REPORTABLE                        

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1361 OF 2006

State of Madhya Pradesh                                     …Appellant

Versus

Vishweshwar Kol                                               …Respondent

O R D E R

     This  appeal,  at  the  instance  of  the  State  of  Madhya  

Pradesh, arises out of the following facts:

The first  wife of the respondent (hereinafter called “the  

accused”), had died of tuberculosis and several years prior to  

the  date  of  occurrence  (19th October  2003)  he  had  started  

living with Leelawati Bai deceased as a second wife.  Out of  

this  arrangement,  4  daughters,  namely,  Sandhya  about  6  

years, Lovely 3 years, Madhu 1 year and Jyoti 10 or 11 years  

had been born.  As Leelawati Bai had abandoned her previous  

husband and belonged to a community different from that of  

the accused, she had not been accepted as a member of his  

family and even otherwise there was suspicion that she was

Crl. Appeal No.1361/2006 2

not of good character.  On the evening of 18th October 2003  

the accused went to see a dance performance at  Chandiya.  

He,  however,  returned  home at  about  1.00  a.m.  i.e.  in  the  

early  morning  hours  of  19th October  2003  before  the  

performance  had  ended  and  after  picking  up a  plastic  can  

which contained kerosene oil,  he poured the oil  on his wife  

and four daughters.  Jyoti who was the eldest, woke up and  

tried to escape but the accused got hold of her and in that  

process,  he  too sustained burn injuries  on his  body.   As a  

consequence  of  the  serious  burn  injuries,  Leelawati  Bai,  

Sandhya,  Lovely  and Madhu died  almost  instanteously  and  

house was completely burnt down.  Jyoti, who had sustained  

severe injuries, was removed to the Primary Health Centre by  

her uncle and brother of the accused, Nandi Kol PW-7 where  

she  was  examined  by  Doctor  Ashish  Pandey,  PW-1.   The  

Doctor  also  informed  the  police  on  which  Sub-Inspector  

S.K.Mishra, PW-10 reached the hospital and after ascertaining  

from  Dr.  Ashish  Pandey  as  to  Jyoti’s  fitness  to  make  a  

statement, recorded the same between 1.40 and 2.15 a.m..  In

Crl. Appeal No.1361/2006 3

this  dying  declaration,  she  gave  the  story  as  already  given  

above.  The accused was accordingly brought to trial for an  

offence  punishable  under  Section  302  of  the  IPC  on  the  

completion of the investigation.  The trial court relying on the  

dying declaration and partly on the evidence of Nandi Kol PW-

7 and Jognibai PW-8, the mother of the accused, held that the  

fact that the accused and Leelawati Bai were living as a man  

and wife had been proved on record.  The court, however, held  

that the story as to the motive for the burning of Leelawati Bai  

and particularly her daughters could not be entirely accepted  

as  the  witnesses  aforesaid  had  resiled  from  their  police  

statements in an attempt to help the accused who was a very  

close relative and accordingly the primary evidence against the  

accused was the dying declaration made by Jyoti.  The court  

observed  that  this  was  the  main  link  in  the  chain  of  

circumstances against the accused.  It was pointed out that  

the dying declaration had been recorded by PW-10 after the  

Doctor  had opined  that  Jyoti  was fit  to  make  a  statement.  

Support  for  the  dying  declaration  was  also  found from the

Crl. Appeal No.1361/2006 4

evidence of PW-4 Balwant, a medical assistant, who too had  

been  present  in  the  Primary  Health  Centre.   PW-10  also  

deposed that no Executive Magistrate was posted at Chandiya  

and as Jyoti was in a very serious condition it had not been  

feasible to secure the services of an Executive Magistrate from  

Umariya which was about one hour distant and that in any  

case the wireless set at the Headquarters had been shut down  

at midnight and the telephone too was not in working order.  

PW-10  also  explained  that  soon  after  the  recording  of  the  

dying declaration Jyoti too had died.  The trial court observed  

that  a  dying  declaration  to  be  more  reliable  and  plausible  

ought to be recorded by a Magistrate but if the circumstances  

did  not  make  that  possible  and  a  dying  declaration  was  

recorded by a police officer and was found to be credible, there  

was no law or practice that it could not be relied upon.  The  

trial court also noted that in the light of the fact that PWs.7  

and 8, the brother and the mother of the accused, had resiled  

from their  statements though admittedly  PW-7 had brought  

Jyoti to the hospital, no other evidence could be produced as

Crl. Appeal No.1361/2006 5

the incident had happened at 1 a.m., an extremely awkward  

time.  The court then took up the question of the sentence to  

be awarded and held that the case fell within the rarest of the  

rare category as four innocent girls between the ages of 1 and  

10 and their mother had been murdered by their father only  

because he had some strained relations with the mother.  It  

was  found  that  the  murders  had  been  committed  in  an  

excessively brutal manner.  An appeal was thereafter taken to  

the High Court and a reference was also made under Section  

366 of  the  Cr.P.C.   The  High  Court  has,  by  the  impugned  

judgment,  allowed  the  appeal  and  acquitted  the  accused,  

thereby  declining  the  murder  reference.   The  High  Court  

analyzed the law relating to dying declarations and held that  

such a statement could by itself form the basis for conviction  

provided  it  inspired  confidence  and  with  this  background  

examined the dying declaration and gave a few rather unusual  

reasons for discarding it; they being (1) that as per the dying  

declaration,  all  victims had been sleeping when the oil  had  

been poured on them and the fire lit but if all (including Jyoti)

Crl. Appeal No.1361/2006 6

were asleep, there was no question of Jyoti having seen the  

incident;  (2)  that there was no smell  of  kerosene oil  on the  

dead  bodies  of  the  children  which  belied  the  story  that  

kerosene oil had first been poured on the victims and they had  

subsequently  been set  afire  and (3)  that  it  appeared that a  

bottle  containing  kerosene  oil  which  was  being  used  as  a  

crude lamp (chimney) appeared to have caused the fire  and  

that the story that the kerosene oil had been poured directly  

on the victims was a concoction.  The High Court also referred  

to  certain  passages  from Dr.  Modi’s  Medical  Jurisprudence  

and Toxicology to support its views.  The State is in appeal  

before us.

Ms. Aishwarya Bhati, the learned counsel for the State of  

Madhya Pradesh, has argued that the three reasons given by  

the  High  Court  for  making  an  order  of  acquittal  were  

completely unjustified, as they ignored the basic fact that the  

dying declaration had been recorded within a very short time  

of the incident and by PW-10 after getting a fitness certificate  

from the Doctor who had given the certificate in the presence

Crl. Appeal No.1361/2006 7

of  PW-4  Balwant,  an  employee  of  the  hospital.   She  has  

pointed  out  that  realizing  the  gravity  and  urgency  of  the  

situation  and  Jyoti’s  serious  condition,  it  had  not  been  

possible to secure the services of a Magistrate from Umariya  

which was some distance away and that PW-10 was thus fully  

justified in recording the dying declaration.  These pleas have  

been controverted by Mr. Rajesh, the learned counsel for the  

accused who has supported the judgment of the High Court.  

         We have gone through the evidence with the help of the  

learned counsel  and also examined the reasons which have  

weighed with the High Court in rendering its judgment.  With  

great respect, we are unable to accept any of the reasons given  

by  the  High  Court.   It  has  to  be  highlighted  that  a  dying  

declaration cannot be analyzed as if it were a statute and it  

was only if the Court was to find that the injured was not in a  

fit condition to make a statement or the possibility that it was  

tutored  or  motivated  or  the  story  given  was  completely  

unacceptable could be some of the reasons for discarding it.  It  

has come in Jyoti’s  statement that her father had returned

Crl. Appeal No.1361/2006 8

home completely inebriated and before the dance performance  

had ended is supported by PW-7 as well.  Jyoti also stated that  

the accused had walked to the kitchen and picked up a can of  

kerosene oil and had first poured its contents on her mother  

and  thereafter  on  her  and  her  siblings  and  then  set  them  

ablaze.   She  further  stated  that  she  being  the  eldest  had  

managed to get up and had attempted to escape but she had  

been got hold of by the accused with the result he too had  

received  burn  injuries  in  that  process.   The  fact  that  the  

accused received burn injuries is corroborated by the medical  

evidence.

We find absolutely no reason as to why the story given in  

the  dying  declaration  should  not  be  believed.   Admittedly,  

Jyoti  had been brought to the hospital  by PW-7 and he so  

admitted in his statement. Dr. Pandey, the attending doctor,  

had immediately sent for the police which had brought PW-10  

to the hospital  and after ascertaining from the doctor as to  

Jyoti’s fitness, the dying declaration had been recorded in the  

presence of  the doctor as also Balwant PW.  The argument

Crl. Appeal No.1361/2006 9

that  had  found  favour  with  the  High  Court  that  as  the  

presence of  a  chimney was conceded by the  prosecution,  it  

appeared that the kerosene oil had spilt out after the chimney  

had been accidentally broken and caused the burn injuries to  

all  the  victims.   This  story  is,  however,  not  based  on  any  

material  but  is  an  inference  which  does  not  flow  from the  

evidence. The question is as to the  

sentence that is to be awarded in such a matter.  The trial  

court had rightly held that the incident was in the category of  

the  rarest  of  the  rare  cases.   Nothing  can  be  said  in  

exoneration of the accused on the facts of the case, and we are  

constrained  to  hold  that  the  High  Court  by  rendering  a  

judgment which is completely against the evidence makes it  

difficult for us to re-impose the capital sentence at this stage.  

As  already  indicated  above,  the  incident  had  happened  in  

October  2003.   The  trial  court  had  convicted  the  accused  

under Section 302 of the IPC and sentenced him to death vide  

judgment dated 30th April 2004. The acquittal judgment was  

rendered on the 6th December 2004.  The accused has been

Crl. Appeal No.1361/2006 10

free on acquittal for more than 6 years now.  In this view of the  

matter,  notwithstanding the horrendous nature of the crime  

and  that  it  called  for  the  capital  punishment,  we  find  it  

difficult  to  re-impose the death sentence on the accused at  

this stage.  We nevertheless give this opinion with regret.  We  

accordingly  allow the  appeal,  set  aside the  judgment  of  the  

High Court dated 6th December 2004 and restore that of the  

trial court in so far as the conviction under Section 302 of the  

IPC  in  concerned,  but  direct  the  accused  to  undergo  a  

sentence of life imprisonment.   

………………………………….J. (HARJIT SINGH BEDI)

………………………………….J. (CHANDRAMAULI KR. PRASAD)

JANUARY 18, 2011, NEW DELHI.