.W.1  is  consistent  and  his  evidence  is  getting

absolute corroboration with the circumstantial evidence which

is available on record.  His evidence remained unimpeached

during the course of the trial and there is no reason for which

his evidence can be side lined.    Learned counsel for the State

vehemently contended that the deceased Rekhaben died under

mysterious circumstances in the house which was occupied

and possessed by the accused person for which the accused

has  not  offered  reasonable  explanation,  therefore,  the

presumption  as  provided  under  Section  114  of  the  Indian

Evidence Act is required to be drawn and such presumption

has not been rebutted by offering reasonable explanation.

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5) Learned counsel for the respondent contended that the

prosecution has relied upon the testimony of PW-1 – father of

the deceased who had claimed that the deceased narrated the

whole incident to him but he informed the same to the police

after performing the cremation ceremony and there is every

opportunity for possible concoction of a false version.  Learned

counsel further submitted that the deceased had not named

any  of  the  accused  in  her  dying  declaration  which  was

recorded  by  two  independent  witnesses  on  two  different

occasions and in both the dying declarations she had stated

that the person who poured the kerosene and set her on fire

was a stranger and not known to her.  Learned counsel further

submitted that Dilubhai Valerabhai- a close relative of PW-1,

who accompanied him to see the deceased in the hospital has

denied  having  any  conversation  with  the  deceased.   It  was

further  submitted  that  the  evidence  adduced  by  the

prosecution are not worth acceptance and are not sufficient to

draw  the  inference  of  guilt  of  the  accused,  therefore,  the

respondent herein should be exonerated of the charges leveled

against him.

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6) It is evident from the material on record that Rekhaben

was  removed  to  the  hospital  with  burn  injuries  and  her

statement  was  recorded  by  Bhikhubhai  Karsanbhai  Parmar

(PW-6),  who  was  discharging  duty  with  the  Police  at  the

hospital.  The dying declaration of the deceased was recorded

by the Executive Magistrate after following the due process of

law. In view of the above, it is relevant to quote the relevant

portion  of  the  statements  given by  the  deceased before  the

police authorities as well as the Executive Magistrate which

are as under:-

“ Date : 10.03.2003

My name is Rekhaben w/o Jayrajbhai Pujbhai Varu, Kathi  Darbar  by  caste,  aged  25  years,  occupation: household, Res. Gopalgram, Taluka Chalala.

On being  asked  in  person at  Armeli  illegible  I  state that  I  am  residing  at  above  mentioned  address  with  my mother in law, father in law and husband and my husband is doing work of cutting diamond at illegible. My parents are residing  at  Vandiya  village  and  name  of  my  father  is Jasubhai  Vala  and I  was married  before  about  two years from today. I have no child.

Today in the early morning at about Five O’ clock the members of my family were sleeping outside during that an unknown person came near me and he woke me up and told me that wake up I have come to take you, by saying so he took me in kitchen and poured kerosene on me and kindled match and this unknown outsider person went away. This unknown  person  was  outsider  and  he  had  put  on  white

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cloths  and  I  was  started  burning  on  my  whole  body, therefore I was shouting so persons of my house woke up and  they  got  me  admitted  here  in  Amreli  Government hospital  here.  Here  my  treatment  is  continued.  I  am conscious. I have no harassment of my mother in law, father in law or my husband.  

The  said  incident  has  taken  place  today  in  early morning  at  about  Five  O’  clock  any  outsider  unknown person got me woke up and took me in kitchen where he poured kerosene lying there and kindled and threw match on me and this  unknown person went away and this person was outsider.

Such my fact as stated by me is true and correct.

 Before        Sd/- Bhikhu Karsanbhai  

 P.S.O. Amreli City”

        “BEFORE THE EXECUTIVE MAGISTRATE, AMRELI Name of Hospital : Civil Amreli Ward No. Burns Bed No. 33 ____________________________________________________________ 1. What is your name : Rekhaben Jayrajbhai  

2. Name of father/husband : Jayrajbhai Punjabhai  

3. Your age : 25

4. Residence/address : Gopalgram Tal. Dhari.

5. At present where are you? : Civil Hospital Amreli.

6. What has happened to you?

7. How it was happened? All were sleeping in house. An unknown person came and he made me woke up from place where I was sleeping and he brought me in kitchen and he poured  liquid  in  box  lying  in  the  kitchen  on  me  and unknown person kindled match stick and threw on me and ran away.  He  was  a  male  person  and he  was  a  outsider person.  

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8. At what time incident took place? : The incident has taken place today in early morning. I don’t remember time. 9. At what place this incident has taken place? : Gopal gram at my house. 10. Who were present at place of incident? : All members of my house were sleeping. 11. Who brought you at clinic/hospital? My mother in law and my husband’s elder brother etc. brought me. 12. Whether you have any physical difficulty? : No 13. If you have to say anything further then say? : I have nothing further to say. 14. The  date  and  time  of  starting  of  D.D.  and completion of D.D. : 8.25 A.M.

    8.35 A.M. 10.3.2003.  There  is  no  presence  of  police  at  the  time  when  above deposition is recorded.

Sd/- illegible The patient is conscious and  D.D. is recorded before me.  Sd/- Medical Officer, Amreli 8.25 to 8.35 A.M. D.D. recorded in my presence.

Sd/- Thumb impression of right leg of Rekhaben  Jayraj  as both  hands  are  burnt the  thumb  impression of Right leg of Rekhaben is taken.

Sd/- Executive Magistrate, Amreli.”

7) It  is  relevant  to  point  out  here  that  in  both  the

statements mentioned above, the deceased has not named her

husband  or  his  family  members.   Though  when  a  specific

question was put to her  that what exactly happened on that

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night, she narrated that on 10.03.2003, at about 5 o’clock in

the morning, when all other family members were sleeping in

the house, an unknown person came near her and took her

into the kitchen. She further narrated that he poured kerosene

on her and set her on fire and went away from the place. She

further  gave a  statement  that  the  unknown person was an

outsider who was wearing white clothes.  On hearing her cries,

other family members also woke up and admitted her in the

hospital  at  Amreli.   There  is  no  denying  the  fact  that  the

deceased  was  in  her  matrimonial  home  at  the  time  of  the

incident and all other family members were also present in the

house at  the relevant time.   In both the dying declarations

recorded by two independent witnesses after following the due

process  of  law,  she  gave  a  statement  that  the  person  was

unknown  and  there  was  no  involvement  of  her  in-laws  or

husband.  Both the statements are consistent and there is no

contradiction as to the role of the respondent herein.  From a

perusal  of  the  statements  made  before  the  Executive

Magistrate as well as the police officer, it becomes very clear

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that there was no involvement of the respondent herein in the

commission of offence.    

8) On the other hand, learned counsel for the State placed

reliance upon the deposition of the father of the deceased who

deposed  about  the  involvement  of  respondent  herein  and

in-laws of the deceased in the commission of offence.   It  is

relevant to quote the relevant portion of his deposition on the

basis of which the Sessions Court convicted the respondent

herein which is as under:-

“4. On dated 10th of Fagan month in the early morning a phone call came at house of my uncle’s son Dilubhai that Rekhaben has been burnt, therefore I and my uncle’s son Dilubhai   and  Manglubhai  went  at  Amreli  Civil  Hospital. Rekhaben was admitted in the hospital and treatment was continued. Rekhaben was burnt on whole body. I could not see therefore I went outside. After I felt something better I and Dilubhai again went before my daughter, Rekhaben and asked  her  that  what  this  happened  so  Rekhaben told  me that I have not done it. Rekhaben told me that after giving torture for whole night thereafter she was taken in kitchen and after pouring kerosene she was enlightened with match stick. Jayrajbhai made Rekhaben woke up and took her in kitchen. Rekhaben has not said as to who poured kerosene. Except  this  there  were  no  other  persons  present  there. Rekhaben had not asked me anything as to who enlightened match stick. When I asked Rekhaben she stated that except those people no other person was present there. Rekhaben told me that department came at that time I stated such that person who enlightened match stick had put on white cloth and  was  unknown  person,  because  accused  Punjbhai, Jarajbhai,  Manuben and Ramjuben had given such threat that her only one brother will not be let live, therefore, she has not given real fact before department. When Rekhaben

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had such talk with me at that time my uncle’s son Dilubhai was present there. During the treatment at 2.15 PM in the noon  Rekhaben  has  expired.  As  Rekhaben  was  burnt therefore she has expired.”

Cross  examination  by  Advocate  Shri  G.A.  Parikh  for  the accused.  

“6. I  and Dilubhai  reached at  hospital  at  eight  to  eight thirty o’ clock in the morning. It is not true that at Seven O’clock  in  the  morning  I  and  Dilubhai  reached  at  Civil Hospital,  Amreli.  It  is  true that  in my statement  name of Manglubhai is not written.  

7. When I reached at hospital at that time police already came  there.  I  don’t  know  that  whether  police  recorded complaint of Rekhaben in my presence or not. It is true that I  identified  thumb impression  of  Rekhaben  on  the  say  of police. That thumb impression was of Rekhaben. Mamlatdar went inside to record statement. It is true that I identified thumb impression of Rekhaben on that statement. When I reached near Rekhaben in the hospital at that time…. .was burnt. The glucose bottles were not injected to her. She had thirst of water. She could not bend lips. I caused her drink water  and  caused  her  eat  ice  cream.  It  is  not  true  that Rekhaben had totally no talk with me.”  

9) Learned Sessions Judge, on the basis of the deposition of

PW-1, convicted the respondent herein for the offence under

Section 302 of the IPC.  PW-1 deposed before the court that

the deceased informed him that after giving her torture for the

whole night, she was taken to the kitchen by the respondent

herein  and  after  pouring  kerosene  on  her,  matchstick  was

lighted.   He  further  deposed  that  except  the  respondent

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herein,  no  other  person  was  present  at  the  time  of  the

incident.  It was further deposed that the respondent herein

threatened  the  deceased  of  dire  consequences  in  case  of

disclosure of the incident. In a nutshell, PW-1 deposed about

the cruelty and ill behavior meted out to the deceased at her

matrimonial home.   

10) The courts below have to be extremely careful when they

deal  with  a  dying  declaration  as  the  maker  thereof  is  not

available  for  the  cross-examination  which  poses  a  great

difficulty  to  the  accused  person.  A mechanical  approach  in

relying upon a dying declaration just  because it  is  there is

extremely  dangerous.  The  court  has  to  examine  a  dying

declaration scrupulously  with a microscopic eye to  find out

whether the dying declaration is voluntary, truthful, made in a

conscious state of mind and without being influenced by the

relatives present or by the investigating agency who may be

interested  in  the  success  of  investigation  or  which  may  be

negligent while recording the dying declaration.  In the case on

hand,  there  are  two  sets  of  evidence,  one  is  the

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statement/declaration made before the police officer and the

Executive  Magistrate  and  the  other  is  the  oral  dying

declaration made by the deceased before her father who was

examined as PW-1.  On a careful scrutiny of the materials on

record, it cannot be said that there were contradictions in the

statements made before the police officer and the Executive

Magistrate  as  to  the  role  of  the  respondent  herein  in  the

commission of the offence and in such circumstances, one set

of evidence which is more consistent and reliable, which in the

present  case  being  one  in  favour  of  the  respondent  herein,

requires to be accepted and conviction could not be placed on

the sole testimony of PW-1.   A number of times the relatives

influence  the  investigating  agency  and bring  about  a  dying

declaration.  The  dying  declarations  recorded  by  the

investigating agencies have to be very scrupulously examined

and  the  court  must  remain  alive  to  all  the  attendant

circumstances at the time when the dying declaration comes

into being.  In case of  more than one dying declaration,  the

intrinsic  contradictions  in  those  dying  declarations  are

extremely  important.  It  cannot  be  that  a  dying  declaration

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which supports the prosecution alone can be accepted while

the  other  innocent  dying  declarations  have  to  be  rejected.

Such a trend will be extremely dangerous. However, the courts

below are fully entitled to act on the dying declarations and

make  them  the  basis  of  conviction,  where  the  dying

declarations pass all the above tests.

11) The court has to weigh all the attendant circumstances

and  come  to  the  independent  finding  whether  the  dying

declaration  was  properly  recorded  and  whether  it  was

voluntary and truthful. Once the court is convinced that the

dying declaration is so recorded, it may be acted upon and can

be made a basis of conviction. The courts must bear in mind

that each criminal trial is an individual aspect. It may differ

from  the  other  trials  in  some  or  the  other  respect  and,

therefore,  a  mechanical  approach  to  the  law  of  dying

declaration has to be shunned.    

12) On  appreciation  of  evidence  on  record,  we  are  of  the

considered view that  the dying declarations of  the deceased

recorded  by  the  police  officer  as  well  as  the  Executive

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Magistrate are fully corroborated and there is no inconsistency

as regards the role of the respondent herein in the commission

of offence.  From a perusal of the statement recorded by Bhiku

Karsanbhai, P.S.O., the thumb impression of Rekhaben (since

deceased)  which  had  been  identified  by  her  father-Sri  Vala

Jaskubhai Suragbhai as also his cross-examination in which

he admitted that police had already come there and he had

identified  her  thumb  impression  and  Mamlatdar  had  gone

inside  to  record  statement,  there  is  no  reason  as  to  why

Rekhaben would give names of her husband and her in-laws

in  the  alleged  statement  given  to  her  father.   A  dying

declaration is entitled to great weight.  The conviction basing

reliance upon the oral dying declaration made to the father of

the deceased is not reliable and such a declaration can be a

result  of  afterthought.   This  is  the  reason  the  Court  also

insists that the dying declaration should be of such a nature

as to inspire full confidence of the Court in its correctness. The

Court has to be on guard that the statement of deceased was

not  as  a  result  of  tutoring,  prompting  or  a  product  of

imagination.  The  Court  must  be  further  satisfied  that  the

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deceased was in a fit state of mind after a clear opportunity to

observe and identify the assailants. Once the Court is satisfied

that the declaration was true and voluntary, undoubtedly, it

can base its conviction without any further corroboration. It

cannot be laid down as an absolute rule of law that the dying

declaration cannot form the sole basis of conviction unless it is

corroborated. The rule requiring corroboration is merely a rule

of prudence.  

13) The  burden  of  proof  in  criminal  law  is  beyond  all

reasonable doubt. The prosecution has to prove the guilt of the

accused beyond all reasonable doubt and it is also the rule of

justice in criminal law that if  two views are possible on the

evidence adduced in the case, one pointing to the guilt of the

accused and the other towards his innocence, the view which

is favourable to the accused should be adopted.  

14) After considering the evidence and the judgments of the

courts below, we are of the opinion that the evidence available

on record and the sole evidence of the father of the deceased

as compared to the dying declaration do not inspire confidence

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in  the  mind  of  this  Court  to  make  it  the  basis  for  the

conviction of the respondent-accused. Hence, the appeal fails

and is accordingly dismissed.

..…………….………………………J.                 (KURIAN JOSEPH)                                  

.…....…………………………………J.         (R.K. AGRAWAL)                         

NEW DELHI; JULY 11, 2016.  

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