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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2303 of 2009

State of Madhya Pradesh                               …Appellant

Versus

Dal Singh & Ors.             …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and  order  dated  30.8.2006,  passed  by  the  High  Court  of  Madhya  

Pradesh at Jabalpur in Criminal Appeal No.2152 of 2003, by way of  

which it has set aside the conviction of the respondents under Sections  

498-A and 302, read with Section 34 of the Indian Penal Code, 1860  

(hereinafter referred to as the ‘IPC’) and acquitted them.

2. Facts and circumstances giving rise to this appeal are :-

A. That  the  deceased  Kusum  Rani  got  married  to  Hallu  @  

Chandrabhan,  the  2nd respondent  herein,  in  the  year  2001.   In  her

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marital home, she was ill-treated by her parents-in-law, respondents 1  

and 3 herein.  They would constantly tell her that she was incapable of  

doing the house work properly, and her mother-in-law did not give her  

sufficient food to eat.

B. On 29.11.2002 at noon, when the deceased returned home after  

her  bath  in  the  pond,  her  mother-in-law hurled  abuses  at  her  and  

inquired what she had been doing at the pond.  When she replied that  

she had been washing clothes there, her mother-in-law gave her few  

slaps, as a result of which the deceased began to cry.  Her mother-in-

law then directed her husband to burn her alive.  Her father-in-law had  

thus poured kerosene on her and had asked his wife to set her on fire,  

as a result of which her mother-in-law lit a matchstick and threw the  

same at her.  Since the deceased began to scream, her parents-in-law  

came out  of  the  house  and bolted  the  door  from the outside.   On  

hearing  her  shriek,  a  few  villagers  sent  news  of  the  same  to  her  

parents who resided in a neighboring village, at a distance of about  

half a kilometer.  Her father, mother and uncle thus came to the place  

of occurrence.  The door was opened by them, and the deceased was  

taken out.

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C. The deceased Kusum narrated the said incident to her parents,  

and thereafter she was taken in a trolley to the Police Station, Nohta in  

a severely burnt condition, where she herself lodged a report narrating  

the incident, and at about 2 p.m., on the basis of the complaint, an  

FIR, Ex.P-17 was recorded.

D. The Investigating Agency made all the necessary arrangements  

in order to record her dying declaration and the Executive Magistrate  

P.K. Chaturvedi (PW.12), was called for the aforementioned purpose.  

Her dying declaration was recorded by the Executive Magistrate and  

subsequently, the deceased was admitted to the Government Hospital,  

Damoh at 3.25 p.m., where she died at 3.35 p.m.  Intimation of her  

death was communicated by the hospital officials to the Police.  The  

Investigating Agency thus took over the dead body of the deceased,  

and  sent  it  for  post-mortem.   They  also  seized  all  the  necessary  

articles from the spot, prepared the panchnama, and after recording  

the statements of the witnesses, submitted a charge sheet before the  

competent court, which in turn, committed the case to the Court of  

Sessions.  Hence,  trial  commenced  after  framing  charges  under  

Sections 498-A, 302 and 306 IPC.  The accused persons abjured their  

guilt.

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E. In  order  to  prove  the  charges,  the  prosecution  examined  as  

many as 17 witnesses,  and placed reliance on Ex.P1 to P24.  The  

respondents-accused took the defence of an alibi in their  statement  

recorded under Section 313 of the Code of Criminal Procedure, 1973  

(hereinafter referred to as the ‘Cr.P.C’), stating that they had been in  

their agricultural field at the time of the said incident and it was here  

that they had received information  about the incident.  The deceased  

had committed suicide and they were being falsely been implicated.

F. The  learned  Additional  Sessions  Judge,  Damoh,  in  Sessions  

Trial No.305 of 2002, vide judgment and order dated 6.12.2003, after  

appreciating the material on record, recorded findings of fact to the  

effect  that  the  deceased  had  not  committed  suicide,  and  that  the  

respondents-accused  were  guilty  of  the  offences  punishable  under  

Sections 498-A and 302, r/w Section 34 IPC. They were convicted  

and sentenced under Section 498-A IPC for two years RI and a fine of  

Rs.500/- each, in default of payment of fine, to further undergo one  

month RI; and under Section 302/34 IPC, to undergo imprisonment  

for life and a fine of Rs.2,000/- each, in default of payment of fine, to  

suffer further RI for 6 months.   

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G. Aggrieved by the aforesaid order of conviction and sentence,  

the respondents-accused challenged the same before the High Court,  

preferring Criminal Appeal No.2152 of 2003, which was allowed by  

the High Court vide its impugned judgment and order, acquitting all  

the accused.   

Hence, this appeal.

3. Ms.  Vibha  Datta  Makhija,  learned  standing  counsel  has  

submitted, that the only ground taken by the High Court for reversing  

the judgment and order of the Trial Court was that  conviction can be  

based solely upon a dying declaration, provided that the same is found  

to be trustworthy.  However, in the instant case, as the deceased had  

100 per cent burn injuries, she would not have in all probability, been  

in a position to make a statement.  Additionally, in the absence of a  

certificate provided by a  doctor to the extent that she had in fact been  

fit enough to make such a statement, the said dying declaration could  

not be relied upon, as she had died as a result of  such injuries on her  

person, after traveling about 10 k.ms. from the place of occurrence to  

the Police Station.  The High Court doubted her ability to speak and  

also the lodging of the FIR.  There is sufficient evidence on record to  

show that Kusum had been ill-treated by her parents-in-law, and thus  

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that they were responsible for causing her death. A person having 100  

per  cent  burns  can  make  a  statement,  and  a  certificate  of  fitness  

provided by a doctor is not a condition precedent for placing reliance  

upon  a  dying  declaration.  Therefore,  the  appeal  deserves  to  be  

allowed.

4. Per contra, Ms. Nidhi, learned counsel for the respondents has  

submitted,  that  the  FIR  alleged  to  have  been  lodged  by  Kusum,  

deceased, bore her thumb impression and has also stated that she had  

narrated the entire incident, on the basis of which an FIR was lodged.  

The High Court has rightly reached the conclusion that a person with  

100  per  cent  burns  could  neither  affix  a  thumb  impression,  nor  

manage to  speak,  and therefore,  the respondents  have  rightly  been  

acquitted.  The parameters laid down by this Court for interference  

against  an  order  of  acquittal  by  the  High  Court  do  not  require  

interference.  Moreover, the said incident took place about 12 years  

ago.   The respondents  have suffered considerably.  Thus,  at  such a  

belated  stage,  no  interference  is  called  for.  There  are  material  

contradictions  in  the  two  dying  declarations,  as  well  as  in  the  

depositions of the witnesses. The appeal is liable to be dismissed.     

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5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

Appeal against acquittal  :   

6. It  is  a  settled  legal  proposition  that  in  exceptional  

circumstances, the appellate court for compelling reasons should not  

hesitate to reverse a judgment of acquittal passed by the court below,  

if  the  findings  so  recorded  by  the  court  below  are  found  to  be  

perverse,  i.e.  if  the  conclusions  arrived  at  by  the  court  below are  

contrary to the evidence on record, or if the court’s  entire approach  

with  respect  to  dealing  with  the  evidence  is  found  to  be  patently  

illegal,  leading  to  the  miscarriage  of  justice,  or  if  its  judgment  is  

unreasonable and is based on an erroneous understanding of the law  

and of the facts of the case. While doing so, the appellate court must  

bear in mind the presumption of innocence in favour  of the accused,  

and  also  that  an  acquittal  by  the  court  below  bolsters  such  

presumption of innocence. (Vide: Abrar v. State of U.P., AIR 2011  

SC 354; and Rukia Begum v. State of Karnataka,  AIR 2011 SC  

1585).

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Discrepancies:

7. So far as the discrepancies, embellishments and improvements  

are concerned, in every criminal case the same are bound to occur for  

the reason that witnesses, owing to common errors in observation, i.e.,  

errors  of  memory due  to  lapse  of  time,  or  errors  owing to  mental  

disposition, such as feelings shock or horror that existed at the time of  

occurrence.

The  court  must  form  its  opinion  about  the  credibility  of  a  

witness, and record a finding with respect to whether his deposition  

inspires  confidence.  “Exaggeration  per  se  does  not  render  the  

evidence brittle. But it can be one of the factors against which  the  

credibility of the prosecution’s story can be tested, when the entire  

evidence is put in a crucible to test  the same on the touchstone of  

credibility.” Therefore, mere marginal variations in the statements of a  

witness  cannot  be  dubbed  as  improvements,  as  the  same  may  be  

elaborations of a statement made by the witness at an earlier stage.  

“Irrelevant details which do not in any way corrode the credibility of   

a  witness  cannot  be  labelled  as  omissions  or  contradictions.”  The  

omissions which amount to contradictions in material particulars, i.e.  

which  materially  affect  the  trial,  or  the  core  of  the  case  of  the  

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prosecution,   render  the  testimony of  the  witness  as   liable  to  be  

discredited.  

Where  such  omission(s)  amount  to  contradiction(s),  raising  

serious doubts about the truthfulness of a witness, and other witnesses  

also make material improvements before the court in order to make  

their evidence acceptable, it cannot be said that it is safe to rely upon  

such evidence. (Vide: A. Shankar v. State of Karnataka, AIR 2011  

SC 2302).  

Whether 100 per cent burnt person can make a dying declaration  or put a thumb impression  :   

8. In Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992  

SC 2186, this Court dealt with a case wherein a question arose with  

respect  to whether a person suffering from 99 per cent burn injuries  

could be deemed capable enough for the purpose of making a dying  

declaration.  The learned trial Judge thought that the same was not at  

all possible, as the victim had gone into shock after receiving such  

high degree burns. He had consequently opined, that the moment the  

deceased had seen the flame, she was likely to have sustained mental  

shock.  Development of such shock from the very beginning, was the  

ground on which the Trial Court had disbelieved the medical evidence  

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available.  This Court then held, that the doctor who had conducted  

her  post-mortem was a  competent  person,  and had deposed in  this  

respect.   Therefore, unless there existed some inherent and apparent  

defect, the court could not have substitute its opinion for that of the  

doctor’s.   Hence,  in  light  of  the  facts  of  the  case,  the  dying  

declarations made, were found by this Court to be worthy of reliance,  

as the same had been made truthfully and voluntarily.  There was no  

evidence on record to suggest that the victim had provided a tutored  

version, and the argument of the defence stating that the condition of  

the  deceased  was so  serious  that  she  could  not  have  made such a  

statement was not accepted,  and the dying declarations were relied  

upon.   

A similar view has been re-iterated by this Court in Rambai v.  

State of Chhatisgarh, (2002) 8 SCC 83.

9. In Laxman v. State of Maharashtra, AIR 2002 SC 2973, this  

Court held, that a dying declaration can either be oral or in writing,  

and that any adequate method of communication, whether the use of  

words, signs or otherwise will suffice, provided that the indication is  

positive and definite.  There is no requirement of law stating that a  

dying declaration must necessarily be made before  a Magistrate, and  

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when such statement is recorded by a Magistrate, there is no specified  

statutory form for such recording. Consequently, the evidentiary value  

or  weight  that  has  to  be  attached  to  such  a  statement,  necessarily  

depends on the facts and circumstances of each individual case. What  

is  essentially  required,  is  that  the  person  who  records  a  dying  

declaration must be satisfied that the deceased was in a fit state of  

mind,  and  where  the  same  is  proved  by  the  testimony  of  the  

Magistrate, to the extent that the declarant was in fact fit to make the  

statements,  then  even  without  examination  by  the  doctor,  the  said  

declaration  can  be  relied  and  acted  upon,  provided  that  the  court  

ultimately holds the same to be voluntary and definite. Certification  

by a doctor is essentially a rule of caution, and therefore, the voluntary  

and  truthful  nature  of  the  declaration  can  also   be  established  

otherwise.   

10. In  Koli  Chunilal  Savji  v.  State  of  Gujarat,  AIR 1999  SC  

3695,  this  Court   held,  that  the  ultimate  test  is  whether  a  dying  

declaration can be held to be truthfully and voluntarily given, and if  

before  recording  such  dying declaration,  the  officer  concerned  has  

ensured that the declarant was in fact, in a fit condition to make the  

statement in question,  then if  both these aforementioned conditions  

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are satisfactorily met, the declaration  should be relied  upon.  (See  

also: Babu Ram & Ors. v. State of Punjab, AIR 1998 SC 2808).

11. In  Laxmi v. Om Prakash & Ors.,  AIR 2001 SC 2383, this  

court held, that if the court finds that the capacity of the maker of the  

statement to narrate the facts was impaired,  or if the court entertains  

grave doubts regarding whether the deceased was in a fit physical and  

mental  state  to  make such a  statement,  then the court  may,  in  the  

absence of corroborating evidence lending assurance to the contents  

of the declaration, refuse to act upon it.  

12. In Govindappa & Ors. v. State of Karnataka, (2010) 6 SCC  

533, it was argued that the Executive Magistrate, while recording the  

dying declaration did not get any certificate from the medical officer  

regarding  the condition of the deceased. This Court then held, that  

such  a  circumstance  itself  is  not  sufficient  to  discard  the  dying  

declaration. Certification by a doctor regarding  the fit state of mind of  

the  deceased,  for  the  purpose  of  giving  a  dying  declaration,  is  

essentially a rule of caution and therefore, the voluntary and truthful  

nature of such a declaration, may also be established otherwise.  Such  

a dying declaration must be recorded on  the basis that normally, a  

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person on the verge of death would not implicate somebody falsely.  

Thus, a dying declaration must be given due weight in evidence.       

13. In State of Punjab v. Gian Kaur & Anr., AIR 1998 SC 2809,  

an issue arose regarding the acceptability in evidence, of the thumb  

impression  of  Rita,  the  deceased,  that  appeared  on  the  dying  

declaration, as the trial court had found that there were clear ridges  

and curves, and the doctor was unable to explain how such ridges  

and curves could in fact be present,  when the skin of the thumb had  

been completely burnt.  The court  gave the  situation  the  benefit  of  

doubt.  

14. The law on the issue can be summarised to the effect that law  

does not provide who can record a dying declaration, nor is there any  

prescribed form, format, or procedure for the same.  The person who  

records a dying declaration must be satisfied that the maker is in a fit  

state of mind and is capable of making such a statement. Moreover,  

the requirement of  a certificate provided by a Doctor in respect  of  

such state of the deceased, is not essential in every case.

Undoubtedly,  the  subject  of  the  evidentiary  value  and  

acceptability of a dying declaration, must be approached with caution  

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for the reason that the maker of such a statement cannot be subjected  

to  cross-examination.   However,  the  court  may  not  look  for  

corroboration  of  a  dying declaration,  unless  the  declaration  suffers  

from any infirmity.   

So far as the question of thumb impression is concerned, the  

same depends upon facts, as regards whether the skin of the thumb  

that was placed upon the dying declaration was also burnt. Even in  

case of such burns in the body, the skin of a small part of the body, i.e.  

of the thumb, may remain intact. Therefore, it is a question of fact  

regarding whether the skin of the thumb had in fact been completely  

burnt, and if not, whether the   ridges and curves had remained intact.  

15. The  present  case  requires  to  be  examined  in  light  of  the  

aforesaid settled legal propositions.  

With the help of the learned counsel  for the parties,  i.e.  Ms.  

Vibha Datta Makhija and Ms. Nidhi, we have gone through the entire  

evidence on record, and it may be necessary to provide a bird’s eye  

view  of  the  same,  particularly  of  the  portion  provided  by  the  

magistrate, who had recorded the deceased’s dying declaration.  

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16. P.K.  Chaturvedi  (PW.12),  the  Executive  Magistrate  had  

recorded the dying declaration of the deceased, and he deposed  that  

no doctor had been available at Nohta at the relevant time. He had  

been called by the police, and despite this fact he had asked the police  

officer to call a doctor. He further deposed that he had recorded the  

dying declaration in the form of questions and answers and that he had  

satisfied himself that Kusumbai, had in fact been fit enough to make  

such a statement.  While making her statement, Kusumbai had been  

fully  conscious,  and  she  had  placed  her  thumb impression  on  the  

same. When her statement was recorded, she was tutored by anybody,  

though some other persons had been present at such  time. Kusumbai,  

deceased, had spoken continuously and clearly.  

17. Similarly, R.S. Parmar (PW.14), the Investigating Officer has  

deposed,  that  he had recorded the report  as  had been narrated  by  

Kusumbai. He had  not added/omitted anything in the said report. He  

had read over the same to her after writing it, after which she admitted  

it to be true, and thus put her thumb impression upon the same.  He  

has further deposed that he had called Naib Tehsildar Jabera to record  

the  dying  declaration   of  Kusumbai,  and  as   no  doctor  had  been  

available in Nohta at the said time, a doctor could not be arranged.  

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18. In the dying declaration recorded by P.K. Chaturvedi (PW.12),  

it is stated that the mother-in-law of Kusumbai had set her on fire by  

throwing kerosene oil on her, and that her father-in-law had also set  

her on fire.  Her husband Chandrabhan, had closed the door. While  

she screamed in pain, her uncle Hakam Singh had brought her out by  

opening the door. While lodging the FIR, it was recorded by  R.S.  

Parmar (PW.14), that her father-in-law Dal Singh  had said, ‘burn this  

bitch’. Her father-in-law had then lifted the kuppi of kerosene oil, and  

had poured the same on her, after which he had told his wife to set her  

ablaze.  Thereafter, her mother-in-law had lit a matchstick and set her  

on fire.  She had started to scream because of pain. Her husband Hallu  

had then closed the door of the room. After hearing the hue and cry  

raised by her, a person from the village had informed her family who  

lived  closeby.  Her  father  Nirpat  Singh,  uncle  Hakam  Singh  and  

several other persons had come there, and her uncle Hakam Singh,  

had opened the door and had brought her out.  There is thus, some  

discrepancy in both the dying declarations.

19. Dr. S.K. Jain (PW.8) deposed on 7.4.2003, stating that he had  

been the medical officer in the district hospital Damoh on 29.11.2002.  

Kusumbai had been brought for medical examination from the police  

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station in an injured state and he had examined her. According to him,  

she had on her person, 100% superficial burn injuries, and the smell of  

kerosene oil had also been present in the body of the victim. She was  

unconscious at the time, and her pulse and blood pressure had been  

difficult to detect. She was able to breathe, but with great difficulty.  

She  had  died  after  some  time.   In  his  cross-examination,  he  has  

deposed that at the time of examination at the initial stage, Kusumbai  

had been unconscious, and had been unable to speak. He has further  

opined that if a person suffers 100% burn injuries, then  he may not be  

able to speak.  

20. Burn injuries  are  normally  classified  into three  degrees.  The  

first is characterised by the reddening and blistering of the skin alone;  

the second is characterised by the charring and destruction of the full  

thickness of the skin; and the third is characterized by the  charring of  

tissues beneath skin, e.g. of the fat, muscles and bone. If a burn is of a  

distinctive  shape,  a  corresponding  hot  object  may  be  identified  as  

having  been  applied  to  the  skin,  and  thus  the  abrasions  will  have  

distinctive patterns.  

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21. There may also be in a given case, a situation where a part of  

the body may bear upon it severe burns, but a small part of the  body  

may  have  none.  When  burns  occur  on  the  scalp,  they  may  cause  

greater difficulties. They can usually be distinguished from wounds  

inflicted before the body was burnt by their appearance, their position  

in  areas  highly  susceptible  to  burning,  and on fleshy  areas  by the  

findings recorded after  internal examination.  Shock suffered due to  

extensive burns is the usual cause of death, and delayed death may be  

a  result  of  inflammation  of  the  respiratory  tract,  caused  by  the  

inhalation of smoke. Severe damage to the extent of blistering of the  

tongue and the upper respiratory tract, can follow due to the inhalation  

of  smoke.  (See:  Modi’s  Medical  Jurisprudence  and Toxicology by  

Lexis Nexis Butterworths Chapter 20).                                                    

22. FIR (Ex. P-17) – It was   recorded by Kusum Bai – deceased,  

on 29.11.2002 at  about  2.00 p.m.   According to  the FIR,  the said  

incident  had  occurred  at  10.00  a.m.  and  the  distance  between  the  

police station and place of occurrence is about 10 Kms. The deceased  

in  the  FIR,  has  named  all  the  three  accused.   The  deceased  has  

mentioned that her mother-in-law had not been giving her adequate  

meals, and continuously harassed her for not working.  On that fateful  

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day, her mother-in-law had slapped her 2-3 times and she had started  

to  cry  loudly.   Thereafter,  her  father-in-law  had  asked  the  other  

accused, if this bitch should be burnt alive? He had then brought a can  

of kerosene oil and poured its contents over her.  Her mother-in-law  

lit a matchstick and had thrown its contents on her, setting her ablaze.  

She had then begun to scream owing to the pain.  Her husband had  

locked the door.  Her parents-in-law and husband had set her on  

fire with the intention of causing her death.  She had burns all over  

her body.   

There is a  thumb impression on the FIR which appears to be  

normal.  It has ridges and curves.   

23. Ex.P-14  is  the  dying  declaration  recorded  by  the  Executive  

Magistrate, Jabera. The original reveals that the executive Magistrate  

had  asked  the  SHO to  call  a  doctor  at  2.25  p.m.,  but  there  is  an  

endorsement stating that there was no government doctor available at  

Nohta.   What the deceased has said, is that her mother in law had set  

her on fire.  Her father-in-law and husband had also been party to the  

same.  She has also stated that they had never provided her adequate  

food. She, in anger, had told them not to harass her everyday and to  

simply  kill  her  (set  me  ablaze).   Her  mother-in-law  had  poured  

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kerosene oil on her and had then set her ablaze, (humari saas ne mitti  

ka tal dalkar jalaya).  Her father-in-law set her on fire (Sasur ne aag  

lagayi).  Her husband bolted the door.   

There is thumb impression of the deceased on the FIR also. We  

have carefully seen the thumb impression of the deceased on the said  

dying declaration.  The same has ridges and curves.    

24. It  is  evident  from  the  record  that  defence  neither  put  any  

question in cross-examination to either the Executive Magistrate, or to  

the doctor who had examined the deceased in the hospital, or to  Dr.  

S.K. Jain (PW.8), who had  conducted the autopsy on the body of the  

deceased with respect to whether the skin of the thumb was also burnt,  

or whether the same  was intact.  Nor was any such question put to  

R.S. Parmar (PW.14), who had recorded the FIR, which can also be  

treated as a dying declaration.  

25. The respondents in their statements under Section 313 Cr.P.C.  

denied their presence at home at the time of incident, taking the plea  

that they had been working in their agricultural field. They had rushed  

to the place of occurrence only after learning about the incident. They  

further  took the  defence  that  Kusumbai  had  committed  suicide  by  

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burning herself, and that it was on being tutored by her parents that  

she  had  given  a  dying  declaration  against  them.  The  trial  court  

however, rejected the suggestion made by Mannu Singh (PW.5), to  

the effect that Kusumbai had caught fire while preparing food on the  

ground.  Kerosene oil had been found on her body and in her burnt  

clothes and hair. Evidence has been led by the prosecution witnesses  

to the extent that she had died within a short span of 10 months of her  

marriage, and that she had been ill-treated by her parents-in-law as she  

was not  being given proper  food etc.   She had been harassed and  

tortured by her in-laws, as she was not good looking, could not cook  

well, and had been unable to do  household work properly. She was  

considered to have a temperamental nature, and thus had also been  

slapped.  This evidence has not been challenged by the defence.   

26. The  contradictions  raised  by  the  defence  in  the  two  dying  

declarations, as regards who had put the kerosene oil on her, and who  

had lit the fire have been carefully examined and explained by the trial  

court.  Furthermore, in such a state of mind, one cannot expect that a  

person in such a physical condition, would be able to give the exact  

version of the incident. She had been suffering from great mental and  

physical agony. Upon proper appreciation of the evidence on record,  

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the  trial  court  had  found  the  dying  declarations  to  be  entirely  

believable, and worth placing reliance upon, but the High Court on a  

rather flimsy ground, without appreciating material facts, has taken a  

contrary view. In our opinion, as the defence did not put any question  

either to the executive magistrate, or to the I.O., or to the doctors who  

had  examined  her  or  conducted  the  post-mortem,  with  respect  to  

whether any part of the thumb had skin on it or not, as in both the  

dying declarations, ridges and curves had been clearly found to exist,  

we do not see any reason to dis-believe the version of events provided  

by the executive magistrate and the I.O., who had recorded the dying  

declarations. No suggestion was made to either of them in this regard,  

nor  was  any  explanation  furnished  with  respect  to  why these  two  

independent persons who had recorded the dying declarations, would  

have deposed against the respondents accused.  In the event that both  

of them had found the deceased to be in a fit  physical and mental  

condition to make a statement, there exists no reason to disbelieve the  

same.  In light  of  such a fact-situation,  the concept of  placing of  a  

thumb impression, loses its significance altogether.  

27. We  cannot  accept  the  submissions  made  on  behalf  of  the  

respondents stating that Kusumbai had been tutored by her parents, as  

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the  evidence  on  record  clearly  reveals  that  the  tractor  had  been  

brought at  the instance of  the respondents,  and that  they had been  

present in the trolley with her parents and other relatives throughout.  

Therefore,  her  parents  and  other  relatives  could  have  had  no  

opportunity to implicate the respondents, or to tutor her.   

28. Thus, in view of the above, the appeal succeeds and is allowed.  

The  judgment  and  order  impugned  before  us,  passed  by  the  High  

Court is set aside, and the judgment and order of the trial court is  

restored. The respondents are directed to surrender within a period of  

four  weeks  from  today,  failing  which  the  learned  Chief  Judicial  

Magistrate,  Damoh,  Madhya Pradesh,  shall  take  them into custody  

and send them to jail to serve out the remaining part of their sentence.  

A copy of the order be sent to the CJM by the registry.    

………………………J. (Dr. B.S. CHAUHAN)

………………………J. (DIPAK MISRA)

New Delhi, May 21,  2013  

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