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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 903 OF 2018

POONAM BAI  …  APPELLANT   

Versus

THE STATE OF CHHATTISGARH          …  RESPONDENT       

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. This appeal calls into question the judgment dated

06.04.2018 passed by the High Court of Chhattisgarh at Bilaspur

in ACQA No.205 of 2010, by which the judgment of the trial court

was set aside and the appellant was convicted under Section 302

of the Indian Penal Code (in short, “the IPC”) for committing the

murder of the deceased  Vimla  Bai and sentenced to  undergo

rigorous imprisonment for life and to a fine of Rs.500/­.

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2. The case of the prosecution in brief is as follows:

The deceased Vimla Bai was the wife of Pilaram Sahu (P.W.

3).   The appellant Poonam Bai is the daughter of Balaram, P.W.

3’s brother, and thus the niece of the deceased.   On the date of

the incident, i.e. 01.11.2001, around noon, the appellant Poonam

Bai came to the  house  of the  deceased  when  she  was  alone,

quarreled with her, poured kerosene on her body and lit a fire

with a match­stick. Vimla Bai sustained burn injuries and

succumbed thereto in the hospital.   The matter was reported to

Police Station Gurur on the same day by Lalita Sahu (P.W. 2, the

daughter of the deceased) at about 12.05 p.m.

3. The trial court, on evaluation of the material on record,

acquitted the appellant of the charges levelled against her.

Feeling dissatisfied  with  the order  of the trial  court, the  State

preferred an appeal before the High Court, which vide the

impugned judgment, as mentioned above, convicted the appellant

under Section 302 of the IPC.  

4.        Mr. Siddhartha Dave, learned senior counsel appearing

on behalf of the appellant, has taken us through the entire

material on record. He submitted that the prosecution has not

proved its case beyond reasonable doubt, there are no eye

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witnesses to the incident in question and the case of the

prosecution mainly rests on two dying declarations. According to

the learned senior  counsel, the  motive for the  offence has not

been proved, and the High Court was not justified in reversing the

judgment of acquittal passed by the trial court, particularly when

the  judgment of the  trial  court cannot be said  to be perverse.

According to him, the trial court was fully justified in acquitting

the accused since the sole circumstance of the dying declarations

relied upon by the prosecution has not been proved.   

5. Per contra,  Mr.  Sumeer Sodhi, learned counsel for the

respondent­State vehemently argued in support of the judgment

of the High Court.   

6. We have heard the rival submissions of the learned

counsel for the parties and carefully perused the record.

7. The prosecution mainly relies upon the dying declaration

(Exhibit P­2), which is stated to have been recorded by the Naib

Tehsildar­cum­Executive Magistrate (P.W.1) in the hospital.   The

oral dying declaration made by the deceased before Lalita Sahu

(P.W. 2), Pilaram Sahu (P.W. 3) and Parvati Bai (P.W. 4) has also

been relied on.

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8. Undisputedly, and as  is  clear  from the evidence of  Dr.

J.S. Khalsa (P.W. 11), who conducted the post­mortem

examination, the deceased had sustained 100% burn injuries all

over the  body.  He  also  deposed  that  due  to  her  severe  burn

injuries, the deceased was in a state of shock.

9. As mentioned supra, as compared to the oral dying

declaration,  more emphasis  was laid on the  dying  declaration

(Exh.P­2)  stated  to  have  been recorded by the  Naib  Tehsildar­

cum­Executive  Magistrate in the  hospital and the  panchnama

(Ex.P­1)  prepared by him regarding the recording of this dying

declaration. As a  matter of fact, the case of the prosecution

mainly depends on the same.   

10. There cannot be any dispute that a dying declaration can

be  the  sole  basis for  convicting  the accused.  However,  such a

dying declaration should be trustworthy, voluntary, blemishless

and reliable. In case the person recording the dying declaration is

satisfied that the declarant is in a fit medical condition to make

the statement and if there are no suspicious circumstances, the

dying declaration may not be invalid solely on the ground that it

was not certified by the doctor. Insistence for certification by the

doctor is only a rule of prudence, to be applied based on the facts

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and circumstances of the case. The real test is as to whether the

dying declaration is truthful and voluntary. It is often said that

man will not meet his maker with a lie in his mouth. However,

since the  declarant  who makes  a  dying  declaration  cannot  be

subjected to cross­examination, in order for the dying declaration

to be the sole basis for conviction, it should be of such a nature

that it inspires the full confidence of the court. In the matter on

hand, since Exh. P2, the dying declaration is the only

circumstance relied upon by the prosecution, in order to satisfy

our conscience, we have considered the material on record

keeping in  mind the  well­established principles regarding the

acceptability of dying declarations.

11. The Naib Tehsildar­cum­Executive Magistrate (P.W.1) has

deposed that the police had sent a requisition to the Tehsildar (as

per Exh. P­3), who in turn requested P.W.1 to go to the spot and

record the statement of the injured.  P.W.1 has also deposed that

he  received such requisition at  12.15 p.m.  on  the  date  of the

incident, and immediately thereafter, he went to the hospital and

recorded the statement of the victim (Exh.P­1). He has also

deposed that he drew the panchnama regarding the recording of

the dying declaration in the presence of three persons. It is to be

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noted that the dying declaration (Exh.P­2) as produced before the

Trial Court is only a photocopy, which is not admissible in

evidence. The original copy of the dying declaration has not been

produced before the Trial Court. Also, though it has been stated

by the Naib Tehsildar­cum­Executive Magistrate (P.W.1) that he

had taken the signature of three witnesses, the photocopy of the

dying declaration does not contain the signature of any witness.

It is the case of the prosecution that P.W. 1 recorded the

dying declaration  in the hospital.  But he has admitted  in his

cross­examination that none of the doctors were present on that

day, and that the hospital was closed since it was a Sunday.  He

has also admitted in his cross­examination that he did not put

any  question to the victim to find out  whether she  was in  a

position to make a statement or not.  He also did not try to verify

whether the victim had the  power to recollect the incident in

question.  Hence,  it is  clear that P.W. 1 did not satisfy himself

about the fitness of the victim to make a statement. No

verification or certification of the doctor regarding the fitness of

the victim to  make a statement can be found on the dying

declaration either.   In addition, absolutely no reasons are

forthcoming either from the Investigating Officer (P.W. 12) or from

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the Naib Tehsildar­cum­Executive Magistrate (P.W. 1) as to why

the original dying declaration was not produced before the Trial

Court.   

12. Moreover, the records  do  not reveal a clear  picture  of

what happened at the time of occurrence or subsequently.   The

Investigating Officer (P.W. 12) has admitted that he went to the

spot of the offence at about 12.15 p.m., immediately after getting

news of the incident at about 12 o’ clock.  When he arrived, the

victim was unconscious, and her skin was peeling off. He was the

first person to reach the scene of offence, and shifted her to the

hospital  while she was still  unconscious. If it is  so,  it is quite

unbelievable as to how the victim could have  made such a

lengthy statement as found in Exh.P­2 at about 12.15 to 12.30

p.m., that too in an unconscious condition, before P.W.1.  To add

to this, there is not even a  whisper  in the deposition of the

Investigating Officer  about the presence  of the  Naib  Tehsildar­

cum­Executive  Magistrate (P.W.1) or  about him recording the

dying declaration at about 12:15 p.m.  The Investigating Officer

has spoken  neither about the requisition sent  by  him  as  per

Exh.P­3 nor about the alleged dying declaration (Exh.P­2) which

is  stated to  have  been recorded  by  P.W.1.  Notably, the  Naib

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Tehsildar  has deposed that  when he went  to  the hospital, the

police  were already there.   If it  was so, and if he  had really

recorded the dying declaration as per Exh.P­2, the Investigating

Officer would have deposed about the same before the Trial

Court.   But such records are not forthcoming.  In such

circumstances, the role of the Naib Tehsildar­cum­Executive

Magistrate (P.W. 1) appears to be highly suspicious.  

It is also curious to note that the Investigating Officer has

deposed that he went to the spot immediately after getting the

oral information about the incident, whereas the crime came to be

registered based on the FIR of Lalita Sahu (P.W.2) at about 15:30

hours, i.e. 3.30 p.m.  

13. The trial court  has taken  pains to  evaluate the entire

material on record and has rightly come to the conclusion that

the so­called dying declaration (Exh.P­2) is unbelievable and not

trustworthy.   Valid reasons have also been assigned by the trial

court for coming to such a conclusion. Per contra, the High Court

while setting aside the said finding has not adverted to any of the

reasons assigned by the trial court relating to the authenticity or

reliability  of the dying declaration.  The view taken by  the trial

court, in our considered opinion, is the only possible view under

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the facts and circumstances of the case.   

14. As far  as the  oral  dying  declaration is concerned, the

evidence on record is very shaky, apart from the fact that

evidence relating to oral dying declaration is a weak type of

evidence in and of itself.  As per the case of the prosecution, the

deceased had made an oral dying declaration before Lalita Sahu

(P.W. 2), Pilaram Sahu (P.W. 3), Parvati Bai (P.W. 4), and others.

Though P.Ws. 2,  3 and 4 have deposed that the deceased did

make an oral dying declaration before them implicating the

appellant, this version is clearly only an afterthought, inasmuch

as the same was brought up before the trial court for the first

time.   In their statements recorded by the police under Section

161 of the Code of Criminal Procedure, these witnesses had not

made any statement relating to the alleged oral dying declaration

of the deceased.  These factors have been noted by the trial court

in its detailed judgment.  Thus, the evidence of P.Ws. 2, 3 and 4

relating to the oral dying declaration is clearly an improved

version, and this has been proved by the defence in accordance

with law.

15. Since the evidence relating to the dying declarations has

not been proved beyond reasonable doubt by the prosecution, in

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our considered opinion, the High Court was not justified in

convicting the appellant, inasmuch as there is no other material

against the appellant to implicate her. The motive for the offence,

as alleged by the prosecution, has also not been proved.   

16. Having regard to the totality of the facts and

circumstances of the case, we conclude that the judgment of the

High Court is liable to be set aside, and the same is accordingly

set aside and that of the trial court is restored. As the appellant is

acquitted of the charges levelled against her and she is in

custody, we direct that the appellant be released forthwith, if not

required in connection with any other case.

17. The appeal is allowed accordingly.

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

 ….………....................................J.

 (MOHAN M. SHANTANAGOUDAR)

 …….……….................................J.   (S. ABDUL NAZEER)

NEW DELHI; APRIL 30, 2019.