Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.865-866 OF 2013

STATE OF MAHARASHTRA                   ...Appellant(s)

:Versus:

NISAR RAMZAN SAYYED        ...Respondent(s)     

JUDGMENT

Pinaki Chandra Ghose, J.

1. These appeals have been directed against the judgment and

order  dated  19th March,  2012  passed  by  the  High  Court  of

Judicature  at  Bombay,  Bench  at  Aurangabad,  in  Confirmation

Case No.1 of 2011 with Criminal Appeal No.584 of 2011, whereby

the conviction order dated 22nd September, 2011 passed by learned

District  Judge-3  and  Additional  Sessions  Judge,  Shrirampur,

against  the  respondent  herein  was  quashed  and  set-aside.  The

Confirmation  Case  No.1  of  2011  was  filed  by  the  State  for

confirmation  of  the  death  sentence  awarded  to  the  accused

respondent. The High Court, however, rejected the death sentence

and acquitted the accused respondent.

Page 2

2

2. The brief  facts  leading  to  present  criminal  appeals  may be

summarized as follows:  

Respondent  Nisar  Ramzan  Sayyed  got  married  with  one

Summayya (deceased  herein)  on 30.03.2007.  After  the  marriage

they  were  jointly  living  with  the  respondent’s  family  and  were

blessed with a male child, namely Sayej who was three years old on

the  fateful  day  of  incident.  The  deceased  was  seven  months

pregnant at the time of the incident. The respondent and his family

members treated Summayya well for a period of one year after the

marriage. Thereafter, the respondent started ill-treating her on the

pretext of demand of Rs.50,000/- for purchasing an auto rickshaw.

As the financial condition of the father of Summayya was poor, the

said demand could not be met. The respondent continued the act

of ill-treatment with the deceased. On 29th October, 2010 at 5:00

a.m. the respondent herein allegedly set the deceased on fire by

pouring kerosene oil and also threw the son (Sayej) on the burning

body  of  the  deceased.  Summayya  and  her  son  sustained  burn

injuries. Thereafter the deceased was taken to the hospital by the

respondent but her son died on the spot due to burn injuries. The

deceased succumbed to her injuries on 3rd November, 2010 after

Page 3

3

giving birth to a dead baby fetus.  

3. Law  was  set  into  motion  against  the  respondent  and  his

family members when FIR No.I-227 of 2010 was lodged at Police

Station Newasa at the instance of one Nisar Ashraf Pathan after

registration of report AD No.91 of 2010 under Section 174 of Code

of  Criminal  Procedure.  Learned Additional  Sessions Judge while

taking  cognizance  on  the  basis  of  charge-sheet  No.12  of   2011

received on 27.01.2011 initiated Sessions Case No.18 of 2011 and

vide his judgment and order dated 22nd September, 2011 convicted

the respondent herein for the offence punishable under Sections

302 and 498-A of the Indian Penal Code, 1860 and sentenced him

to suffer death sentence and pay a fine of Rs.2000/-. Five other

accused  who  were  family  members  of  the  respondent  were,

however, acquitted from all the charges.

 4. The respondent herein preferred Criminal  Appeal No.584 of

2011  before  the  High  Court  against  the  above-noted  conviction

order and the State of Maharashtra filed Confirmation Case No.1 of

2011  for  confirmation  of  the  death  sentence  awarded  to  the

respondent  by  the  Trial  Court.  The  High  Court  vide  impugned

Page 4

4

judgment  quashed  and  set-aside  the  conviction  order  passed

against  the  respondent  herein  and  consequently,  the  death

sentence  confirmation  case  was  dismissed.  Hence,  the  present

appeals before us by the State of Maharashtra.  

5. We  have  heard  the  learned  counsel  on  both  sides.  On  a

perusal of the judgments passed by the High Court and the Trial

Court, we find that in the present case there is no eye-witness of

the incident and the prosecution has been totally depending upon

the dying declarations of the deceased, namely, Summayya. There

are three written and three oral dying declarations. Since there is

no direct evidence but only dying declarations of the deceased and

proof  proffered  by  the  prosecution,  tested  by  the  conventional

process  of  cross-examination  and  the  standard  yardsticks  of

credibility,  we  confine  ourselves  to  the  contentious  issue  of

acquittal order and its legality.  

6. From a perusal of the records of the Courts below, we have

noticed that there are three written dying declarations viz, Exhibit

No.61,  Exhibit  No.67  and  Exhibit  No.73,  recorded  before

PW8–Dr.Prabhakar,  PW7-ASI  Argade  and  Circle  Inspector,

Page 5

5

respectively. Three oral dying declarations were given before PW-1,

PW-2 and PW-3, respectively. The role attributed to accused No.1

(respondent  herein)  is  consistent  in  all  the  dying  declarations

whereby it has been proved beyond all reasonable doubt that the

respondent herein had poured kerosene on his wife and set her on

fire in their house itself during early hours of 29th October, 2010.

The demand of an amount of  Rs.50,000/- by accused No.1 was

also  reiterated  by  the  deceased  in  her  dying  declarations.  The

Medical Officer gave his opinion in the letter issued by PW7-ASI

Argade, inquiring about the conscious mental state of the deceased

while stating the cause of the burn injuries on the victim wife. The

Trial Court has rightly relied on the judgment passed by this Court

in Satish Ambanna Bansode Vs. State of Maharashtra, (2009)

11 SCC 217, wherein this court reiterated the principles governing

dying  declaration  which  had  been  elaborately  discussed  in  an

earlier decision of  Paniben Vs. State of Gujarat,  (1992) 2 SCC

474 in para 18. Relevant part of the relied judgment is reproduced

herein below:

“14…. (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]

Page 6

6

(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  scrutinise  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].  (iv) Where a 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  the deceased was in a fit mental condition to make the dying declaration looks 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

Page 7

7

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 upon. [See: State of U.P. v. Madan Mohan (1989) 3 SCC 390.]  (xi)  Where  there  are  more  than  one  statements  in  the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the 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.]”

In our considered opinion the High Court erred in acquitting the

respondent herein as the spot Panchnama, being Exhibit-86, was

duly  proved  by  PW11-Investigating  Officer  of  the  case  whereby

recovery of kerosene mixed soil, burnt pieces of Saree and Blouse

etc. etc. was proved.   

7. We have also noticed that factum of pregnancy before death of

deceased was also proved by PW9-Dr. Nitin Sudhakar Samudra.

The typical conduct of the accused respondent also describes his

guilty intention of neglecting his wife when she was on death bed

as there is no evidence on record to prove that the respondent got

the  deceased  admitted  in  Wadala  Mission  Hospital.  From  the

testimony of the Investigating Officer during the cross-examination,

Page 8

8

it has been proved that the height between floor and the roof of

spot of incident is 13 to 14 feet and the roof is covered by dried

sugarcane leaves which were put on the plastic gunny bags. The

Trial Court has rightly appreciated that it is not possible to cause

any damage to the said roof due to the incident.  

8. Mr. Kunal A. Cheema, learned counsel appearing for the State

of  Maharashtra  contended  that  under  these  circumstances  the

respondent and other accused had caused triple  murder in one

shot and taken lives of innocent and helpless persons, including a

human being who had not even seen the light of the day. It was

further  submitted  by  the  learned  counsel  that  the  officers  of

Executive  Magistrate’s  office  are  independent  persons  and  as  a

matter  of  safety,  the statements  are  kept  in  sealed condition to

prevent tampering or manipulating the same. Therefore, there is no

reason to doubt Ext.-61. Furthermore, once the dying declarations

are duly proved and it is admitted that the deceased and the minor

child  were  in  the  custody  of  the  accused  persons,  it  is  for  the

accused to show that facts were otherwise. Learned counsel further

argued that the delay in registering the FIR was due to the fact that

the incident happened in the jurisdiction of different police stations

Page 9

9

and the  hospital  in  which treatment  was given was in different

jurisdiction, as could be seen from the FIR, Ext.67 and Ext.61.  

9. Per  Contra,  Mr.  Atul  Babasaheb  Dakh,  learned  counsel

appearing  for  the  respondent  argued that  albeit  admittedly,  the

roof  of  the  house  was  made  of  sugarcane  leaves,  there  were

domestic articles and utensils kept in the room of the accused. As

per  the  arguments  advanced  by  the  learned  counsel  for  the

respondent,  the  prosecution  failed  to  prove  that  the  alleged

incident took place in the house as there was no sign of burning on

the roof (chhappar) of the house. The same was stated by PW10 –

Police Head Constable who was the first person to visit the place of

occurrence  and  this  was  corroborated  by  the  I.O.  who  had

conducted spot Panchnama. It was further argued that the dying

declaration Ext.-67 cannot be made admissible with regard to the

place of occurrence because PW-10 in his statement has averred

that the dead body of 3-year old son was found at a distance of

200-250  ft.  away  from  the  house  of  the  accused.  The  learned

counsel  for  the  respondent  concluded  his  arguments  by

submitting  that  the  dying  declarations,  which  suffered  from

infirmity, cannot form the basis of conviction and in support of this

Page 10

10

he relied upon judgment of  this  Court  in  Surinder Kumar Vs.

State  of  Haryana,  (2011)  10  SCC  173,  wherein  this  Court

observed:  

“28. Though there is neither rule of law nor of prudence that  dying  declaration  cannot  be  acted  upon  without corroboration  but  the  court  must  be  satisfied  that  the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration.  It is the duty of the court to scrutinise the dying  declaration  carefully  and  must  ensure  that  the declaration  is  not  the  result  of  tutoring,  prompting  or imagination.  Where a dying declaration is  suspicious,  it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is  rejected.  The  dying  declaration  which  suffers  from infirmity  cannot  form  the  basis  of  conviction.  All  these principles have been fully adhered to by the trial court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal.”  

10. Respondent herein in his statement under Section 313 of the

Code of Criminal Procedure, 1973 has stated about the threat by

his wife of committing suicide. He has further stated that he had

made  a  complaint  to  Newasa  Police  Station.  However,  the  Trial

Court has rightly appreciated the evidence on record whereby it

was proved from the N.C. Register of Newasa Police Station that no

such complaint was lodged by the respondent herein during the

relevant days. On the date of the incident the respondent and his

Page 11

11

deceased wife were in their house and that the deceased met an

unnatural death has been proved by medical evidence. Under these

circumstances where there is no other eye-witness to the incident,

the failure on the part of the accused respondent to explain how

his pregnant wife and their minor child met with unnatural death

due to burn injuries sustained at their house leads to an inference

which  goes  against  the  accused  respondent.  This  relevant

proposition  of  law  was  discussed  by  this  Court  in  the  case  of

Swamy Shraddananda Vs. State of Karnataka, (2007) 12 SCC

288. The relevant part of the judgment is reproduced hereunder:  

“If  it  is  proved that  the  deceased died in  an unnatural circumstance in her bed room, which was occupied only by  her  and her  husband,  law requires  the  husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused.”

11. It  is  also  discussed  by  this  Court  in  the  case  of  Munna

Kumar Upadhyay Vs. State of Andhra Pradesh, (2012) 6 SCC

174 at para 73 as follows:

“It  is  a  settled  law  that  the  statement  under Section 313 CrPC is to serve a dual purpose, firstly, to afford to the  accused  an  opportunity  to  explain  his  conduct  and

Page 12

12

secondly  to  use  denials  of  established  facts  as incriminating evidence against him...”

12. Astonishingly  we  have  found  the  dying  declarations  of  the

deceased with consistent allegations about demand of dowry and

modus operandi of the offence which resulted into the death of the

declarant and her minor child. Before coming to the conclusion in

the  present  case,  we  would  like  to  emphasize  on  the  principle

enumerated in the famous legal maxim of the Law of Evidence i.e.,

Nemo Moriturus Praesumitur mentire which means a man will not

meet  his  maker  with  a  lie  in  his  mouth.  Our  Indian  Law  also

recognizes  this  fact  that  “a  dying  man seldom lies”  or  in  other

words “truth sits upon the lips of a dying man”. The relevance of

this very fact, though exception to rule of hearsay evidence, has

been discussed in  numerous  judgments  of  this  Court  including

Uka Ram Vs. State of Rajasthan, (2001) 5 SCC 254; Babulal &

Ors. Vs. State of M.P., (2003) 12 SCC 490;  Muthu Kutty & Anr.

Vs. State, (2005) 9 SCC 113; Dharam Pal & Ors. Vs. State of

Uttar  Pradesh,  (2008)  17  SCC  337; Lakhan  Vs.  State  of

Madhya Pradesh, (2010) 8 SCC 514.

13. The  various  circumstances  pointing  out  to  the  guilt  of  the

Page 13

13

respondent  and  respondent  alone  have  been  enumerated  by  us

hereinbefore. From our discussions, it is evident that each of the

circumstances had been established, the cumulative effect whereof

would show that all the links in the chain are complete and the

conclusion  of  the  guilt  is  fully  established.  Therefore,  in  our

considered opinion the respondent herein is guilty of the offence

causing death of his pregnant wife and minor child.

14. The next question, however, is as to whether in a case of this

nature death sentence should be awarded. A life is at stake subject

to  human error  and discrepancies and therefore  the  doctrine  of

‘rarest of rare cases’, which is not res-integra in awarding the death

penalty, shall be applied while considering quantum of sentence in

the present case. Not so far but too recently, the Law Commission

of India has submitted its Report No.262 titled “The Death Penalty”

after the reference was made from this Court to study the issue of

Death Penalty in India to “allow for an up-to-date and informed

discussion and debate on this subject”. We have noticed that the

Law Commission of India has recommended the abolition of death

penalty for all the crimes other than terrorism related offences and

waging  war  (offences  affecting  National  Security).  Today  when

Page 14

14

capital  punishment  has  become  a  distinctive  feature  of  death

penalty  apparatus  in  India  which  somehow  breaches  the

reformative theory of punishment under criminal law, we are not

inclined to award the same in the peculiar facts and circumstances

of the present case. Therefore, confinement till natural life of the

accused respondent shall fulfill the requisite criteria of punishment

in peculiar facts and circumstances of the present case.  

15. Hence,  the  judgment  and  order  passed  by  High  Court  is

hereby set aside and that of the Trial Court is restored with regard

to conviction of the accused respondent. However, in the light of

the above noted discussions, the death sentence awarded by the

Trial  Court  is  hereby  modified  to  ‘life  imprisonment’  which  will

mean imprisonment for the natural life of the respondent herein.

The criminal  appeals are allowed accordingly in the afore-stated

terms.  

. . . . . . . . . . . . . . . . . . . . .J (Pinaki Chandra Ghose)

. . . . . . . . . . . . . . . . . . . . .J (Rohinton Fali Nariman)

New Delhi; April 07, 2017.