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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 427 OF 2007

State of Rajasthan       … Appellant  Versus

Shravan Ram & Anr. … Respondents

J U D G M E N T

K.S. Radhakrishnan, J.

1. This is an appeal by the State of Rajasthan against the  

Judgment in D.B. Criminal Appeal No. 124 of 2001 passed by  

the High Court  of  Rajasthan.   The Additional  Sessions Judge  

convicted  the  accused  persons  under  Section  302,  IPC  and  

sentenced  them  for  life  imprisonment  with  fine  which  was  

reversed by the High Court and acquitted the accused persons.  

2. The prosecution case is as follows:

Guddi,  the  deceased,  was  admitted  in  the  hospital  on  

11.09.1998 with  ninety  nine  per  cent  burn  injuries.   Parcha

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Bayan (Ex.P14A) of the deceased was recorded by ASI,  Ram  

Kishan and signed by SHO Mohan Lal PW13 in the hospital.  On  

the  basis  of  the  said  Parcha  Bayan,  FIR  No.  300/98  was  

registered  at  police  station  Madanganj  (Ajmer)  against  the  

accused persons  under  Section  307,  IPC.   During treatment,  

Guddi died at about 10AM on the same day and the case was  

converted  into  Section  302,  IPC.   During  the  course  of  

investigation,  both  the  accused  persons  were  arrested  on  

12.09.1998,  first  accused  is  the  father-in-law  and  second  

accused  is  the  husband.    The  accused  persons  denied  the  

charges  and  the  case  went  to  trial.    On  the  side  of  the  

prosecution  14  witnesses  were  examined.  The  Additional  

Sessions  Judge,  placed  considerable  reliance  on  the  dying  

declaration  stated  to  have  been  made  before  PW  3  Prem  

Chand, a neighbour which find a place in the statement (Ex. P6)  

made by him to the police under Section 161 of Cr.P.C.  PW3  

has stated that the deceased had raised hue and cry after the  

burn injuries and abused the father-in-law - Sharvan Ram and  

based  on  the  evidence  of  PW3  and  his  161  statement,  the  

Session Court found the accused persons guilty.

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3. Following are the circumstances which weighed with the  

Additional Sessions Judge:

(i) That Smt. Guddi, aged 19 years died after two years  of  her  marriage  due  to  99%  burn  injuries  after  pouring  kerosene  on  her  enlightening  match  stick,  therefore the death is homicidal.

(ii) Deceased was in the custody of accused appellants  and simply  on account  of  going outside the house  were the ‘occurrence took place’ custody will not be  ceased.

(iii) PW1  Nathu  Lal  (father),  PW2  Kailash  (uncle)  and  PW13 Smt. Suraj Devi (mother)  of the deceased in  their statements have deposed that Smt. Guddi was  not allowed by the accused appellants to go to her  matrimonial home.

(iv) The version  of  Prem Chand,  PW3 in  his  statement  under Section 161 Cr.P.C. was considered as dying  declaration and not the Parcha Bayan.  Reliance was  not  placed by Additional  Sessions Judge on  Parcha  Bayan of deceased.  

(v) That  the  previous  and  subsequent  conduct  of  accused appellants was not satisfactorily explained in  their  statements  under  Section  313  Cr.P.C  as  required under Section 8 of the Evidence Act.

(vi) Since the  death  was  caused in  the  custody of  the  accused,  therefore,  the  accused  were  also

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responsible for  proving the fact of burn which was  specifically within their knowledge as required under  Section 106 of the Indian Evidence Act and further  according to Section 114 of the Indian Evidence Act  presumption  has  to  be  drawn  against  accused  appellants.

4. Shri  Abhishek Gupta,  learned counsel  appearing for  the  

respondents submitted that the High Court has rightly held that  

it is not safe to base conviction on the statement of PW 3 –  

Prem  Chand  recorded  under  Section  161  Cr.P.C.,  who  was  

declared hostile.  Further, it was also pointed out that in the  

statement under Section 161 Cr.P.C., PW3 had not named the  

second accused - Pappu Lal, husband of the deceased.  Further,  

it was also pointed out that PW4 Smt. Choti and PW5 Narayan,  

who are neighbours, did not disclose the cause of death and  

have not mentioned the names of any of the accused persons  

in  their  evidence.   Therefore,  the  dying  declaration  made  

before  Prem  Chand  remained  uncorroborated  and  the  High  

Court  has  rightly  held  that  no  reliance  could  be  placed  on  

uncorroborated dying declaration.  Learned counsel, therefore,  

submitted  that  the  judgment  of  the  High  Court  calls  for  no  

interference.

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5. Shri  Shoran  Mishra,  learned  counsel  appearing  for  the  

State submitted that the High Court has committed an error in  

not placing reliance on the evidence of PW3 and the statement  

made  by  him  before  the  Police  under  Section  161  Cr.P.C.,  

wherein the name of the second accused has been mentioned.  

Learned counsel also submitted that the High Court has failed  

to notice the fact that the deceased was in the custody of the  

respondents and therefore the burden of explaining the fact of  

burning is on the accused persons.  Further, they have failed to  

provide  any  explanation  when  examined  under  Section  313  

Cr.P.C.  Learned counsel also pointed out that the High Court  

has not properly appreciated the evidence by PW1 - Nathu lal  

(father of the deceased), PW2 - Kailash (uncle of the deceased)  

and PW14 – Suraj Devi (mother of the deceased).  PW14 in her  

deposition stated that the deceased father in law used to say  

that Guddi is his wife and she had deposed that her daughter  

had told if the above facts were disclosed she would be killed  

by  burning.   Learned  counsel,  therefore,  submitted  that  the  

evidence of PW1, PW2 and PW14 coupled with the statement  

made by PW3 would establish the guilt of the respondents and  

the trial court has rightly convicted them.

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6. We notice that there is no eye-witness to the occurrence  

and the entire case hinges upon few alleged dying declarations  

made by the deceased and circumstantial evidence.  PW11 –  

Dr. P.C. Patni conducted the autopsy and gave report Ex.P14 in  

which  it  is  stated that  the  deceased had 99% burn injuries.  

Post mortem was conducted by members of the board and in  

their opinion cause of death was hypovolumic shock as a result  

of  ante-mortem burn  and the  death  had occurred  within  24  

hours and there was no evidence of suicide or accidental fire  

and therefore the case was homicidal.

7. We  are  in  this  case  concerned  with  three  dying  

declarations which are as follows:

(i) ASI Kishan recorded  Parcha Bayan of the deceased  which was signed by PW13 Mohan Lal in the presence  of the doctor who also signed the same.  Further, the  accused  also  stated  to  have  affixed  his  thumb  impression.

(ii) Dying  declaration  stated  to  have  been  made  on  11.09.1998 , signed by the Sub-Divisional Magistrate  but  neither  the  said  dying  declaration  had  been  exhibited nor the Sub-Divisional Magistrate had been  produced in evidence.

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(iii) Dying declaration, as made by the deceased, before  PW 3, Prem Chand, which had been stated by him in  his statement under Section 161, Cr.P.C.

8. We find only  two dying declarations  are on record,  the  

second one mentioned above was not brought out in evidence.  

Parcha Bayan of the deceased, based on which the case was  

registered reads as follows:

“I stay in Maliyon ki Dhani Madanganj.  Today morning  at around four-five, I had gone from home to near the  drain adjacent Shivji Temple to ease myself and I was  easing  myself  when  at  that  time  a  person  wearing  white pant and shirt came.  And in his hand there was  a kerosene can, and poured over me.  And lighting a  match  poured  over  me.   My  terecot  clothes  immediately caught fire.  I fell in the drain and coming  out of the drain reached the house being inflamed and  narrated the whole incident to the family members.  I  did not recognize the person.  I being inflamed fell in  the  drain  and  coming  from  the  drain  came  being  inflamed and narrated the whole incident to the family  members, who have brought me to the hospital,  my  marriage took place two years back.”

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The third dying declaration stated to have been made by the  

deceased before PW3 – Prem Chand was referred to in Part A to  

B of Ex.P6 reads as follows:  

“She was a woman who shouting at the site and was  abusing her father  in law Shravan Ram that  you be  doomed you ran away setting me on fire.”

9. We may now examine, whether statement of PW3 – Prem  

Chand recorded under Section 161, Cr.P.C., marked as Ex.P6  

could be accepted as a dying declaration, wherein it was stated  

by him that  the deceased was raising hue and cry and was  

abusing her father in law for ablazing her.  PW3 was declared  

as hostile.  Further, PW4 and PW5, the neighbours, who have  

stated to have seen the deceased in a burning state and raising  

hue  and  cry,  neither  disclosed  the  cause  of  death  nor  

mentioned  the  names  of  any  of  the  accused  persons.  

Consequently,  the  dying  declaration  made  by  Prem  Chand  

remained uncorroborated.  It is trite law that it is unsafe to base  

reliance on the statement made under Section 161 Cr.P.C. as  

dying  declaration  without  any  corroboration.   Although  

corroboration  as  such  is  not  essential  but  it  is  expedient  to  

have the same, in order to strengthen the evidentiary value of

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declaration.   This court in  Arvind Singh v. State of Bihar  

(2001) 6 SCC 407 while dealing with  the case of  oral  dying  

declaration stated as follows:    

“Dying declaration shall have to be dealt with care and  caution.   Corroboration  is  not  essential  but  it  is  expedient to have the same, in order to strengthen the  evidentiary  value  of  declaration.   Independent  witnesses may not be available but there should be  proper care and caution in the matter of acceptance of  such a statement as trustworthy evidence.”

10. This  Court  in  Bhajju  Alias  Karan  Singh  v.  State  of  

Madhya  Pradesh (2012)  4  SCC  327  while  dealing  with  

admissibility of dying declaration held as follows:

“The  law  is  well  settled  that  a  dying  declaration  is  admissible in evidence and the admissibility is founded  on the principle of necessity.  A dying declaration, if  found reliable, can form the basis of a conviction.  A  court  of  facts  is  not  excluded  from acting  upon  an  uncorroborated  dying  declaration  for  finding  conviction.   The  dying  declaration,  as  a  piece  of  evidence,  stands  on  the  same footing  as  any  other  piece of evidence.  It has to be judged and appreciated  in  light  of  the  surrounding  circumstances  and  its  weight  determined  by  reference  to  the  principle

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

11. Applying  the  above  legal  principles  and  examining  the  

facts on record, we are of the view that no reliance could be  

placed on the statement made by PW3 – Prem Chand under  

Section 161 Cr.P.C.  before  the  police in  the  absence of  any  

corroboration.   Over  and  above,  PW3  has  himself  turned  

hostile.   

12. We  will  now  deal  with  the  question  whether  the  dying  

declaration stated to have been recorded by ASI Ramkishan,  

signed by SHO Mohan Lal (PW13) as well as Dr. Anil Kumar Soni  

would be sufficient to base the conviction.

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13. First we will examine whether P14-A, Parcha Bayan, which  

was converted into dying declaration is  made in consonance  

with Rule 6.22 of the Rajasthan Police Rules, 1965.  Rule 6.22  

of the Rajasthan Police Rules, 1965 reads as follows:

“Dying  Declarations  –  (1)  A  dying  declaration  shall,  whenever possible, be recorded by a Magistrate.

(2)  The  person  making  the  declaration  shall,  if  possible, be examined by medical officer with a view  to ascertaining that he is sufficiently in possession of  his reason to make a lucid statement.

(3) If no Magistrate can be obtained, the declaration  shall, when a gazetted police officer is not present, be  recorded  in  the  presence  of  two  or  more  reliable  witnesses  unconnected  with  the  police  department  and with the parties concerned in the case.

(4) If no such witnesses can be obtained without risk of  the injured person dying before his statement can be  recorded, it shall be recorded in the presence of two or  more police officers.

(5) A dying declaration made to a police officer should,  under  Section  162,  Code  of  Criminal  Procedure,  be  signed by the person making it.”

14. We  notice,  in  this  case,  the  above  mentioned  Rule  is  

substantially complied with, still in our view no reliance could

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be placed due to lack of corroboration over and above the fact  

that  even  in  Ex.  P14-A,  the  deceased  had  not  named  the  

accused persons.  What she stated is that she did not recognize  

the person who has ablazed her.  Therefore, in the absence of  

any  corroboration  and  also  not  naming  any  of  the  accused  

persons in Ex.P14A, no reliance could be placed on the same  

even though the provision of Rule 6.22 of the Rajasthan Police  

Rules, 1965 has been complied with.

15. This Court had occasion to consider the scope of multiple  

dying declarations in  Smt. Kamla v. State of Punjab (1993)  

1 SCC 1, this Court held as follows:

“A dying declaration should satisfy all  the necessary  tests and one such important test is that if there are  more  than  one  dying  declaration  they  should  be  consistent particularly in material particulars.”

16. In Kishan Lal v. State of Rajasthan (2000) 1 SCC 310,  

this Court held has follows:

“Examining these two dying declarations, we find not  only that they gave two conflicting versions but there  is  inter  se  discrepancies  in  the  depositions  of  the  witnesses  given  in  support  of  the  other  dying

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declaration  dated  6.11.1976.   Finally,  in  the  dying  declaration  before  a  Magistrate  on  which  possibly  more reliance could have been placed the deceased  did not name any of the accused.  Thus, we have no  hesitation to hold that these two dying declarations do  not bring home the guilt of the appellant.  High Court,  therefore,  erred  in  placing  reliance  on  it  by  erroneously evaluating them.”

17. In  Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC  

713,  this  Court  had  occasion  to  consider  the  legality  and  

acceptability  of  two  dying  declarations.   Noticing  the  

inconsistency between the two dying declarations,  the Court  

held that it is not safe to act solely on the said declarations to  

convict the accused persons.

18. In  Amol Singh v. State of Madhya Pradesh (2008) 5  

SCC  468,  this  Court  interfered  with  the  order  of  sentence  

noticing  inconsistencies  between  the  multiple  dying  

declarations.  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

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corroboration  but  the  statement  should  be  consistent  

throughout.   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 and while scrutinising the contents of  

various dying declarations, in such a situation, the court has to  

examine the same in the light of the various surrounding facts  

and circumstances.

19. In  State  of  Andhra  Pradesh  v.  P.  Khaja  Hussain  

(2009) 15 SCC 120, this Court rejected the appeal filed against  

the acquittal holding that it was not a case where the variation  

between the two dying declarations was trivial in nature.

20. In  Sharda v. State of Rajasthan (2010) 2 SCC 85, this  

Court  has  dealt  with  three  dying  declarations.   Noticing  

inconsistencies between dying declarations, this Court set aside  

the sentence ordered by Sessions Judge as well as High Court  

and held as follows:

“Though  a  dying  declaration  is  entitled  and  is  still  recognised by law to be given greater weightage but it  has also to be kept in mind that the accused had no

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chance of cross-examination.  Such a right of cross- examination is  essential  for  eliciting the truth as an  obligation of oath.  This is the reason, generally, the  court insists tha the dying declaration should be such  which  inspires  full  confidence  of  the  court  of  its  correctness.  The court has to be on guard that such  statement  of  the  deceased  was  not  as  a  result  of  either tutoring,  prompting or product of imagination.  The court must be further satisfied that the 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  aforesaid  requirement  and also  to  the  fact  that  declaration  was  true  and  voluntary,  undoubtedly,  it  can  base  its  conviction  without  any  further corroboration.”

21.  We have gone through both the dying declarations and  

there  are  not  only  material  contradictions  in  both  the  

declarations but also inter se discrepancies in the depositions  

of the witnesses as well.  In the first dying declaration recorded  

by ASI, signed by PW13, there is no mention of the names of  

any of the accused persons and the deceased had stated that  

she could not recognize the person who set her ablaze even  

though the declaration was in consonance with Rule 6.22 of the  

Rajasthan Police Rules, 1965.

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22. So far as the statement of PW3 – Prem Chand recorded  

under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the  

deceased was only abusing her father in law and that was not  

even  corroborated  by  PW4 or  PW5 and  PW3 himself  turned  

hostile.  Due to discrepancies and contradictions between the  

two dying declarations and also in the absence of any other  

reliable  evidence,  in  our  view,  the  High  Court  is  justified  in  

reversing the order of conviction which calls for no interference  

by  this  Court.   In  view  of  above,  the  appeal  is,  therefore,  

dismissed.

…………………………..J. (K.S. Radhakrishnan)

…………………………..J. (Dipak Misra)

New Delhi, May 1, 2013