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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 766 OF 2008

Krishan     ... Appellant

Versus

State of Haryana     ... Respondent

J U D G M E N T

Swatanter Kumar, J.

1. This appeal is directed against the judgment of conviction  

and order of sentence dated 17th July, 2007 passed by the High  

Court of Punjab and Haryana at Chandigarh whereby the High  

Court  reversed the judgment  of acquittal  passed by the Trial  

Court against the accused Krishan.   However, it maintained the  

acquittal  of  another  accused  Shardi,  mother  of  the  accused  

Krishan.    

2. In  brief,  the  facts  are  that  Ex.  PH/1,  FIR  No.  134  was  

registered against accused Shardi and Krishan under Sections

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307, 498A, 109 read with Section 34 of the Indian Penal Code,  

1860  (for  short  “IPC”)  on 30th March,  1998.     This  FIR was  

registered in furtherance of the rukka, Ex.PH, received by the  

Police Station Sadar Narwana, from Civil Hospital, Jind.    After  

receiving  the  rukka ASI  Umed  Singh,  PW9 along  with  police  

officers reached the Civil Hospital, Narwana.   That police officer  

obtained the evidence certificate in respect of Smt. Rani, wife of  

Krishan.   She was admitted to the hospital with burn injuries.  

The doctor declared Rani fit  to make the statement and also  

provided her  medico-legal  report  to  the  Investigating  Officer.  

Since  Rani’s  condition  was  serious,  the  Investigating  Officer  

summoned Sh. Baljit Singh, then SDJM Narwana for the purpose  

of recording the statement of Rani.

3. On the request of the police, the said SDJM came to the  

hospital and proceeded to record the statement of Rani.    The  

statement of the deceased was recorded on 30th March, 1998 at  

about 11.40 a.m.    As per the dying declaration, Ext. PR/2 she  

was  married  to  Krishan  approximately  18-19  years  ago.  

Krishan was addicted to liquor and used to harass her.   When  

she served food to Krishan, he would throw away the  thali on  

the ground.

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4. From this wedlock, two sons were born aged 9 years and 7  

years respectively.   According to Rani, accused Krishan used to  

give  her  beatings  whenever  he  was  under  the  influence  of  

liquor.   Krishan also used to make demands for a car, and used  

to ask Rani to bring money to purchase the car from her father.  

She  also  stated  that  her  father-in-law used  to  help  her,  but  

mother-in-law never helped. Shardi,  mother  of  the  accused  

used to instigate him.        

5.        On the fateful day, Rani herself took kerosene oil from  

the store at about 7 a.m. in the morning to burn the stove.   At  

that time, her husband  poured the kerosene oil on her body  

and set her on fire.   On the night previous to the occurrence,  

Krishan had come with his friend Bedu, son of Teka and asked  

her to prepare tea which she prepared and served to both of  

them.   According to Rani,  when she was set  on fire  by the  

accused, her father-in-law and sister-in-law extinguished the fire  

and seeing them even her husband helped in putting off the  

fire.   The father-in-law and sister-in-law had come to the place  

of occurrence after hearing her screams, but none of them were  

present when the accused Krishan had sprinkled kerosene on  

her body.

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6. Vide Ext.  PJ,  PW9 had sought the opinion of the doctor,  

which was recorded vide Ext.  PJ/1 wherein it  was stated that  

“patient is fit to make her statement”.   The Investigating Officer  

then  requested  the  SDJM  to  record  the  statement  of  the  

deceased which then was recorded vide Ext. PR/2 and thumb  

impression of Rani was taken.   This was signed by the SDJM.

7. Based upon the dying declaration made by the deceased,  

FIR was registered under Sections 498A, 307, 109 and 34 IPC.  

However,  subsequently  on 2nd April,  1998 Rani  died  and  the  

offence was converted to Section 302 IPC and FIR accordingly  

amended.    The Investigating  Officer  prepared the  site  plan,  

recorded statement of PWs and prepared the Inquest Report,  

Ext.PN, with  regard  to  the  dead body of  Rani.    The doctor,  

PW14, who performed the post-mortem upon the body of the  

deceased and  noticed the condition of the body and injuries  

upon  the  body  of  the  deceased  stated  in  his  statement  as  

follows:-

“On  dated  3.4.98  vide  PMR  No.  325/98  I  conducted the autopsy of the dead body of  Rani wife of Krishan Balmiki by Caste, resident  of  Sudkan  Kalan,  District  Jind.    Dead  body  was  brought  by  H.C.  Om  Parkash  451  and  Identified by Rajinder and Wazir.   I found the  following on Post-mortem examination.

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Dead body was 160 cm. Long.   It was naked.  Rigour  mortis  was  present  in  all  the  limbs.  There was a golden colour nazle coca.  There  were superficial to deep bones over the whole  body except lower parts of both thigh,  both  legs,  and  foot.    Line  of  demarcation  was  present.    Singeing was present.    Redning,  blackning  and  peeling  of  skin  was  present.  Vesication  was  present.   Bones  were  superficial to deep and approximately 75%.

The cause of death was due to burns and its  complications  which  were  anti-mortem  in  nature  and  sufficient  to  cause  death  in  ordinary course of nature.

The following were handed over to the police.

1. Dead body after Post Mortem Examination. 2. Copy of PMR 3. 11 Police papers duly signed.

The probable  time that  elapse between the  injury and death was between 3-4 day (as per  record and between death) and post mortem  was within 4-36 hours.   Ext. PT is the carbon  copy of the PMR which bears my signature.  On police request Ex. PO I conducted the P.M.  Examination on the dead body of Rani wife  of  Krishan  which  is  also  accompanied  by  the  inquest  report  Ex.  PN which are  in  total  11  pages and I initial the same.

xxxxxxxxxxxxxxx by defence counsel.

The burns were on the whole body except as  mentioned in the statement.   The burns are  classified of three types.  Epidermal, Dermo- epidermal  and  Deep.   Burns  were  of  superficial and deep burns.  It is correct that  due to burns there is severe pains, and the  

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medication is  prescribed.    It  is  incorrect  to  suggest that I am deposing falsely.”

8. The accused were directed to face trial before the Court of  

Sessions.   The learned Trial Court vide its detailed judgment  

dated  15th November,  1999  confirmed  the  opinion  that  the  

prosecution had not  been able  to  prove its  case against  the  

accused beyond shadow of reasonable doubt and, thus, while  

giving the benefit of doubt, acquitted both the accused.   The  

Trial Court found that in the facts of the present case, it was not  

safe  to rely upon the dying declaration of the deceased and  

acquitted both the accused.   It will be useful to refer to the  

relevant findings of the trial court.

“14.All  the  material  witnesses  examined  by  the prosecution namely, PW1 Ramdhari, PW3  Mamo,  mother  of  deceased,  PW4  Nirmala  sister of accused Krishan have not supported  the  prosecution  version  in  any  manner  and  they were declared hostile on the request of  the learned PP and were cross-examined by  him but nothing favourable to the prosecution  came out of them.  The only piece of evidence  against  accused  Krishan  is  the  dying  declaration  recorded  by  Shri  Baljeet  Singh  then  SDJM,  Narwana  in  which  Rani  has  implicated  her  husband  Krishan  for  the  present  occurrence.    PW11  Dr.  B.R.  Kayat  who  admitted  Rani  has  stated  in  the  cross  examination  that  Krishan  accused  was  also  admitted in the hospital at the same time on  

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the  same and he also suffered burn injuries  and  Krishan  remained  admitted  in  the  hospital for 21 days.   From this it is proved  that  Krishan tried to extinguish the fire and  that  is  why  he  also  received  burn  injuries  along with Rani.   DW2 Ram Rati who is real  sister of Rani has stated that Krishan was not  present in the house at the time of occurrence  but he came to the spot from outside and he  also  helped  the  other  family  members  in  extinguishing the fire.   So, from the evidence  it is proved that Krishan accused took part in  extinguishing  the  fire  and  Rani  was  got  admitted  in  the  hospital  alongwith  Krishan.  The  parents  of  the  deceased  have  clearly  stated that accused Krishan was not addicted  to  liquor  and  he  never  harassed  Rani  for  bringing less dowry and that accused Krishan  never demanded any dowry articles although  the  marriage  took  place  more  than  18/19  years ago.   Similarly sister of the deceased  who  was  married  with  the  brother  of  the  accused Krishan and who appeared as DW2  has also stated  that  it  was a  natural  death  because Rani caught fire while preparing tea  and Rani told the witness that Krishan was not  at  fault  and  accused  Krishan  took  part  in  extinguishing  the  fire.    The  material  witnesses  were  declared  hostile  on  the  question of  the  learned PP and were cross- examined by him but  nothing favourable  to  the prosecution came out them.   There is no  evidence on record that  accused Krishan or  her  mother  Sardhi  might  have ever  treated  Rani with cruelty for bringing fewer dowries or  for  bringing  more  dowries.     It  is  also  not  proved from the evidence of the prosecution  that  accused  Krishan  might  be  addicted  to  liquor.    So now we are  left  with the  dying  declaration.......

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15.........In the present case dying declaration  cannot be believed because even parents of  the  deceased  have  not  supported  her  versioning any manner.   Similarly, even the  sister of the deceased who was present at the  time of occurrence has not implicated the two  accused  in  any  manner.    Further  she  has  stated that it was accidental fire and Krishan  accused extinguished the fire.”

9. The above reasoning of the Trial Court did not find favour  

with the High Court and the High Court while relying upon the  

dying  declaration,  the  statement  of  SDJM  PW10  and  the  

statement  of  Dr.  B.R.  Kayat  PW11,  recorded  the  following  

reasoning:-

“23. In this case, dying declaration does not  leave  anything  vague.    It  is  free  from  blemish.   The act of the Magistrate cannot be  suspected  when  he  records  the  dying  declaration as a part of the judicial function,  which carries great sanctity.   Opinion of the  doctor was obtained and deceased remained  fit  to  make  statement  during  the  course  of  recording the dying declaration.   There is no  evidence  that  there  was  any  body  else  to  influence her.

24.    Learned  counsel  for  the  accused- respondents, supporting the judgment of the  trial Court, has pointed out that the benefit of  doubt  should  be  given  to  the  husband  because  he  was  the  person  who  tried  to  extinguish the fire and as a result thereof, he  received burn injuries on his hands.

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25.    This  Court  does  not  concur  with  the  contention  of  the  learned  counsel  for  the  accused-respondents.    When  burn  injuries  are found on the hands etc. of the accused in  case  of  bride  burning  etc.  it  shall  be  a  relevant  circumstance  to  be  taken  into  consideration along with other circumstances  pointing to the innocence of the husband or  whoever is  accused of the crime of causing  death  by  burning.    It  was  stated  by  the  deceased in her statement (Exhibit PR/2) that  her father-in-law and Nanad extinguished the  fire.   Her husband also extinguished the fire.  Since  father  and  sister  of  Krishan  accused- respondent  tried  to  extinguish  the  fire,  Krishan  husband  had  no  option  but  to  join  them in  extinguishing  the  fire.    Had  there  been  any  falsity  in  the  statement  (Exhibit  PR/2) of Rani, she would have been the last  person  to  say  that  her  husband  also  (sic)  extinguished the fire.   It is one of the factors,  which strengthens the consideration that the  dying  declaration  was  spontaneous  and  truthful.  Dr. R.K. Wadhwa (PW14) conducted  the Post Mortem on the dead body of Rani on  April  3,  1998  and  opined  that  the  death  occurred due to burn injuries and the injuries  were  ante  mortem  and  sufficient  to  cause  death in the ordinary course of nature.    The  circumstance  would  further  strengthen  the  duly  proved  and  unequivocal  dying  declaration.   Learned trial judge, in this case,  fell  in  serious  error  by  putting  the  circumstance of presence of burn injuries on  the  hands  of  the  accused  at  a  higher  but  unmerited  pedestal  and  putting  the  dying  declaration  in  the  background.    The  importance  and  emphasis,  which  ought  to  have been put on the dying declaration, were  wrongly put on the said circumstance of burn  injuries  on  the  hands  of  the  accused  in  negation  of  the  settled  proposition  of  law  

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governing  dying  declaration.    The  entire  approach of the trial judge was lopsided and  rather contumacious.”  

10. The  High  Court  convicted  the  accused  Krishan  while  

maintaining the acquittal of Shardi, mother of accused Krishan.  

11. In light of the diametrically opposite views recorded by the  

Trial Court and the High Court, the primary question that arises  

for consideration in the present case is as to whether the court  

can safely rely upon the dying declaration and make the same  

as the basis for conviction of the accused Krishan, though other  

witnesses like PW1, PW3 and PW4 have not fully supported the  

case of the prosecution.   In order to examine this aspect, it is  

necessary for us to bifurcate this proposition into the following  

two heads:-

a. Firstly, whether as a principle of law, a dying declaration  

can form the sole basis for conviction of an accused or not?

b. Secondly,  whether  the  facts  of  the  present  case  fully  

satisfy the settled principles and it would be safe to convict  

the  accused  Krishan  solely  on  the  basis  of  the  dying  

declaration of the deceased?

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DISCUSSION :

12. The  learned  counsel  appearing  for  the  appellant  relied  

upon the judgment of this Court in the case of Khushal Rao  v.  

State of Bombay [AIR 1958 SC 22] to contend that it is not safe  

to convict an accused merely on evidence furnished by a dying  

declaration,  without  further  corroboration  because  such  a  

statement is not made on oath and because the maker of it  

might be mentally and physically in a state of confusion and,  

therefore, the value to be attached to such a dying declaration  

cannot be such so as to form the sole basis of conviction of an  

accused.

13. On the contrary the counsel appearing for the State relied  

upon the judgment of this Court in the case of  State of Uttar  

Pradesh  v.  Ram Sagar Yadav and Ors. [(1985) 1 SCC 552] and  

argued that primary effort of the Court has to be to find out  

whether the dying declaration is true and if it is so, no question  

of  corroboration  arises.   It  is  only  if  the  circumstances  

surrounding the dying declaration are not clear or convincing  

that the court may, for its assurance, look for corroboration of  

the dying declaration.

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14. We are  not  able  to  see  any  contradiction  in  these  two  

judgments of this Court.  The three-Judge Bench judgment in  

the  case  of  Khushal  Rao (supra)  had  stated  the  principle  in  

paragraphs 16 and 17, which reads as under:

“16. On a review of the relevant provisions of  the Evidence Act and of the decided cases in  the different High Courts in India and in this  Court,  we  have  come  to  the  conclusion,  in  agreement with the opinion of the Full Bench  of the Madras High Court, aforesaid, (1) that it  cannot be laid down as an absolute rule of law  that a dying declaration cannot form the sole  basis of conviction unless it  is corroborated;  (2) that each case must be determined on its  own facts keeping in view the circumstances  in which the dying declaration was made; (3)  that  it  cannot  be  laid  down  as  a  general  proposition  that  a  dying  declaration  is  a  weaker kind of evidence than other pieces of  evidence; (4) that a dying declaration stands  on  the  same  footing  as  another  piece  of  evidence and has to be judged in the light of  surrounding  circumstances  and  with  reference  to  the  principles  governing  the  weighing  of  evidence;  (5)  that  a  dying  declaration  which  has  been  recorded  by  a  competent Magistrate in the proper manner,  that  is to say, in  the form of questions and  answers,  and,  as  far  as  practicable,  in  the  words of the maker of the declaration, stands  on  a  much  higher  footing  than  a  dying  declaration  which  depends  upon  oral  testimony  which  may  suffer  from  all  the  infirmities  of  human  memory  and  human  character,  and (6)  that  in  order  to  test  the  reliability of a dying declaration, the court has  to  keep  in  view, the  circumstances  like  the  

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opportunity of the dying man for observation,  for  example,  whether  there  was  sufficient  light  if  the  crime  was  committed  at  night;  whether the capacity of the man to remember  the facts stated, had not been impaired at the  time  he  was  making  the  statement,  by  circumstances  beyond  his  control;  that  the  statement has been consistent throughout if  he  had  several  opportunities  of  making  a  dying  declaration  apart  from  the  official  record of it; and that the statement had been  made at the earliest opportunity and was not  the result of tutoring by interested parties.

17. Hence,  in  order  to  pass  the  test  of  reliability,  a  dying  declaration  has  to  be  subjected to a very close scrutiny, keeping in  view the  fact  that  the  statement  has  been  made in the absence of the accused who had  no opportunity of testing the veracity of the  statement  by  cross-examination.  But  once,  the court has come to the conclusion that the  dying declaration was the truthful version as  to  the  circumstances  of  the  death  and  the  assailants of the victim, there is no question  of further corroboration.  

If,  on  the  other  hand,  the  court,  after  examining  the  dying  declaration  in  all  its  aspects, and testing its veracity, has come to  the conclusion that it is not reliable by itself,  and  that  it  suffers  from  an  infirmity,  then,  without corroboration it cannot form the basis  of  a  conviction.  Thus,  the  necessity  for  corroboration  arises  not  from  any  inherent  weakness of a dying declaration as a piece of  evidence,  as  held  in  some  of  the  reported  cases, but from the fact that the court, in a  given case, has come to the conclusion that  that particular dying declaration was not free  from the infirmities referred to above or from  

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such other infirmities as may be disclosed in  evidence in that case.”

15. A bare reading of the above paragraphs shows that the  

Court opined that it cannot be laid down as an absolute rule of  

law  that  a  dying  declaration  cannot  form  the  sole  basis  of  

conviction unless it is corroborated.  The Bench further clarified  

that  where  the  dying  declaration  is  true  and  correct,  the  

attendant circumstances show it to be reliable and it has been  

recorded in accordance with law, the deceased made the dying  

declaration of her own accord and upon due certification by the  

doctor with regard to the state of mind and body, then it may  

not be necessary for the court to look for corroboration.  In such  

cases, the dying declaration alone can form the basis for the  

conviction  of  the  accused.   But  where  the  dying  declaration  

itself  is  attended  by suspicious circumstances,  has  not  been  

recorded in  accordance with law and settled procedures and  

practices, then, it may be necessary for the court to look for  

corroboration of the same.   

16. In the case of  Ram Sagar Yadav (supra),  this Court had  

followed the same principle and, in turn, specifically referred to  

the judgment of Khushal Rao (supra).  Not only this, even in the  

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case  of  Munnu  Raja  and  Anr.   v.  State  of  Madhya  Pradesh  

(1976)  3  SCC  104,  this  Court  referred  to  the  judgment  in  

Khushal Rao’s case (supra).   In paragraph 6 of the judgment,  

the  Court  stated  the  same  principle  that  where  the  dying  

declaration suffers  from an infirmity,  the  Courts  will  have to  

adopt a different course to adjudicate the matter in accordance  

with law.   In the case of  Ramilaben Hasmukhbhai  Khristi  v.   

State of Gujarat (2002) 7 SCC 56, this Court held as under:

“28. Under  the  law,  dying  declaration  can  form the sole basis of conviction, if it is free  from  any  kind  of  doubt  and  it  has  been  recorded in the manner as provided under the  law.  It  may  not  be  necessary  to  look  for  corroboration  of  the  dying  declaration.  As  envisaged, a dying declaration is generally to  be recorded by an Executive Magistrate with  the certificate of a medical doctor about the  mental  fitness of the declarant to make the  statement. It may be in the form of question  and answer and the answers be written in the  words of the person making the declaration.  But the court cannot be too technical and in  substance  if  it  feels  convinced  about  the  trustworthiness of the statement which may  inspire  confidence  such  a  dying  declaration  can  be  acted  upon  without  any  corroboration.”

17. In  this  regard,  reference can  also be  made to a  recent  

judgment of this Court in the case of Bhajju @ Karan Singh  v.   

State of Madhya Pradesh (2012) 4 SCC 327.   

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18. From the above judgments, it clearly emerges that it is not  

an  absolute  principle  of  law that  a  dying  declaration cannot  

form the sole basis of conviction of an accused when such dying  

declaration  is  true,  reliable  and  has  been  recorded  in  

accordance with the established practice and principles.

19. Having answered the first question, now we have to deal  

with  the  facts  of  the  present  case.   As  already  noticed,  the  

dying declaration had been recorded in  accordance with the  

established practice and procedures.   To its  correctness  and  

authenticity, there can hardly be any challenge.  After receiving  

the rukka at the police station, PW9 had rushed to the hospital  

and  vide  Ex.PJ/2  submitted  application  for  recording  the  

statement of the deceased. The doctor vide Ex. PJ/1 issued a  

certificate  of  fitness  to  record  the  statement  of  Rani.   They  

dying declaration is Ex.PR/2 and photocopy thereof was marked  

as Ex.PK.  This was recorded by the SDJM in his handwriting  

after  questioning  the  deceased.   Ex.PR/2  was  signed  by  the  

SDJM as well as the thumb impression of Rani was taken, which  

was  duly  identified  by  the  Investigating  Officer.   The  

proceedings  to  that  effect  were  duly  recorded  as  giving  

complete details as to how the dying declaration came to be  

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recorded and the proceedings were submitted to the SDJM and  

the Area Magistrate.  The truthfulness of the dying declaration  

can  further  be  evaluated  from  the  fact  that  the  same  was  

recorded on 30th March, 1998 while Rani died on 2nd April, 1998,  

i.e. she survived for another two-three days after the statement  

was made from which it  can reasonably be inferred that she  

was in a fit condition to make statement at the relevant time, as  

stated  by  PW9  and  PW11.  In  the  dying  declaration,  the  

deceased  did  not  unnecessarily  involve  the  other  family  

members  of  the  accused  Krishan.   On  the  contrary,  she  

specifically stated that her father-in-law and sister-in-law were  

always helping her and, in fact, even tried to douse the fire.  

She did not even make any allegations against her mother-in-

law, except that she did not help Rani.  She only attributed the  

acts of cruelty and beating to her husband and that too, when  

he was under the influence of liquor.  

20. Dr.B.R. Kayat, when examined as PW11, specifically stated  

that  the  patient  was  conscious  but  the  B.P.  could  not  be  

recorded because of burns.  She had 75% burns.  The doctor  

issued the endorsement, Ex.PJ/1, declaring that the deceased  

was fit to make statement and he also permitted the Magistrate  

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to record the statement of the deceased and she remained fit  

during  the  recording  of  her  statement.   According  to  this  

witness, he had granted endorsement (Ex. PJ/1) at 11.15 a.m.  

and  then  he  granted  the  other  certificate,  Ex.PR/3  at  about  

11.42 a.m. certifying that she remained fit during recording of  

her statement.   He also stated that the Magistrate remained  

present in the hospital for about 30 minutes.   

21. The learned counsel  appearing for the appellant  heavily  

relied upon the answer of the doctor in his cross-examination,  

where he stated that “it is correct that both hands of Rani were  

burnt, including fingers and thumb.”  The deceased is stated to  

have suffered 75% burns.  This answer of the witness in face of  

his  statement  in  examination-in-chief  does  not  bring  any  

advantage,  inasmuch as no specific  question was put  to  the  

doctor  that  the  extent  of  burns  was  such  that  her  thumb  

impression could not have been taken.  No such question was  

put to this witness.  Not even a suggestion was made to the  

doctor and the Investigating Officer to the effect that it was not  

possible to take the thumb impression of the deceased in the  

state of health that she was in.  Dr. R.K. Wadhwa, PW14, who  

performed the autopsy on the dead body of Rani clearly noticed  

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that  there  were  superficial  to  deep  burns  all  over  the  body  

except her lower parts of both thighs, both legs and feet.  In  

other words, it is not only possible but quite feasible that her  

thumb impression could rightly be taken by the SDJM.   

22. The next submission was that since PW1, PW3 and PW4,  

the relatives of the deceased had themselves turned hostile, it  

cannot be said that the prosecution has been able to prove its  

case beyond any reasonable doubt.  On the contrary, this will  

also  take  this  case  outside  the  category  of  cases  where  an  

accused  can  be  convicted  solely  on  the  basis  of  a  dying  

declaration.

23. No doubt, these three witnesses were declared hostile by  

the prosecutor with the leave of the court.  However, this Court  

can  still  rely  on  and  refer  to  the  statements  of  these  three  

witnesses  to  the  extent  that  they  support  the  case  of  the  

prosecution.  PW1, father of the deceased, stated that he had  

four daughters and one son.  His daughters, Rani and Ram Rati  

were married to Krishan and Sat Narain about 19 years back.  

He denied that Krishan used to treat his daughter with cruelty.  

But two vital pieces of information that clearly surfaced from his  

examination-in-chief  are  inferred  by  the  following  statement  

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“about  two  years  ago,  Krishan  came  to  me  and  demanded  

money for purchase of vehicle, but I refused. ..... Statement of  

my  daughter  was  recorded  before  my  arrival.”   It  was,  

thereafter,  that  the  witness  was  declared  hostile  and  cross-

examined.  Similarly, PW3, mother of the deceased stated that  

her daughter was never harassed by the accused for bringing  

less  dowry  and  was  declared  hostile.   PW4  is  the  sister  of  

Krishan and she stated that Krishan was not at home and the  

deceased caught fire while she was preparing the tea.  Maybe,  

it was not possible for the Court to convict the accused on the  

basis  of  the  statements  of  PW1,  PW3 and PW4 respectively.  

These  witnesses  support  the  case  of  the  prosecution  to  a  

limited.  Rani and Ram Rati were two sisters who were married  

to two real brothers, i.e. Krishan and Sat Narain.  This fact has  

duly been noticed by the Trial Court in its judgment.  However,  

its impact on the case of the prosecution and the reason for not  

supporting  of  the  prosecution  case  by  these  witnesses  was  

completely ignored by the Trial Court.  PW1 supports the dying  

declaration  to  the  extent  that  money  was  demanded  for  

purchase of a car and he had refused to meet the demand.  To  

that extent, this fully corroborates the dying declaration made  

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by the deceased.  Keeping in view the social  set up in rural  

areas, the fact that another daughter Ram Rati, sister of the  

deceased Rani, had been married in the same family, gives a  

definite indication as to the reason why these witnesses turned  

hostile.   The  hostility  of  these  witnesses  would,  in  no  way,  

render the dying declaration doubtful, much less inadmissible  

or of no evidentiary value.  The hostility of the witnesses is a  

relevant consideration, but is not the sole determinative factor  

for deciding the guilt or otherwise of an accused.  PW9, PW11,  

PW14,  SDJM,  the  other  police  witnesses and to  some extent  

PW1  have  also  supported  the  case  of  the  prosecution  and  

partially the dying declaration.  

24. The judgment of this Court in the case of Bhajju @ Karan  

Singh (supra)  can  usefully  be  referred  again  as  it  has  some  

similarity on facts.  There also two witnesses had turned hostile  

and  a  dying  declaration  was  involved.   Considering  the  

cumulative effect  of hostile witnesses and the reliability of a  

dying declaration, the Court held as under:

“33. As already noticed, none of the witnesses  or the authorities involved in the recording of  the  dying declaration had turned hostile.  On  the  contrary,  they  have  fully  supported  the  case  of  the  prosecution  and  have,  beyond  

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reasonable  doubt,  proved  that  the  dying  declaration  is  reliable,  truthful  and  was  voluntarily  made  by  the  deceased.  We  may  also  notice  that  this  very  judgment,  Munnu  Raja (1976)  3  SCC  104  relied  upon  by  the  accused  itself  clearly  says  that  the  dying  declaration  can  be  acted  upon  without  corroboration and can be made the basis  of  conviction.

34. Para  6  of  the  said  judgment  reads  as  under: (Munnu Raja case, SCC pp. 106-07)

“6. … It is well settled that though a dying  declaration  must  be  approached  with  caution for the reason that the maker of the  statement  cannot  be  subject  to  cross- examination, there is neither a rule of law  nor a rule of prudence which has hardened  into a rule of law that a dying declaration  cannot  be  acted  upon  unless  it  is  corroborated (see  Khushal  Rao v.  State of  Bombay AIR 1948 SC 22). The High Court, it  is  true,  has held  that  the evidence of the  two  eyewitnesses  corroborated  the  dying  declarations  but  it  did  not  come  to  the  conclusion  that  the  dying  declarations  suffered  from  any  infirmity  by  reason  of  which  it  was  necessary  to  look  out  for  corroboration.”

35. Now, we shall discuss the effect of hostile  witnesses as well as the worth of the defence  put  forward  on  behalf  of  the  appellant- accused.  Normally,  when  a  witness  deposes  contrary to the stand of the prosecution and  his own statement recorded under Section 161  Cr.PC, the prosecutor, with the permission of  the court, can pray to the court for declaring  that witness hostile and for granting leave to  cross-examine  the  said  witness.  If  such  a  permission is  granted  by  the  court  then  the  

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witness  is  subjected  to  cross-examination by  the  prosecutor  as  well  as  an  opportunity  is  provided to the defence to cross-examine such  witnesses,  if  he  so  desires.  In  other  words,  there is a limited examination-in-chief, cross- examination  by  the  prosecutor  and  cross- examination by the counsel for the accused. It  is  admissible  to  use  the  examination-in-chief  as  well  as  the  cross-examination of the  said  witness insofar as it supports the case of the  prosecution.

36. It is settled law that the evidence of hostile  witnesses  can  also  be  relied  upon  by  the  prosecution to the extent to which it supports  the  prosecution  version  of  the  incident.  The  evidence of such witnesses cannot be treated  as  washed  off  the  records,  it  remains  admissible in trial and there is no legal bar to  base the conviction of the accused upon such  testimony,  if  corroborated  by  other  reliable  evidence.  Section  154  of  the  Evidence  Act  enables the court, in its discretion, to permit  the  person,  who calls  a  witness,  to  put  any  question to him which might be put in cross- examination by the adverse party.

37. The view that the evidence of the witness  who has been called  and cross-examined by  the party with the leave of the court, cannot be  believed or disbelieved in part and has to be  excluded  altogether,  is  not  the  correct  exposition of law. The courts may rely upon so  much of the testimony which supports the case  of the prosecution and is corroborated by other  evidence.  It  is  also  now  a  settled  canon  of  criminal jurisprudence that the part which has  been allowed to be cross-examined can also be  relied  upon  by  the  prosecution.  These  principles  have  been  encompassed  in  the  judgments of this Court in the following cases:

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a. Koli  Lakhmanbhai  Chanabhai   v.   State of Gujarat (1999) 8 SCC 624.

b. Prithi  v.  State of Haryana (2010) 8  SCC 536.

c. Sidhartha   Vashisht   @   Manu  Sharma   v.   State  (NCT  of  Delhi)  (2010) 6 SCC 1.

d. Ramkrushna   v.   State  of  Maharashtra (2007) 13 SCC 525.”  

25. Even in the case of Mrinal Das v.  State of Tripura (2011) 9  

SCC 479, this Court held as under:

“68. In our case, the eyewitnesses including  the  hostile  witnesses,  firmly established the  prosecution  version.  Five  eyewitnesses,  namely, PW 1, PW 4, PW 6, PW 7 and PW 8  clearly  identified  two  convicts,  appellants  Tapan Das (A-5) and Gautam Das (A-11). PWs  1, 4, 7 and 8 identified accused Pradip Das (A- 9).  PWs 1 and 7 identified accused Somesh  Das (A-7). PWs 1 and 4 identified Mrinal Das  (A-4). PWs 4 and 8 identified Anil Das (A-1). It  is clear that 6 accused persons including two  convicts/appellants  had  been  identified  by  more than one eyewitnesses. It is also clear  that 6 accused could have been identified by  the eyewitnesses though all of them could not  have been identified by the same assailants.  However, it is clear that two or more than two  eyewitnesses could identify one or more than  one  assailants.  The  general  principle  of  

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appreciating  evidence  of  eyewitnesses  in  such a case is that where a large number of  offenders are involved, it is necessary for the  court to seek corroboration, at least, from two  or more witnesses as a measure of caution.  Likewise, it is the quality and not the quantity  of evidence to be the rule for conviction even  where  the  number  of  eyewitnesses  is  less  than two.

69. It  is well settled that in a criminal  trial,   credible  evidence  of  even  hostile  witnesses  can  form the  basis  for  conviction.  In  other   words,  in  the  matter  of  appreciation  of  evidence of witnesses, it is not the number of  witnesses but quality of their evidence.”

(emphasis supplied)

26. In  view  of  the  settled  position  of  law,  we  are  of  the  

considered view that the hostility of PW1, PW3 and PW4 cannot  

demolish the value and reliability of the dying declaration of the  

deceased, Ext. PR/2.  The dying declaration has been proved in  

accordance with law, is  a  truthful  version of the events  that  

occurred  and  the  circumstances  leading  to  her  death.   The  

same is reliable and in fact, to some extent, finds corroboration  

from the statements of other witnesses.   

27. For these reasons, we see no merit in the present appeal  

and the same is dismissed.  

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....….…………......................J.                                           (Swatanter Kumar)

....….…………......................J.  (Madan B. Lokur)

New Delhi, December 13, 2012.

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