Dying Declaration - oral report mentioned at the time of admission in case sheet to duty doctor - that husband poured kerosin and lit fire orally amounts to dying declaration - to the Nurse is also amounts to dying declaration - absence of kerosin smell on the hairs of deceased in forensic test - makes no difference for coming to conclusion when Dying Declaration was corroborated by Evidence and further Surinder Kumar (Supra) is distinguishable for the simple reason that the dying declaration fully supports the prosecution version. - Apex court dismissed the appeal =CRIMINAL APPEAL NO.1503 OF 2007 TANUA RABIDAS .....APPELLANT VERSUS STATE OF ASSAM ....RESPONDENT = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41876

  Dying Declaration -  oral report mentioned at the time of admission in case sheet to duty doctor - that husband poured kerosin and lit fire orally amounts to dying declaration - to the Nurse is also amounts to dying declaration - absence of kerosin  smell on the hairs of deceased in forensic test - makes no difference for coming to conclusion when Dying Declaration was corroborated by Evidence and further Surinder  Kumar (Supra) is distinguishable for the simple reason that the dying  declaration fully supports the prosecution version. - Apex court dismissed the appeal =

Besides the oral dying declaration,  the  victim  also  made  a  dying
declaration before PW—6 Dr. Imnuksungba Langkumer who is working  at  Jorhat
Christian Hospital. This witness has deposed  that  on  04.12.1999,  he  had
examined the victim who was brought to the  hospital  in  burned  condition.
The witnesses has deposed that he had   enquired from the patient as to  how
she sustained burn injuries whereupon she reported that her  husband  poured
kerosene oil upon her and ignited it. While recording the case history,  PW-
6 Dr. Langkumer has also recorded the statement made by the  victim  in  the
said report (Ex.6). The evidence of PW-6 Dr. Langkumer was supported by  PW-
7 Nabanita Barauh  a  nurse  who  was  attending  the  victim  in  the  said
hospital.

9.    On the basis of evidence adduced from  the  side  of  the  prosecution
including the two dying declarations, the trial court  found  the  appellant
guilty of the offence punishable  under  section  302  IPC  and  accordingly
sentenced him to undergo life imprisonment and to  pay  fine  of  Rs.1,000/-
with default clause. The High Court on appeal filed  by  the  appellant  re-
appreciated the entire evidence and affirmed the  finding  recorded  by  the
trial court and dismissed the appeal.=

Mr.  Goswami  strenuously  argued  that  the  evidence  of  PW-6  Dr.
Langkumer cannot be believed because PW-6 did not inform  the  police  about
the dying declaration made by the deceased while  she  was  brought  to  the
hospital.

   We do not find any force  in  the  submission  made  by  Mr.  Goswami.
Indisputedly, PW-6 Dr. Langkumer and PW-7 Nabanita Barauh  came  in  contact
with the victim only when she was brought to  the  hospital  for  treatment.
There is nothing on record to show  that  the  victim  was  known  to  them.
Further, they are  not  related  to  the  victim  nor  they  are  interested
witnesses.

15.   In that view of the matter, the evidence of  PW-6  Dr.  Langkumer  and
PW-7 Nabanita Barauh is a very important piece of  evidence  and  the  trial
court has rightly held the appellant guilty of the offence punishable  under
section 302 IPC as also affirmed by the High Court.

16.   The decision relied on by Mr. Goswami in the case  of  Surinder  Kumar
(Supra) is distinguishable for the simple reason that the dying  declaration
fully supports the prosecution version.

17.   Moreover on careful scrutiny, the Sessions Court was  fully  satisfied
that the evidence of PW-6 Dr. Langkumer is true and there is no evidence  to
the contrary that any effort was made by anyone to induce  the  deceased  to
make the false statement. Further absence of smell of kerosene  oil  in  the
hair of the deceased sent for  chemical  examination  does  not  render  the
dying declaration doubtful and unbelievable as held by  this  Court  in  the
case of State of Rajasthan vs. Kishore – (1996) 8 SCC 217.

18.   After giving our anxious consideration in the matter, we do  not  find
any infirmity or perversity in the judgment  and  order  of  conviction  and
sentence passed the the trial court and affirmed by the High Court.

19.   For the aforesaid reasons, there is no merit in this appeal  which  is
dismissed accordingly.
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41876
                                                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1503 OF 2007


TANUA RABIDAS                     .....APPELLANT
                                   VERSUS
STATE OF ASSAM                    ....RESPONDENT


                               J U D G M E N T

M. Y. Eqbal, J.

      The appellant was put on trial along with  co-accused  Sarbananda  Das
for offence under section 302/326/34 of the Indian  Penal  Code  (for  short
the  'IPC').  The  Additional  Sessions  Judge,  Jorhat  by  judgment  dated
30.03.2006 in Sessions Case No.27(J.J.) of 2005,  acquitted  the  co-accused
Sarbananda  Das but held the appellant guilty of offence under  section  302
IPC and sentenced him to undergo rigorous  imprisonment  for  life  and  pay
fine  of  Rs.1,000/-  with  default  clause.  Aggrieved  by  the  same,  the
appellant preferred  appeal  before  the  High  Court.  The  High  Court  by
impugned judgment and order  dated  20.03.2007  passed  in  Criminal  Appeal
No.118 of 2006, affirmed the conviction and sentence of  the  appellant  and
dismissed  the  said  appeal.      Aggrieved  by  the  same,  the  appellant
preferred this appeal by special leave.

2.    According to the prosecution, the appellant-accused Tanua Rabidas  was
working as an Assistant in the Social Welfare  Department.  He  was  married
with Meera Saikia Rabidas and both were living together and  had  no  issue.
On the day of their marriage anniversary, it was alleged that  the  accused-
appellant along with co-accused Sarbananda Das were present  in  the  house.
The appellant poured kerosene oil upon his wife and set  her  on  fire.  She
was immediately  removed  to  Mission  Hospital,  Jorhat  and  therefrom  to
Dibrugarh Medical  College  Hospital.  The  victim  succumbed  to  the  burn
injuries. The First Information Report (for short the 'FIR') was  lodged  at
Jorhat Police Station Case No.496/99 by PW-1 Atul Saikia the brother of  the
victim. After usual investigation, the  police  submitted  the  charge-sheet
against both the accused under sections 302/326/34  IPC  and  the  case  was
accordingly committed to the Sessions Court.

3.    The prosecution examined  as  many  as  seven  witnesses.   PW-1  Atul
Saikia the brother of the victim in his evidence stated that his sister  was
married with the  accused-appellant  nine  years  before  the  incident.  He
deposed that the accused-appellant had two wives prior to the marriage  with
his sister and he had deserted first wife before marrying  his  sister.  He,
on being informed about the incident went to the Hospital  and  was  advised
by the Doctor to take his sister to the Dibrugarh Medical  College  Hospital
for better treatment.

4.    PW-2 is the son of the accused-appellant from his first wife.  He  was
living with the couple but he deposed that after hearing a commotion he  saw
his step-mother near the gateway.

5.    PW-3 and PW-4 are the neighbourers of the victim.  After  hearing  the
commotion, they also saw the victim near the gateway. PW-8  had  accompanied
PW-1 to the hospital  and  deposed  that  the  deceased  had  made  a  dying
declaration in their presence stating that her husband had set her on  fire.


6.    Another person  present  at  the  time  of  the  occurrence  was  Mamu
Borbora, a maid servant. Her statement was recorded  under  section  164  of
the Code of Criminal Procedure but she could not be examined because of  her
absence and she was traceless.

7.    Dr. Rupak Kr. Gogoi, who conducted autopsy over the dead body  of  the
victim, was examined. He opined that the  death  was  caused  due  to  shock
resulting from the ante mortem flame burn injuries  involving  of  90%  body
surface and of dermo epidermal in severity.

8.    Besides the oral dying declaration,  the  victim  also  made  a  dying
declaration before PW—6 Dr. Imnuksungba Langkumer who is working  at  Jorhat
Christian Hospital. This witness has deposed  that  on  04.12.1999,  he  had
examined the victim who was brought to the  hospital  in  burned  condition.
The witnesses has deposed that he had   enquired from the patient as to  how
she sustained burn injuries whereupon she reported that her  husband  poured
kerosene oil upon her and ignited it. While recording the case history,  PW-
6 Dr. Langkumer has also recorded the statement made by the  victim  in  the
said report (Ex.6). The evidence of PW-6 Dr. Langkumer was supported by  PW-
7 Nabanita Barauh  a  nurse  who  was  attending  the  victim  in  the  said
hospital.

9.    On the basis of evidence adduced from  the  side  of  the  prosecution
including the two dying declarations, the trial court  found  the  appellant
guilty of the offence punishable  under  section  302  IPC  and  accordingly
sentenced him to undergo life imprisonment and to  pay  fine  of  Rs.1,000/-
with default clause. The High Court on appeal filed  by  the  appellant  re-
appreciated the entire evidence and affirmed the  finding  recorded  by  the
trial court and dismissed the appeal.

10.   Mr. P.K. Goswami, learned Senior Counsel appearing for the  appellant,
assailed the impugned judgment and order of the High Court on  two  grounds.
He firstly contends that no reliance  can  be  placed  upon  Ex.6  i.e.  the
report prepared by Dr. Langkumer inasmuch as allegedly it was an oral  dying
declaration and that it was highly doubtful whether  the  victim  was  in  a
position to speak when she was admitted in Jorhat Mission Hospital with  90%
burn injuries. He put reliance on the decision of this Court in the case  of
Surinder Kumar vs. State of Haryana – (2011) 10 SCC 173.  He  contends  that
there was no smell of kerosene  oil  from  the  body  of  the  victim  which
falsifies the entire case of the prosecution.

11.   On the other hand,  learned  counsel  appearing  for  the  respondent-
State,  submits  that  the  prosecution  has  proved  the  case  beyond  all
reasonable doubt. The evidence of PW-6  and  PW-7  i.e.  Dr.  Langkumer  and
Nabanita Barauh a nurse in the Jorhat Mission Hospital,    have  been  fully
corroborated by PW-1 and PW-8.

12.   We have gone through the evidence and we find that  the  statement  of
PW-6 Dr. Langkumer and PW-7 Nabanita Baruah that the  victim  made  a  dying
declaration that her husband poured kerosene oil on her and set her on  fire
has been fully corroborated by PW-1 and PW-8.

13.    Mr.  Goswami  strenuously  argued  that  the  evidence  of  PW-6  Dr.
Langkumer cannot be believed because PW-6 did not inform  the  police  about
the dying declaration made by the deceased while  she  was  brought  to  the
hospital.

14.   We do not find any force  in  the  submission  made  by  Mr.  Goswami.
Indisputedly, PW-6 Dr. Langkumer and PW-7 Nabanita Barauh  came  in  contact
with the victim only when she was brought to  the  hospital  for  treatment.
There is nothing on record to show  that  the  victim  was  known  to  them.
Further, they are  not  related  to  the  victim  nor  they  are  interested
witnesses.

15.   In that view of the matter, the evidence of  PW-6  Dr.  Langkumer  and
PW-7 Nabanita Barauh is a very important piece of  evidence  and  the  trial
court has rightly held the appellant guilty of the offence punishable  under
section 302 IPC as also affirmed by the High Court.

16.   The decision relied on by Mr. Goswami in the case  of  Surinder  Kumar
(Supra) is distinguishable for the simple reason that the dying  declaration
fully supports the prosecution version.

17.   Moreover on careful scrutiny, the Sessions Court was  fully  satisfied
that the evidence of PW-6 Dr. Langkumer is true and there is no evidence  to
the contrary that any effort was made by anyone to induce  the  deceased  to
make the false statement. Further absence of smell of kerosene  oil  in  the
hair of the deceased sent for  chemical  examination  does  not  render  the
dying declaration doubtful and unbelievable as held by  this  Court  in  the
case of State of Rajasthan vs. Kishore – (1996) 8 SCC 217.

18.   After giving our anxious consideration in the matter, we do  not  find
any infirmity or perversity in the judgment  and  order  of  conviction  and
sentence passed the the trial court and affirmed by the High Court.

19.   For the aforesaid reasons, there is no merit in this appeal  which  is
dismissed accordingly.


                                                     .....................J.
                                                               [M. Y. Eqbal]



                                                     .....................J.
                                                      [Pinaki Chandra Ghose]
New Delhi;
September 04, 2014

Dying Declaration =It may not be an absolute proposition of law that a dying declaration should be recorded by a Magistrate There is nothing on record to suggest that Dr. Rajinder Rai (PW- 4) is an unreliable witness. To the contrary, he is a natural witness and his testimony has not been shaken during a long cross examination. The theory of tutoring is also ruled out in the present case as the accused persons only were present with the deceased during that time and none of the family members of the deceased were present when the dying declaration was recorded by the Doctor. The husband (appellant no.1) Manoj has also affixed his signature on the MLR on which the dying declaration was recorded by the Doctor. The evidence of PW-4 is trustworthy, cogent and reliable. What we find in the present case is that the dying declaration (Ext.PF) which was recorded by Dr.Rajinder Rai (PW-4) was also signed by Manoj (appellant no.1) which indicates that appellant No.1 was present when statement was recorded. Nothing on the record to suggest that any of the relation of the deceased was present to influence Dr. Rajinder Rai (PW-4). The law is well settled that if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. Such view was taken by this Court in Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1 SCC 73 wherein this Court held: the law is well settled i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. In the instant case, the evidence of PW 5, the doctor very clearly shows that the deceased was conscious and was medically in a fit state to make a statement. It is because of the fact that a Judicial Magistrate was not available at that point of time, he was requested to record the statement, which he did. His evidence in regard to the state of mind or the physical condition of the deceased to make such a declaration has not been challenged in the cross- examination. That being so, it should be held that the deceased was in a fit state of mind to make a declaration as held by the courts below. The next question for our consideration is whether this statement is voluntary and truthful. It is not the case of the defence that when she made the statement either she was surrounded by any of her close relatives who could have prompted her to make an incorrect or false statement. In the absence of the same so far as the voluntariness of the statement is concerned, there can be no doubt because the deceased was free from external influence or pressure. So far as the truthfulness of the statement is concerned, the doctor (PW 5) has stated that she has made the said statement which, as noted above, is not challenged in the cross-examination. The deceased in her brief statement has, in clear terms, stated that because of the quarrel between her and the accused, the accused had poured kerosene and set her on fire which, in our opinion, cannot be doubted.........”

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40535
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1853 OF 2012


MANOJ & ORS.                                      ...APPELLANTS

                                   Versus

STATE OF HARYANA                           ...RESPONDENT

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.

      The appellants in this case were found guilty of   offence  punishable under Sections 498-A and 304-B Indian Penal Code (for short, “IPC”)  by  the Sessions Judge, Bhiwani.
They were sentenced  to  undergo  imprisonment  for
life for the offence under Section 304-B IPC and also  to  undergo  rigorous imprisonment for three years, besides, payment of fine  of  Rs.5,000/-  each and in default of which to undergo further imprisonment for a period of  six months for the offence under Section 498-A IPC.  
Their  appeal  against  the
said judgment and conviction to the  High  Court  of  Punjab  &  Haryana  at
Chandigarh got dismissed
except with  a  modification  in  the  sentence  of
imprisonment from imprisonment for life to imprisonment  for  10  years  for the offence under Section 304-B IPC.
2.    The prosecution case, in brief, is that on 14.4.2005 on receipt  of  a
telephonic  message  from  the  Incharge,  Police  Post,  General  Hospital,
Bhiwani regarding admission of Meena Devi wife  of  Manoj  Kumar  (appellant
no.1) resident of Village Hetampura in burnt condition, ASI Chattarmal  (PW-
11) of P.S. Sadar,Bhiwani along with  other  police  officials  reached  the
said hospital and  collected  medical  ruqa  (memo)  alongwith  medico-legal
report of  injured  Meena.
After  obtaining  the  opinion  of  the  Doctor
regarding fitness of the injured to make statement when he brought the  Duty Magistrate to record her statement in the hospital, the Doctor  had  already referred her to PGIMS Rohtak.  
Thereafter, he alongwith  Magistrate  reached
PGIMS, Rohtak and collected two medical ruqas from  Incharge,  Police  Post,
PGIMS Rohtak out of which one was regarding death of Meena. 
Then he  reached
in the gallery of emergency ward where complainant  Vedpal  (PW-9)  met  him
and got recorded his statement (Ex.PA).
It is alleged by  the  complainant-
Vedpal (PW-9) that he had one daughter  and  two  sons.
His  daughter  was
married with Manoj (appellant no.1) son of Mahabir about five years  earlier
(the actual date of marriage found to be 6.05.2000)  to  the  incident  that
had occurred on 14.04.2005.
He further stated that in the  marriage  of  his
daughter, he had given dowry beyond his financial  capacity.   However,  his
daughter on her return from her matrimonial home for  the  first  time  told
him that her in-laws were not satisfied with the dowry  articles  that  were
given in marriage.
The complainant  had  given  double  bed,  T.V.,  fridge,
cooler, sofa set, almirah, 21 utensils and clothes etc., besides,  Rs.2100/-
in  cash.
When  the  daughter  of  the  complainant  (PW-9)  went  to   her
matrimonial home for  the  second  time,  his  son-in-law  Manoj  (appellant
no.1), the mother-in-law of his  daughter  namely  Chameli  Devi  (appellant
no.2), the  father-in-law  namely  Mahabir  (since  acquitted)  and  Jethani
(husband's elder brother's wife) of his  daughter  namely  Suman  (appellant
no.3) raised a demand for a motor cycle and started torturing her  (beating)
for  this.
Therefore,  Meena  Devi  (deceased)  started  living  with  him
(complainant).  She  stayed  with  her  father  (complainant)  for  fourteen
months. About ten months earlier from the date of  incident  that   occurred
on 14.04.2005, the complainant (PW-9) made his daughter understand and  sent
her back in the presence of panchayat of Hetampura and Sant Mann  Singh  s/o
Chandu Ram r/o Hissar.
However, even then  the  accused  were  demanding  a
motor cycle and kept troubling his daughter for dowry.
On  14.04.2005,  at
about 8.00 a.m, Mahabir  informed him on  telephone  from  the  Hospital  at
Bhiwani that Meena Devi (deceased)  had  been  admitted  in  the  Government
Hospital, Bhiwani with burn injuries.
On  receiving  this  information,  the
complainant (PW-9)  and Dayanand s/o  Jogi  Ram  and  his  brother  Shamsher
reached the Hospital at Bhiwani.
There they came to  know  that  Meena  Devi
(deceased) had been referred to PGIMS, Rohtak.
Then they all reached  PGIMS,
Rohtak where he met his daughter in the emergency  ward  of  PGIMS,  Rohtak.
His daughter told him that
in the morning on  that  day,  her  mother-in-law
namely Chameli Devi (appellant no.2) had called her  in  the  room  and  her husband Manoj (appellant no.1) poured kerosene oil on her and her  husband's elder  brother's  wife  (Jethani)  namely  Suman  (appellant  no.3)  lit   a matchstick and set her on fire on account of  which  she  got  burnt.  
After sometime Meena Devi (deceased) while she was under  treatment  breathed  her last.
It it alleged by the complainant (PW-9) that on account  of  greed  of
dowry, his daughter Meena Devi (deceased) had been set on  fire  by  pouring
kerosene oil on her by her husband  Manoj  (appellant  no.1),  mother-in-law
Chameli Devi (appellant no.2) and husband's elder brother's  wife  (Jethani)
Suman  (appellant  no.3)  after  colluding  with  each  other.
He   further
requested for action being taken against the accused.
3.    On the basis of  such  complaint  FIR  No.103  dated  14.4.2005  under Sections 304-B/498-A/406/34 IPC was registered. 
Subsequently, 
on  the  basis
of above allegations, 
all the four accused were charged under Section  304-B in alternative under Sections 302, 498-A and 406 r/w Section 34 of  the  IPC
to which they pleaded not guilty and claimed trial.
4.    All together eleven witnesses were  produced  by  the  prosecution  in
support  of  their  case.  Exhibits  were  proved  through  the  prosecution
witnesses. Defence also produced two witnesses in its favour.
5.    The Sessions Judge, Bhiwani  by  judgment  dated  4.09.2006  acquitted Mahabir father-in-law of the deceased and held  the  appellants  guilty  for the offence under Sections 498-A and 304-B of the IPC.  
The  Sessions  Judge
further held that the prosecution has miserably failed  to  prove  its  case
against all the four accused for the offence under Sections 302 and 406  r/w
Section 34 IPC and, hence, all the four  accused  were   acquitted  for  the
said offence.
6.    An appeal was preferred by the appellants against the judgment  passed
by the Sessions Judge, Bhiwani and  another  appeal  was  preferred  by  the
complainant-Ved  Pal  (PW-9)  against  acquittal  of  Mahabir.  By  impugned
judgment dated 15.02.2012 the Division Bench of the  High  Court  of  Punjab
and Haryana at  Chandigarh  dismissed  the  appeal  preferred  by  Ved  Pal-
complainant(PW-9). The judgment passed by the Sessions  Judge  was  affirmed
with the modification in the sentence of imprisonment, the appeal  preferred
by the appellants was also dismissed.
7.     In  this  appeal,  learned  counsel  appearing  for  the   appellants
contended that in view of severity of burn  injuries  of  the  deceased  she
could not have been in a fit state of mind or  condition  to  make  a  dying declaration. 
The said dying declaration is purported to be made in  presence of Dr. Rajender Rai (PW-4). 
In absence of any other material to  corroborate the same, the dying declaration should not be relied upon.
8.    It was submitted that PW-7, the Police Inspector who  had  prepared  a report under Section 173 Cr.PC, in his statement admits that  there  was  no mention of the statement of the deceased allegedly recorded  by  the  Doctor at the time of her MLR.  
Even under Section 313 Cr.PC, no question was  ever
put to the accused with regard to his signing of the said MLR  in question.
The said dying declaration raises suspicion and doubt.  
It  may  not  be  an absolute proposition of law 
that a dying declaration should be  recorded  by a  Magistrate  but  if  in  a  given  case,  there   is   ample   time   and opportunity,the services of a Magistrate should be called upon in  order  to lend credence to the said dying declaration.  
The  I.O  (PW-11)  has  stated
that after reading of the statement Ex.PF, he did not approach the  deceased to verify from her if she had made such statement or not.
9.    Per contra, according  to  counsel  for  the  prosecution,  the  dying
declaration  recorded  by  Dr.  Rajinder  Rai  (PW-4),  Medical  Officer  is
reliable.
There is nothing on record to suggest that Dr. Rajinder Rai  (PW-
4) is an unreliable witness. To the contrary, he is a  natural  witness  and his testimony has not been shaken  during  a  long  cross  examination.
 The theory of tutoring is also ruled out in the  present  case  as  the  accused persons only were present with the deceased during that  time  and  none  of the family members of the deceased were present when the  dying  declaration was recorded by the Doctor. 
The husband  (appellant  no.1)  Manoj  has  also
affixed his signature  on  the  MLR  on  which  the  dying  declaration  was recorded by the Doctor.  The evidence of PW-4  is  trustworthy,  cogent  and reliable.
10.   Further according to  the  learned  counsel  for  the  prosecution  an
alternate charge under Section 302   shall be framed in addition to  Section
304-B and in view of dying declaration  of  the  deceased,  which  has  been
believed by both the courts below.
A grave error of law has  been  committed
by the trial Court as well as the High Court by not convicting  the  accused
persons under Section 302.
It was submitted that this is a fit case  wherein
this Court may exercise its extraordinary powers under Article  142  of  the
Constitution of India  and  shall  consider  altering  the  conviction  from
Section 304-B to Section 302 IPC.
11.   Coming to the evidence  of  Dr.  Rajinder  Rai  (PW-4)  who  conducted
medico-legal examination and recorded the  statement  of  the  deceased,  we
find that he specifically deposed that the deceased  Meena  was  brought  to
the Hospital with the history of burns. Kerosene  like  smell  was  present.
Smell was also present in the clothes.  On examination  she  was  conscious.
There were superficial to deep burns about 100% with in  a  duration  of  12
hours. Dr. Rajender Rai (PW-4) stated that the deceased told  him  that  she
was called inside and the door was latched from inside.   Kerosene  oil  was
sprinkled upon her and her Jethani Suman had ignited the fire by  the  match
stick. Her husband  and  mother-in-law  were  also  involved  in  it.  After
recording the statement of the deceased, he signed  it.  The  statement  was
again read over to the patient by him in Hindi. She stated  Yes.   He  again
asked the patient whether the above statement  was  correct  and  she  again
stated Yes. He again signed the endorsement and put the time  of  7.55  a.m.
He prepared MLR including statement of the patient recorded by  him  in  his
handwriting and his endorsement. He further stated that  he  had  sent  ruqa
(Ex.PG) to the Incharge, Police Post,  General  Hospital,  Bhiwani  at  8.00
a.m.  Therefore, Chhattarmal ASI of P.S. Sadar,  Bhiwani  moved  application
Ex.PH before him asking his opinion regarding fitness of Meena Devi to  make
 statement, on which, he opined vide endorsement Ex.PH/1 at  8.45  a.m  that
she was fit to make statement and thereafter  he  referred  the  patient  to
PGIMS, Rohtak vide endorsement Ex.PH/2. He had  recorded  the  statement  of
deceased Meena Ex.PF correctly without  any  addition  thereto  and  on  the
basis of whatever had been stated before him.
12.   The Defence had tried to make a  futile  effort  to  prove  that   Dr.Rajinder Rai  (PW-4)  was  an  interested  witness  because  cousin  of  the deceased and his wife were posted in the  same  Hospital  and,  thus,  undue influence was exercised upon him by them but it was  not  believed  by  both the courts in absence of any evidence on the file  that  alleged  cousin  of the deceased and his   wife were posted in Government Hospital,  Bhiwani  at
the  time   the  deceased  was  medico-legally  examined  at  7.30  a.m   on 14.4.2005.  Contrary to it, evidence was brought on  record  that  aforesaid cousin of the deceased and his wife were  posted  in  some  private  nursing home in Siwani, which was about 70 kilometers away from Bhiwani.
13.   There is another glaring factor in the present case which proves  that
Dr. Rajinder Rai (PW-4) was not under influence of  anyone  because  had  it
been, he or investigating officer Chhattarmal (PW-11) might  not  have  made
any effort to call  the  Magistrate  for  recording  the  statement  of  the
deceased.
The  law  is  well  settled  that  if  the  declaration  is  made
voluntarily and truthfully by a person who is physically in a  condition  to make such statement, then there is  no  impediment  in  relying  on  such  a declaration. 
Such view was taken by this Court in
 Kanaksingh  Raisingh  Rav v. State of Gujarat, (2003) 1 SCC 73 
wherein this Court held:


     “5. ….... The question then is, can a conviction be based primarily on the dying declaration of the deceased in this case? In this regard  we do not think it is necessary for us to discuss the cases cited by  the  learned counsel which are noted herein above because, in  our  opinion,
the law is well settled i.e. if the declaration  is  made  voluntarily
and truthfully by a person who is physically in a  condition  to  make such statement, then there is no  impediment  in  relying  on  such  a declaration. 
In the instant case, the evidence of  PW  5,  the  doctor
 very clearly shows that the deceased was conscious and  was  medically in a fit state to make a statement. It is because of the fact  that  a Judicial Magistrate was not available at that point of  time,  he  was requested to record the statement,  which  he  did.  His  evidence  in regard to the state of mind or the physical condition of the  deceased to make such a declaration has  not  been  challenged  in  the  cross- examination. That being so, it should be held that the deceased was in a fit state of mind to make a declaration as held by the courts below.
     The next question for our consideration is whether this  statement  is voluntary and truthful. It is not the case of the  defence  that  when she made the statement either she was surrounded by any of  her  close relatives who could have prompted her to make an  incorrect  or  false  statement. In the absence of the same so far as the  voluntariness  of  the statement is concerned, there can be no doubt because the deceased was  free  from  external  influence  or  pressure.  
So  far  as the truthfulness of the statement is concerned,  the  doctor  (PW  5)  has stated that she has made the said statement which, as noted above,  is not challenged in the cross-examination. 
The  deceased  in  her  brief statement has, in clear terms, stated  that  because  of  the  quarrel between her and the accused, the accused had poured kerosene  and  set her on fire which, in our opinion, cannot be doubted.........”


14.   In Ashok Kumar v. State of Rajasthan, (1991)  1  SCC  166  this  Court
noticed that if it was a case of death by burning, entries of injury  report
in the bed head ticket can be construed as dying declaration.  In  the  said
case this Court held:


     “11. Entries in the injury report which have been construed  as  dying
     declaration by the two courts below were severely  criticised  and  it
     was submitted  that  although  dying  declaration  was  admissible  in
     evidence and conviction could be recorded on it without  corroboration
     yet the circumstances in which it was recorded created doubt if it was
     genuine. The  High  Court  for  very  good  reasons  rejected  similar
     arguments advanced before it. We also do not find any substance in it.
     When the deceased was examined  by  Dr  Temani  he  having  found  her
     condition to be serious immediately sent message to the police station
     and  also  requested  for  arranging  for  recording  of   the   dying
     declaration. This is corroborated by the entry in the  record  of  the
     police station. But the Inspector of Police came after 11.00 when  the
     injection of morphine had already  been  administered  to  lessen  the
     agony of the patient  who  thereafter  became  unconscious.  She  was,
     however, as indicated earlier conscious between 10.00 to 11.00  during
     which period the bed head ticket was written  by  Dr  Saxena  and  the
     entries were made on the injury report. The judge did  not  doubt  the
     recording on the bed head  ticket  that  the  deceased  complained  of
     misbehaviour by her brother-in-law. Even the learned counsel could not
     point out any infirmity or reason to discard it except  that  by  mere
     word, brother-in-law it was not established  that  it  was  appellant,
     i.e. the effort was to make out a case of doubt. That could have  been
     possible if that entry could have stood alone. But it stands not  only
     corroborated but clarified by identifying the appellant  by  entry  in
     injury report as the  brother-in-law  who  was  responsible  for  this
     crime. We perused the injury report and we could not find  any  reason
     to doubt its authenticity.”


15.   What we find in  the  present  case  is  that  the  dying  declaration (Ext.PF) which was recorded by Dr.Rajinder Rai (PW-4)  was  also  signed  by Manoj (appellant no.1) which indicates that appellant No.1 was present  when statement was recorded.  Nothing on the record to suggest that  any  of  the
relation of the deceased was present to influence Dr. Rajinder Rai (PW-4).
16.   Thus, we find that there  is  no  infirmity  in  the  finding  of  the
Sessions Judge as affirmed by the High Court.
17.   Admittedly, the death of Meena Devi  (deceased)  is  caused  by  burns
i.e. otherwise than under normal circumstances within  seven  years  of  her
marriage.  The complainant (PW-9) father of the deceased has stated that  at
the time of marriage he had given double bed, sofa  set,  T.V.,  cooler  and
other domestic articles, besides, gold ornaments of  4  tolas,  21  utensils
and Rs.2100/- in cash.  However, his daughter  told  him  that  her  in-laws
were not satisfied with those  articles.  When   his  daughter  visited  her
matrimonial home for the second time, all the accused started  taunting  her
and harassing her raising demand for a motor cycle.  She was turned  out  of
her matrimonial home after giving beatings.  Thereafter, she started  living
with him (PW-9) and stayed with him for  14  months.   Then  he  convened  a
panchayat consisting of Sant Man Singh,  Krishan  of  Hetampura  and  others
i.e. his brother Satyawan and his brotherhood from village Khera.   In  that
panchayat, the accused  assured not to harass  Meena  in  future  and   then
accused Mahabir and Chameli came to take her away and  she  was  accordingly
sent to her matrimonial house about 10 months prior  to  her  death.   After
four days, they again started harassing her by  demanding  motor  cycle  and
continued beating her.  His brother Satpal  (PW-10)  has  also  corroborated
his  deposition.  No  mitigating  circumstances  are  found  on  record   to
disbelieve their statements.
18.   In view of such evidence on record  both  the  courts   have  come  to
definite conclusion that soon before her death she was subjected to  cruelty
and harassment by her husband and his relatives in  connection  with  demand
for dowry.  Therefore  all  the  ingredients  are  present  to  convict  the
appellants under Section 304-B of the IPC.  The  prosecution  proved  beyond
reasonable doubts that the appellants  are  guilty  for  the  offence  under
Section 498-A of the IPC.
19.   In these circumstances, we find that the Sessions Judge  has  recorded cogent  and  convincing  reasons  for  convicting  the  appellants  for  the offences under Sections 304-B and 498-A IPC.
20.   So far as conviction of the  appellants  under  Section  302  IPC,  as suggested by  counsel  for  the  State,  we  find  no  wrong  to  alter  the conviction to Section 302 IPC.
21.   In Muthu Kutty and Another v. State  by  Inspector  of  Police,  Tamil
Nadu (2005) 9 SCC 113
this Court held  that  when  it  was  found  that  the
accused were responsible for setting the deceased on fire  and  causing  her
death, Section 302 instead of Section 304-B  was  attracted.
On  facts,  no
prejudice would be caused to accused-appellants of  the  said  case  if  the
conviction is altered to Section 304 Pt. II  on  the  basis  of  conclusions
arrived at by the trial court as they were originally  charged  for  offence
punishable under Section 302 along with Section 304-B IPC.
22.   In the present case,  we  have  noticed  that  after  appreciation  of
evidence, learned Sessions Judge by  judgment  dated  4.9.2006  specifically
held that the prosecution has miserably failed to  prove  its  case  against
all the four accused for the offence under Sections 302 and 406 r/w  Section
34 IPC and, hence, all the  four  accused  were  acquitted  under  the  said
offence.  Against the acquittal of  Mahabir  Singh  the  complainant  (PW-9)
filed an appeal which has been  dismissed  by  the  impugned  judgment.
No
appeal has been preferred by  the  complainant  or  the  State  against  the acquittal of all the accused for the offences under Section 302 and 406  r/w Section 34 IPC. 
The finding of Sessions Judge having reached  finality,  the
question of altering the present sentence under  Section  304-B  to  Section 302 does not arise.
23.   Lastly, it was submitted on  behalf  of  the  appellants  to  consider
reducing the sentence awarded to the appellants from 10  years  to  7  years
which  is  the  minimum  sentence  prescribed  under   Section   304-B   IPC
considering the facts and circumstances of the case.
In the present case  we
find that the appellants were sentenced  for  life  for  the  offence  under
Section 304-B IPC by the trial Court and the High Court  already  considered
the facts and circumstances of the case and reduced the sentence  from  life
imprisonment to 10 years.
24.   We find no other circumstances to reduce it  to  minimum  sentence  of
seven years.  In absence of merit, the appeal is dismissed.
25.   Bail bonds of the appellant nos. 2  and  3  are  cancelled.  Appellant
nos. 2 and 3 are directed to be taken into custody to  serve  out  remainder
of the sentence.

                                            ………………………………………………………………………………J.
                                       (T.S.THAKUR)








                                            ………………………………………………………………………………J.
                            (SUDHANSU JYOTI MUKHOPADHAYA)




NEW DELHI,
JULY 9,2013.

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.

Page 1
1
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
2
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
3
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
Page 4
4
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.
Page 5
5
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.
Page 6
6
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