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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2030 OF 2012

PREMPAL       ..Appellant

Versus

STATE OF HARYANA     ..Respondent

J U D G M E N T

R. BANUMATHI, J.

This  appeal  arises  out  of  the  judgment  of  High  

Court  of  Punjab  and  Haryana  at  Chandigarh  dated  

28.11.2011 passed  in Crl. Appeal No. 716-DB/2002, in and  

by  which  the  High  Court  confirmed  the  conviction  of  the  

appellant under Section 302 IPC  and also the sentence of  

life imprisonment imposed on the appellant.

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2. Briefly stated, the case of the prosecution is that,  

marriage  of  Smt.  Anita  (deceased)  with  Dharampal  was  

solemnized  in  the  year  1997.    Appellant-Prempal  is  the  

younger brother of  Dharampal.  On 24.10.2001 at 3.00 p.m.  

Anita  was  all  alone  at  her  matrimonial  house  located  at  

village  Budana.   Her  husband  Dharampal  working  as  a  

teacher  in village Milakpur  had not returned home from the  

school;  her mother-in-law had gone to her  parents house.  

When Anita was all alone, the appellant-Prempal  grappled  

with  Anita  and pushed her down and alleged to have set  

her on fire at about 3.00 p.m. along with Jai Singh, father of  

the  appellant.   Anita  was  brought  to  Shanti  Hospital,  

Narnaund  by  her  father-in-law  Jai  Singh  with  95%  burn  

injuries on her body on the same day  at  4.00 p.m.   On  

receipt of the information from the Medical Officer and after  

obtaining opinion of the Medical Officer that Anita was in a fit  

condition to make the statement, Assistant Sub Inspector of  

Police  (PW  8)  requested  PW-4,  Tehsildar  to  record  the  

statement of Anita.  Tehsildar-cum-Executive Magistrate (PW  

4)  reached the hospital  and again  sought  opinion  of  the  

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Medical Officer (Ext. P13) who opined that  Anita was fit to  

make a statement.  Tehsildar (PW4)  recorded the statement  

of Anita (Ext. P11) in which deceased Anita stated that her  

brother-in-law  Prempal  grappled  with  her  and  pushed  her  

aside and  poured kerosene  upon her and set her ablaze.  

Based on her  statement, FIR was registered under Section  

307  IPC  against  the  appellant.   PW-8  had  taken  up  the  

investigation and prepared the Rough Site Map of the spot  

and seized material objects from the scene of the crime.

3. On   24.10.2001  at  about   11.45  P.M.,  Anita  

succumbed to  injuries.   On  receipt of intimation about the  

death of Anita, the investigating officer went to the hospital  

and held  the inquest proceedings and prepared  the  Inquest  

Report.   PW-1, Dr. J.P. Malik conducted autopsy on the body  

of deceased Anita and issued the Post Mortem Certificate.  

The  investigating  officer  recorded  the  statement  of  Dhan  

Singh (PW 7) and Chhotu Ram  father of Anita.  The case  

registered under Section 307 IPC was altered into Section  

302 IPC and after completion of investigation, charge sheet  

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was filed against the appellant and  Jai Singh -  father-in-law  

of deceased.

4. To bring home the guilt  of  accused,  prosecution  

examined  eight  witnesses  and  exhibited  number  of  

documents  and  material  objects.   After  conclusion  of  the  

trial, the trial court  convicted the appellant  under Section  

302  IPC  and  sentenced  him  to  undergo  rigorous  

imprisonment for life and also to pay a fine of Rs. 5,000/-  

with  default  clause.    The  trial  court  also  convicted  the  

appellant  under  Section  354  IPC  and  sentenced  him  to  

undergo rigorous imprisonment for a period of two years and  

both the sentences were ordered to run concurrently.   The  

co-accused Jai  Singh was acquitted of  the charge.   In the  

appeal preferred by the appellant, the High Court confirmed  

the conviction of the appellant under Section 302 IPC and  

the  sentence  imposed  on  him  and  acquitted  him  under  

Section  354  IPC.   Being  aggrieved,  the  appellant  has  

preferred this appeal.    

5. Learned counsel for the appellant contended  that  

Anita sustained 95% burns all over the body and there were  

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deep burn injuries in fingers of the hand and feet  of Anita  

and  she  died   shortly  after   recording    of  her  dying  

declaration and it might not have been  possible  for her to  

make a statement  and trial court and the High Court  erred  

in relying upon  the dying declaration.  The learned counsel  

for  the  appellant  contended  that  though  PW-4,  Tehsildar  

got the certificate regarding fitness of the deceased to make  

the statement, yet  no specific certificate was obtained by  

him that the deceased remained conscious  throughout while  

recording  her statement.  It was submitted that the courts  

did not properly appreciate the defence version put forth by  

the accused that Anita committed suicide.

6. Per  contra,  learned  counsel  for  the  respondent-

State submitted that dying declaration of Anita  is true and  

voluntary and not  a result of tutoring  and relying upon the  

same, trial court and the High Court have rightly based the  

conviction and the same warrants no interference.  

7. We  have  given  our  due  consideration  to  the  

respective   contentions   of  the  learned  counsel  for  the  

parties. On receipt of intimation at 8.20 P.M., PW-8 sought  

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the  opinion of the Medical Officer  whether Anita was fit to  

make the statement  or not and PW-3,  Doctor  opined that  

Anita  was  fit  to  make  the  statement.   On  receipt  of  the  

request  from  PW-8,  ASI,   PW-4,  Tehsildar  reached   the  

hospital at 9.15 P.M. and PW-4, Tehsildar again obtained the  

opinion of  PW-3, Doctor and PW-3, Dr. Suresh opined   that  

Anita was  fit to make the statement  and only thereafter  

PW-4, Tehsildar  recorded  her statement which is Ext. P11.  

In his evidence, PW-3   stated that Anita remained conscious  

and was  in a fit condition    when PW-4, Tehsildar  recorded  

the statement, he (PW-3) remained throughout and he also  

endorsed Ext. P11 statement.   

8. In  his  cross-examination,  PW-3 stated that  Anita  

sustained 95% burns and chances cannot be ruled out that a  

person   can  be  unconscious   having  95% burns.    Much  

reliance  was placed upon the above answers elicited from  

the doctor - PW-3   to assail the reliability of Ext. P11 dying  

declaration.    The  answers  elicited  from PW-3  during  the  

cross-examination is only an opinion.   PW-3   issued Exts.  

P12 and P13 certificates  certifying that  Anita  was in  a  fit  

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condition  to  give  statement.   Opinion  evidence  elicited  

during  the cross-examination of PW-3, Doctor cannot prevail  

upon his assertion in Exts.  P12 and P13  as to the fit mental  

condition of Anita to give statement.     It is also to be noted  

that after  sustaining injuries,  victim was alive till midnight  

and that  Anita died at 11.45 P.M. on 24.10.2001.

9. Anita sustained burn injuries  at 3.00 P.M. and she  

was admitted in the hospital  at 4.00 P.M.   Statement of  

Anita was recorded by PW-4, Tehsildar at 9.15 P.M. to 9.25  

P.M.  During the cross-examination of PW-3,  it was elicited  

from him that about eight to ten  persons who are relatives  

of Anita came to the hospital.  On behalf of  the appellant  it  

was contended  that in the long gap of time, between Anita’s  

admission in the hospital  and  recording of her statement by  

PW-4, Tehsildar, number of relatives of Anita assembled and  

therefore  there  is  every possibility   that  Anita  must  have  

been tutored to falsely implicate the appellant.

10. We do not find any substance  in the submission  

that Anita was surrounded by her family members and that  

she was tutored to falsely implicate Prempal.  May be  after  

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Anita was admitted in the hospital, there  were some family  

members  to  attend  to  her;  but  there  is  no  material  

suggesting that they were talking to Anita or that   Anita  

was  tutored.   PW-3,  Doctor   and  PW-4,  Tehsildar   have  

categorically denied  the suggestion  that Anita  was tutored  

by her father Chhotu or her relatives.   Deceased and her  

husband Dharampal   were living separately.  While so, Anita  

had no reason to falsely implicate  her brother-in-law.  

11.   When reliance is placed upon dying declaration,  

the court  must be satisfied that the dying declaration  is  

true,  voluntary and not  as a result  of   either   tutoring or  

prompting   or a   product of  imagination.   The Court must  

be further satisfied  that the deceased  was in a fit state of  

mind.  In State of  Uttar Pradesh vs.  Ram Sagar Yadav And  

Ors. AIR 1985 SC 416 = (1985) 1  SCC 552, this Court held  

that  if the Court is  satisfied that the dying declaration is  

true  and  voluntary,  it  can  base  conviction  on  it  without  

corroboration.   In  this  context,  the  observations  made  in  

para (13)  of the judgment are relevant to be noted:-

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“It is well settled that, as a matter of law, a dying  declaration  can  be  acted  upon  without  corroboration.  (See  Khushal  Rao vs.  State  of  Bombay, 1958 SCR 552; Harbans Singh vs. State  of Punjab, 1962 Supp.1 SCR 104;    Gopalsingh  vs. State of M.P. (1972) 3 SCC 268).  There is not  even a  rule  of  prudence   which  has  hardened  into a rule of law that a dying declaration  cannot  be  acted  upon  unless  it  is  corroborated.   The  primary  effort of the court  has to be  to find out  whether the dying declaration is true.  If it is, 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  to the  dying  declaration………..”

12. In  Bapu vs.  State of Maharashtra (2007) 2 SCC  

(Crl.) 545 = (2006) 12 SCC 73, this  Court  in  paras (14)  and  

(15)  observed as under:-

14. In Ravi v. State of T.N. [(2004) 10 SCC 776]  the Supreme Court observed that : (SCC p.777,  para 3)

“[I]f  the  truthfulness…  of  the  dying  declaration cannot be doubted, the same alone  can form the basis of conviction of an accused  and  the  same  does  not  require  any  corroboration, whatsoever, in law.”

15. In Muthu Kutty v. State [ (2005) 9 SCC 113]  vide  para  15  the  Supreme  Court  observed  as  under : (SCC p. 120-121)

“15. Though a dying declaration is entitled  to great weight, it is worthwhile to note that the  accused  has  no  power  of  cross-examination.  Such a power is essential for eliciting the truth as  an obligation of oath could be.  This is the reason  

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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  the  deceased  was  not  as  a  result  of  either  tutoring,  or  prompting  or  a  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  assailant.  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.  This Court has laid  down  in  several  judgments  the  principles  governing  dying  declaration,  which  could  be  summed up as under as indicated in  Paniben v.  State of  Gujarat [(1992)  2 SCC 474]:  (SCC pp.  480-81, paras 18-19)   (emphasis supplied)

(i) There  is  neither  rule  of  law  nor  of  prudence that dying declaration cannot be acted  upon without corroboration.  (See Munnu Raja v.  State of M.P)[(1976) 3 SCC 104].

(ii) If the Court is satisfied that the dying  declaration  is  true  and  voluntary  it  can  base  conviction  on  it,  without  corroboration.  (See  State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC  552] and Ramawati Devi v. State of Bihar [(1983)  1 SCC 211].

(iii) The court has to scrutinize the dying  declaration carefully  and must  ensure that  the  declaration  is  not  the  result  of  tutoring,  prompting or imagination.  The deceased had an  opportunity  to  observe  and  identify  the  assailants  and  was  in  a  fit  state  to  make  the  declaration.   (See  K. Ramachandra  Reddy v.  Public Prosecutor [(1976) 3 SCC 618].)

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(iv) Where dying declaration is suspicious,  it should not be acted upon without corroborative  evidence.   (See  Rasheed  Beg v.  State  of  M.P  [(1974) 4 SCC 264]).

(v)  Where  the  deceased  was  unconscious  and could never make any dying declaration the  evidence with regard to it is to be rejected. (See  Kake Singh v.  State  of  M.P [(1981)  Supp.  SCC  25]).

(vi) A dying declaration which suffers from  infirmity  cannot  form  the  basis  of  conviction.  (See Ram Manorath v. State of U.P [(1981) 2 SCC  654]).

(vii) Merely  because  a  dying  declaration  does  not  contain  the  details  as  to  the  occurrence, it is not to be rejected.  (See State of  Maharashtra v.  Krishnamurti  Laxmipati  Naidu[ (1980) Supp. SCC 455]).

(viii) Equally,  merely because it  is  a  brief  statement,  it  is  not  to  be  discarded.   On  the  contrary,  the  shortness  of  the  statement  itself  guarantees truth.  (See Surajdeo Ojha v. State of  Bihar [(1980) Supp. SCC 769]).

(ix) Normally the court in order to satisfy  whether deceased was in a fit mental condition  to  make  the  dying  declaration  look  up  to  the  medical opinion.  But where the eyewitness said  that  the  deceased  was  in  a  fit  and  conscious  state to make the dying declaration, the medical  opinion  cannot  prevail.   (See  Nanhau  Ram V.  State of M.P. [(1988) Supp. SCC 152]).

(x) Where the prosecution version differs  from  the  version  as  given  in  the  dying  declaration, the said declaration cannot be acted  

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upon. (See State of U.P. v. Madan Mohan [(1989)  3 SCC 390]).

(xi) Where  there  are  more  than  one  statement in the nature of dying declaration, one  first  in  point  of  time  must  be  preferred.   Of  course, if the plurality of dying declaration could  be held to be trustworthy and reliable, it has to  be accepted. (See Mohanlal Gangaram Gehani v.  State of Maharashtra [(1982) 1 SCC 700]). ”  

13. Deceased  Anita had suffered 95% burn injuries;  

yet  her  statement  before  PW-4,  Tehsildar  was  clear  and  

cogent. The trial court and the High  Court examined   the  

reliability of the dying declaration and recorded concurrent  

findings of fact that Ext.  P11 dying declaration is  reliable  

and inspires confidence of the court.  We find no perversity  

in such findings.

14. PW-7, Dhan Singh is the uncle of deceased Anita.  

In  his evidence PW-7 stated that when they reached the  

hospital, the deceased told him  and her father Chhotu Ram  

that her brother-in-law  Prempal had scuffled  with her  and  

pushed her  down and in the meanwhile, Jai Singh came and  

asked Prempal to bring kerosene  and set   her on fire and  

Prempal brought kerosene and poured on her and Jai Singh  

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set her on fire and  thereafter Jai Singh and Prempal  tried to  

extinguish  the  fire.  It  was  submitted  that  during  cross-

examination  of   PW-7,  he  was  also  confronted   with  

reference  to his statement recorded during  investigation  

under Section 161 Cr.P.C.  Learned counsel for the appellant  

contended  that there are two conflicting  statements by the  

deceased and in one statement before PW-4, Tehsildar, Anita  

named only the appellant whereas in the other statement  

before PW-7, she not only named two accused persons but  

also  categorically  defined  the  roles  individually  to  the  

respective accused persons and  this  contradiction raises  

serious  doubts  about the  incident and the veracity of the  

statement  by  Anita   and  this  aspect  was   not   properly  

appreciated by the Trial Court and the High Court.

15. Countering   the  above  arguments,   the  learned  

counsel  for  the  respondent-State   took  us  through   the  

evidence of PW-7 and also the judgment of  the trial court  

and  submitted  that  in  his  statement   recorded   during  

inquest  PW-7 had   stated that Anita told him that appellant  

was responsible  for  her  burns  and the  courts  rightly  held  

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that there is no inconsistency between dying declaration and  

the statement of PW-7.

16.  We have gone through the evidence of PW-7 and  

the  judgment of the trial court.  So far as overt act of the  

appellant,  pouring  kerosene  on  the  deceased,  we find  no  

material inconsistency  between the evidence of PW-7 and  

Ext. P11 dying declaration.  Referring to the statement  of  

PW-7  recorded  during  inquest,  the  trial  court  recorded  

factual finding  that in  his anxiety, PW-7, Dhan Singh tried to  

rope in   Jai  Singh also  and that  in  his  earlier   statement  

recorded during inquest PW-7, Dhan Singh did not implicate  

Jai  Singh  and  on  those  findings,  trial  court  acquitted  Jai  

Singh.   In the light of such factual  finding recorded by the  

trial court, we find no merit in the submission of the learned  

counsel for the appellant that there were two contradictory  

version of the deceased.   

17. The  defence  version  is  that  Anita  committed  

suicide  as  she  was  frustrated  because  she  could  not  

conceive a child.   The appellant-Prempal  in  his  statement  

under Section 313 Cr.P.C.  stated that on 24.10.2001 he had  

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gone  to  Narnaund  for  purchase  of  domestic  articles  and  

returned home at 5.00 p.m. and only then he came to know  

that  his sister-in-law  Anita had  set herself  on fire and his  

father  Jai  Singh  had  taken  her  to  Shanti  Hospital   for  

treatment  and  that  deceased  Anita  used  to  remain  

depressed as she did not conceive the child  and therefore  

she committed suicide.  The appellant placed reliance upon  

the statement of his father Jai Singh recorded under Section  

313 Cr.P.C. and  also the burn injuries sustained by Jai Singh.  

The fact that Jai Singh sustained burn injuries, does not lead  

to the conclusion that it was a suicide.

18. In burn injury cases, two possible hypothesis  arise  

in the judicial mind – was it suicide or was it homicide.  In  

cases  where  the  dying  declaration  projected  by  the  

prosecution  gets  credence,  the  alternative   hypothesis  of  

suicide has to be  justifiably eliminated.   In the present case,  

had  it been a  suicide, Anita who was at the point of death  

had  no  reason  to  falsely  implicate  her  brother-in-law  

Prempal.    We do not find any  substance in the defence  

version of  suicide theory.

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19. A  perusal  of   various   judgments  of  this  Court,  

some of which we have referred to  above,  shows that if a  

dying declaration is found to be  reliable, then there is no  

need for  corroboration  by any witness and conviction can  

be sustained   on that basis alone.        

20. In  the  present  case  evidence  of  Tehsildar,  the  

Doctor  and other witnesses is cogent  and consistent that  

the deceased  was conscious  and in a fit  state of mind  to  

give   dying  declaration  and  courts  rightly  based  the  

conviction  upon the same.  When the trial court  as well as  

the High Court  have appreciated  the entire evidence  in its  

right  perspective,  we  see  no  reason  to  interfere  and  the  

appeal fails.   In  the result, the appeal is dismissed.           

………………………..J. (T.S. Thakur)

………………………..J. (R. Banumathi)

New Delhi; September 3, 2014

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