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Smt. Vidya Devi vs State Of U.P. on 14 March, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on:25.02.2019

Delivered on: 14.03.2019

AFR

Criminal Appeal No.1225 of 2010

Smt. Vidya Devi ……Appellant

Vs

State of Uttar Pradesh …….Respondent

Counsel for the Appellant : Sri Kripa Kant Pandey, Advocate

Counsel for the Respondent : Sri Amit Sinha, Addl. Govt. Advocate

Hon’ble Pritinker Diwaker, J.

Hon’ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J.

1. This appeal arises out of impugned judgement and order dated 17.02.2010 passed by the learned Additional Sessions Judge, Court No.6, Mathura in Sessions Trial No.192/2008, convicting appellant Smt. Vidya Devi under Section 302 of IPC and sentencing her to undergo rigorous imprisonment for life with a fine of Rs.2,000/-, in default thereof, to undergo six months’ additional imprisonment.

2. In the present case, the name of the deceased is Meena, wife of acquitted accused Mukesh. The appellant herein is a mother-in-law of the deceased. The marriage of deceased Meena was solemnized with Mukesh about three years prior to the date of occurrence, i.e. 15.08.2007 on which date, in between 7:00 pm to 8:00 pm, Meena suffered 96% burn injury. Immediately after the incident, she was taken to hospital where her dying declaration (Ex.Ka.12) was recorded on 16.08.2007 by (PW-6) Kapil Singh at 12:40 afternoon. Her medical examination was also conducted, vide Ex.Ka.13 on 15.08.2007 by Dr Nishant Jain, which has been proved by (PW-7) Vishav Dutt Gautam. In the meanwhile, on 16.08.2007, FIR, Ex.Ka.19 was lodged at 3:30 pm by (PW-1) Mordhwaj Singh against the appellant, her husband Hari Singh, Mukesh-husband of the deceased, Kailash and Jagdish, (brother-in-laws) Jeths of the deceased under Sections 307, 498A, 120B and 326 of IPC read with Section 3/4 of Dowry Prohibition Act.

3. After the death of the deceased, inquest on her dead body was conducted, vide Ex.Ka.4 on 21.08.2007 and the body was sent for post-mortem which was conducted on the same day, vide Ex.Ka.2 by (PW-3) Dr. R.S. Maurya and 96-97% burn injury was noticed on the body of the deceased, which is as under:

“Infected burn all over body, except head, foot and soles.”

Cause of death of the deceased is due to septicemia shock as a result of ante-mortem injuries.

4. While framing charge, the trial Judge has framed charge against the appellant, her husband and the husband of the deceased, under Sections 498A, 304B of IPC, read with Section 3/4 of Dowry Prohibition Act. Charge was framed against the acquitted accused persons on 23.01.2008 under Sections 498A, 304B of IPC, read with Section 3/4 of Dowry Prohibition Act, whereas against the appellant on 06.05.2008, for the same offences.

After recording the court statements of three witnesses, i.e. (PW-1) Mordhwaj Singh, (PW-2) Raj Pal Singh and (PW-3) Dr. R.S. Maurya, on 17.03.2009, additional charge was framed against all the accused persons under Section 302 of IPC.

5. So as to hold accused persons guilty, prosecution has examined nine witnesses, whereas one defence witness has also been examined. Statements of the accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.

6. By the impugned judgment and order, the trial Judge has acquitted co-accused Hari Singh and Mukesh of all the offences, whereas the present appellant though, has been acquitted under Sections 498A, 304B of IPC and 3/4 of Dowry Prohibition Act, but has been convicted under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.2000/-, in default thereof, to undergo six months’ additional imprisonment.

7. Learned counsel for the appellant submits:-

(i) that the most important witnesses (PW-1) Mordhwaj Singh and (PW-2) Raj Pal Singh (father and maternal uncle of the deceased) have not supported the prosecution case and have been declared hostile.

(ii) that demand of dowry has not been proved by any of the witnesses.

(iii) that there are two dying declarations in the present case, one recorded by the Executive Magistrate, vide Ex.Ka.12, whereas the second is the diary statement of the deceased which, after her death, is to be treated as her dying declaration.

(iv) that both these dying declarations are not consistent, in the first dying declaration recorded by the Executive Magistrate, deceased has stated that it is the appellant who burnt her whereas, as per her second dying declaration, she was burnt not only by the appellant, but even by the acquitted accused persons also. Learned counsel submits that the inconsistenciy in the two dying declarations makes it clear that prosecution case is totally frivolous and has been cooked up.

(v) that a very improbable story has been put forth by the prosecution where it is said that the deceased, a young lady, was pushed and thrown by the appellant in straw and then she was burnt.

(vi) that it is difficult for the appellant, who is an old lady, to over power a young lady (deceased) and then to burn her and most importantly, no ashes or burnt straws have been seized from the place of occurrence, thus, the place of occurrence is doubtful.

(vii) that the deceased was living along with her husband, whereas the appellant was living separately.

(viii) that initially charge was framed against the appellant on 06.05.2008 under Sections 498A, 304 B of IPC read with Section 3/4 of Dowry Prohibition Act and later on, on 17.03.2009, additional charge was framed under Section 302 of IPC. The trial Court has not recorded the statements of three witnesses, i.e. (PW- 1) Mordhwaj Singh, (PW-2) Raj Pal Singh and PW-3 (Dr R S Maurya) afresh, nor had given any opportunity to cross- examine them by the defence.

(ix) that the deceased was tutored before recording her dying declaration and this fact has been proved from the statements of (PW-6) Kapil Singh and (PW-7) Vishav Dutt Gautam.

(x) that the appellant is in Jail since 20 February 2008 and, therefore, lenient view be taken while considering her case.

8. On the other hand, supporting the impugned judgement, it has been argued by learned State Counsel that the conviction of the appellant is in accordance with law and there is no infirmity in the same. He submits that once additional charge was framed against the accused persons under Section 302 of IPC, it is they, who ought to have filed appropriate application before the trial Court, requesting for re-examination of three witnesses or for their fresh cross-examination.

9. (PW-1) Mordhwaj Singh, is a father of the deceased, has not supported the prosecution case and has been declared hostile. He has categorically stated that neither there was any demand of dowry by the accused persons, nor the deceased had made any complaint against them. He has gone to the extent of saying that oral dying declaration was made by the deceased before him giving information that she sustained burn injury while she was cooking food and that she was not burnt by any one. He has admitted the fact that a compromise has been arrived at between him and the accused persons.

10. (PW-2) Raj Pal Singh, another important prosecution witness, has also turned hostile.

11. (PW-3) Dr R S Maurya, conducted the post-mortem on the dead body of the deceased along with other Doctors and noted the following injury:

“Infected burn all over body, except head, foot and soles.”

12. (PW-4) Pratap Singh, is a brother of the deceased, has also been declared hostile.

13. (PW-5) Smt. Prem Lata, sister-in-law of the deceased, has also turned hostile.

14. (PW-6) Kapil Singh, Executive Magistrate, recorded the dying declaration of the deceased, vide Ex.Ka.12. He has stated that after obtaining a certificate from the Doctor about the physical and mental condition of the deceased, he recorded her statement wherein, she had stated that she was burnt by the accused appellant and at that time, her father-in-law was outside the room and likewise, her husband was also not there. According to the Executive Magistrate, the deceased informed him that kerosene oil was sprinkled on the straw and then she was burnt. He has further stated that before he could record the statement of the deceased, her family members were present and were trying to have conversation with the deceased, the deceased was talking to them, however, her voice was low and was not clear.

15. (PW-7) Vishav Dutt Gautam, has stated that on 15.8.2007 at about 9:00 pm, injured/victim was brought in the Emergency Unit of the Hospital, where she was given primary treatment by one Dr Nishant Bhardwaj, she was 96% burnt and died on 21.8.2007. On 16.8.2007, the Sub Divisional Magistrate came to the Hospital for recording the statement of the injured/victim and before doing so, he (this witness) asked her name and was satisfied that she was in a fit mental and physical condition to give statement. He also states that it was not possible to record the blood pressure and pulse rate of the injured/victim and most of her body portion was burnt. He further states that before arrival of the Sub-Divisional Magistrate to record the statement of the injured/victim, she was surrounded by her family members from her parents’ house and that she was talking to them.

16. (PW-8) Dushyant Kumar Singh, Investigating Officer, did initial investigation of the case. He has stated that the place where straw was found is not the place of occurrence, as shown in the site plan. He further states that neither he seized any burnt straw nor any ash. He also states that he could not say whether he found burned straw or not.

17. (PW-9) Sashi Sekhar Singh, Circle Officer, after completion of investigation had filed the charge-sheet.

18. (DW-1) Kedar, has stated that after hearing the cries of a lady when he reached at the place of occurrence, he found the deceased in a burn condition and that semi cooked food was lying there, but none of the accused was present.

19. Before dealing with the facts and evidence of the present case, it would be apposite to consider the legal position in respect of dying declaration, in particular multiple dying declarations.

20. In State of Gujarat v. Jayrajbhai Punjabhai Varu1, the Supreme Court held as under:

“15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.

16. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying declaration made by the deceased before her father who was examined as PW-1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW-1.

17. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.

18. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned.

19. On appreciation of evidence on record, we are of the considered view that the dying declarations of the deceased recorded by the police officer as well as the Executive Magistrate are fully corroborated and there is no inconsistency as regards the role of the respondent herein in the commission of offence. From a perusal of the statement recorded by Bhiku Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased) which had been identified by her father-Sri Vala Jaskubhai Suragbhai as also his cross-examination in which he admitted that police had already come there and he had identified her thumb impression and Mamlatdar had gone inside to record statement, there is no reason as to why Rekhaben would give names of her husband and her in- laws in the alleged statement given to her father. A dying declaration is entitled to great weight. The conviction basing reliance upon the oral dying declaration made to the father of the deceased is not reliable and such a declaration can be a result of afterthought. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of tutoring, prompting or a 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 declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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.

20. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted.”

21. In Smt. Kamla v. State of Punjab2 it has been observed by the Apex Court as under:

5. It is well-settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests, (vide Khushal Rao v. State of Bombay, 1958 SCR 552). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In 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.

7. There is no dispute that when the deceased made these dying declarations she was in a fit mental condition. Ex.PB/2 is the earliest statement made before Dr. Rupinder Singh, P.W. 2 and which was reduced to writing. Apart from this the deceased made two more statements on September 29, 1979. The second one is said to have been made before Dr. Jaison Chopra who was examined as C.W. 1. This statement is incorporated in the patient record and is marked as Ex. DA. The third statement Ex.PJ made by her on that day was recorded by S.I. Vidya Sagar, C.W. 2 at about 8 P.M. in the presence of Satpal, examined as D.W.I and Kirpal Singh. Then the fourth dying declaration is said to have been made by her on September 30, 1979 before a team of Doctors consisting of Dr. Abraham Thomas, P.W. 7, Dr. Bhupen Dass, P.W. 3 and Dr. Jaison Chopra, C.W. 1. The same is marked as Ex.PD. Both the courts below have relied on the earliest dying declaration ignoring the inconsistencies when compared to the other dying declarations. We think it is necessary to extract these dying declarations as found in the records. Ex.PB/2 a dying declaration recorded by Dr. Rupinder Singh, P.W. 2 reads as follows:

“Patient informed now that her mother-in-law sprinkled kerosene on her from behind and burnt her. Then, her husband came and caught her and dragged her outside. After that, she was brought to the hospital. There had been a fight in the morning between the mother-in-law and father-in-law and the patient.”

Ex. DA, another dying declaration recorded by Dr. Jaison Chopra, C.W.I, which is incorporated in the patient record, reads as follows:

“History of present illness:

Patient was alright before 8 A.M. when she claims to have got burnt by her clothes catching fire from a stove. She was brought to the hospital at 9.30 A.M. and admitted right away.”

The third dying declaration Ex. PJ was recorded at 8 P.M. on the same day by S.I. Vidya Sagar, C.W. 2 and the relevant portion of it reads as follows:

“Somebody had put me on fire from behind. It can be possible that it might have been set in by my parents-in-law (mother-in-law and father-in- law). No injury or burning has been caused with the fire to my son Runnu. All the neigh borers of vicinity had arrived at the spot, but on account of semi-unconsciousness, I could not tell anything to anybody. As my hand and most of the entire body have been burnt, therefore neither I can append signatures nor thumb impression can be affixed.”

The fourth dying declaration Ex. PD made on the next day before a team of three doctors consisting of Dr. Abraham Thomas, P.W. 7, Dr. Bhupen Dass, P.W. 3 and Dr. Jaison Chopra, C.W.I, reads as follows:

“My father-in-law and mother-in-law used to fight with me ever since my marriage asking for more dowry. Yesterday morning they quarrelled with me again. It was late for food, so I went to the kitchen to cook chenas. I was turned to the store when I heard my father-in-law and mother-in-law talking behind me. Suddenly they poured Kerosene over me and there was a noise. I turned down to see what it was and a jug had fallen on the floor. At the same time they set fire on me and I was pushed. I do not know what happened afterwards.”

8. If we examine all these dying declarations one by one we notice glaring inconsistencies as to who exactly poured kerosene and set fire or whether she caught fire accidentally. Suicide however is ruled out. In Ex. PB/2 recorded by P.W. 2 the deceased stated that her mother- in-law sprinkled kerosene from behind and burnt her. In the next statement Ex. DA recorded by Dr. Jaison Chopra, C.W. 1, she is alleged to have stated that her clothes got burnt catching fire from the stove, thereby indicating that it was an accident. In the third statement Ex. PJ recorded by C.W. 2 she was rather vague as to who exactly poured kerosene and set fire on her and she only stated that it could be possible that her mother-in-law and father-in-law might have set the fire after pouring kerosene. On September 30, 1979 Ex.PD was recorded in the presence of three doctors, P.W. 7, P.W. 3 and C.W.I wherein she stated that she turned to the store and she heard her mother-in-law and father-in-law talking behind her and suddenly they poured kerosene and they set her on fire. The trial court and the High Court discarded the other statements and relied only on Ex.PB/2 recorded by P.W. 2 wherein she implicated only her mother-in-law. So far Ex. DA recorded by C.W.I is concerned, the High Court pointed out that C.W. 1 was also present when Ex.PD was recorded and that at any rate there was no occasion for C.W. 1 to record such statement and that he must have done the same at the instance of the accused. After having carefully examined the record and facts and circumstances, we do not think that a remark of this nature against C.W. 1, a responsible doctor is called for. The mere fact that C.W. 1 Dr. Jaison Chopra was present when Ex. PD was recorded on the next day does not necessarily mean that he could not have recorded Ex. DA on the previous day. As a matter of fact, even in Ex. PD recorded by a team of doctors, she implicated both mother-in-law and father-in-law whereas in Ex.PB/2 she implicated only her mother-in-law. This itself shows that she was bent upon implicating both of them at a later stage. In this context it is also noteworthy that D.W. 2, the husband of the deceased supported the plea of the accused. He deposed that both the accused namely his mother and father were away to Dandi Swami Mandir on the day of occurrence and that at about 8.15 A.M. he heard the shrieks raised by the deceased from the kitchen. He picked up a blanket and went running into the kitchen apprehending that she might have caught fire due to busting of the gas cylinder. He covered her with the blanket and brought her out and his clothes also caught fire and he became unconscious and regained consciousness in the hospital. In the cross-examination by the prosecution he denied the suggestion that he made a false statement with a view to save his parents. The deceased in all her dying declarations has clearly stated that her husband namely D.W. 2 came and rescued her. Therefore, D.W. 2’s evidence cannot simply be brushed aside on the ground that he might have given such a version to save his parents and his evidence further shows that the occurrence could be due to accident. Viewed from this angle also the version given in the statement made before C.W. 1 in Ex. DA that it was due to accident, is not improbable. In Ex. PJ she only expressed a suspicion against both her mother-in-law and father-in-law. The accused examined D.W. 1 Satpal an attesting witness of the statement Ex. PJ. He supported the defence version. Thus it can be seen that there are glaring inconsistencies in these dying declarations. Both the courts below, however, held that P.W. 2 Dr. Rupinder Singh is a reliable and independent witness, therefore the statement recorded by him has to be accepted and accordingly convicted the appellant. We must observe that P.W. 2 simply recorded the statement of the deceased but the contents of that statement have to be subjected to a close scrutiny in the light of many other circumstances since the conviction has to be based on the sole dying declaration Ex.PB/2. 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. Just like P.W. 2, P.W. 7, P.W. 3 and C.W.I are also respectable doctors and independent witnesses who spoke about the contents of Ex. PD in which she implicated both her father-in-law and mother-in-law specifically as having participated in the crime. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation we just cannot pick out one statement namely Ex.PB/2 and base the conviction of the appellant on the sole basis of such a dying declaration. The courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her. The inconsistency between Ex.PB/2 and Ex. PD is enough to manifest the same. That being so, we do not think that either Dr. Jaison Chopra, C.W. 1 or S.I. Vidya Sagar, C.W. 2 who claimed to have recorded Ex. DA and Ex. PJ should be blamed. Having given our earnest consideration, we feel that under these circumstances it is highly unsafe to convict the appellant on the sole basis of the dying declaration Ex.PB/2 recorded by P.W. 2. In the result the conviction and sentence passed against the appellant are set aside and the appeal is allowed. If she is on bail, her bail bonds shall stand cancelled.”

22. In Gaffar Badshaha Pathan v. State of Maharashtra3,it was held as under:

“5. Dr. A.U. Masurkar was the Chief Medical Officer of the hospital at the relevant time. The High Court has held that the recording of the dying declaration and story stated therein apparently appears to be false and concocted for the various reasons noticed in the impugned judgment. It has to be borne in mind that the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted. The fact that the statement of the deceased was recorded at about 9.00 p.m. by the Head Constable cannot be doubted though an attempt to the contrary seems to have been made by the prosecution. The statements of the prosecution witnesses (PW 5 and PW 11) also show that the statement was recorded by the Head Constable. According to PW 5, it was only a show made by the Head Constable of recording statement, since according to the said witness, the deceased was not in a position to speak at that time. Even PW 11, a doctor in the hospital, has deposed about the recording of the statement by the Head Constable though he has not formally proved the dying declaration but has certified the correctness of the endorsement of Dr. A.U. Masurkar on the dying declaration. PW 11 was shown the dying declaration. He has deposed that the certificate recorded on the dying declaration is in the handwriting of Dr. Masurkar, Chief Medical Officer of the hospital. He has further deposed that Dr. Masurkar is in the hospital since the last 12 to 15 years and that he had degree in MS and was estimated to be an honest and expert surgeon of the area. One of the reasons which had strongly weighed with the High Court in rejecting the dying declaration is that the endorsement of the doctor is only about the deceased lady being conscious and not that she was in a fit condition to make the statement. The High Court went into distinction between consciousness and fitness to make statement. On the facts of the present case, we are unable to sustain the approach adopted by the High Court. It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. Under these circumstances, the dying declaration could not have been rejected on the ground that it does not contain the endorsement of the doctor of the fitness of the lady to make the statement as the certificate of the doctor only shows that she was in a conscious state. The endorsement of the doctor aforequoted is not only about the conscious state of the lady but is that she made the statement in a conscious state.”

23. In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka4 while dealing with the case of multiple dying declarations, it was held as under:

4. The deceased had made four dying declarations: two before the medical officers, one before the Executive Magistrate and one before the police officer. In her statements before the medical officers, she alleged that while she had been cooking in her house in the morning at 1100 hrs on 29-5-2004, accidentally, the stove burst and she sustained burn injuries. In her dying declaration recorded by Parappa Gurappa Thotagi, ASI, Doddawada Police Station on 30-5-2004 at about 8.30 a.m, she alleged:

“I have been married with Shri Mehbooba Saheb Mamadapur 6 years ago. I have three children. My husband is a driver. He was again and again troubling me, beating me. My mother-in-law, father-in-law and husband were forcing me to bring golden chain. They have been giving harassment to me in this manner.

On 29-5-2004, in the morning at about 9.30 when I was in the house again my father-in-law, mother-in-law and husband started abusing me. My husband thrashed me on my back. As soon as I fell down, they poured kerosene which was in the stove on my body and by lightening the matchbox they burnt me. I do not know what happened thereafter. Now I came to know that I have come to KLE Hospital and am availing medical treatment here. I came to know that my body has been fully burnt. As my husband, father-in-law and mother-in-law are responsible for pouring kerosene and burning me. I am giving this statement for getting appropriate punishment to my father-in-law, mother-in-law and to my husband and written on my telling and heard.”

6. We have been taken through the evidence of PW 13, Dr. Balappa Basappa Oni, PW 14, Dr. Rajashekara Chennabasappa Angadi and PW 16, Parappa Gurappa Thotagi before whom the aforementioned purported dying declarations were made. From a bare perusal of their depositions in regard to recording dying declarations of the deceased, it is evident that whereas in one, she attributed the incident to have taken place accidentally, in another, attributed the act of abusing and setting her on fire by her parents-in-law and only in one of the dying declarations she attributed the act of pouring kerosene and lighting the same leading to her death on all the accused.

7. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.

9. In Mohd. Arshad v. State of Maharashtra, (2006) 12 SCC 293, this Court opined as under: (SCC p. 299, paras 21-23)

“21. So far as the appeal preferred by Mohammed Arshad is concerned, we are of the opinion that he is entitled to benefit of doubt. He was not named in the first two dying declarations. He was named only in the third dying declaration. No injury by stick was found on the back of the deceased. The motive ascribed as against him did not find place in the first information report. Evidently, the deceased made improvement in his third dying declaration before the police officer.

22. Keeping in view the backdrop of events, we fail to see any reason as to why appellant Mohammed Arshad would not have been named in the first or second dying declarations if the motive for his involvement was non-payment of a sum of Rs 60,000 as was disclosed by the deceased.

23. This Court in Balbir Singh v. State of Punjab, (2006) 12 SCC 283 relying upon several decisions of this Court including State Of Maharashtra v. Sanjay S/O Digambarrao Rajhans (2004) 13 SCC 314 and Muthu Kutty v. State (2005) 9 SCC 113 held: (Balbir Singh case, SCC p. 291, para 34)

’34. We are of the opinion that whereas the findings of the learned Sessions Judge as also the High Court in regard to the guilt of Appellant 1 must be accepted, keeping in view the inconsistencies between the two dying declarations, benefit of doubt should be given to Appellant 2. We, however, uphold the conviction and sentence of both the appellants under Section 498-A IPC.’ ”

24. In Samadhan Khudaka Koli v. State of Maharashtra5, it has been held as under:

“12. A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person. Why the prosecution had suppressed the dying declaration recorded by the Judicial Magistrate is not known. Prosecution must also be fair to the accused. Fairness in investigation as also trial is a human right of an accused. The State cannot suppress any vital document from the court only because the same would support the case of the accused.

13. The learned Sessions Judge as also the High Court, in our opinion, committed a serious illegality in refusing to consider the said question in its proper perspective. The prosecution did not explain as to why the said dying declaration was not brought before the court. The learned Sessions Judge as also the High Court surmised about the contents thereof. Not only the contents of a dying declaration, but also the manner in which it is recorded and the details thereof play a significant role in the matter of appreciation of evidence.

14. The veracity of depositions of the parents of the deceased should be considered having regard to the entire backdrop of the case. In none of the dying declarations the deceased stated that her husband had poured hot tea on her body. If the relationship between the couple became strained from that time, it was expected that the same would have been stated by the deceased in her dying declaration. Why such a statement had been brought on record for the first time before the court by the parents of the deceased is difficult to comprehend. Only because such a statement was made by them, the same should not have been considered to be a circumstance against the appellant, particularly when no allegation about harassment meted out to her at an earlier point of time was made by the deceased herself.

15. Evidently, there are a few inconsistent and contradictory dying declarations. The court while appreciating evidence on the basis of such dying declarations is required to take into consideration inconsistencies between two statements. In this case, the learned Sessions Judge and the High Court proceeded on the basis that out of the three dying declarations, in two of them the deceased did not make any allegation against her husband.

16. A judgment of conviction can be recorded on the basis of a dying declaration alone, but the court must have been satisfied that the same was true and voluntary. Indisputably, for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to look into the other circumstances but the converse may not be true.

18. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record. In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka [2007 (9) SCALE 473, where four dying declarations were recorded, this Court opined:

“7 Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.”

The court noticed that as the deceased attributed the acts primarily on her parents-in-law and they having been acquitted, it was difficult to hold that appellant alone was responsible for causing her death.”

25. In Harish Kumar v. State of Haryana6, the Supreme Court observed as under:

“23. PW-1 Dr. M.L. Kalra, Medical Officer of Civil/General Hospital, Hansi, in his cross-examination, has stated as under: –

“The patient was brought to the hospital by her husband Harish Bhatia. She was not unconscious when she was brought to the hospital….”

In the examination-in-chief of this witness it has been stated by him, – “she gave history of accidental burn injuries”. This fact recorded by PW-1 in the medico legal report (copy Annexure P-1) further corroborates the dying declaration recorded on the next day (on 14.9.1993) by the Naib Tehsildar. Needless to say that DW-1 Dr. Surender Singh and DW-2 Baru Ram, Naib Tehsildar, are not interested witnesses. Rather they are independent public witnesses who have discharged their duties after the police approached Tehsildar in response to memorandum (Ruqa) received from PW-1 Dr. M.L. Kalra.

24. Considering the above facts and circumstances, we find that the dying declaration dated 14.9.1993, made by the deceased, before Naib Tehsildar in the presence of Medical Officer, is voluntary and truthful. In Surender Kumar v. State of Punjab, (2012) 12 SCC 120, this Court has observed, in para 20, as under: –

“20. It is also not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that there is evidence available to show that the dying declaration is voluntary and truthful. There could be occasions when persons from the family of the accused are present and in such a situation, the victim may be under some pressure while making a dying declaration. In such a case, the court has to carefully weigh the evidence and may need to take into consideration the surrounding facts to arrive at the correct factual position.”

25. In Nallam Veera Stayanandam and others v. Public Prosecutor, High Court of A.P., (2004) 10 SCC 769, in the similar facts and circumstances of the case, this Court, at the end of para 6, has observed as under: –

“6. … In cases where there is more than one dying declaration, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.”

26. In Dalip Singh others vs. State of Punjab7, it has been held as follows:

“8. There were two dying declarations of Ram Singh one oral and the other written which was recorded by the Assistant Sub Inspector of Police, PW 28 on December 12, 1975. The oral dying declaration was made to PW 11 Tara Singh. Neither of the dying declarations was relied upon by the High Court because he had named Baldev Singh also. We may also add that although a dying declaration recorded by a Police Officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in Sub-section (2) of Section 162 of the Cr PC, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor. As observed by this Court in Munnu Raja v. State of Madhya Pradesh (1976) 3 SCC 104, the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time of facility available to the prosecution for adopting any better method.

9. There is a dying declaration of Teja Singh, Ext. PFF recorded by Harcharan Singh, PW 10. He was the Head Constable of the Police Post Chhenarta. At the direction of the Assistant Sub Inspector of Police PW 28 he recorded the statement of Teja Singh at the spot. This dying declaration has been relied upon by the High Court. It could not be rejected on the ground that it was recorded by a Police Officer as he was in a critical condition and no other person could be available in the village to record the dying declaration of Teja Singh. But we find that there is a difficulty in relying upon this dying declaration. Jetha Singh and Ram Singh were attacked by the appellants after having raised a Lalkara at the house of Teja Singh to murder them. No body actually saw them murdering either of them. The place where the said two persons were murdered was about a furlong away from the house of Tejasingh. Teja Singh in his statement recorded by PW 10 Ext. PFF which is also signed by the Assistant Sub- Inspector stated:-

Dalip Singh, Kundan Singh, sons of Vir Singh and Balvinder, son of Dalip Singh, who are from our brotherhood have caused injuries to me and the male and female members of my family and my elder brother Jetha Singh with Kirpans, and spears on account of dispute over the property of Jetha Singh. They have murdered Jetha Singh and Sucha Singh by inflicting injuries to them.

The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is, therefore, safe to leave out of consideration this dying declaration. It is important to remember that if the dying declarations both oral and written of Ram Singh are discarded so also the dying declaration of Teja Sing, then no direct evidence remains on the record in regard to the murder of Jetha Singh and Ram Singh by the appellants. In all probability they had committed the murder of these two person also because after having raised the Lalkara they went towards the field where Jetha Singh and Ram Singh were. But in absence of a direct evidence on the point and also for want of conclusive chain of circumstantial evidence, legally it is not possible to hold that the three appellants were responsible for committing the murder of Jetha Singh and Ram Singh.”

27. In Kishan Lal Sethi v. Jagan Nath and others8 it has been held as under:

“6. A perusal of the judgment of the Sessions Court shows that the learned Judge mainly relied on the particulars of the scene recorded by Dr. Chugh P.W. 14, the Inspector recovered a piece of skin sticking to the door of the bathroom and rubber band, wax and burnt hairs. The learned Sessions Judge also referred to the particulars of the bathroom and it was opined that the doors of the bathroom were bolted from outside and not from inside. Dr. Chugh in his observation report has also noted that the deceased was caught fire or was burnt in the bathroom and on the basis of these findings the trial court ruled out the theory of accident and also the theory of suicide. The learned Sessions Judge, as already noted, excluded the dying declaration and relying on these circumstances held that the chain is complete and is sufficient to hold the accused guilty. The High Court dealt with the dying declaration elaborately and disagreed with the trial Judge that the deceased at the time of making the statement was under the influence of the accused. It held that the declaration was voluntary.

7. The dying declaration reads thus :

“I caught fire while preparing tea. I was preparing tea today 28th June, 1983, at 6.30 A.M. None else was present in the kitchen. Nobody had put me ablaze. When I caught fire all had come to my rescue. My husband, my mother-in-law, and the sister of my husband had come. My mother-in-law etc. had brought me to the hospital. My Saree had caught fire from the Stove. On catching fire when I raised shrieks all had reached there. I do not know if any neighbour had come or not.

I am making this statement with full senses and without any outside pressure.

Sd/-

Randhir Singh,

J.M.I.C. (Duty)

June 28, 1983, 9 a.m.”

The statement is recorded by a responsible Judicial Officer. P.W.1, the Doctor deposed that when he was on casualty duty the deceased was brought to the hospital in a seriously burnt condition and she was followed by her husband, mother-in-law etc. He examined her and sent an intimation to the police. He also deposed that the Magistrate also came at about 9 A.M. The Magistrate, who is examined as P.W.3, deposed that he went to the casualty ward and recorded the dying declaration of the deceased in the presence of the Doctor and that before recording the dying declaration he obtained the opinion from the Doctor that the deceased was in a fit condition to make a statement. In his cross-examination he also asserted that he was satisfied that the deceased made the statement voluntarily without any fear, persuasion or pressure.

9. Having examined the contents of the dying declaration carefully we are unable to see any reason to interfere with the findings of the High Court particularly this being an appeal against acquittal. The learned Sessions Judge excluded the dying declaration under the impression that it was made in a sense of fear. We do not find any basis for the same particularly in view of the evidence of the Magistrate referred to above. We find no merits in this appeal. It is therefore dismissed.”

28. Recently, in Mukesh and another Vs. State for NCT of Delhi and others9, it has been observed as under:

“31. Multiple Dying Declarations: In cases where there are more than one dying declarations, the Court should consider whether they are consistent with each other. If there are inconsistencies, the nature of the inconsistencies must be examined as to whether they are material or not. In cases where there are more than one dying declaration, it is the duty of the Court to consider each one of them and satisfy itself as to the voluntariness and reliability of the declarations. Mere fact of recording multiple dying declarations does not take away the importance of each individual declaration. Court has to examine the contents of dying declaration in the light of various surrounding facts and circumstances. This Court in a number of cases, where there were multiple dying declarations, consistent in material particulars not being contradictory to each other, has affirmed the conviction. [Vide Vithal v. State of Maharashtra (2006) 13 SCC 54].

32. In Amol Singh v. State of Madhya Pradesh, (2008) 5 SCC 468, while discarding the two inconsistent dying declarations, laid down the principles for consideration of multiple dying declarations as under:-

“13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, 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 corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684). 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. 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.”

33. In Ganpat Mahadeo Mane v. State of Maharashtra, (1993) Supp.(2) SCC 242, there were three dying declarations. One recorded by the doctor; the second recorded by the police constable and also attested by the doctor and the third dying declaration recorded by the Executive Magistrate which was endorsed by the doctor. Considering the third dying declaration, this Court held that all the three dying declarations were consistent and corroborated by medical evidence and other circumstantial evidence and that they did not suffer from any infirmity.

34. In Lakhan v. State of M P, (2010) 8 SCC 514, this Court considered a similar situation where in the first dying declaration given to a police officer was more elaborate and the subsequent dying declaration recorded by the Judicial Magistrate lacked certain information given earlier. After examining the contents of the two dying declarations, this Court held that there was no inconsistency between two dying declarations and non-mention of certain features in the dying declarations recorded by the Judicial Magistrate does not make both the dying declarations inconsistent.”

29. In Kake Singh Alias Surendra Singh v. State of Madhya Pradesh10, it has been held by the Supreme Court that once dying declaration is disbelieved then there remains no legal evidence on the basis of which the appellant could be convicted.

30. In a case of multiple dying declarations where names of some of the accused persons were common, it has been held by the Apex Court in State of Punjab Vs. Parveen Kumar11 paras 6 to 12):

“6. Admittedly, there is no eye witnesses to the occurrence and, therefore, the case rests entirely on the alleged 3 dying declarations. The High Court has rejected the first dying declaration made to Kulwant Kumar, PW-5. The reason given by the High Court is that Kulwant Kumar for the first time stated about the alleged dying declaration made to him at the stage of trial. In his statement under Section 161 Cr.P.C. made in the course of investigation, he had not stated that Geeta Rani had made a dying declaration to him. We find no fault with the reasoning of the High Court so far as rejection of the dying declaration made to PW-5 is concerned.

7 Left with two other dying declarations, the High Court found that these two dying declarations are inconsistent with each other, since the versions disclosed in these two dying declarations are quite different and the role of the accused is also differently described. In the first dying declaration Ext.PD made to the Executive Magistrate, it is stated that on 4.1.1994 her husband came home at about 5.00 A.M. after delivering milk to his customers and questioned the deceased as to why the scooter and furniture, etc. promised to him by her parents had not been supplied. Thereafter, he sprinkled half bottle of kerosene oil on her and lit fire with a match stick. On her alarm all collected and her father-in-law extinguished the fire. None else had asked her anything.

8. It, therefore, appears that so far as this dying declaration is concerned, the allegation is solely against her husband, the respondent herein, and it is alleged that he sprinkled kerosene oil and set her on fire. The second aspect of the matter is that so far as the father-in-law is concerned, she has completely exonerated him by stating that he rushed and extinguished the fire.

9. If we now turn to the report made to the sub-inspector, Kewal Singh (PW-7) on the basis of which the formal first information report was drawn up, which has also been treated as dying declaration Ext.PD, we find that the version given there is quite different. It is stated that on 4.1.1994 her husband and her mother-in-law complained to her that her parents have not kept their promise of supplying some articles and, therefore, they will finish her once and for all. At 5.00 A.M. her mother-in-law sprinkled a bottle of kerosene oil on her while her husband, respondent herein, set her on fire with a match stick. Her father-in-law and sister-in-law exhorted them to do away with her by setting her on fire. It was only when she raised hue and cry that her father-in-law extinguished the fire and she was brought to the local private hospital at Jaitu by her husband and father-in-law.

10. It will thus, appear that so far the first dying declaration is concerned, there is no allegation against either the mother-in-law, father-in-law or the sister-in-law and the allegation is solely against the respondent, who is said to have sprinkled kerosene oil on her and set her on fire. In the second dying declaration, the allegation is that the mother-in-law sprinkled the kerosene oil and the husband set her on fire with a match stick. While they were doing so, her father-in-law and sister-in-law were exhorting them to do away with her by setting her on fire. These two versions are quite different and not consistent with each other, except that so far as the respondent is concerned, the act of lighting the fire is ascribed to him in both the dying declarations.

11. Counsel for the State submitted that since the respondent has been named in both the dying declarations, his conviction could be sustained. We are afraid we cannot accede to his request. In the first place, in appeal against acquittal, this Court will not set aside the findings of fact and the order of acquittal recorded by the High Court unless it is satisfied that the findings recorded are wholly unreasonable, perverse, not based on evidence on record, or suffer from serious legal infirmity. The mere fact that on the basis of the same evidence another view is possible, is not a ground for setting aside an order of acquittal. We find that the view taken by the High Court is a possible reasonable view on the evidence on record and, therefore, we will not be justified in setting aside the order of acquittal.

12. While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and another Vs. State of Mysore, AIR 1965 SC 939, and Khusal Rao Vs. State of Bombay, 1958 SCR 552.”

31. Further, in the case of multiple dying declarations, while considering the point of tutoring, the maker of the statement, it has been held by the Apex Court in Rasheed Beg v. State of Madhya Pradesh12 as under:

8. After the two oral dying declarations have been discarded, there survived only the two written dying declarations, one made to the Investigating Officer and the other to Dr. S.P. Jain.

9. As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the Investigating officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbeg’s condition was not very good when the Investigating Officer recorded the dying declaration. It appears that his condition was serious. So the Tahsildar-Magistrate was called to record his dying declaration. The Tahsildar, however, returned without recording it as according to him the condition of Arifbeg was very serious and he was losing consciousness every moment. Dr. S.P. Jain, however, recorded his dying declaration a little after the Tahsildar had gone back. The High Court has also noted another disconcerting circumstance. Majeed Khan, brother in law of Chitubeg, was all along with Arifbeg. Majeed Khan himself bore enmity with the appellants. He had accompanied Arifbeg from the place of incident to the hospital. He was present when the dying declarations were recorded. Arifbeg was 12 years of age. It is true that Majeed Khan has denied that he had tutored Arifbeg to name the appellants. But his denial should not inspire confidence because Arifbeg undoubtedly incriminated two more persons as assailants in the dying declaration made to Dr. S.P. Jain. While in the dying declaration made to the Investigating Officer he has named five persons, Majeedbeg, Azizbeg, Rasheedbeg, Waheedbeg Maseedbeg, in his dying declaration to Dr. S.P. Jain he has implicated Azizbeg, Waheedbeg, Basheerbeg, Majeedbeg, ‘Maseed Beg, Noorbeg Rasheedbeg. In the latter dying declaration he has thus implicated two more persons Basheerbeg and Noorbeg. Legally a dying declaration which should inspire confidence may be sufficient to hold guilty the persons accused therein. But in view of the circumstances already indicated, we think that it is a case where the two dying declarations should not be believed without some corroborative evidence. The Sessions Judge could safely rely on them because he had already believed the oral evidence of Sardarbeg. The High Court has rightly discarded the oral evidence of Sardarbeg. In the result, there is no credible evidence to corroborate the dying declarations. It seems to us that the High Court also felt some difficulty in convicting the appellants for want of credible evidence to corroborate the dying declarations. The High Court said : “Whatever the condition of Arifbeg may be whether there was some improvement or not the condition when the Sub-Inspector took the declaration was not very good as also the condition when the doctor himself recorded the same. It may be that he gained consciousness. We feel that it will be safe to accept the names of the accused persons common in the dying declarations made to these two persons-Sub-Inspector and Medical Officer to hold that they took part in the assault on Arifbeg.” The word “feel” has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants. Accordingly the appeal is allowed and the order of the High Court convicting the appellants is set aside. They shall be released forthwith if not required in any other case.”

32. In P. Mani v State of Tamilnadu13, while considering the suspicious dying declaration, it has been held by the Apex Court that the conviction can be based solely on the basis of dying declaration alone, but the same must be wholly reliable and trustworthy. Para 14 of the said judgment reads thus:

“14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.”

33. In Lakhan v. State of MP14, the Supreme Court after discussing number of judgments on the point of dying declarations summarized the law in this regard, as under:

“20. In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.”

34. In Shudhakar v. State of MP15, the Supreme Court held as under:

“18. In the case of Laxman (supra), the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows:

“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

35. In Ramakant Mishra v. State of UP16, the Supreme Court observed as under:

“9. Definition of this legal concept found in Black’s Law Dictionary (5th Edition) justifies reproduction:

“Dying Declarations – Statements made by a person who is lying at the point of death, and is conscious of his approaching death, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial for homicide (and occasionally, at least in some jurisdictions, in other cases) where the killing of the declarant is the crime charged to the defendant. Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.

Generally, the admissibility of such declarations is limited to use in prosecutions for homicide; but is admissible on behalf of accused as well as for prosecution. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule. Fed. Evid.R. 804 (b) (2).

10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a Dying Declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration.”

36. Keeping in view the above principles of law, we now advert to examine the facts of the present case. Here, there are two dying declarations made by the deceased. First dying declaration was recorded by the Executive Magistrate, vide Ex.Ka.12 on 16.8.2007 and the Executive Magistrate started recording the said dying declaration at 12:40 in the afternoon and completed the same at 1:00 pm. The same reads as under:

“ejht Jherh ehuk 23 yrs/F cuZ 96% c;ku nsus ls iwoZ gks’k esa gS o c;ku nsus esa l{ke gSA

g0 viBuh;

(EMO)

16@8@07 12%40

eksgj

c;ku Jherh ehuk iRuh eqds’k] mez yxHkx23 o”kZ] fu0 jky pkSdh tSar] Fkkuk o`Unkou us cgYQ c;ku fd;k fd eqs esjh lkl Jherh fo|k nsoh iRuh gjh flag us dejk cUn djds tyk;k gS ——-vkxs dgk Mksdjk ¼llqj½ ckgj FkkA lkl dgrh gS fd eSa Nksdjk dk nwljk C;kg d:Waxh rw ej tkA dejk esa Hkql ¼Hkqlk½ iMk Fkk mles eV~Vh dk rsy Mkydj lkl us vkx yxk nh vkSj eqs Åij iVd fn;kA esjs ifr ml le; ckgj FksA esjs ,d yMdh gSA eSa vkBoha d{kk rd i s vkSj dqN ugha dguk gSA c;ku lqudj rLnhd fd;sA

uksV ejht ds nksuks gkFk cqjh rjg tys gq;s gSaA blfy;s iSj ds vaxwBksa ds fu’kku fy;s tk jgs gSaA

g0 viBuh;

16@08@07

v0fu0 ckW;k iSj dfiy flag v0fu0 nk;kWa iSj

Jherh ehuk fMIVh dysDVj Jherh ehuk

eFkqjk

c;ku ds nkSjku ejht ehuk 23 yrs/F iwjh rjg ls gks’k esa o c;ku nsus dh fLFkfr esa jgkA

Sd/-

Dr V D Gautam

izn’kZ dk 12 16/8/07

ADJ VI 1:00 PM

30.10.09 Stamp”

The second dying declaration is in the form of case diary statement of the deceased, which reads as under:

“C;ku et:ck onfj;kQ~r Jherh ehuk nsoh W/o eqds’k R/o jky pkSdh tSar] Fkkuk o`Unkou tuin eFkqjk iqh Jh ekj/ot flag xzke ‘kgtkniqj ¼ikSjh½ Fkkuk Qjg tuin eFkqjk us iqNrkN ij crk;k fd eqs esjh lkl fo|k] ifr eqds’k o llqj gfj flag eqs ekjrs ihVrs Fks rFkk dy fn0 15@8@07 dks jkr esa esjs mij feV~Vh dk rsy Mkydj vkx yxk nh gSA vkxs cksyus esa vkokt ugha fudy ik jgh gS nnZ ls djkgrs gq, ,dne ‘kkUr gks x;hA

Jheku th et:ck ehuk nsoh dk mDr ?kVuk ds lEcU/k esa eftLV~zsV vf/kdkjh }kjk c;ku dye c} fy;s tk pqds gSa ftudks izkIr dj voyksdu dj foospuk esa ‘kkfey fd;k tkosxkA”

37. The above two dying declarations made by the deceased are self-contrary. In the first dying declaration, she states that she was burnt by the accused appellant, whereas in the second one, which was recorded on the same day, she states that she was burnt by all the accused persons. It is relevant to note here that the second dying declaration, which is in the form of diary statement of the deceased, was recorded immediately after her first dying declaration and this fact has been admitted by the Investigating Officer (PW-8) Dushyant Kumar Singh in his Court statement. He has stated that after registration of the FIR, which was registered on 16.8.2007 at 3:30 pm, he had gone to the hospital and when he enquired from the deceased, she informed him that she was burnt by the appellant, her husband Mukesh and father-in-law Hari Singh.

38. The inconsistency in two dying declarations made by the deceased creates a doubt as to which statement is correct. Though, at the first sight, we feel it appropriate to give more weightage to a dying declaration recorded by the Executivie Magistrate, but the other dying declaration can also not be ignored, especially when both the dying declarations run contrary to each other. Indisputably, conviction can be recorded on the basis of dying declaration alone, therefore, the same must be wholly reliable. In a case where suspicion can be raised with regard to correctness of a dying declaration, the Court, before convicting an accused on the basis thereof, would look for some corroroborative evidence. Suspicion, it is trite, is no substitute for proof. In the present case, but for the dying declaration recorded by the Executive Magistrate, there is nothing to support the prosecution case.

Yet another important feature of the case is that there is some evidence that the deceased might have been tutured by her relatives. (PW-6) Kapil Singh, who recorded the dying declaration of the deceased, has stated that before he could record the dying declaration of the deceased, he saw her surrounded by her family members, they were talking to her and that the deceased was also talking to them and her voice was low and was not clear. Further, the doctor, who gave fitness certificate before recording the dying declaration, has also made similar statement wherein he stated that the bed of the deceased was surrounded by her family members and that the deceased was talking to them before recording her statement.

39. Taking the above evidence, possibility of deceased being tutored cannot be ruled out. The authenticity of the dying declaration further becomes doubtful because the doctor, who gave fitness certificate, actually did not examine the deceased properly, as she was burnt. He could not even measure her blood pressure and pulse rate because of her physical condition. If such was the condition of the deceased, dying declaration recorded by the Executive Magistrate again becomes doubtful.

Considering the evidence available on record and the two dying declarations of the deceased, we do not feel it safe to convict the appellant only on the basis of dying declaration recorded by the Executive Magistrate (Ex.Ka.12).

40. As already discussed, but for the dying declaration of the deceased, there is no other evidence against the accused appellant. (PW-1) Mordhwaj Singh, father of the deceased and (PW-2) Raj Pal Singh, maternal uncle of the deceased, both have not supported the prosecution case and have been declared hostile. Father of the deceased has gone to the extent of saying that there was no demand of dowry and the deceased made oral dying declaration before him that she suffered burn injury, while she was cooking food. Likewise, brother of the deceased (PW-4) Pratap Singh has also not supported the prosecution case and has been declared hostile.

41. Yet another important aspect of the case is that initially on 06.05.2008, charge was framed against the appellant under Sections 498-A and 304-B of IPC read with Section 3/4 of Dowry Prohibition Act, but later on, on 17.3.2009, additional charge was framed against her and two acquitted accused persons under Section 302 of IPC. After framing additional charge, the trial Court has not afforded any opportunity to the appellant to again cross examine those witnesses (PW-1 Mordhwaj Singh, PW-2 Raj Pal Singh and PW-3 Dr R S Maurya) who were already examined. Even assuming that PW-1 and PW-2 have not supported the prosecution case, but (PW-3) who is an Autopsy Surgeon, could have been cross examined by the defence from another angle. We do not know that after lapse of few months, whether PW-1 and PW-2 could have also supported the prosecution case in their subsequent cross examination. The Court below was under an obligation to give, at least, an opportunity to the accused to further cross examine PW-1, PW-2 and PW-3. In R. Rachaiah v. Home Secretary, Bangalore17, it has been held by the Apex Court:

“9. The bare reading of Section 216 reveals that though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and 4 of Section 216 of the Code. Sub-section(3), in no uncertain terms, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section(4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.

10. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the Court is to even allow any further witness which the Court thinks to be material in regard to the altered or additional charge.

13. In a case like this, with the framing of alternative charge on 30.09.2006, testimony of those witnesses recorded prior to that date could even be taken into consideration. It hardly needs to be demonstrated that the provisions of Sections 216 and 217 are mandatory in nature as they not only sub-serve the requirement of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity. Cross- examination of the witnesses, in the process, is an important facet of this right. Credibility of any witness can be established only after the said witness is put to cross-examination by the accused person.

14. In the instant case, there is no cross-examination of these witnesses insofar as charge under Section 302 IPC is concerned. The trial, therefore, stands vitiated and there could not have been any conviction under Section 302 of the IPC.”

42. Applying the law laid down by the Apex Court in the aforesaid case, the outcome of the trial can be questioned and on this ground also, the appeal deserves to be allowed.

43. Taking cumulative effect of the evidence, we are of the considered view that the trial Court has erred in law in convicting the appellant Smt. Vidya Devi under Section 302 of IPC. The appeal is, accordingly, allowed. The impugned judgment and order of the trial Court, insofar as it relates to the conviction of the appellant under Section 302 of IPC, is set aside. The appellant is reported to be in Jail. She be set free forthwith, if not required in any other case.

Dated:14 March 2019

RKK/A. Tripathi

(Pritinker Diwaker, J)

(Raj Beer Singh, J)

 

 

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