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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1018 OF 2010

STATE OF RAJASTHAN     … APPELLANT

VERSUS

Mst. GANWARA     … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

This appeal by special leave is directed against the

impugned judgment dated 3rd November, 2009 passed by the

High Court of Rajasthan at Jodhpur in D.B. Criminal Appeal

No. 186/1985 whereby the High Court allowed the appeal

filed by the  respondent herein and set  aside the  order  of

conviction  and  sentence  passed  by  the  learned  Sessions

Judge,  Bikaner  against  the  respondent  for  the  offence

punishable  under  Section  302  of  the  Indian  Penal  Code

(“IPC” for short).

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2. The facts of  the case in a nutshell  are that upon

receiving  a  telephonic  call  from  P.B.M.  Hospital  on  5th

September,  1982 at  about  1.45 p.m.  PW14 — Jagdishlal,

D.S.P.  (Probationary)  of  P.S.  Nava Shehar,  Bikaner visited

the  hospital  where  he  found  Shanti  alias  Nylon  in  a

completely burnt condition. In her statement to PW14, she

alleged  that  her  mother-in-law—Ganwara  (respondent

herein) had cruel intention against her for not satisfying her

with undue demands of dowry. For this reason, with an evil

intention to get rid of her, Ganwara had burnt her alive on

pouring  kerosene  and  lighting  a  match  stick.  On  raising

screams,  the  neighbouring  people  rushed  to  the  spot,

extinguished the flames and admitted her in the hospital.

Having  recorded  her  statement,  PW14  has  registered  the

criminal case under Section 307, IPC against the respondent

and  visited  the  place  of  occurrence,  prepared  spot

panchnama  (Ext.  P26)  and  site  map  (Ext.  P2).  Pieces  of

burnt clothes (Ext. P5) and a lantern were recovered from

the  spot  (Ext.P3).  Meanwhile,  learned  Magistrate  has

recorded dying declaration (Ext. P11) of the injured. As the

victim  has  succumbed  to  the  burnt  injuries  on  7th

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September, 1982, charge under Section 302, IPC was also

added  to  the  case  and  the  case  was  committed  to  the

sessions. The accused pleaded not guilty and claimed to be

tried.

3. In its effort to prove the case against the accused,

prosecution  has  examined  as  many  as  16  witnesses,

whereas the accused—respondent produced three witnesses

in her defence. The learned trial Judge in the end formed the

opinion  that  the  accused  was  guilty  of  intentionally

murdering the victim. Accordingly, she was convicted for the

offence  punishable  under  Section  302,  IPC  for  which  a

sentence of life imprisonment with payment of fine of Rs.50,

was awarded by the trial Court.

4. The aggrieved accused Ganwara carried the matter

in  appeal  before  the  High  Court.  On  reappreciation  of

evidence  on  record,  the  High  Court  disbelieved  the

prosecution story and came to the conclusion that under the

circumstances of the case, it would be unsafe to confirm the

guilt against the accused basing on the dying declaration.

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The  High  Court,  accordingly,  allowed  the  appeal  and

acquitted the accused of the charge. The State of Rajasthan

is,  therefore,  before  this  Court  in  appeal  challenging  the

judgment of the High Court.

5. It  is  vehemently  assailed  by  the  learned  State

counsel  that  the  High  Court  judgment  is  arbitrary  and

against  the settled principles  of  law.  The deceased in her

dying declaration categorically mentioned the way in which

the accused indulged in the criminal act and burnt her alive

with a clear intention to kill, owing to her undue demands of

dowry. The statement of the deceased was duly corroborated

with  the  testimonies  of  mother,  brother  and sister  of  the

deceased.  The  learned  trial  Court  has  passed  a  reasoned

judgment  convicting  the  accused  for  the  offence,  but  the

High Court in an arbitrary manner set aside the order of

conviction  and  sentence  passed  by  the  trial  Court  and

prayed for interference by this Court.  

6. Having given our anxious consideration to the facts

and circumstances of  the case in the light of  material  on

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record, we find that multiple statements (dying declarations)

were given by the deceased at different times under varying

circumstances.  When  the  Investigating  Officer,  PW14—

Jagdish Lal visited the deceased at the hospital and recorded

her statement (Ext. P24) at 1.45 p.m. on 5.9.1982, she told

the  I.O.  that  she  was  burnt  by  her  mother  in  law

(respondent) for not meeting her demands of dowry. It was

the neighbouring public who upon hearing her hue and cry,

took her to the hospital. The said statement was given by the

deceased  in  the  presence  of  one  advocate  namely  Mr.

Purushottam Vyas,  her  sisters  and  other  relatives  in  the

hospital.  PW14  has  also  recorded  the  statement  of  the

deceased  under  Section  161,  Cr.P.C.  (Ext.  P29).  It  is

admitted by PW14—I.O. in the cross examination that before

recording the statements of the deceased (Ext. P24 and P29),

he had not verified from the Doctor, the fitness or otherwise

of the deceased  to make statement.

7. However,  the  record  clearly  shows  that  after  two

hours  of  recording  Ext.  P24 by PW14,  learned Magistrate

has also recorded a dying declaration of the deceased, duly

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obtaining  fitness  certificate  from the  Doctor.  Whereas,  in

that statement given to the learned Magistrate (Ext. P11) at

3.40  p.m.  on  the  date  of  incident,  the  deceased  did  not

mention about the demand of dowry by her mother in law

but  specifically  told  that  it  was  her  mother-in-law  who

admitted her in the hospital.  

8. It  is  well  settled  and  needs  no  reiteration  at  our

hands  that  dying  declaration can form the  sole  basis  for

conviction. At the same time, it is not the plurality of the

dying declarations that adds weight to the prosecution case,

but their qualitative worth is what matters. The settled legal

principle  is  that  dying  declaration  should  be  free  from

slightest of doubt and shall be of such nature as to inspire

full  confidence  of  the  Court  in  its  truthfulness  and

correctness.  The  Court  must  exercise  great  caution  while

considering the weight to be given to a dying declaration,

particularly when there are more than one dying declaration.

9. The  accused—respondent  in  her  statement  under

Section 313, Cr.P.C. deposed that at the time of incident,

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she was not present at the home as she has gone to Gopalji

temple as per  her  daily  routine  and while  returning from

temple,  somebody  informed  her  about  the  incident.

Immediately,  she  rushed  to  home,  called  her  brother

Lalchand for help and took her daughter-in-law to hospital

in a tempo and admitted her in the hospital. When she was

sitting aside the victim in the hospital, the family members

of  the  deceased  along  with  advocate  Mr.  Purushottam

arrived there and asked her to go and sit in verandah. While

she was outside the room of the deceased, the advocate and

family  members  instigated  and  tutored  the  deceased  to

depose against the accused.

10. The  intrinsic  worth  and  reliability  of  dying

declaration  can  generally  be  judged  from  its  tenor  and

contents themselves. Here in the case on hand, the so called

dying declarations recorded at the behest of  the deceased

create huge doubt on their veracity inasmuch as there was

contradictory  variance  as  to  the  facts  of  presence  of  the

accused  at  the  scene  of  offence  at  the  time  of  incident,

bringing  the  victim  to  the  hospital  and  impact  of  the

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presence and provocation of  relatives and advocate at the

time of  recording  of  statement  of  the  deceased.  It  is  also

evident from the record that when PW14 made enquiries in

the vicinity, no one supported the case of prosecution that

the accused had put the deceased on fire. The I.O. (PW14)

categorically deposed that during his enquiry, he found that

at the time of incident, the accused was away from home as

she went to Gopalji temple and it was the accused who first

of all  took the deceased to the hospital. It was also made

clear  by  PW14,  that  he  came  to  know  from  the

neighbourhood that the deceased did not want to live at her

matrimonial home and always wanted to live at her parental

home. According to him, the deceased Shanti was well built

woman with strong physique and the accused Ganwara was

weak  in  comparison  to  the  body  structure  of  deceased

Shanti. Most of the other prosecution witnesses are either

relatives  of  the  deceased  or  hearsay  witnesses  and

investigating witnesses and none of them was present at the

time of offence. In the light of foregoing, it can be said that

the allegations levelled against the respondent in the dying

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declarations  have  not  been  corroborated  by  the  material

witnesses.

11. Taking stock of the facts and circumstances of

the case, in our view, the High Court has rightly felt that the

dying  declaration  in  the  case  on  hand  did  not  inspire

confidence so as to award conviction to the accused. In this

state of things, the Court has to give benefit of doubt to the

accused as it is not safe to sustain the conviction as implicit

reliance cannot be placed on the dying declaration under the

peculiar circumstances of the case.

12. For all  the aforesaid reasons,  we uphold the

impugned order passed by the High Court.  The appeal  is

accordingly dismissed being devoid of merit.

................................................J.                            (N.V. RAMANA)

                      ................................................J.

       (MOHAN M. SHANTANAGOUDAR) New Delhi, August 28, 2018.