* Author
[2024] 3 S.C.R. 36 : 2024 INSC 169
Naeem
v.
State of Uttar Pradesh
(Criminal Appeal No. 1978 of 2022)
05 March 2024
[B.R. Gavai* and Sandeep Mehta, JJ.]
Issue for Consideration
Conviction of the appellants-accused for offences punishable
u/ss.302 and 34, Penal Code, 1860 based solely on the dying
declaration, if justified.
Headnotes
Evidence – Dying declaration, sole basis of conviction –
Appellants convicted for offences punishable u/ss.302 and
34, Penal Code, 1860 – Correctness:
Held: Dying declaration can be the sole basis of the conviction
if it inspires the full confidence of the court – Court is required
to satisfy itself that the deceased was in a fit state of mind at
the time of making the statement and that it was not the result
of tutoring, prompting or imagination – There cannot be an
absolute rule of law that the dying declaration cannot form the
sole basis of conviction unless corroborated – Rule requiring
corroboration is merely a rule of prudence – Where the Court is
satisfied that the dying declaration is true, voluntary, free from
any effort to induce the deceased to make a false statement and
it is coherent and consistent, it can base its conviction without
any further corroboration– Material placed on record revealed
that the deceased was in a fit state of mind at the time of making
the statement and that it was not the result of tutoring, prompting
or imagination – Dying declaration (Ext. Ka-6) was cogent,
consistent, trustworthy and reliable to base the conviction on
the same – No reason to interfere with the concurrent findings
of fact that the dying declaration was true and free from any
effort to induce the deceased to make a false statement – No
legal impediment to make it the basis of conviction without
there being any independent corroboration – However, in the
[2024] 3 S.C.R. 37
Naeem v. State of Uttar Pradesh
dying declaration, the motive attributed by the deceased was
to accused No.1-deceased’s devar who she had a quarrel over
partition of the house and the role of pouring kerosene on the
victim and setting her ablaze was also attributed to him – Insofar
as accused No.2 (wife of accused No.1) and her brother-accused
No.3 are concerned, the statement of the victim only states that
they aided accused No.1 however, no specific role of how they
assisted him could be found in the dying declaration – Thus, the
said dying declaration can be the sole basis of maintaining the
conviction of accused No.1 – Accused No. 2 and accused No.
3 entitled to the benefit of doubt and are acquitted – Impugned
judgment upholding the conviction and sentence in respect of the
said appellants is quashed and set aside – Appeal qua accused
No.1 is dismissed. [Paras 7, 11, 14-16]
Case Law Cited
Atbir v. Government of NCT of Delhi, [2010] 9 SCR
993 : (2010) 9 SCC 1 : 2010 INSC 491 – relied on.
List of Acts
Penal Code, 1860.
List of Keywords
Dying declaration; Sole basis of the conviction; Corroboration rule
of prudence; Voluntary dying declaration.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1978
of 2022
From the Judgment and Order dated 17.12.2019 of the High Court
of Judicature at Allahabad in CRLA No.7393 of 2017
Appearances for Parties
Sharan Thakur, AAG, Dr. Sushil Balwada, Kaushal Yadav, Nandlal
Kumar Mishra, Srilok Nath Rath, Ms. Reena Rao, Mohd Adeel
Siddiqui, Bipin Kumar Jha, Ms. Komal Jha, Ms. Nandani Gupta, Dr.
Mrs. Vipin Gupta, Sudeep Kumar, Mustafa Sajad, Ms. Rupali, Ms.
Keerti Jaya, Advs. for the appearing parties.
38 [2024] 3 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
B.R. Gavai, J.
1. These appeals challenge the judgment and order dated 17th December
2019, passed by the Division Bench of the High Court of Judicature
at Allahabad in Criminal Appeal Nos. 1589 of 2018 and 7393 of 2017,
whereby the Division Bench dismissed both the criminal appeals
preferred by the appellants, namely, Pappi @ Mashkoor (accused
No.1), Naeema (accused No.2) and Naeem (accused No.3) and
upheld the order of conviction and sentence dated 24th October 2017
as recorded by the learned Sessions Judge, Moradabad (hereinafter
referred to as the ‘trial court’) in Sessions Trial No. 260 of 2017.
2. Shorn of details, the facts leading to the present appeals are as under:
2.1. On 1st December 2016, the Police Station Katghar, District
Moradabad received a written report at 08:15 pm which was
a transcription of the complaint made by Shahin Parveen
(deceased) who had been admitted in the District Hospital,
Moradabad on 1st December 2016, at 02:20 pm with 80% deep
thermal and facial burns. In her complaint, the deceased had
alleged that she had been set ablaze by the accused/appellants
who had been pressuring her into entering the profession of
immoral trafficking and prostitution. On the basis of the written
report (Ext. Ka-3), a First Information Report (“FIR” for short)
was registered at Police Station Katghar, District Moradabad
vide Case Crime Number 1332 of 2016 for the offence
punishable under Section 307 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”). On the same day, Raj Kumar
Bhaskar (PW-5), the then Naib Tehsildar, Sadar, Moradabad
was telephonically summoned by the Tehsildar to record the
statement of Shahin Parveen (deceased), after she was admitted
in the hospital. Between the hours of 08:48 pm and 09:15 pm,
dying declaration of Shahin Parveen (deceased) (Ext. Ka-6)
came to be recorded by PW-5. Subsequently, the victim was
admitted in Safdarjang Hospital, New Delhi on 2nd December
2016, where she eventually succumbed to her injuries at 07:55
pm. Consequently, the Case Crime No. 1332 of 2016 was
altered to the offence punishable under Section 302 of IPC.
[2024] 3 S.C.R. 39
Naeem v. State of Uttar Pradesh
According to the Post-Mortem Report (Ext. Ka-11), the cause
of death was shock as a result of ante-mortem burn injuries.
2.2. After the death of the husband of the deceased two years prior
to the incident, she had been residing at her matrimonial house
with her two children along with Pappi @ Mashkoor (accused
No. 1) who was her brother-in-law (devar) and his wife Naeema
(accused No.2). Naeem (accused No.3) is Naeema’s brother.
The prosecution case is that, after the death of the husband
of the deceased, the accused/appellants started pressuring
her into entering the profession of immoral trafficking and
prostitution. As the deceased did not concede to the same,
she was physically and sexually assaulted and asked to vacate
the house. On the day of the incident at about 01:30 pm, the
accused/appellants caught hold of the deceased and poured
kerosene on her. Pappi @ Mashkoor (accused No.1) and
Naeema (accused No.2) ignited the matchstick and threw it
at her. Thereafter, the accused/appellants surrounded her so
that she could not escape. On being set ablaze, the deceased
ran out of the house whereafter her neighbours put out the fire
and informed her mother and brother namely, Islam @ Babli
(PW-2) who took her to the hospital. This version of events was
brought out in the complaint made by the deceased which was
transcribed by Faisal Zamal (PW-3). On the basis of PW-3’s
written report, bearing the thumb impression of the deceased,
the FIR came to be registered at 08:15 pm on 1st December
2016. Thereafter, on the same day, between 08:48 pm and
09:15 pm, PW-5 recorded the dying declaration of the deceased
(Ext. Ka-6) wherein she stated that there was an outstanding
dispute between her and Pappi @ Mashkoor (accused No.1)
with regards to the partition of their shared residence. On the
date of the incident at about 12:30 pm, another quarrel broke
out between the deceased and the accused/appellants, during
which accused No.1 poured kerosene on the deceased and
set her ablaze. He was accompanied and assisted by his
wife Naeema (accused No.2) and Naeem, brother of Naeema
(accused No.3). She was taken to the District Hospital,
Moradabad by her brother Islam @ Babli (PW-2) and thereafter
shifted to Safdarjang Hospital, New Delhi, where she eventually
succumbed to her injuries.
40 [2024] 3 S.C.R.
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2.3. After completion of the investigation, a charge-sheet came to be
filed before the Court of Chief Judicial Magistrate, Moradabad.
Since the case was exclusively triable by the Sessions Court,
the same came to be committed to the learned Sessions Judge.
2.4. Charges came to be framed by the learned Sessions Judge
for the offences punishable under Sections 302 and 34 of the
IPC. The accused pleaded not guilty and claimed to be tried.
2.5. The prosecution examined 8 witnesses to bring home the guilt
of the accused persons. While Papi @ Mashkoor (accused
No.1) took the defence that he was absent from the spot of
the incident at the relevant time and that the deceased had
committed suicide since she was depressed after the death of
her husband, Naeema (accused No.2) and Naeem (accused
No.3) set up the defence of bare denial. The defence did not
lead any evidence.
2.6. At the conclusion of the trial, the trial court found that the
prosecution had proved the case against the accused/appellants
beyond reasonable doubt and accordingly convicted them for
offences punishable under Sections 302 and 34 of the IPC and
sentenced them to undergo imprisonment for life along with fine.
2.7. Being aggrieved thereby, the accused/appellants preferred
appeals before the High Court. The High Court by the impugned
judgment dismissed the same and affirmed the order of
conviction and sentence awarded by the trial court. Being
aggrieved thereby, the present appeals.
3. We have heard Shri Mohd. Adeel Siddiqui, learned counsel appearing
on behalf of the appellants and Shri Sharan Thakur, learned Additional
Advocate General (AAG) appearing on behalf of the respondent-State.
4. Shri Mohd. Siddiqui submits that the conviction is based only on
the dying declaration of the deceased (Ex. Ka-6). He submits
that the dying declaration (Ext. Ka-6) is not free from doubt. It is
submitted that the Discharge Slip (Ext. Ka-7) would show that the
deceased was discharged from the District Hospital, Moradabad on
1st December 2016 at 05:00 pm. It is therefore impossible that the
dying declaration (Ext. Ka-6) could have been recorded between
08:48 pm and 09:15 pm. The learned counsel therefore submits
that the said dying declaration (Ext. Ka-6) cannot be said to be
[2024] 3 S.C.R. 41
Naeem v. State of Uttar Pradesh
trustworthy, reliable and cogent so as to base the conviction solely
on the basis of the same.
5. Per contra, Shri Thakur submits that, both the trial court and the High
Court, on the correct appreciation of evidence, rightly convicted the
accused/appellants and as such, no interference would be warranted
with the concurrent findings of the trial court and the High Court. The
learned AAG submits that Raj Kumar Bhaskar (PW-5), the then Naib
Tehsildar, has deposed about the dying declaration (Ext. Ka-6). Shri
Thakur submits that the dying declaration (Ext. Ka-6) also contains
the certification by Dr. A.K. Singh, Emergency Medical Officer, District
Hospital, Moradabad regarding the medical fitness of the victim both
prior to and after recording the dying declaration (Ext. Ka-6).
6. Undisputedly, in the present case, the conviction is based solely on
the dying declaration (Ext. Ka-6). The law with regard to conviction on
the sole basis of dying declaration has been considered by this Court
in a catena of judgments. After considering the earlier judgments,
this Court, in the case of Atbir v. Government of NCT of Delhi1
,
has laid down certain factors to be taken into consideration while
resting the conviction on the basis of dying declaration. It will be
apposite to refer to para (22) of the said judgment, which reads thus:
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction
if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of tutoring,
prompting or imagination.
(iii) Where the court is satisfied that the declaration is
true and voluntary, it can base its conviction without
any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
1 (2010) 9 SCC 1 : 2010 INSC 491
42 [2024] 3 S.C.R.
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(v) Where the dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration does not contain
all the details as to the occurrence, it is not to be
rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was
not in a fit and conscious state to make the dying
declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is
true and free from any effort to induce the deceased
to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to
make it the basis of conviction, even if there is no
corroboration.”
7. It can thus be seen that this Court has clearly held that dying
declaration can be the sole basis of the conviction if it inspires the
full confidence of the court. The Court is required to satisfy itself
that the deceased was in a fit state of mind at the time of making
the statement and that it was not the result of tutoring, prompting or
imagination. It has further been held that, where the Court is satisfied
about the dying declaration being true and voluntary, it can base its
conviction without any further corroboration. It has further been held
that there cannot be an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is corroborated. It
has been held that the rule requiring corroboration is merely a rule
of prudence. The Court has observed that if after careful scrutiny,
the court is satisfied that it is true and free from any effort to induce
the deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it the basis
of conviction, even if there is no corroboration.
8. A perusal of the material placed on record would reveal that Raj
Kumar Bhaskar (PW-5), the then Naib Tehsildar has deposed that
[2024] 3 S.C.R. 43
Naeem v. State of Uttar Pradesh
he was directed by the Tehsildar on phone to record the statement
of the victim Shahin Parveen at the District Hospital, Moradabad.
He came to the hospital and asked the Chief Medical Officer of
the hospital about the condition of the victim Shahin Parveen, who
informed that Shahin Parveen was in a sound condition and was also
fit to give her statement. He further deposed about the certificate
issued by the doctor. He also deposed that, after recording the
statement, the deceased put her thumb impression. He has further
deposed that the deceased answered in full sense and she was
understanding the questions. The deposition of PW-5 would also
reveal that he had taken care to ensure that none of the relatives of
the deceased were present when the dying declaration (Ext. Ka-6)
was being recorded.
9. Insofar as the contention of the learned counsel for the appellants
that the dying declaration (Ext. Ka-6) was recorded between 08:48
pm and 09:15 pm and the Discharge Slip (Ext. Ka-7) was issued
at 05:00 pm is concerned, no question was put to that effect in the
cross-examination of Raj Kumar Bhaskar (PW-5), the then Naib
Tehsildar. As such, his testimony, in spite of cross-examination, has
gone unchallenged on the material aspect of recording of the dying
declaration.
10. A perusal of the dying declaration (Ext. Ka-6) would reveal that
before recording the dying declaration (Ext. Ka-6), the victim was
examined by Dr. A.K. Singh, Emergency Medical Officer at District
Hospital, Moradabad on 1st December 2016 at 08:45 pm, who has
certified her to be fully conscious and fit to give the statement.
After the dying declaration (Ext. Ka-6) was recorded, a certification
by Dr. A.K. Singh, Emergency Medical Officer at District Hospital,
Moradabad is recorded once again to the effect that the deceased
was fully conscious while giving the statement (Ext. Ka-6). It can
thus clearly be seen that the material placed on record would reveal
that the deceased was in a fit state of mind at the time of making
the statement and that it was not the result of tutoring, prompting
or imagination.
11. We have no reason to interfere with the concurrent findings of fact
that the dying declaration (Ext. Ka-6) is true and free from any
effort to induce the deceased to make a false statement. The dying
declaration (Ext. Ka-6) is coherent and consistent and as such, there
44 [2024] 3 S.C.R.
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should be no legal impediment to make it the basis of conviction
without there being any independent corroboration. We find that the
dying declaration (Ext. Ka-6) is cogent, trustworthy and reliable to
base the conviction on the same.
12. That leaves us with the question as to whether the conviction of all
the three accused is tenable or not.
13. It will be apposite to refer to the relevant part of the dying declaration
(Ext. Ka-6), which reads thus:
“Answer: I had been into a dispute with my devar
(husband’s younger brother) Mashkoor Hussain s/o
Maqdoom Hussain over partition of the house for many
days. Today i.e. 01.12.2016 at 12:30 O’clock I had a
quarrel with my devar over partition of the house, during
which he poured kerosene on me and set me ablaze. In
commission of the act, my devrani (husband’s younger
brother’s wife) Naeema Parveen and her brother Naeem
aided my devar (husband’s younger brother). When they
set my body ablaze, I ran outside the house. People from
the neighbourhood doused fire engulfing my body and
saved me. Residents of the locality informed my mother
and brother, thereafter, my brother and mother brought
and admitted me to the hospital.”
14. The statement of the victim would therefore reveal that the motive
attributed by the deceased is to accused No. 1 Pappi @ Mashkoor.
She stated that she had a quarrel with her devar Pappi @ Mashkoor
over partition of the house. It can further be seen that the role of
pouring kerosene on the victim and setting her ablaze is also attributed
to accused No. 1 Pappi @ Mashkoor.
15. Insofar as other two accused i.e. Naeema (wife of accused No.1
Pappi @ Mashkoor) and her brother Naeem are concerned, the
statement of the victim only states that they aided her devar Pappi
@ Mashkoor. However, no specific role of how they assisted accused
No. 1 Pappi @ Mashkoor could be found in the dying declaration
(Ext. Ka-6). We therefore find that, though the said dying declaration
can be the sole basis of maintaining the conviction of accused No.
1 Pappi @ Mashkoor, in the absence of any specific role attributed
to accused No. 2 Naeema and accused No. 3 Naeem, they are
entitled to the benefit of doubt.
[2024] 3 S.C.R. 45
Naeem v. State of Uttar Pradesh
16. In the result, we pass the following order:
(i) Criminal Appeal No. 1978 of 2022 qua appellant Naeem and
Criminal Appeal No. 1979 of 2022 qua appellant Naeema are
allowed. The order of conviction and sentence dated 24th October
2017 passed by the trial court and maintained by the High Court
vide impugned judgment and order dated 17th December 2019
in respect of the aforesaid appellants is quashed and set aside.
They are acquitted of all the charges charged with and are
directed to be released forthwith if not required in any other case
(ii) Criminal Appeal No. 1979 of 2022 qua appellant Pappi @
Mashkoor is dismissed.
17. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Divya Pandey Result of the case:
Criminal Appeal No. 1978 of 2022
qua accused No.3 and Criminal Appeal
No. 1979 of 2022 qua accused No.2
are allowed. Criminal Appeal No. 1979
of 2022 qua accused No.1 is dismissed.
