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Reportable  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1882     OF     2010   

Salim Gulab Pathan  …Appellant

Versus

State of Maharashtra through SHO …Respondent

J     U     D     G     M     E     N     T   

RANJAN     GOGOI,     J.   

This Appeal is directed against the judgment and order dated  

08/02/2007 passed by the High Court of Bombay whereby the High Court  

has dismissed the Criminal Appeal filed by the appellant and confirmed the  

conviction recorded against the appellant under Section 302 IPC by the  

learned Trial Court.  Following the aforesaid conviction, the accused-

appellant has been sentenced to undergo R.I. for life along with fine.  

2. The short case of the prosecution, inter-alia, is that the deceased  

Nazabi was wife of the accused-appellant.  They were staying in the house

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of PW 1, Akbar Sheikh, who is father of the deceased.  According to the  

prosecution, at about 8.00 –  8.30 PM of 04.09.2001, PW 1 was sitting  

outside the house.  At that time, there was some altercation going on inside  

between the accused-appellant and the deceased.  Thereafter, the deceased  

came out and was sitting with her father.  After sometime, the accused-

appellant called the deceased inside and locked the door of the house.  

There was again a quarrel between the accused and the deceased in the  

course of which the accused poured kerosene on the deceased and set her on  

fire.  According to the prosecution, the deceased came running out of the  

house in a burning condition and was followed by the accused who fled  

away from there.  PW 1 along with PW 3 and PW 5 extinguished the fire  

and in the presence of the said witnesses, on being asked by PW 1, the  

deceased stated that she had been set on fire by the accused-appellant.  

Thereafter, according to the prosecution, the deceased was taken to the  

hospital where her statement was recorded by the doctor who informed the  

police of the incident.  PW 6, Laxman, police constable, recorded the  

statement of the deceased at about 4.30 AM of 05.09.2001.  Shortly  

thereafter at about 9.40 AM, the deceased, Nazabi, died.  Inquest was held  

and the dead body was sent for postmortem examination.  Thereafter, the  

First Information Report (Exhibit 10) was lodged by PW 1, Akbar Sheikh.

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3. After registration of the case, investigation was conducted by PW 5 in  

the course of which, PW 5 seized from the place of occurrence a plastic can  

containing kerosene; a match box with two burnt match sticks; broken  

pieces of bangles; samples of earth smelling kerosene; half burnt polyester  

sari etc.  The said items were sent for chemical analysis.  The report of  

analysis confirmed the presence of kerosene in all the said items.  At the  

conclusion of the investigation, charge-sheet was submitted against the  

accused-appellant under Section 302 IPC.  Charge under Sec. 302 IPC  

having been framed against the accused-appellant, the accused pleaded not  

guilty and wanted to be tried.  In the course of trial, 7 witnesses were  

examined by the prosecution and none by the defence.  From the statement  

made by the accused in his examination under Section 313 Cr. P.C., it  

appears that the case of the accused-appellant was that the deceased had set  

herself on fire due to an altercation with her brother, who did not approve of  

the deceased staying in the house of her father.  In fact, according to the  

accused, he had tried to put out the fire and was attacked by his brother-in-

law resulting in injuries, which, the accused claims to have reported to the  

police.  At conclusion of the trial held against the accused, the learned trial  

court, on the grounds and reasons mentioned, found him guilty of the  

offence under Section 302 IPC and accordingly, sentenced him to undergo  

RI for life along with fine.  The said conviction and sentence having been  

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affirmed by the High Court in appeal, the present appeal has been filed by  

the accused upon grant of leave by this Court.

4. Learned counsel for the appellant has contended that the principal  

basis of the conviction recorded against the accused is the statement of the  

deceased recorded by PW 6, the police constable which has been treated by  

the courts below as a dying declaration.  Pointing out the evidence of PW 1,  

it has been urged that this witness has categorically stated that the deceased  

had not spoken to anybody while in the hospital and, in fact, the police had  

not come to meet the deceased at any time after her admission in the  

hospital till her death.  In view of the aforesaid evidence, according to the  

learned counsel, the alleged dying declaration becomes unworthy of  

credence.  Such a view, according to the learned counsel, is strengthened by  

certain other facts which have been proved by the evidence of the other  

prosecution witnesses.  In this regard, the evidence of PW 1 that the police  

had collected only samples of earth from the place of occurrence and no  

other articles had been seized from the said place has been pointed out in  

contra distinction to the evidence of PW 5 that they had also seized broken  

bangles, a half burnt sari and a can of kerosene from the place of  

occurrence.  The evidence of PW 1 that the deceased had suffered extensive  

burn injuries on both her legs and hands has been pointed out to question  

the authenticity of the left thumb impression of the deceased allegedly  

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appearing in the dying declaration.  The fact that the accused and the  

deceased were living happily, as deposed to by PW 1, PW 3 and PW 4, has  

also been relied upon by the learned counsel to demolish the prosecution  

case.  Learned counsel has pointed out that the evidence of PW 1, PW 3 and  

PW 4, particularly, the statement made by the deceased that she had been  

burnt by her husband should not be accepted by the Court as the said  

witnesses are related to the deceased and are interested witnesses.  No  

reliance, therefore, can be placed on the said evidence either as evidence  

corroborating the alleged dying declaration or as independent evidence in  

support of the guilt of the accused.

5. The learned counsel for the appellant has also vehemently contended  

that in the present case, the evidence of PW 2 would go to show that the  

deceased had suffered burn injuries to the extent of 92%.  Learned counsel  

has pointed out that, according to the prosecution, the said burn injuries  

were caused at about 8.00 – 8.30 PM of 04.09.2001.  The evidence of PW 2,  

according to the learned counsel, established that the deceased was brought  

to the hospital at 3.15 AM of 05.09.2001.  She is alleged to have made the  

dying declaration between 4.30 and 5.30 AM whereafter she died at about  

9.40 AM.  Pointing out the aforesaid details, learned counsel has contended  

that it is extremely doubtful as to whether the deceased was in a position to  

make the statement which was allegedly recorded by PW 6 as a dying  

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declaration.  The endorsements made by PW 2, both at the beginning and  

conclusion of the recording of the statement of the deceased, to the effect  

that she was conscious and in a position to make the statement has been  

seriously contested by the learned counsel.  It is argued that the prosecution  

story has been engineered at the instance of the nephew of PW 1 who is a  

lawyer and the certification of the doctor is per-se unbelievable.

6. Opposing the contentions advanced on behalf of the accused-

appellant, learned State Counsel has vehemently contended that the dying  

declaration recorded by PW 6 is a true and voluntary account of the  

circumstances in which the deceased had died.  In fact, referring to the case  

history narrated by the deceased at the time of her admission in the hospital  

(Exhibit-12), learned counsel has pointed out that even at that time the  

deceased has implicated her husband which was further elaborated in the  

dying declaration recorded by PW 6.  PW 2, the doctor as well as PW 6 the  

police constable, according to learned counsel, are independent persons who  

will have no occasion to falsely implicate the accused.  It has been pointed  

out that PW 2 in his deposition had very clearly stated that after recording  

the case history as narrated by deceased at the time of her initial medical  

examination, namely, that she was burnt by her husband, he had informed  

the police.  Thereafter, according to PW 2, PW 6 had come to the burn ward  

where the deceased was admitted and on being certified by him that she was  

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fully conscious and fit to make a statement, the dying declaration was  

recorded.  PW 2 has identified his handwriting and signatures containing  

the aforesaid endorsements (Exhibit-13) and has also identified the  

certification made by him on completion of the recording of the statement of  

the deceased (Exhibit-14).  He has also identified the signatures of the  

police constable (PW 6) in the aforesaid statement of the deceased.

7. Learned counsel has also argued that the said dying declaration had  

been corroborated by PW 1, PW 3 and PW 4 before whom the deceased has  

narrated the same version immediately after the incident. The dying  

declaration also has been corroborated by the case history of the patient (the  

deceased) recorded by PW 2 at the time of her admission into the hospital.  

The evidence of PW 1, that the deceased did not speak to anybody in the  

hospital and that the police had not come to the hospital, have been sought  

to be explained by the learned counsel as mere inconsistencies/omissions  

which do not affect the core of the prosecution case.  In short, the learned  

State Counsel has submitted that the dying declaration made by the  

deceased does not suffer from any infirmity so as to throw any doubt as to  

its  

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credibility.  As the same finds sufficient corroboration from the evidence of  

PW 1, PW 2, PW 3 and PW 4, there is no justification for not relying on the  

same.  Learned counsel, has submitted that the dying declaration which is  

duly corroborated is a sufficient and safe basis for the conviction of the  

accused.

8. The principles governing the admissibility of a dying declaration as a  

valid piece of evidence, though no longer res-integra, may be usefully  

reiterated at this stage.   

9. In Paras Yadav Vs. State of Bihar1 and also in Balbir Singh Vs. State  

of Punjab2, it has been held that a dying declaration would not lose its  

efficacy merely because it was recorded by a police officer and not by a  

magistrate.  In Paras Yadav case (supra), it has been held that the statement  

of a deceased recorded by a police officer as a complaint and not as a dying  

declaration can in fact be treated as a dying declaration if the other  

requirements in this regard are satisfied.  

10. In Atbir Vs. Government3 (NCT of Delhi) after an elaborate  

consideration of several decisions of this Court, the following propositions  

have been laid down with regard to the admissibility of a dying declaration:  1   [1999 (2) SCC 126] 2   [2006 (12) SCC 283] 3  [2010 (9) SCC 1]

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“22.   The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it  inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit  state of mind at the time of making the statement and that it  was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and  voluntary, it can base its conviction without any further  corroboration.

(iv) 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.

(v) Where the dying declaration is suspicious, it should not be  acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as  the deceased was unconscious and could never make any  statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the  details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a  fit and conscious state to make the dying declaration,  medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true  and free from any effort to induce the deceased to make a  false statement and if it is coherent and consistent, there  shall be no legal impediment to make it the basis of  conviction, even if there is no corroboration.”

11. Elaborate arguments have been advanced by the learned counsel for  

the appellant that having regard to the extent of burn injuries suffered by the  

deceased, it was not possible on her part to make the statement which was  

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recorded by PW 6.  In this regard, it will be sufficient to observe that no  

such question was put to PW 2 in cross-examination.  No expert opinion to  

that effect or any such view of any of the learned authors of acknowledged  

works on the subject have been cited before us to enable us to come to such  

a conclusion.  In a situation where PW 2 has clearly certified, both at the  

time of commencement of the recording of the statement of the deceased as  

well as at the conclusion thereof, that deceased was fully conscious and in a  

fit mental condition to make the statement we will have no occasion not to  

accept the said opinion of the doctor who was present with the deceased at  

the relevant time.  Coupled with the above, there is the evidence of PW 1,  

PW 3 and PW 5 that immediately after the incident the deceased had  

implicated her husband.  In addition, the dying declaration stands fortified  

by the case history of the deceased recorded by PW 2 at the time of her  

admission into the hospital.   

12. Viewed against the above evidence there are, indeed, certain  

statements in the evidence of the prosecution witnesses which may appear,  

at first blush, to be in favour of the accused, namely, that the accused and  

the deceased were living happily together; that the police had not come to  

visit the deceased in the hospital at any time before her death; that the  

deceased did not speak to anybody while in hospital; that only samples of  

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earth were taken by PW 5, that the deceased had suffered burn injuries on  

both hands besides the fact that accused had also suffered some injuries.   

13. A close reading of the evidence of the prosecution witnesses which  

we have undertaken leaves us satisfied that each of the aforesaid statement  

stands out in isolation and does not constitute a cohesive version of the  

prosecution case.  That apart, several of the aforesaid statements can be  

reasonably understood in a manner different from the one that the appellant  

contends.  That the deceased did not speak to anybody in the hospital and  

that the police did not visit the deceased in the hospital as stated by PW 1,  

has to be understood in the light of and balanced with the conflicting  

versions of PW 2 and PW 6 before any final conclusion can be reached.  

PW 2 has clearly deposed that the deceased had narrated the history of the  

injuries suffered by her in the course of which she had implicated her  

husband.  PW 2 has also deposed that the police constable (PW 6) had  

visited the burn ward and had recorded the statement of the deceased.  PW  

6, in his evidence had clearly disclosed that before meeting the deceased,  

PW 6 had spoken to PW 1 and another relation of the deceased.  PW 2 and  

PW 6 cannot be attributed with any intention to falsely implicate the  

accused.  The story of the nephew of PW 1 being involved in concocting the  

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prosecution version stands unsupported by any evidence whatsoever.  

Similarly, the collection of sample of earth alone by the police from the  

place of occurrence as testified by PW 1 has to be understood in the context  

of the evidence of PW 5 who has deposed that in addition to samples of  

earth other articles were also seized and collected from the place of  

occurrence.  Once again, PW 5 is an independent witness.  The above  

discrepancies in the evidence of PW 1, therefore, have to be understood as  

aberrations or omissions that have occurred due to efflux of time.  The fact  

that the couple was living happily as deposed by PW 1, PW 3 and PW 4  

cannot certainly rule out the incident if the same can be established by other  

evidence.  The burn injuries on the accused on which much argument has  

been made, besides not being proved can also be understood to have  

occurred in the exchange that may have taken place after the deceased had  

been set on fire.  The alleged injuries on the leg of the accused as claimed  

by him in his examination under Section 313 Cr. P.C. similarly remain  

unproved and unexplained by the defence.

14. The above discussions lead us to the conclusion that the conviction of  

the accused-appellant as recorded by the courts below has been rightly  

made.   We will, therefore, have no occasion to interfere with the said  

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conviction as well as the sentence imposed on the appellant.  The appeal  

consequently is dismissed.

…………………………J. [SWATANTER KUMAR]

…………………………J. [RANJAN GOGOI]

New Delhi, May 10, 2012.      

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