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Wednesday, May 1, 2013

dying declaration = “Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists tha the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.” So far as the statement of PW3 – Prem Chand recorded under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the deceased was only abusing her father in law and that was not even corroborated by PW4 or PW5 and PW3 himself turned hostile. Due to discrepancies and contradictions between the two dying declarations and also in the absence of any other reliable evidence, in our view, the High Court is justified in reversing the order of conviction which calls for no interference by this Court. In view of above, the appeal is, therefore, dismissed.


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 427 OF 2007
State of Rajasthan … Appellant
Versus
Shravan Ram & Anr. … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. This is an appeal by the State of Rajasthan against the
Judgment in D.B. Criminal Appeal No. 124 of 2001 passed by
the High Court of Rajasthan. The Additional Sessions Judge
convicted the accused persons under Section 302, IPC and
sentenced them for life imprisonment with fine which was
reversed by the High Court and acquitted the accused persons.
2. The prosecution case is as follows:
Guddi, the deceased, was admitted in the hospital on
11.09.1998 with ninety nine per cent burn injuries. Parcha
Page 2
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Bayan (Ex.P14A) of the deceased was recorded by ASI, Ram
Kishan and signed by SHO Mohan Lal PW13 in the hospital. On
the basis of the said Parcha Bayan, FIR No. 300/98 was
registered at police station Madanganj (Ajmer) against the
accused persons under Section 307, IPC. During treatment,
Guddi died at about 10AM on the same day and the case was
converted into Section 302, IPC. During the course of
investigation, both the accused persons were arrested on
12.09.1998, first accused is the father-in-law and second
accused is the husband. The accused persons denied the
charges and the case went to trial. On the side of the
prosecution 14 witnesses were examined. The Additional
Sessions Judge, placed considerable reliance on the dying
declaration stated to have been made before PW 3 Prem
Chand, a neighbour which find a place in the statement (Ex. P6)
made by him to the police under Section 161 of Cr.P.C. PW3
has stated that the deceased had raised hue and cry after the
burn injuries and abused the father-in-law - Sharvan Ram and
based on the evidence of PW3 and his 161 statement, the
Session Court found the accused persons guilty. Page 3
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3. Following are the circumstances which weighed with the
Additional Sessions Judge:
(i) That Smt. Guddi, aged 19 years died after two years
of her marriage due to 99% burn injuries after
pouring kerosene on her enlightening match stick,
therefore the death is homicidal.
(ii) Deceased was in the custody of accused appellants
and simply on account of going outside the house
were the ‘occurrence took place’ custody will not be
ceased.
(iii) PW1 Nathu Lal (father), PW2 Kailash (uncle) and
PW13 Smt. Suraj Devi (mother) of the deceased in
their statements have deposed that Smt. Guddi was
not allowed by the accused appellants to go to her
matrimonial home.
(iv) The version of Prem Chand, PW3 in his statement
under Section 161 Cr.P.C. was considered as dying
declaration and not the Parcha Bayan. Reliance was
not placed by Additional Sessions Judge on Parcha
Bayan of deceased. 
(v) That the previous and subsequent conduct of
accused appellants was not satisfactorily explained in
their statements under Section 313 Cr.P.C as
required under Section 8 of the Evidence Act.
(vi) Since the death was caused in the custody of the
accused, therefore, the accused were also
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responsible for proving the fact of burn which was
specifically within their knowledge as required under
Section 106 of the Indian Evidence Act and further
according to Section 114 of the Indian Evidence Act
presumption has to be drawn against accused
appellants.
4. Shri Abhishek Gupta, learned counsel appearing for the
respondents submitted that the High Court has rightly held that
it is not safe to base conviction on the statement of PW 3 –
Prem Chand recorded under Section 161 Cr.P.C., who was
declared hostile. Further, it was also pointed out that in the
statement under Section 161 Cr.P.C., PW3 had not named the
second accused - Pappu Lal, husband of the deceased. Further,
it was also pointed out that PW4 Smt. Choti and PW5 Narayan,
who are neighbours, did not disclose the cause of death and
have not mentioned the names of any of the accused persons
in their evidence. Therefore, the dying declaration made
before Prem Chand remained uncorroborated and the High
Court has rightly held that no reliance could be placed on
uncorroborated dying declaration. Learned counsel, therefore,
submitted that the judgment of the High Court calls for no
interference.
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5. Shri Shoran Mishra, learned counsel appearing for the
State submitted that the High Court has committed an error in
not placing reliance on the evidence of PW3 and the statement
made by him before the Police under Section 161 Cr.P.C.,
wherein the name of the second accused has been mentioned.
Learned counsel also submitted that the High Court has failed
to notice the fact that the deceased was in the custody of the
respondents and therefore the burden of explaining the fact of
burning is on the accused persons. Further, they have failed to
provide any explanation when examined under Section 313
Cr.P.C. Learned counsel also pointed out that the High Court
has not properly appreciated the evidence by PW1 - Nathu lal
(father of the deceased), PW2 - Kailash (uncle of the deceased)
and PW14 – Suraj Devi (mother of the deceased). PW14 in her
deposition stated that the deceased father in law used to say
that Guddi is his wife and she had deposed that her daughter
had told if the above facts were disclosed she would be killed
by burning. Learned counsel, therefore, submitted that the
evidence of PW1, PW2 and PW14 coupled with the statement
made by PW3 would establish the guilt of the respondents and
the trial court has rightly convicted them.
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6. We notice that there is no eye-witness to the occurrence
and the entire case hinges upon few alleged dying declarations
made by the deceased and circumstantial evidence. PW11 –
Dr. P.C. Patni conducted the autopsy and gave report Ex.P14 in
which it is stated that the deceased had 99% burn injuries.
Post mortem was conducted by members of the board and in
their opinion cause of death was hypovolumic shock as a result
of ante-mortem burn and the death had occurred within 24
hours and there was no evidence of suicide or accidental fire
and therefore the case was homicidal.
7. We are in this case concerned with three dying
declarations which are as follows:
(i) ASI Kishan recorded Parcha Bayan of the deceased
which was signed by PW13 Mohan Lal in the presence
of the doctor who also signed the same. Further, the
accused also stated to have affixed his thumb
impression.
(ii) Dying declaration stated to have been made on
11.09.1998 , signed by the Sub-Divisional Magistrate
but neither the said dying declaration had been
exhibited nor the Sub-Divisional Magistrate had been
produced in evidence.Page 7
7
(iii) Dying declaration, as made by the deceased, before
PW 3, Prem Chand, which had been stated by him in
his statement under Section 161, Cr.P.C.
8. We find only two dying declarations are on record, the
second one mentioned above was not brought out in evidence.
Parcha Bayan of the deceased, based on which the case was
registered reads as follows:
“I stay in Maliyon ki Dhani Madanganj. Today morning
at around four-five, I had gone from home to near the
drain adjacent Shivji Temple to ease myself and I was
easing myself when at that time a person wearing
white pant and shirt came. And in his hand there was
a kerosene can, and poured over me. And lighting a
match poured over me. My terecot clothes
immediately caught fire. I fell in the drain and coming
out of the drain reached the house being inflamed and
narrated the whole incident to the family members. I
did not recognize the person. I being inflamed fell in
the drain and coming from the drain came being
inflamed and narrated the whole incident to the family
members, who have brought me to the hospital, my
marriage took place two years back.”Page 8
8
The third dying declaration stated to have been made by the
deceased before PW3 – Prem Chand was referred to in Part A to
B of Ex.P6 reads as follows:
“She was a woman who shouting at the site and was
abusing her father in law Shravan Ram that you be
doomed you ran away setting me on fire.”
9. We may now examine, whether statement of PW3 – Prem
Chand recorded under Section 161, Cr.P.C., marked as Ex.P6
could be accepted as a dying declaration, wherein it was stated
by him that the deceased was raising hue and cry and was
abusing her father in law for ablazing her. PW3 was declared
as hostile. Further, PW4 and PW5, the neighbours, who have
stated to have seen the deceased in a burning state and raising
hue and cry, neither disclosed the cause of death nor
mentioned the names of any of the accused persons.
Consequently, the dying declaration made by Prem Chand
remained uncorroborated. It is trite law that it is unsafe to base
reliance on the statement made under Section 161 Cr.P.C. as
dying declaration without any corroboration. Although
corroboration as such is not essential but it is expedient to
have the same, in order to strengthen the evidentiary value of
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declaration. This court in Arvind Singh v. State of Bihar
(2001) 6 SCC 407 while dealing with the case of oral dying
declaration stated as follows:
“Dying declaration shall have to be dealt with care and
caution. Corroboration is not essential but it is
expedient to have the same, in order to strengthen the
evidentiary value of declaration. Independent
witnesses may not be available but there should be
proper care and caution in the matter of acceptance of
such a statement as trustworthy evidence.”
10. This Court in Bhajju Alias Karan Singh v. State of
Madhya Pradesh (2012) 4 SCC 327 while dealing with
admissibility of dying declaration held as follows:
“The law is well settled that a dying declaration is
admissible in evidence and the admissibility is founded
on the principle of necessity. A dying declaration, if
found reliable, can form the basis of a conviction. A
court of facts is not excluded from acting upon an
uncorroborated dying declaration for finding
conviction. The dying declaration, as a piece of
evidence, stands on the same footing as any other
piece of evidence. It has to be judged and appreciated
in light of the surrounding circumstances and its
weight determined by reference to the principle
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governing the weighing of evidence. If in a given case
a particular dying declaration suffers from any
infirmity, either of its own or as disclosed by the other
evidence adduced in the case or the circumstances
coming to its notice, the court may, as a rule of
prudence, look for corroboration and if the infirmities
are such as would render a dying declaration so infirm
that it pricks the conscience of the court, the same
may be refused to be accepted as forming basis of the
conviction.”
11. Applying the above legal principles and examining the
facts on record, we are of the view that no reliance could be
placed on the statement made by PW3 – Prem Chand under
Section 161 Cr.P.C. before the police in the absence of any
corroboration. Over and above, PW3 has himself turned
hostile.
12. We will now deal with the question whether the dying
declaration stated to have been recorded by ASI Ramkishan,
signed by SHO Mohan Lal (PW13) as well as Dr. Anil Kumar Soni
would be sufficient to base the conviction.Page 11
11
13. First we will examine whether P14-A, Parcha Bayan, which
was converted into dying declaration is made in consonance
with Rule 6.22 of the Rajasthan Police Rules, 1965. Rule 6.22
of the Rajasthan Police Rules, 1965 reads as follows:
“Dying Declarations – (1) A dying declaration shall,
whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if
possible, be examined by medical officer with a view
to ascertaining that he is sufficiently in possession of
his reason to make a lucid statement.
(3) If no Magistrate can be obtained, the declaration
shall, when a gazetted police officer is not present, be
recorded in the presence of two or more reliable
witnesses unconnected with the police department
and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of
the injured person dying before his statement can be
recorded, it shall be recorded in the presence of two or
more police officers.
(5) A dying declaration made to a police officer should,
under Section 162, Code of Criminal Procedure, be
signed by the person making it.”
14. We notice, in this case, the above mentioned Rule is
substantially complied with, still in our view no reliance could
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be placed due to lack of corroboration over and above the fact
that even in Ex. P14-A, the deceased had not named the
accused persons. What she stated is that she did not recognize
the person who has ablazed her. Therefore, in the absence of
any corroboration and also not naming any of the accused
persons in Ex.P14A, no reliance could be placed on the same
even though the provision of Rule 6.22 of the Rajasthan Police
Rules, 1965 has been complied with.
15. This Court had occasion to consider the scope of multiple
dying declarations in Smt. Kamla v. State of Punjab (1993)
1 SCC 1, this Court held as follows:
“A dying declaration should satisfy all the necessary
tests and one such important test is that if there are
more than one dying declaration they should be
consistent particularly in material particulars.”
16. In Kishan Lal v. State of Rajasthan (2000) 1 SCC 310,
this Court held has follows:
“Examining these two dying declarations, we find not
only that they gave two conflicting versions but there
is inter se discrepancies in the depositions of the
witnesses given in support of the other dying
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declaration dated 6.11.1976. Finally, in the dying
declaration before a Magistrate on which possibly
more reliance could have been placed the deceased
did not name any of the accused. Thus, we have no
hesitation to hold that these two dying declarations do
not bring home the guilt of the appellant. High Court,
therefore, erred in placing reliance on it by
erroneously evaluating them.”
17. In Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC
713, this Court had occasion to consider the legality and
acceptability of two dying declarations. Noticing the
inconsistency between the two dying declarations, the Court
held that it is not safe to act solely on the said declarations to
convict the accused persons.
18. In Amol Singh v. State of Madhya Pradesh (2008) 5
SCC 468, this Court interfered with the order of sentence
noticing inconsistencies between the multiple dying
declarations. It is not the plurality of the dying declarations but
the reliability thereof that adds weight to the prosecution case.
If a dying declaration is found to be voluntary, reliable and
made in fit mental condition, it can be relied upon without any
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corroboration but the statement should be consistent
throughout. However, if some inconsistencies are noticed
between one dying declaration and the other, the Court has to
examine the nature of the inconsistencies, namely, whether
they are material or not and while scrutinising the contents of
various dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding facts
and circumstances.
19. In State of Andhra Pradesh v. P. Khaja Hussain
(2009) 15 SCC 120, this Court rejected the appeal filed against
the acquittal holding that it was not a case where the variation
between the two dying declarations was trivial in nature.
20. In Sharda v. State of Rajasthan (2010) 2 SCC 85, this
Court has dealt with three dying declarations. Noticing
inconsistencies between dying declarations, this Court set aside
the sentence ordered by Sessions Judge as well as High Court
and held as follows:
“Though a dying declaration is entitled and is still
recognised by law to be given greater weightage but it
has also to be kept in mind that the accused had no
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chance of cross-examination. 
Such a right of cross examination is essential for eliciting the truth as an
obligation of oath. 
This is the reason, generally, the
court insists tha the 
dying declaration should be such
which inspires full confidence of the court of its
correctness. 
The court has to be on guard that such
statement of the deceased was not as a result of
either tutoring, prompting or product of imagination.
The court must be further satisfied that the deceased
was in a fit state of mind after a clear opportunity to
observe and identify the assailants. 
Once the court is
satisfied that the aforesaid requirement and also to
the fact that declaration was true and voluntary,
undoubtedly, it can base its conviction without any
further corroboration.”
21. We have gone through both the dying declarations and
there are not only material contradictions in both the
declarations but also inter se discrepancies in the depositions
of the witnesses as well. In the first dying declaration recorded
by ASI, signed by PW13, there is no mention of the names of
any of the accused persons and the deceased had stated that
she could not recognize the person who set her ablaze even
though the declaration was in consonance with Rule 6.22 of the
Rajasthan Police Rules, 1965.
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22. So far as the statement of PW3 – Prem Chand recorded
under Section 161, Cr.P.C. marked as Exh. P6 is concerned, the
deceased was only abusing her father in law and that was not
even corroborated by PW4 or PW5 and PW3 himself turned
hostile. Due to discrepancies and contradictions between the
two dying declarations and also in the absence of any other
reliable evidence, in our view, the High Court is justified in
reversing the order of conviction which calls for no interference
by this Court. In view of above, the appeal is, therefore,
dismissed.
 …………………………..J.
(K.S. Radhakrishnan)
…………………………..J.
(Dipak Misra)
New Delhi,
May 1, 2013

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