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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1279-1281 OF 2011

RAMAKANT MISHRA @ LALU ETC. APPELLANTS

VS.

STATE OF U.P. RESPONDENT

J U D G M E N T

VIKRAMAJIT SEN, J.

1 These Appeals assail the Judgment dated 13.07.2010 of the learned Single  

Judge,  High Court  of  Judicature at  Allahabad,  Lucknow, who had affirmed the  

conviction of the Appellants and the sentencing under Sections 498A and 304B of  

the IPC pronounced by the VIIIth Additional District & Sessions Judge, Faizabad  

on  15.4.1999.   The  essay,  therefore,  is  to  reverse  the  concurrent  findings  and  

sentence of the Courts below.

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2 The endeavour of the learned counsel for the Appellants is almost entirely  

predicated on an exculpatory Dying Declaration allegedly made by the deceased,  

who was the wife of the 1st Appellant and the sister-in-law of the 2nd Appellant and  

the 3rd Appellant.    The deceased Vijay Lakshmi was married to the 1st Appellant,  

Ramakant Mishra, in 1989 and from that wedlock a son named Sonu was begotten.  

Sonu has been living with his maternal grandparents who have cared for all his  

requirements, without any efforts on the part of the Accused towards taking over  

his  custody or  making any contribution for  his expenses.   The prosecution has  

shown/proved that due to non-fulfillment of demands of dowry the deceased was  

harassed, tortured and treated with cruelty.   The exact date of the marriage is not  

forthcoming, but it avowedly took place much before the expiry of seven years of  

the unnatural death of Vijay Lakshmi.   On the morning of 21.9.1994 she has been  

shown by the prosecution to have been put on fire after sprinkling kerosene oil on  

her body.   The husband/Appellant No.1 and the other Accused appear to have  

admitted her in a hospital and, thereafter, disappeared from the scene, not even  

being bothered to be present at her cremation.  She succumbed to 90-95 per cent  

burn injuries at 11.30 p.m. that very day.    Jagdamba, Appellant No.2 and brother-

in-law of the deceased, has stated that when the deceased was preparing milk on  

the chulah, Sonu toppled the container of kerosene oil and its contents spilled on  

the floor; in her endeavour to pick up her son Sonu, her saree allegedly got caught

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in the chulah, resulting in the saree catching fire and her receiving 90-95 per cent  

burns.   In the Impugned Order it has been noted that the opinion of the Doctor was  

that death resulted from burn injuries.  The Chargesheet was submitted against four  

Accused named in the FIR, one of whom (the father-in-law of the deceased) has  

died.   

3 Very recently, this Court had the opportunity of interpreting Section 304B of  

the  IPC  in  Criminal  Appeal  No.1592  of  2011,  titled  Sher  Singh v.  State  of  

Haryana,  [reported  in  (2015)  1  SCR  29]  which  was  authored  by  one  of  us  

(Vikramajit Sen,J.). Succinctly stated, it had been held therein that the use of word  

‘shown’ instead of ‘proved’ in Section 304B indicates that the onus cast on the  

prosecution  would  stand  satisfied  on  the  anvil  of  a  mere  preponderance  of  

probability.  In other words, ‘shown’ will have to be read up to mean ‘proved’ but  

only to the extent of preponderance of probability.   Thereafter, the word ‘deemed’  

used  in  that  Section  is  to  be  read  down  to  require  an  accused  to  prove  his  

innocence, but beyond reasonable doubt.  The ‘deemed’ culpability of the accused  

leaving no room for the accused to prove innocence was, accordingly, read down to  

a strong ‘presumption’ of his culpability.   However, the accused is required to  

dislodge this presumption by proving his innocence beyond reasonable doubt as  

distinct from preponderance of possibility.         

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4 In  harmony with  the  ratio  of  Sher Singh,  so  far  as  the  present  case  is  

concerned,  there can be no cavil  that  the prosecution has ‘shown’ that  Section  

304B stands attracted since the death of the wife occurred within seven years of the  

solemnization of the marriage; indubitably, it was an unnatural death.  It has also  

come in evidence that immediately after her marriage a demand for a scooter was  

made and this demand recurred with regularity.   It is in evidence that about fifteen  

days prior to the unnatural death of the hapless young wife, her Grandfather PW1  

first did not accede to the request of the Accused to send the deceased/victim to her  

matrimonial house because of their harassment and cruelty towards her  for not  

meeting their demands of dowry.  Only when the Accused assured her Grandfather  

that she would not be ill-treated, that she was sent back to her matrimonial house.  

The  statement  of  the  Mother  PW2  is  also  to  the  same  effect.    We  are  not  

persuaded, therefore, to hold that there was no live link between the dowry demand  

and the death or that the Accused have succeeded in proving that the demand, if  

any, was of a much earlier vintage, on which count no support can be rallied from  

the judgment in Tarsem Singh v. State of Punjab (2008) 16 SCC 155.  Therefore,  

the requirement of Section 304B of the IPC that the dowry demand should be made  

soon  before  the  death  stands  satisfied.  Accordingly,  it  appears  to  us  that  the  

prosecution has succeeded in showing, or proving prima facie, that dowry demands  

had been made by the Accused even shortly before the death of the deceased.   

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5 The defence  has  rested  very  heavily  nay,  almost  entirely,  on  the  alleged  

Dying  Declaration  attributed  to  the  deceased.  The  admissibility  of  a  Dying  

Declaration as a piece of evidence in a Trial is governed by Section 32(1) of the  

Evidence Act, 1872. Section 32, as a whole, enunciates the exceptions to the rule  

of  non-admissibility  of  hearsay  evidences,  eventuated  out  of  necessity  to  give  

relevance to the statements made by a person whose attendance cannot be procured  

for reasons stipulated in the section. Postulating the essential ingredients to define  

what exactly would constitute a hearsay is an arduous task, and since we are only  

concerned with one of its exceptions, we should forbear entering into the entire  

arena. The risks while admitting a Dying Declaration and the statements falling  

within  the  domain  of  Section  32(1)  run  higher  in  contrast  to  other  sundry  

evidences, and this entails a huge bearing on their admissibility and credibility.  

Such statements are neither made on oath nor the maker of the statement would be  

available  for  cross-examination  nor  are  they  made  under  the  influence  of  the  

supremacy and the solemnity of the court-room.  This is the reason why this Court  

has consistently underlined the necessity to examine this specie of evidence with  

great circumspection and care. However, once a Dying Declaration is held to be  

authentic, inspiring full confidence beyond the pale of doubt, voluntary, consistent  

and credible, barren of tutoring, significant sanctity is endowed to it; such is the  

sanctitude that it can even be the exclusive and the solitary basis for conviction

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without seeking any corroboration.  At this juncture, it is worthwhile noting that  

the sanctity attached to a Dying Declaration springs up from the rationale that a  

person genuinely under the sense of imminent death would speak only the truth.  In  

addition to the Dying Declaration, which is only one of the species of the genus of  

Section 32(1), there could be other statements, written or verbal, which also would  

be encompassed within the sweep of this section, and at this point the Indian law  

drifts from the English law. This is further evident from the usage of phraseology  

in the section, embracing not only statements made about “cause of death” but also  

about “any of the circumstances of the transaction which resulted in the death”,  

whether or not the person making the statement was under “expectation of death”.  

These statements could be in the form of a suicide note, a letter, a sign or a signal,   

or  a  product  of  any  reliable  means  of  communication;  their  genuineness  and  

credibility shall, of course, be reckoned by the Court entertaining the concerned  

matter. A Dying Declaration enjoys a higher level of credence vis-à-vis any other  

statement abovementioned, which is on account of the former being made in the  

“contemplation  of  death”.  “Contemplation  of  death”  is  the  primal  factor  to  

segregate Dying Declarations from other statements.  But no hard-and-fast rule can  

be laid down to confine the contemplation within the circumference of few hours  

or a few days in which death of the maker of the statement must happen so as to  

elevate that statement to the level of a Dying Declaration. Moreover, the state of

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mind of the maker would also be material in discerning completely as to whether  

the maker was mentally fit to make the statement and whether the maker actually  

could have contemplated death.    

6  Definition  of  this  legal  concept  found  in  Black’s  Law  Dictionary  (5th  

Edition) justifies reproduction:  Dying Declarations – Statements made by a person  

who is lying at the point of death, and is conscious of his approaching death, in  

reference to the manner in which he received the injuries of which he is dying, or  

other immediate cause of his death, and in reference to the person who inflicted  

such injuries or the connection with such injuries of a person who is charged or  

suspected of having committed them; which statements are admissible in evidence  

in a trial for homicide (and occasionally, at least in some jurisdictions, in other  

cases) where the killing of the declarant is the crime charged to the defendant.  

Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.   Generally, the  

admissibility of such declarations is limited to use in prosecutions for homicide;  

but is admissible on behalf of accused as well as for prosecution.  In a prosecution  

for homicide or in a civil action or proceeding, a statement made by a declarant  

while  believing  that  his  death  was  imminent,  concerning  the  cause  or  

circumstances of what he believed to be his impending death is not excluded by the  

hearsay rule.  Fed.Evid.R. 804(b)(2).   

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7  When a person makes a statement while being aware of the prospect that his  

death  is  imminent  and proximate,  such  a  statement  assumes  a  probative  value  

which is almost unassailable, unlike other statements which he may have made  

earlier, when death was not lurking around, indicating the cause of his death.   That  

is to say that a person might be quite willing to implicate an innocent person but  

would  not  do  so  when  death  is  knocking  at  his  door.   That  is  why  a  Dying  

Declaration, to conform to this unique specie, should have been made when death  

was in the contemplation of the person making the statement/declaration.   

8  In the case before us, the statement, if made by the deceased, would qualify  

to be treated as a Dying Declaration because she was admitted in the hospital,  

having  sustained  90-95  per  cent  burn  injuries,  and because  of  this  grave  burn  

injuries, she would be expecting to shortly breathe her last.  

9 The central  question,  however,  remains  as  to  whether  the  alleged Dying  

Declaration  attracts  authenticity.  Since  the  prosecution  has  succeeded  in  

showing/proving by preponderance of probability that a dowry death has occurred,  

the burden of proving innocence has shifted to the accused.   It appears to us to be  

unexceptionable that whenever a person is brought to a hospital in an injured state  

which  indicates  foul-play,  the  hospital  authorities  are  enjoined  to  treat  it  as  a  

medico-legal case and inform the police.    If the doctor, who has attended the

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injured, is of the opinion that death is likely to ensue, it is essential for him to  

immediately report the case to the police; any delay in doing so will almost never  

be  brooked.   The  police  in  turn  should  be  alive  to  the  need  to  record  a  

declaration/statement of the injured person, by pursuing a procedure which would  

make the recording of it beyond the pale of doubt.   This is why an investigating  

officer (I.O.) is expected to alert the jurisdictional Magistrate of the occurrence,  

who in turn should  immediately examine the  injured.   When this  procedure  is  

adopted, conditional on the certification of a doctor that the injured is in a fit state  

to  make a  statement,  a  Dying Declaration  assumes incontrovertible  evidentiary  

value.    We cannot conceive of a more important duty cast on the Magistrate, since  

the life & death of a human being is of paramount importance.  We think that only  

if it is impossible for the Magistrate to personally perform this duty, should he  

depute another senior official.  Non-adherence to this procedure would needlessly  

and  avoidably  cast  a  shadow on  the  recording  of  a  Dying  Declaration.    The  

prosecution, therefore, would be expected to prove that every step was diligently  

complied with.  The prosecution would have to produce the doctor or the medical  

authority to establish that on the examination of the injured/deceased, the police  

had been immediately informed.  The I.O. who was so informed would then have  

to  testify  that  he  alerted  the  Magistrate,  on  whose  non-  availability,  some  

responsible  person  was  deputed  for  the  purpose  of  recording  the  Dying

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Declaration.  We are not in any manner of doubt that where medical opinion is to  

the effect that a person is facing death as a consequence of unnatural events, the  

responsibility of the Magistrate to record the statement far outweighs any other  

responsibility.  There may be instances where there was no time to follow this  

procedure, but that does not seem to be what has transpired in the case in hand.   In  

cases where some other person is stated to be recipient of a Dying Declaration,  

doubts may reasonably arise.

10 Since the burden of proving innocence beyond reasonable doubt shifts to the  

Accused  in  the  case  of  a  dowry  death,  as  it  has  in  the  present  case,  it  was  

imperative  for  the  defence  to  prove  the  sequence  of  events  which lead  to  the  

recording of the alleged Dying Declaration by the Tehsildar DW1.   This burden  

has not even been faintly addressed.   It appears that at the time of seeking bail the  

accused had requested the Sessions Court to call for the alleged Dying Declaration.  

Keeping in perspective that none of the Accused was present when the deceased  

was receiving medical treatment in the hospital, or when the Dying Declaration  

was allegedly recorded, or at the time of death, or even at the time of cremation,  

the manner in which the Accused learnt of the existence of the Dying Declaration  

has  not  been  disclosed.    The  statement  of  the  I.O.  also  does  not  clarify  the  

position; he has stated that he learnt of the existence of the Dying Declaration from  

the relatives of the deceased.   On the application of Sher Singh, the burden and

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necessity of proving this sequence of events stood transferred to the shoulders of  

the  Accused  since  Section  304B of  the  IPC had  been attracted.   The I.O.  has  

deposed that all the Accused, including the late father-in-law, Gorakh Nath, had  

absconded after the incident.   In fact, in the cross-examination, the I.O. states that  

– “there is no reliable information about the Dying Declaration…  On keeping this  

information that  the  Dying Declaration  of  Vijay  Lakshmi  was recorded by the  

Magistrate I did not consider any need of this thing”. Neither the Doctor DW2 who  

had allegedly certified that the deceased was in a fit condition to make a statement  

nor the Tehsildar who had allegedly written down the alleged Dying Declaration  

has stated the manner in which the Tehsildar had been conscripted or located to  

perform  this  important  recording.   The  Dying  Declaration  appears  to  have  

mysteriously popped up and referred to at the time of praying for bail.   The chain  

or sequence of events which lead to its recording remains undisclosed.   In his  

statement,  the  Tehsildar  has  not  clarified  the  manner  in  which he happened to  

record  the  Dying  Declaration  and  the  timing  of  its  transmission  to  the  Court.  

Since the onus of proof had shifted to the Accused, this alleged sequence of events  

should have been proved beyond reasonable doubt by them.  We may emphasise  

that the Tehsildar as well as the Doctor who allegedly certified that the deceased  

was in a fit state to make the Dying Declaration has been produced by the defence.  

The Doctor should have spoken of the sequence of events in which the Tehsildar

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came to record the Dying Declaration.   The alleged exculpating Dying Declaration  

is, therefore, shrouded in suspicion and we have not been persuaded to accept that  

it is a genuine document.   The defence has failed to comply with Section 113B of  

the Evidence Act.   The Accused being charged of the commission of a dowry  

death  ought  to  have  entered  the  witness  box  themselves.   The  Accused  were  

present on the scene at the time of the occurrence, which turned out to be fatal, and  

that added to their responsibility to give a credible version of their innocence in the  

dowry death.

11 Paniben v. State of  Gujarat (1992) 2 SCC 474,  Mafabhai Nagarbhai Raval  

v. State of Gujarat (1992) 4 SCC 69, Vithal v. State of Maharashtra (2006) 13 SCC  

54, Amarsingh Munnasingh Suryawanshi v. State of Maharashtra (2007) 15 SCC  

455, Sher Singh v. State of Punjab (2008) 4 SCC 265, Samadhan Dhudaka Koli v.  

State of Maharashtra (2008) 16 SCC 705 and Surinder Kumar v. State of Punjab  

(2012) 12 SCC 120, are distinguishable on facts because in the case in hand we are  

not convinced of the authenticity of the Dying Declaration; in contradiction to its  

form,  or  the  mental  stability  or  lucidity  of  the  deceased at  the  time when she  

allegedly made the statement attributed to her.

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12 The  Appeals  are  dismissed  in  the  above  terms.    The  interim  Order  is  

recalled.       

………………………………J. (VIKRAMAJIT SEN)

………………………………J. (R.K. AGRAWAL)

New Delhi; February 27, 2015.