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Saturday, February 2, 2013

dying declarations = variation between the two statements is concerned, it is only this much that in her first statement Chandrakala had stated that the appellant used to harass and ill-treat her because he was demanding gold from her, and was asking her to marry her sister to him for which she was not agreeable. In the second dying declaration she had once again stated that he was demanding gold from her, but had also added that he had sought the transfer of the land belonging to her maternal uncle to him. This time she has not stated about his insisting to marry her sister. The demand for gold is the common factor in both the statements. In the first statement she has additionally referred to his insisting on marrying her sister, whereas in the second one she has referred to his demand for the agricultural land of her maternal uncle. The Sessions Court and the High Court have not given any importance to this variation, and in our view rightly so. This is because one must understand that Chandrakala had suffered 91% burn injuries. Earlier, the duty-doctor had asked her as to how the incident had occurred, and later on the Head Constable on duty had repeated the query. Any person in such a condition will state only that much which he or she can remember on such an occasion. When asked once again, the person concerned can not be expected to repeat the entire statement in a parrot-like fashion. One thing is very clear in both the statements viz., the greed of the appellant and her being harassed on that count. -Thus as can be seen, by enacting Section 32 (1) in the Evidence Act, the legislature has accorded a special sanctity to the statement made by a dying person as to the cause of his own death. This is by virtue of the solemn occasion when the statement is made. Besides, when the statement is made at the earliest opportunity without any influence being brought on the dying person, there is absolutely no reason to take any other view for the cause of his or her death. The statement has to be accepted as the relevant and truthful one, revealing the circumstances which resulted into his death. Absence of any corroboration can not take away its relevance. Exaggerated doubts, on account of absence of corroboration, will only lead to unmerited acquittals, causing grave harm to the cause of justice and ultimately to the social fabric. With the incidents of wives being set on fire, very unfortunately continuing to occur in our society, it is expected from the Courts that they approach such situations very carefully, giving due respect to the dying declarations, and not being swayed by fanciful doubts. In the present case there are two dying declarations recorded at the earliest opportunity. They contained the motive for the crime, and the reasons as to why the deceased suffered the burn injuries viz., the greed of the appellant to which the deceased had refused to succumb. As far as her statements viz., that the appellant had poured kerosene and set her on fire is concerned, there is no reason to discard it considering the fact that it was made at the earliest opportunity and on a solemn occasion. The defence put up a story which is totally inconsistent with the facts which have come on record, and is a clear afterthought and therefore unacceptable. In fact this case clearly shows an attempt to put up a totally false defence. The prosecution has undoubtedly proved its case beyond any reasonable doubt. 19. In view of the above legal position and facts on record, we see no reason to interfere in the judgment and order rendered by the learned Sessions Judge as modified and confirmed by the High Court. 20. The appeal is, therefore, dismissed.



                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                      CRIMINAL  APPELLATE JURISDICTION

                      Criminal Appeal No. 1288 OF 2008


      Hiraman                                            ...    Appellant
(s)

                                   Versus

      State of Maharashtra                               ...    Respondent
(s)



                              J U D G E M E N T

H.L. Gokhale J.



            This Criminal Appeal raises the question
about the relevance  of dying declarations, and the approach  to  be  adopted  by  the  Courts  with respect thereto.

The appellant’s wife, Chandrakala Hiraman Murkute, died  an
unnatural and a very painful death at about 2 a.m. on 7.4.2000 in a  village
in Jamkhed Taluka of  District  Ahmednagar,  State  of  Maharashtra,  having
suffered 91%  burn  injuries  in  the  previous  night  leading  to  cardio-
respiratory failure. 
The First Adhoc Addl. Sessions Judge,  Ahmednagar  held
the appellant responsible for the same, principally  on  the  basis  of  her
dying declarations, and convicted him for cruelty and murder under  Sections
498-A and 302 of the Indian Penal Code (I.P.C. for short)  by  his  judgment
and order dated 16.8.2004 in Sessions Case No.103 of 2000.  
The  conviction
U/s 302 of IPC was confirmed by the Aurangabad Bench of the  High  Court  of
Judicature at Bombay in Criminal Appeal No.31 of 2005, though the one  under
Section 498-A of I.P.C was set-aside for  the  lack  of  sufficient  evidence.   
The
Courts  below  have  accepted  the  two  dying  declarations   of   deceased
Chandrakala as giving the correct cause for  the  burn  injuries  viz.  that
they were caused by the appellant.  
They have rejected the  defence  of  the
appellant that he was nowhere near the deceased at the time of the  incident
and that he was not responsible for the same.
In view  of  this  conviction
under Section 302 I.P.C., the appellant is required to undergo  imprisonment
for life, and to pay a fine  of  Rs.500/-,  in  default  suffer  a  rigorous
imprisonment for three months.   This  judgment  of  the  High  Court  dated
28.6.2005 in Crl. Appeal No. 31/2005 is being challenged for being  rendered
solely on the basis of dying declarations.

      The facts leading to the present appeal are as follows:-
2.          Deceased Chandrakala had been married to the appellant  since  a
long time, and had three children from the marriage viz., Bapu,  aged  about
20-22 years and married at the time of the incident, Ramesh  aged  about  14
years, and daughter Shobha (whose age has not been mentioned).
As  per  the
charge-sheet,  the  appellant  is  stated  to  have   poured   kerosene   on
Chandrakala and set her on fire at  about  8  p.m.  on  6.4.2000.  
She  was
admitted in the rural hospital, Jamkhed immediately at 9:15  p.m.  
One  Dr.
Eknath Mundhe (PW-5) was on duty at that time, and he recorded  the  history
of injuries (exhibit 33) at about the same time in the following words –
           “H/o Homicidal burns by  husband  as  she  was  not  willing  to
           perform his marriage with her sister and he was  also  demanding
           gold on 6.4.2000 at about 8 p.m.”


Thus as per this writing,  the  appellant  was  insisting  that  Chandrakala
bring gold from her parents, and that he be permitted to marry  her  sister.

Chandrakala  refused  to  acquiesce  to  either  of  these   demands,   and,
therefore, she was given serious burn injuries  by  the  appellant  on  that
fateful night.
According to their younger son Ramesh  (DW-1)  the  deceased
was taken to the hospital by  her  family  members.  
That  being  so,  this
recording by the doctor assumes significance since it must  have  been  made
in their presence.
After Head Constable Dagadu Baba Kharat (PW-4) came  for
duty to that  hospital,  the  above  duty  doctor  informed  him  about  the
incident, and also that Chandrakala was  still  in  a  position  to  make  a
statement.
PW-4 recorded the second statement of Chandrakala  (exhibit  28)
in the presence of PW-5 and the staff nurse after PW-5  certified  that  she
was in a  position  to  give  a  statement.   Chandrakala  stated  that  the
appellant poured kerosene on her from a ten liter drum, and then set her  on
fire since she declined to accept his demand of a golden ring of  one  tola,
and transfer of the land belonging to her maternal uncle to him.  
According
to this statement one neighbour Baba  Saheb  Vitekar  had  extinguished  the
fire, and then she was brought  to  the  hospital.   Thereafter,  her  thumb
impression was obtained on the statement after  reading  it  to  her.   
This
second dying  declaration  was  treated  as  the  First  Information  Report
(F.I.R.) and was registered  at  10:10  p.m.  as  Crime  No.  44/2000  under
Section 307 I.P.C. for attempt to murder.  
Chandrakala was very  much  in  a
position to make a statement at that time, and was not under  the  influence of any drug since she was injected with sedatives only at about  10:30  p.m.
 At the time of recording of this statement her two  sons  as  well  as  the
appellant were present since, as stated by Ramesh  (DW-I),  all  the  family
members had taken her to the hospital. 
The Appellant has also stated in  his
statement under Section 313 of Cr.P.C that he too had gone to the  hospital.

Mother and brother of Chandrakala were however not present at that time  as
they could reach the hospital only after she had  passed  away.   
After  her
death the charge was altered from the one  under  Section  307  to  the  one
under Section 302 I.P.C.
3.          During the trial, the prosecution examined five witnesses.   PW-
1 Dr. Abhijit Boralkar who performed  the  post-mortem  gave  the  cause  of
death as follows:-
           “Death due to cardio-respiratory failure (due) to shock  due  to
           extensive burns 91% superficial to deep.”

Thus, there is no dispute over the cause of death.
The question  is  as  to
how she received the burn injuries.  

The mother (PW-2)  and  brother  (PW-3)
of Chandrakala supported her version  as  to  why,  she  suffered  the  burn
injuries viz., that appellant was insisting that she fetch  a  golden  ring,
and also to transfer her maternal uncle’s land to him  for  last  about  two
months, and that her refusal has led  to  this  gruesome  act  by  him.
The
defence of the appellant in this behalf was, however, inconsistent.
In  his
statement under Section  313  of  Cr.PC  he  indicated  the  probability  of
accidental death due to bursting of the stove.   
The  investigating  officer
P.I. Kandre, however categorically stated that  during  examination  of  the
place of occurrence no furnace, stove or cooking articles  were  found  over
there.
The  appellant  examined  three  witnesses  in  his  defence.  
Their
younger son Ramesh (DW-1) stated on the  other  hand  that  his  mother  had
committed suicide.
The cause  for  committing  the  suicide  as  stated  by
Ramesh was however very flimsy viz., that he had asked his  mother  to  give
him Rs.2 for watching a movie, which she had declined.   This  had  led  the
appellant to scold her, because of which  she  went  inside  the  house  and
bolted the door.
Later on when Ramesh was playing outside  the  house,  and
when his elder brother and father were also outside the  house,  his  sister
Shobha who was playing at  the  neighbour’s  house  raised  the  alarm  that
Chandrakala had set herself on fire.  
According  to  Ramesh  the  appellant
climbed on the roof, removed one of the tin sheets  and  jumped  inside,  to
remove the bolt of the door when it was found that the  deceased  was  lying
on the floor in a burnt condition.
A close relative of the appellant  viz.,
Mhase Nagu Vitkar (DW-2) was examined who also gave  similar  evidence.   As
far as the statement of Ramesh (DW-1) is concerned, the same  was  discarded
for the reason that it was a hearsay based on the statement  allegedly  made
by Shobha to him and Shobha was not examined.
 Besides,  the  house  of  the
neighbour where Shobha was supposed to have been playing, was at a  distance
of about 150 feet from the house of deceased, and there were many houses  in
between the two houses.
Therefore, her statement of  coming  to  know  that
Chandrakala had set herself on fire could  not  be  accepted,  since  Shobha
would not have been able to know the same from such a distance.  
Similarly,
the statement of Ramesh that his father had  jumped  into  the  house  after
removing the tin sheet of the roof could not  be  accepted  for  the  reason
that though he is claimed to have suffered an injury in the process, at  the
time of his arrest in the night of 6.4.2000, the appellant  declined  to  go
to any hospital (as the arrest panchnama  records)  when  asked  whether  he
suffered from any pain or injury.
This  leads  to  the  discarding  of  the
statement of Dr. Satpute (DW-3) also, who  is  said  to  have  examined  the
accused two days subsequent  to  the  incident,  on  8.4.2000,  and  noticed
abrasions on his left elbow and arm, and a burn injury on left  elbow.   The
statement of DW-2 was also not accepted  for  the  reasons  that  he  was  a
person of 70 years of age who accepted that he could not  see  beyond  15-20
feet.  He would not have come to know of the  incident  when  his  house  is
situated at a distance of 150 feet from the place of occurrence.
      Consideration of the submissions on facts:
4.          The question before us is as  to  how  Chadrakala  received  the
burn injuries.
There are two versions before us viz.,  that  the  appellant
poured the kerosene on her, and the other that the  deceased  poured  it  on
herself.
The version given by the deceased is contained in  her  statements
recorded at the earliest opportunity by two different  persons  who  had  no
reason to record what they have recorded, unless she  had  stated  so.   And
considering the solemn occasion when she was making  the  statements,  there
was no reason to discard the same as being untrue.
The first statement  was
recorded at 9:15 p.m., i.e. just one hour  and  fifteen  minutes  after  the
incident when she was brought to the hospital.   
The  second  statement  was
also recorded within an hour thereafter at about 10:10 p.m. Chandrakala  was
fully conscious at that time and was required to be given sedatives only  at
about 10:30 p.m.
This statement assumes significance since it was  recorded
when her family members including the appellant were present.
Besides,  her brother and mother  have  subsequently  confirmed  her  statement  that  her
husband was greedy and used to harass her for his  demands.  
There  was  no
occasion of their tutoring her since they reached the  hospital  only  after
her death.
It was submitted on behalf of the appellant that the failure  of
the prosecution to examine Baba Saheb Vitekar (who  extinguished  the  fire)
was fatal.
In this connection, we must note that this Baba  Saheb  was  not
present when kerosene was poured on Chandrakala and the  fire  started.  
He
came lateron to extinguish the fire and could not have thrown any  light  as
to how the incident took place.
5.          The learned Counsel  for  the  appellant  principally  submitted
that as far as the two dying  declarations  of  Chandrakala  are  concerned,
there was no  corroboration  to  the  same,  and  the  uncorroborated  dying
declarations could not be accepted.  
It  was  contended  that  there  is  a
variation between the two dying declarations with  respect  to  the  reasons
for setting her on fire.
Now as far  as  this  variation  between  the  two
statements is concerned, it is only this much that in  her  first  statement
Chandrakala had stated that the appellant used to harass and  ill-treat  her
because he was demanding gold from her, and was  asking  her  to  marry  her
sister to him for  which  she  was  not  agreeable.   In  the  second  dying
declaration she had once again stated that he was demanding gold  from  her,
but had also added that he had sought the transfer of the land belonging  to
her maternal uncle  to  him.   This  time  she  has  not  stated  about  his
insisting to marry her sister.   The demand for gold is  the  common  factor
in both the  statements.   In  the  first  statement  she  has  additionally
referred to his insisting on marrying her sister, whereas in the second  one
she has referred to his demand for the agricultural  land  of  her  maternal
uncle.  The Sessions Court and the High Court have not given any  importance
to this variation, and in our view rightly so.  This  is  because  one  must
understand that Chandrakala had suffered 91% burn  injuries.   Earlier,  the
duty-doctor had asked her as to how the incident had occurred, and later  on
the Head Constable on duty had repeated the query.  Any  person  in  such  a
condition will state only that much which he or she can remember on such  an
occasion.  When asked once again, the person concerned can not  be  expected
to repeat the entire statement in a parrot-like fashion.  One thing is  very
clear in both the statements viz., the greed of the appellant and her  being
harassed on that count. 
 Besides, it is relevant to  note  that  her  mother
and brother have both corroborated her  statement  that  the  appellant  was
demanding gold and land from her.  Initially Chandrakala  spoke  about  this
demand for gold and later also for the land.  This cannot in  any  way  mean
an attempt to improve.  Similarly, the non-mention on  the  second  occasion
of his insistence to marry her sister cannot mean an omission  to  discredit
her statements.
6.      As against that, as far as the version put up by  the  appellant  is
concerned, it is based on the hearsay version of  his  daughter  Shobha  who
was supposed to be playing at a  house  at  a  distance  of  150  feet  from
appellant’s house.  She has not been examined and her version as  reproduced
by Ramesh is pressed into service, and an attempt is thus made to put  up  a
probable parallel story though the story is highly improbable  bordering  on
falsehood.  It is not placed on record that Chandrakala was  suffering  from
any psychological disorder either.  The Courts below rightly  rejected  this
parallel version as there is no foundation to the same.  This is as  against
the one which is propounded by the prosecution, which in  the  circumstances
is the only acceptable version.  Initially, the appellant took  the  defence
on 19.8.2002 that Chandrakala perhaps died due to an accident.  This can  be
seen from his answer to Question No.20 in the course of  statement  U/s  313
of Cr.PC, where he stated as follows:-
           “I had done nothing.  Electricity was off.  I was not present at
           the house.  She might be doing cooking at stove.  Whether  there
           was outburst of stove is not known to me.  My son  had  told  me
           that his mother  had  been  injured  and  then  I  went  at  the
           hospital.  Thereafter, Police caught me and  took  me  to  jail.
           Thereafter, I was there inside.  I had nothing to say more.”

Thus at that stage he did not state that he jumped into the house to  rescue
his wife.  Besides, he stated that he did  not  want  to  lead  any  defence
witness.   Nearly,  two  years  later  he  examined  defence  witnesses   on
15.7.2004 to raise the plea of suicide, which was clearly  an  afterthought.
It is very clear that Ramesh (DW-1) was put up to save  the  appellant  from
the accusation.  It  is  also  relevant  to  note  that  the  appellant  was
absconding for a period of over 20 months during the  trial  from  26.6.2002
to 14.4.20014, and it was much later that  he  surrendered  himself.   There
was no reason for him to abscond if he  had  not  indulged  in  the  act  of
pouring kerosene on his wife.

      Submissions on Law
7.          The learned Counsel for the appellant relied upon  the  judgment
of a bench of two judges of this Court in P. Mani Vs. State  of  Tamil  Nadu
reported in  [2006  (3)  SCC  161]  to  canvass  that  uncorroborated  dying
declaration must not be accepted.  In this connection, it  must  be  firstly
noted that in that case the son and daughter of the deceased lady  (who  had
died due to burn injuries) had categorically stated that she  was  suffering
from depression and she had made an attempt to commit suicide a  week  prior
to the date of the incident.  Besides, there was no material  to  show  that
the appellant was absconding or he could not be  arrested  despite  attempts
having been made therefor.  Even  in  that  matter  the  Court  specifically
observed as follows:-
                 “14. Indisputably conviction can be recorded on  the  basis
           of the dying declaration alone but therefore the  same  must  be
           wholly reliable.”


Thus it must be noted that this decision was rendered in the facts  of  that
case where the dying declaration was not found to be wholly  reliable.   The
judgment does not in any way deviate from the well settled proposition  that
a dying declaration can be the sole basis for conviction.
8.          A ground has been raised in this  appeal  by  pointing  out  the
defect with respect to the statement recorded by the doctor  that  there  is
absence of time of recording it, but the time can be  ascertained  from  the
marginal endorsement made thereon.  A further  ground  has  been  raised  in
this appeal that the second statement  of  the  deceased  recorded  by  Head
Constable Kharat (PW-4) can also not be treated as a dying  declaration  and
cannot be read as an evidence since it was neither recorded by the  gazetted
officer i.e. Chief Judicial Magistrate nor  in  question-answer  form.   The
appellant has relied upon observation of this Court in sub-para (5) of  para
16 of the judgement of a bench of three judges in Khushal Rao Vs.  State  of
Bombay reported in [AIR 1958 SC 22]  in  this  behalf.   The  submission  is
misconceived for the reason that the proposition in sub-para (5) of para  16
cannot be cut off from the other propositions in this para  which  lay  down
the other parameters governing the approach towards  the  relevance  of  the
dying declarations.  When we look to those parameters, there  is  no  reason
not to accept that the dying  declarations  of  Chandrakala  gave  the  real
cause of her burn injuries.  Chandrakala having suffered 91% burn  injuries,
there was hardly any time to secure the presence of competent magistrate  or
to record her statement in a  detailed  question-answer  form.   Absence  of
these factors itself will  not  take  away  the  evidentiary  value  of  the
recorded statement.   The parameters from this paragraph are as follows:-
           “16. On a review of the relevant provisions of the Evidence  Act
      and of the decided cases in the different High Courts in India and  in
      this Court, we have come to the  conclusion,  in  agreement  with  the
      opinion of the Full Bench of the Madras  High  Court,  aforesaid,  (1)
      that it cannot be laid down as an absolute rule of law  that  a  dying
      declaration cannot form the sole basis  of  conviction  unless  it  is
      corroborated; (2) that each case must be determined on its  own  facts
      keeping in view the circumstances in which the dying  declaration  was
      made; (3) that it cannot be laid down as a general proposition that  a
      dying declaration is a weaker kind of evidence than  other  pieces  of
      evidence; (4) that a dying declaration stands on the same  footing  as
      another piece of evidence and  has  to  be  judged  in  the  light  of
      surrounding  circumstances  and  with  reference  to  the   principles
      governing the weighing of evidence; (5) that a dying declaration which
      has been recorded by a competent magistrate in the proper manner, that
      is to say, in the form of  questions  and  answers,  and,  as  far  as
      practicable, in the words of the maker of the declaration, stands on a
      much higher footing than a dying declaration which depends  upon  oral
      testimony which may suffer from all the infirmities  of  human  memory
      and human character, and (6) that in order to test the reliability  of
      a dying declaration, the Court has to keep in view, the  circumstances
      like the opportunity of the dying man for  observation,  for  example,
      whether there was sufficient light  if  the  crime  was  committed  at
      night; whether the capacity of the man to remember the  facts  stated,
      had not been impaired at the time he  was  making  the  statement,  by
      circumstances  beyond  his  control;  that  the  statement  has   been
      consistent throughout if he had  several  opportunities  of  making  a
      dying declaration apart from the official record of it; and  that  the
      statement had been made at the earliest opportunity and  was  not  the
      result of tutoring by interested parties.”


9.          In this behalf we may as well profitably refer to  paragraph  11
of this very judgment  with  respect  to  the  rationale  in  accepting  the
version contained in the dying declaration.  This Court (per B.P. Sinha,  J.
as he then was) observed in this para 11 as follows:-
           “11. The legislature in its wisdom has enacted in Section  32(1)
      of the Evidence Act that “When the statement is made by a person as to
      the cause of his death, or as to  any  of  the  circumstances  of  the
      transaction which resulted in his death, in cases in which  the  cause
      of that person's death comes into question”, such a statement  written
      or verbal made by a person  who  is  dead  (omitting  the  unnecessary
      words) is itself a relevant fact. This provision has been made by  the
      legislature, advisedly, as a matter of sheer necessity by  way  of  an
      exception to the general rule that hearsay is  no  evidence  and  that
      evidence which has  not  been  tested  by  cross-examination,  is  not
      admissible. The purpose of cross-examination is to test  the  veracity
      of the statements made by a witness. In the view of  the  legislature,
      that test is supplied by the solemn occasion when it was made, namely,
      at a time when the person making the statement was in danger of losing
      his life. At such a serious and solemn  moment,  that  person  is  not
      expected to tell lies; and secondly,  the  test  of  cross-examination
      would not be available. In such a case, the necessity of oath also has
      been dispensed with for the same reasons. Thus, a statement made by  a
      dying person as to the cause  of  death,  has  been  accorded  by  the
      legislature, a special sanctity which should, on first principles,  be
      respected unless there are clear  circumstances  brought  out  in  the
      evidence to show that the person  making  the  statement  was  not  in
      expectation of death, not that  that  circumstance  would  affect  the
      admissibility of the statement, but only its weight. It  may  also  be
      shown by evidence that a dying declaration is not reliable because  it
      was not made at the earliest  opportunity,  and,  thus,  there  was  a
      reasonable ground to believe its having been put into the mouth of the
      dying man, when his power of resistance against telling  a  falsehood,
      was ebbing away; or  because  the  statement  has  not  been  properly
      recorded, for example, the statement had been recorded as a result  of
      prompting by some interested parties  or  was  in  answer  to  leading
      questions put by the recording officer, or, by the  person  purporting
      to reproduce that statement. These may be some  of  the  circumstances
      which can be said to detract from the value of  a  dying  declaration.
      But in our opinion, there is no absolute rule of law, or even  a  rule
      of prudence which has ripened  into  a  rule  of  law,  that  a  dying
      declaration unless corroborated by other independent evidence, is  not
      fit to be acted upon, and made the basis of a conviction.”
                                               (emphasis supplied)


10.         The judgment in Khushal Rao has been  consistently  referred  to
and followed.  Thus, after referring to the  propositions  in  Khushal  Rao,
this Court observed in para 7 of Mannu Raja  Vs.  State  of  Madhya  Pradesh
reported in [1976 (3) SCC 104] to the following effect:-
           “7. It was contended by the learned Counsel for  the  appellants
      that the oral statement which Bahadur Singh made cannot, in the eye of
      law, constitute a dying declaration because he did  not  give  a  full
      account of the incident or of the transaction which  resulted  in  his
      death. There is no substance in this contention because in order  that
      the Court may be in a position to assess the evidentiary  value  of  a
      dying declaration,  what  is  necessary  is  that  the  whole  of  the
      statement made by the deceased must be laid before the Court,  without
      tampering with its terms or its tenor. Law does not require  that  the
      maker of the dying  declaration  must  cover  the  whole  incident  or
      narrate the case history. Indeed, quite often, all that the victim may
      be able to say is that he was beaten by a certain person  or  persons.
      That may either be  due  to  the  suddenness  of  the  attack  or  the
      conditions of visibility or because the victim is not  in  a  physical
      condition to recapitulate the entire incident  or  to  narrate  it  at
      length. In fact, many a time, dying declarations which  are  copiously
      worded or neatly structured excite suspicion for the reason that  they
      bear traces of tutoring.”
                                               (emphasis supplied)


11.         Khushal Rao and Mannu Raja have been referred  to  and  followed
in Gulam Hussain Vs. State of Delhi reported in  [2000  (7)  SCC  254].   In
para 8 thereof, this Court observed as follows:-
           “8. Section 32 of the  Evidence  Act  is  an  exception  to  the
      general rule of exclusion of hearsay evidence and the  statement  made
      by a person, written or verbal, of relevant facts after his  death  is
      admissible in evidence if it refers to the cause of his death  or  any
      circumstances of the transactions which  resulted  in  his  death.  To
      attract the provisions of Section 32, the prosecution is  required  to
      prove that the statement was made by a  person  who  is  dead  or  who
      cannot be found or whose attendance cannot  be  procured  without  any
      amount of delay or expense or he is incapable of giving  evidence  and
      that such statement had been  made  under  any  of  the  circumstances
      specified in sub-sections (1) to (8) of Section  32  of  the  Evidence
      Act…………”


12.         In a case almost identical to the  present  one,  in  Kanaksingh
Raisingh Vs. State of Gujarat reported in [AIR  2003  SC  691],  this  Court
upheld the conviction in the case of pouring kerosene and setting  the  wife
on fire by holding that so long as the dying declaration  is  voluntary  and
truthful, there was no reason why it should not be accepted.   In  Babu  Lal
Vs. State of State of Madhya Pradesh reported in [AIR  2004  SC  846],  this
Court had following to say with respect  to  dying  declaration  in  para  7
which is as follows:-
           “7………..A person who is facing imminent death, with even a shadow
      of continuing in this world practically non-existent, every motive  of
      falsehood is obliterated. The  mind  gets  altered  by  most  powerful
      ethical reasons to speak only the truth. Great solemnity and  sanctity
      is attached to the words of a dying person because  a  person  on  the
      verge of death is not likely to tell lies or to concoct a case  so  as
      to implicate an innocent person. The maxim is “a man will not meet his
      maker with a lie in his mouth” (Nemo moriturus  praesumitur  mentire).
      Mathew Arnold said, “truth sits on the  lips  of  a  dying  man”.  The
      general principle on which the species of evidence is admitted is that
      they are declarations made in extremity, when  the  party  is  at  the
      point of death, and when every hope of this world is gone, when  every
      motive to falsehood is silenced and mind induced by the most  powerful
      consideration to  speak  the  truth;  situation  so  solemn  that  law
      considers the same as creating an obligation equal to  that  which  is
      imposed by a positive oath administered in a  court  of  justice  (See
      R.V. Woodcock 1 Leach 500).”

13.          The  appellant  had  sought  to  create  a  doubt   about   the
prosecution case.  In this behalf we must note that a  doubt  sought  to  be
raised has to be a credible and consistent one and must be  one  which  will
appeal to a reasonable mind.  We may profitably refer  to  what  this  Court
has said in this behalf in some of the leading judgments.  Thus, in  Shivaji
Sahebrao Bobade Vs. State of Maharashtra reported  in  [AIR  1973  SC  2622]
Krishna Iyer, J. observed for a bench of three  judges  in  paragraph  6  as
follows:-
           “6.……..The dangers  of  exaggerated  devotion  to  the  rule  of
      benefit of doubt at the expense of social defence and to the  soothing
      sentiment that all acquittals are always good regardless of justice to
      the  victim  and  the  community,  demand  especial  emphasis  in  the
      contemporary context of escalating  crime  and  escape.  The  judicial
      instrument has a public accountability. The  cherished  principles  or
      golden thread of proof beyond reasonable doubt which runs through  the
      web of our law should not  be  stretched  morbidly  to  embrace  every
      hunch, hesitancy and degree of doubt......”

           “………The evil of acquitting a guilty person light-heartedly as  a
      learned author Glanville Williams in ‘Proof of  Guilt’  has  sapiently
      observed, goes much beyond the simple fact that just one guilty person
      has gone unpunished. If unmerited acquittals become general, they tend
      to lead to a cynical disregard of the law, and this in turn leads to a
      public  demand  for  harsher  legal  presumptions  against   indicated
      ‘persons’ and more severe punishment of those who  are  found  guilty.
      Thus too frequent acquittals of the guilty may  lead  to  a  ferocious
      penal  law,  eventually  eroding  the  judicial  protection   of   the
      guiltless…...”

           “………a miscarriage of justice may arise from the acquittal of the
      guilty no less than from the conviction of the innocent……..”

14.         The propositions in Shivaji Sahebrao  Bobade  were  quoted  with
approval in State of U.P. Vs. Krishna Gopal reported in [AIR 1988 SC  2154],
and further this Court observed as follows in paragraph 13 (per
M.N. Venkatachaliah, J. as he then was):-
           “13.…….. Doubts would be called reasonable if they are free from
      a zest for abstract speculation. Law cannot afford any favourite other
      than truth. To constitute reasonable doubt, it must be  free  from  an
      over emotional response. Doubts must be actual and substantial  doubts
      as to the guilt of the accused person arising from  the  evidence,  or
      from the lack of  it,  as  opposed  to  mere  vague  apprehensions.  A
      reasonable doubt is not an imaginary, trivial  or  a  merely  possible
      doubt; but a fair doubt based upon reason and  common-sense.  It  must
      grow out of the evidence in the case……..”

15.         In Gurbachan Singh Vs. Satpal Singh reported  in  [AIR  1990  SC
209], this Court observed at the end of para 4 as follows:-
           “4.……There is a higher standard of proof in criminal cases  than
      in civil cases, but there is no absolute standard  in  either  of  the
      cases. See the observations of Lord Denning in Bater v. Bater,  (1950)
      2 All ER 458 at p.459, but the doubt must be of a reasonable man.  The
      standard adopted must be the standard adopted by a prudent man  which,
      of course, may vary from case to case, circumstances to circumstances.
      Exaggerated devotion to the rule of benefit of doubt must not  nurture
      fanciful doubts or lingering suspicions  and  thereby  destroy  social
      defence. Justice cannot be made sterile on the plea that it is  better
      to let hundred guilty escape than punish an innocent.  Letting  guilty
      escape is not doing justice, according to law.”


16.         These propositions  have  been  consistently  followed  by  this
Court in Gangadhar Behera Vs. State of  Orissa  reported  in  [AIR  2002  SC
3633], Sucha Singh Vs. State of Punjab reported in [2003 (7)  SCC  643]  and
Lakhan Vs. State of Madhya Pradesh reported in [2010 (8) SCC 514].
      Hence, the Conclusion:
17.         Thus as can be seen, by enacting Section 32 (1) in the  Evidence
Act, the legislature has accorded a special sanctity to the  statement  made
by a dying person as to the cause of his own death.  This is  by  virtue  of
the  solemn  occasion  when  the  statement  is  made.   Besides,  when  the
statement is made at the earliest opportunity without  any  influence  being
brought on the dying person, there is  absolutely  no  reason  to  take  any
other view for the cause of his or her  death.   The  statement  has  to  be
accepted as the relevant  and  truthful  one,  revealing  the  circumstances
which resulted into his death.  Absence of any corroboration  can  not  take
away  its  relevance.   Exaggerated  doubts,  on  account  of   absence   of
corroboration, will only lead to unmerited acquittals,  causing  grave  harm
to the cause of justice and ultimately  to  the  social  fabric.   With  the
incidents of wives being set  on  fire,  very  unfortunately  continuing  to
occur in our society, it is expected from  the  Courts  that  they  approach
such  situations  very  carefully,  giving  due   respect   to   the   dying
declarations, and not being swayed by fanciful doubts.
18.         In the present case there are two  dying  declarations  recorded
at the earliest opportunity.  They contained the motive for the  crime,  and
the reasons as to why the deceased suffered  the  burn  injuries  viz.,  the
greed of the appellant to which the deceased had  refused  to  succumb.   As
far as her statements viz., that the appellant had poured kerosene  and  set
her on fire is concerned, there is no reason to discard it  considering  the
fact that it was made at the earliest opportunity and on a solemn  occasion.
 The defence put up a story which is totally  inconsistent  with  the  facts
which have come on  record,  and  is  a  clear  afterthought  and  therefore
unacceptable.  In fact this case clearly  shows  an  attempt  to  put  up  a
totally false defence.  The prosecution  has  undoubtedly  proved  its  case
beyond any reasonable doubt.
19.         In view of the above legal position and facts on record, we  see
no reason to interfere in the judgment and order  rendered  by  the  learned
Sessions Judge as modified and confirmed by the High Court.
20.         The appeal is, therefore, dismissed.

                                                           …………………………………..J.
                                                ( A.K. Patnaik )





                                              …………………………………..J.
                                                ( H.L. Gokhale  )

New Delhi
Dated: January 31, 2013
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