In his cross-examination, PW-3 stated that Anita
sustained 95% burns and chances cannot be ruled out that a
person can be unconscious having 95% burns. Much
reliance was placed upon the above answers elicited from
the doctor - PW-3 to assail the reliability of Ext. P11 dying
declaration. The answers elicited from PW-3 during the
cross-examination is only an opinion. PW-3 issued Exts.
P12 and P13 certificates certifying that Anita was in a fit
condition to give statement. Opinion evidence elicited
during the cross-examination of PW-3, Doctor cannot prevail
upon his assertion in Exts. P12 and P13 as to the fit mental
condition of Anita to give statement. It is also to be noted
that after sustaining injuries, victim was alive till midnight
and that Anita died at 11.45 P.M. on 24.10.2001.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2030 OF 2012
PREMPAL ..Appellant
Versus
STATE OF HARYANA ..Respondent
Read original judgment here; click here
R. BANUMATHI, J.
Citation;(2014) 10 SCC336
This appeal arises out of the judgment of High
Court of Punjab and Haryana at Chandigarh dated
28.11.2011 passed in Crl. Appeal No. 716-DB/2002, in and
by which the High Court confirmed the conviction of the
appellant under Section 302 IPC and also the sentence of
life imprisonment imposed on the appellant.
Page 2
2. Briefly stated, the case of the prosecution is that,
marriage of Smt. Anita (deceased) with Dharampal was
solemnized in the year 1997. Appellant-Prempal is the
younger brother of Dharampal. On 24.10.2001 at 3.00 p.m.
Anita was all alone at her matrimonial house located at
village Budana. Her husband Dharampal working as a
teacher in village Milakpur had not returned home from the
school; her mother-in-law had gone to her parents house.
When Anita was all alone, the appellant-Prempal grappled
with Anita and pushed her down and alleged to have set
her on fire at about 3.00 p.m. along with Jai Singh, father of
the appellant. Anita was brought to Shanti Hospital,
Narnaund by her father-in-law Jai Singh with 95% burn
injuries on her body on the same day at 4.00 p.m. On
receipt of the information from the Medical Officer and after
obtaining opinion of the Medical Officer that Anita was in a fit
condition to make the statement, Assistant Sub Inspector of
Police (PW 8) requested PW-4, Tehsildar to record the
statement of Anita. Tehsildar-cum-Executive Magistrate (PW
4) reached the hospital and again sought opinion of the
2
Page 3
Medical Officer (Ext. P13) who opined that Anita was fit to
make a statement. Tehsildar (PW4) recorded the statement
of Anita (Ext. P11) in which deceased Anita stated that her
brother-in-law Prempal grappled with her and pushed her
aside and poured kerosene upon her and set her ablaze.
Based on her statement, FIR was registered under Section
307 IPC against the appellant. PW-8 had taken up the
investigation and prepared the Rough Site Map of the spot
and seized material objects from the scene of the crime.
3. On 24.10.2001 at about 11.45 P.M., Anita
succumbed to injuries. On receipt of intimation about the
death of Anita, the investigating officer went to the hospital
and held the inquest proceedings and prepared the Inquest
Report. PW-1, Dr. J.P. Malik conducted autopsy on the body
of deceased Anita and issued the Post Mortem Certificate.
The investigating officer recorded the statement of Dhan
Singh (PW 7) and Chhotu Ram father of Anita. The case
registered under Section 307 IPC was altered into Section
302 IPC and after completion of investigation, charge sheet
3
Page 4
was filed against the appellant and Jai Singh - father-in-law
of deceased.
4. To bring home the guilt of accused, prosecution
examined eight witnesses and exhibited number of
documents and material objects. After conclusion of the
trial, the trial court convicted the appellant under Section
302 IPC and sentenced him to undergo rigorous
imprisonment for life and also to pay a fine of Rs. 5,000/-
with default clause. The trial court also convicted the
appellant under Section 354 IPC and sentenced him to
undergo rigorous imprisonment for a period of two years and
both the sentences were ordered to run concurrently. The
co-accused Jai Singh was acquitted of the charge. In the
appeal preferred by the appellant, the High Court confirmed
the conviction of the appellant under Section 302 IPC and
the sentence imposed on him and acquitted him under
Section 354 IPC. Being aggrieved, the appellant has
preferred this appeal.
5. Learned counsel for the appellant contended that
Anita sustained 95% burns all over the body and there were
4
Page 5
deep burn injuries in fingers of the hand and feet of Anita
and she died shortly after recording of her dying
declaration and it might not have been possible for her to
make a statement and trial court and the High Court erred
in relying upon the dying declaration. The learned counsel
for the appellant contended that though PW-4, Tehsildar
got the certificate regarding fitness of the deceased to make
the statement, yet no specific certificate was obtained by
him that the deceased remained conscious throughout while
recording her statement. It was submitted that the courts
did not properly appreciate the defence version put forth by
the accused that Anita committed suicide.
6. Per contra, learned counsel for the respondent-
State submitted that dying declaration of Anita is true and
voluntary and not a result of tutoring and relying upon the
same, trial court and the High Court have rightly based the
conviction and the same warrants no interference.
7. We have given our due consideration to the
respective contentions of the learned counsel for the
parties. On receipt of intimation at 8.20 P.M., PW-8 sought
5
Page 6
the opinion of the Medical Officer whether Anita was fit to
make the statement or not and PW-3, Doctor opined that
Anita was fit to make the statement. On receipt of the
request from PW-8, ASI, PW-4, Tehsildar reached the
hospital at 9.15 P.M. and PW-4, Tehsildar again obtained the
opinion of PW-3, Doctor and PW-3, Dr. Suresh opined that
Anita was fit to make the statement and only thereafter
PW-4, Tehsildar recorded her statement which is Ext. P11.
In his evidence, PW-3 stated that Anita remained conscious
and was in a fit condition when PW-4, Tehsildar recorded
the statement, he (PW-3) remained throughout and he also
endorsed Ext. P11 statement.
8. In his cross-examination, PW-3 stated that Anita
sustained 95% burns and chances cannot be ruled out that a
person can be unconscious having 95% burns. Much
reliance was placed upon the above answers elicited from
the doctor - PW-3 to assail the reliability of Ext. P11 dying
declaration. The answers elicited from PW-3 during the
cross-examination is only an opinion. PW-3 issued Exts.
P12 and P13 certificates certifying that Anita was in a fit
condition to give statement. Opinion evidence elicited
during the cross-examination of PW-3, Doctor cannot prevail
upon his assertion in Exts. P12 and P13 as to the fit mental
condition of Anita to give statement. It is also to be noted
that after sustaining injuries, victim was alive till midnight
and that Anita died at 11.45 P.M. on 24.10.2001.
9. Anita sustained burn injuries at 3.00 P.M. and she
was admitted in the hospital at 4.00 P.M. Statement of
Anita was recorded by PW-4, Tehsildar at 9.15 P.M. to 9.25
P.M. During the cross-examination of PW-3, it was elicited
from him that about eight to ten persons who are relatives
of Anita came to the hospital. On behalf of the appellant it
was contended that in the long gap of time, between Anita’s
admission in the hospital and recording of her statement by
PW-4, Tehsildar, number of relatives of Anita assembled and
therefore there is every possibility that Anita must have
been tutored to falsely implicate the appellant.
10. We do not find any substance in the submission
that Anita was surrounded by her family members and that
she was tutored to falsely implicate Prempal. May be after
7
Page 8
Anita was admitted in the hospital, there were some family
members to attend to her; but there is no material
suggesting that they were talking to Anita or that Anita
was tutored. PW-3, Doctor and PW-4, Tehsildar have
categorically denied the suggestion that Anita was tutored
by her father Chhotu or her relatives. Deceased and her
husband Dharampal were living separately. While so, Anita
had no reason to falsely implicate her brother-in-law.
11. When reliance is placed upon dying declaration,
the court must be satisfied that the dying declaration is
true, voluntary and not as a result of either tutoring or
prompting or a product of imagination. The Court must
be further satisfied that the deceased was in a fit state of
mind. In State of Uttar Pradesh vs. Ram Sagar Yadav And
Ors. AIR 1985 SC 416 = (1985) 1 SCC 552, this Court held
that if the Court is satisfied that the dying declaration is
true and voluntary, it can base conviction on it without
corroboration. In this context, the observations made in
para (13) of the judgment are relevant to be noted:-
8
Page 9
“It is well settled that, as a matter of law, a dying
declaration can be acted upon without
corroboration. (See Khushal Rao vs. State of
Bombay, 1958 SCR 552; Harbans Singh vs. State
of Punjab, 1962 Supp.1 SCR 104; Gopalsingh
vs. State of M.P. (1972) 3 SCC 268). There is not
even a rule of prudence which has hardened
into a rule of law that a dying declaration cannot
be acted upon unless it is corroborated. The
primary effort of the court has to be to find out
whether the dying declaration is true. If it is, no
question of corroboration arises. It is only if the
circumstances surrounding the dying declaration
are not clear or convincing that the court may,
for its assurance, look for corroboration to the
dying declaration………..”
12. In Bapu vs. State of Maharashtra (2007) 2 SCC
(Crl.) 545 = (2006) 12 SCC 73, this Court in paras (14) and
(15) observed as under:-
14. In Ravi v. State of T.N. [(2004) 10 SCC 776]
the Supreme Court observed that : (SCC p.777,
para 3)
“[I]f the truthfulness… of the dying
declaration cannot be doubted, the same alone
can form the basis of conviction of an accused
and the same does not require any
corroboration, whatsoever, in law.”
15. In Muthu Kutty v. State [ (2005) 9 SCC 113]
vide para 15 the Supreme Court observed as
under : (SCC p. 120-121)
“15. Though a dying declaration is entitled
to great weight, it is worthwhile to note that the
accused has no power of cross-examination.
Such a power is essential for eliciting the truth as
an obligation of oath could be. This is the reason
9
Page 10
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
the deceased was not as a result of either
tutoring, or 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
assailant. 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. This Court has laid
down in several judgments the principles
governing dying declaration, which could be
summed up as under as indicated in Paniben v.
State of Gujarat [(1992) 2 SCC 474]: (SCC pp.
480-81, paras 18-19) (emphasis supplied)
(i) There is neither rule of law nor of
prudence that dying declaration cannot be acted
upon without corroboration. (See Munnu Raja v.
State of M.P)[(1976) 3 SCC 104].
(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. (See
State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC
552] and Ramawati Devi v. State of Bihar [(1983)
1 SCC 211].
(iii) The court has to scrutinize the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. The deceased had an
opportunity to observe and identify the
assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy v.
Public Prosecutor [(1976) 3 SCC 618].)
10
Page 11
(iv) Where dying declaration is suspicious,
it should not be acted upon without corroborative
evidence. (See Rasheed Beg v. State of M.P
[(1974) 4 SCC 264]).
(v) Where the deceased was unconscious
and could never make any dying declaration the
evidence with regard to it is to be rejected. (See
Kake Singh v. State of M.P [(1981) Supp. SCC
25]).
(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction.
(See Ram Manorath v. State of U.P [(1981) 2 SCC
654]).
(vii) Merely because a dying declaration
does not contain the details as to the
occurrence, it is not to be rejected. (See State of
Maharashtra v. Krishnamurti Laxmipati
Naidu[ (1980) Supp. SCC 455]).
(viii) Equally, merely because it is a brief
statement, it is not to be discarded. On the
contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Ojha v. State of
Bihar [(1980) Supp. SCC 769]).
(ix) Normally the court in order to satisfy
whether deceased was in a fit mental condition
to make the dying declaration look up to the
medical opinion. But where the eyewitness said
that the deceased was in a fit and conscious
state to make the dying declaration, the medical
opinion cannot prevail. (See Nanhau Ram V.
State of M.P. [(1988) Supp. SCC 152]).
(x) Where the prosecution version differs
from the version as given in the dying
declaration, the said declaration cannot be acted
11
Page 12
upon. (See State of U.P. v. Madan Mohan [(1989)
3 SCC 390]).
(xi) Where there are more than one
statement in the nature of dying declaration, one
first in point of time must be preferred. Of
course, if the plurality of dying declaration could
be held to be trustworthy and reliable, it has to
be accepted. (See Mohanlal Gangaram Gehani v.
State of Maharashtra [(1982) 1 SCC 700]). ”
13. Deceased Anita had suffered 95% burn injuries;
yet her statement before PW-4, Tehsildar was clear and
cogent. The trial court and the High Court examined the
reliability of the dying declaration and recorded concurrent
findings of fact that Ext. P11 dying declaration is reliable
and inspires confidence of the court. We find no perversity
in such findings.
14. PW-7, Dhan Singh is the uncle of deceased Anita.
In his evidence PW-7 stated that when they reached the
hospital, the deceased told him and her father Chhotu Ram
that her brother-in-law Prempal had scuffled with her and
pushed her down and in the meanwhile, Jai Singh came and
asked Prempal to bring kerosene and set her on fire and
Prempal brought kerosene and poured on her and Jai Singh
12
Page 13
set her on fire and thereafter Jai Singh and Prempal tried to
extinguish the fire. It was submitted that during crossexamination
of PW-7, he was also confronted with
reference to his statement recorded during investigation
under Section 161 Cr.P.C. Learned counsel for the appellant
contended that there are two conflicting statements by the
deceased and in one statement before PW-4, Tehsildar, Anita
named only the appellant whereas in the other statement
before PW-7, she not only named two accused persons but
also categorically defined the roles individually to the
respective accused persons and this contradiction raises
serious doubts about the incident and the veracity of the
statement by Anita and this aspect was not properly
appreciated by the Trial Court and the High Court.
15. Countering the above arguments, the learned
counsel for the respondent-State took us through the
evidence of PW-7 and also the judgment of the trial court
and submitted that in his statement recorded during
inquest PW-7 had stated that Anita told him that appellant
was responsible for her burns and the courts rightly held
13
Page 14
that there is no inconsistency between dying declaration and
the statement of PW-7.
16. We have gone through the evidence of PW-7 and
the judgment of the trial court. So far as overt act of the
appellant, pouring kerosene on the deceased, we find no
material inconsistency between the evidence of PW-7 and
Ext. P11 dying declaration. Referring to the statement of
PW-7 recorded during inquest, the trial court recorded
factual finding that in his anxiety, PW-7, Dhan Singh tried to
rope in Jai Singh also and that in his earlier statement
recorded during inquest PW-7, Dhan Singh did not implicate
Jai Singh and on those findings, trial court acquitted Jai
Singh. In the light of such factual finding recorded by the
trial court, we find no merit in the submission of the learned
counsel for the appellant that there were two contradictory
version of the deceased.
17. The defence version is that Anita committed
suicide as she was frustrated because she could not
conceive a child. The appellant-Prempal in his statement
under Section 313 Cr.P.C. stated that on 24.10.2001 he had
14
Page 15
gone to Narnaund for purchase of domestic articles and
returned home at 5.00 p.m. and only then he came to know
that his sister-in-law Anita had set herself on fire and his
father Jai Singh had taken her to Shanti Hospital for
treatment and that deceased Anita used to remain
depressed as she did not conceive the child and therefore
she committed suicide. The appellant placed reliance upon
the statement of his father Jai Singh recorded under Section
313 Cr.P.C. and also the burn injuries sustained by Jai Singh.
The fact that Jai Singh sustained burn injuries, does not lead
to the conclusion that it was a suicide.
18. In burn injury cases, two possible hypothesis arise
in the judicial mind – was it suicide or was it homicide. In
cases where the dying declaration projected by the
prosecution gets credence, the alternative hypothesis of
suicide has to be justifiably eliminated. In the present case,
had it been a suicide, Anita who was at the point of death
had no reason to falsely implicate her brother-in-law
Prempal. We do not find any substance in the defence
version of suicide theory.
15
Page 16
19. A perusal of various judgments of this Court,
some of which we have referred to above, shows that if a
dying declaration is found to be reliable, then there is no
need for corroboration by any witness and conviction can
be sustained on that basis alone.
20. In the present case evidence of Tehsildar, the
Doctor and other witnesses is cogent and consistent that
the deceased was conscious and in a fit state of mind to
give dying declaration and courts rightly based the
conviction upon the same. When the trial court as well as
the High Court have appreciated the entire evidence in its
right perspective, we see no reason to interfere and the
appeal fails. In the result, the appeal is dismissed.
………………………..J.
(T.S. Thakur)
………………………..J.
(R. Banumathi)
New Delhi;
September 3, 2014
16
Print Page
sustained 95% burns and chances cannot be ruled out that a
person can be unconscious having 95% burns. Much
reliance was placed upon the above answers elicited from
the doctor - PW-3 to assail the reliability of Ext. P11 dying
declaration. The answers elicited from PW-3 during the
cross-examination is only an opinion. PW-3 issued Exts.
P12 and P13 certificates certifying that Anita was in a fit
condition to give statement. Opinion evidence elicited
during the cross-examination of PW-3, Doctor cannot prevail
upon his assertion in Exts. P12 and P13 as to the fit mental
condition of Anita to give statement. It is also to be noted
that after sustaining injuries, victim was alive till midnight
and that Anita died at 11.45 P.M. on 24.10.2001.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2030 OF 2012
PREMPAL ..Appellant
Versus
STATE OF HARYANA ..Respondent
Read original judgment here; click here
R. BANUMATHI, J.
Citation;(2014) 10 SCC336
This appeal arises out of the judgment of High
Court of Punjab and Haryana at Chandigarh dated
28.11.2011 passed in Crl. Appeal No. 716-DB/2002, in and
by which the High Court confirmed the conviction of the
appellant under Section 302 IPC and also the sentence of
life imprisonment imposed on the appellant.
Page 2
2. Briefly stated, the case of the prosecution is that,
marriage of Smt. Anita (deceased) with Dharampal was
solemnized in the year 1997. Appellant-Prempal is the
younger brother of Dharampal. On 24.10.2001 at 3.00 p.m.
Anita was all alone at her matrimonial house located at
village Budana. Her husband Dharampal working as a
teacher in village Milakpur had not returned home from the
school; her mother-in-law had gone to her parents house.
When Anita was all alone, the appellant-Prempal grappled
with Anita and pushed her down and alleged to have set
her on fire at about 3.00 p.m. along with Jai Singh, father of
the appellant. Anita was brought to Shanti Hospital,
Narnaund by her father-in-law Jai Singh with 95% burn
injuries on her body on the same day at 4.00 p.m. On
receipt of the information from the Medical Officer and after
obtaining opinion of the Medical Officer that Anita was in a fit
condition to make the statement, Assistant Sub Inspector of
Police (PW 8) requested PW-4, Tehsildar to record the
statement of Anita. Tehsildar-cum-Executive Magistrate (PW
4) reached the hospital and again sought opinion of the
2
Page 3
Medical Officer (Ext. P13) who opined that Anita was fit to
make a statement. Tehsildar (PW4) recorded the statement
of Anita (Ext. P11) in which deceased Anita stated that her
brother-in-law Prempal grappled with her and pushed her
aside and poured kerosene upon her and set her ablaze.
Based on her statement, FIR was registered under Section
307 IPC against the appellant. PW-8 had taken up the
investigation and prepared the Rough Site Map of the spot
and seized material objects from the scene of the crime.
3. On 24.10.2001 at about 11.45 P.M., Anita
succumbed to injuries. On receipt of intimation about the
death of Anita, the investigating officer went to the hospital
and held the inquest proceedings and prepared the Inquest
Report. PW-1, Dr. J.P. Malik conducted autopsy on the body
of deceased Anita and issued the Post Mortem Certificate.
The investigating officer recorded the statement of Dhan
Singh (PW 7) and Chhotu Ram father of Anita. The case
registered under Section 307 IPC was altered into Section
302 IPC and after completion of investigation, charge sheet
3
Page 4
was filed against the appellant and Jai Singh - father-in-law
of deceased.
4. To bring home the guilt of accused, prosecution
examined eight witnesses and exhibited number of
documents and material objects. After conclusion of the
trial, the trial court convicted the appellant under Section
302 IPC and sentenced him to undergo rigorous
imprisonment for life and also to pay a fine of Rs. 5,000/-
with default clause. The trial court also convicted the
appellant under Section 354 IPC and sentenced him to
undergo rigorous imprisonment for a period of two years and
both the sentences were ordered to run concurrently. The
co-accused Jai Singh was acquitted of the charge. In the
appeal preferred by the appellant, the High Court confirmed
the conviction of the appellant under Section 302 IPC and
the sentence imposed on him and acquitted him under
Section 354 IPC. Being aggrieved, the appellant has
preferred this appeal.
5. Learned counsel for the appellant contended that
Anita sustained 95% burns all over the body and there were
4
Page 5
deep burn injuries in fingers of the hand and feet of Anita
and she died shortly after recording of her dying
declaration and it might not have been possible for her to
make a statement and trial court and the High Court erred
in relying upon the dying declaration. The learned counsel
for the appellant contended that though PW-4, Tehsildar
got the certificate regarding fitness of the deceased to make
the statement, yet no specific certificate was obtained by
him that the deceased remained conscious throughout while
recording her statement. It was submitted that the courts
did not properly appreciate the defence version put forth by
the accused that Anita committed suicide.
6. Per contra, learned counsel for the respondent-
State submitted that dying declaration of Anita is true and
voluntary and not a result of tutoring and relying upon the
same, trial court and the High Court have rightly based the
conviction and the same warrants no interference.
7. We have given our due consideration to the
respective contentions of the learned counsel for the
parties. On receipt of intimation at 8.20 P.M., PW-8 sought
5
Page 6
the opinion of the Medical Officer whether Anita was fit to
make the statement or not and PW-3, Doctor opined that
Anita was fit to make the statement. On receipt of the
request from PW-8, ASI, PW-4, Tehsildar reached the
hospital at 9.15 P.M. and PW-4, Tehsildar again obtained the
opinion of PW-3, Doctor and PW-3, Dr. Suresh opined that
Anita was fit to make the statement and only thereafter
PW-4, Tehsildar recorded her statement which is Ext. P11.
In his evidence, PW-3 stated that Anita remained conscious
and was in a fit condition when PW-4, Tehsildar recorded
the statement, he (PW-3) remained throughout and he also
endorsed Ext. P11 statement.
8. In his cross-examination, PW-3 stated that Anita
sustained 95% burns and chances cannot be ruled out that a
person can be unconscious having 95% burns. Much
reliance was placed upon the above answers elicited from
the doctor - PW-3 to assail the reliability of Ext. P11 dying
declaration. The answers elicited from PW-3 during the
cross-examination is only an opinion. PW-3 issued Exts.
P12 and P13 certificates certifying that Anita was in a fit
condition to give statement. Opinion evidence elicited
during the cross-examination of PW-3, Doctor cannot prevail
upon his assertion in Exts. P12 and P13 as to the fit mental
condition of Anita to give statement. It is also to be noted
that after sustaining injuries, victim was alive till midnight
and that Anita died at 11.45 P.M. on 24.10.2001.
9. Anita sustained burn injuries at 3.00 P.M. and she
was admitted in the hospital at 4.00 P.M. Statement of
Anita was recorded by PW-4, Tehsildar at 9.15 P.M. to 9.25
P.M. During the cross-examination of PW-3, it was elicited
from him that about eight to ten persons who are relatives
of Anita came to the hospital. On behalf of the appellant it
was contended that in the long gap of time, between Anita’s
admission in the hospital and recording of her statement by
PW-4, Tehsildar, number of relatives of Anita assembled and
therefore there is every possibility that Anita must have
been tutored to falsely implicate the appellant.
10. We do not find any substance in the submission
that Anita was surrounded by her family members and that
she was tutored to falsely implicate Prempal. May be after
7
Page 8
Anita was admitted in the hospital, there were some family
members to attend to her; but there is no material
suggesting that they were talking to Anita or that Anita
was tutored. PW-3, Doctor and PW-4, Tehsildar have
categorically denied the suggestion that Anita was tutored
by her father Chhotu or her relatives. Deceased and her
husband Dharampal were living separately. While so, Anita
had no reason to falsely implicate her brother-in-law.
11. When reliance is placed upon dying declaration,
the court must be satisfied that the dying declaration is
true, voluntary and not as a result of either tutoring or
prompting or a product of imagination. The Court must
be further satisfied that the deceased was in a fit state of
mind. In State of Uttar Pradesh vs. Ram Sagar Yadav And
Ors. AIR 1985 SC 416 = (1985) 1 SCC 552, this Court held
that if the Court is satisfied that the dying declaration is
true and voluntary, it can base conviction on it without
corroboration. In this context, the observations made in
para (13) of the judgment are relevant to be noted:-
8
Page 9
“It is well settled that, as a matter of law, a dying
declaration can be acted upon without
corroboration. (See Khushal Rao vs. State of
Bombay, 1958 SCR 552; Harbans Singh vs. State
of Punjab, 1962 Supp.1 SCR 104; Gopalsingh
vs. State of M.P. (1972) 3 SCC 268). There is not
even a rule of prudence which has hardened
into a rule of law that a dying declaration cannot
be acted upon unless it is corroborated. The
primary effort of the court has to be to find out
whether the dying declaration is true. If it is, no
question of corroboration arises. It is only if the
circumstances surrounding the dying declaration
are not clear or convincing that the court may,
for its assurance, look for corroboration to the
dying declaration………..”
12. In Bapu vs. State of Maharashtra (2007) 2 SCC
(Crl.) 545 = (2006) 12 SCC 73, this Court in paras (14) and
(15) observed as under:-
14. In Ravi v. State of T.N. [(2004) 10 SCC 776]
the Supreme Court observed that : (SCC p.777,
para 3)
“[I]f the truthfulness… of the dying
declaration cannot be doubted, the same alone
can form the basis of conviction of an accused
and the same does not require any
corroboration, whatsoever, in law.”
15. In Muthu Kutty v. State [ (2005) 9 SCC 113]
vide para 15 the Supreme Court observed as
under : (SCC p. 120-121)
“15. Though a dying declaration is entitled
to great weight, it is worthwhile to note that the
accused has no power of cross-examination.
Such a power is essential for eliciting the truth as
an obligation of oath could be. This is the reason
9
Page 10
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
the deceased was not as a result of either
tutoring, or 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
assailant. 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. This Court has laid
down in several judgments the principles
governing dying declaration, which could be
summed up as under as indicated in Paniben v.
State of Gujarat [(1992) 2 SCC 474]: (SCC pp.
480-81, paras 18-19) (emphasis supplied)
(i) There is neither rule of law nor of
prudence that dying declaration cannot be acted
upon without corroboration. (See Munnu Raja v.
State of M.P)[(1976) 3 SCC 104].
(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. (See
State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC
552] and Ramawati Devi v. State of Bihar [(1983)
1 SCC 211].
(iii) The court has to scrutinize the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. The deceased had an
opportunity to observe and identify the
assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy v.
Public Prosecutor [(1976) 3 SCC 618].)
10
Page 11
(iv) Where dying declaration is suspicious,
it should not be acted upon without corroborative
evidence. (See Rasheed Beg v. State of M.P
[(1974) 4 SCC 264]).
(v) Where the deceased was unconscious
and could never make any dying declaration the
evidence with regard to it is to be rejected. (See
Kake Singh v. State of M.P [(1981) Supp. SCC
25]).
(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction.
(See Ram Manorath v. State of U.P [(1981) 2 SCC
654]).
(vii) Merely because a dying declaration
does not contain the details as to the
occurrence, it is not to be rejected. (See State of
Maharashtra v. Krishnamurti Laxmipati
Naidu[ (1980) Supp. SCC 455]).
(viii) Equally, merely because it is a brief
statement, it is not to be discarded. On the
contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Ojha v. State of
Bihar [(1980) Supp. SCC 769]).
(ix) Normally the court in order to satisfy
whether deceased was in a fit mental condition
to make the dying declaration look up to the
medical opinion. But where the eyewitness said
that the deceased was in a fit and conscious
state to make the dying declaration, the medical
opinion cannot prevail. (See Nanhau Ram V.
State of M.P. [(1988) Supp. SCC 152]).
(x) Where the prosecution version differs
from the version as given in the dying
declaration, the said declaration cannot be acted
11
Page 12
upon. (See State of U.P. v. Madan Mohan [(1989)
3 SCC 390]).
(xi) Where there are more than one
statement in the nature of dying declaration, one
first in point of time must be preferred. Of
course, if the plurality of dying declaration could
be held to be trustworthy and reliable, it has to
be accepted. (See Mohanlal Gangaram Gehani v.
State of Maharashtra [(1982) 1 SCC 700]). ”
13. Deceased Anita had suffered 95% burn injuries;
yet her statement before PW-4, Tehsildar was clear and
cogent. The trial court and the High Court examined the
reliability of the dying declaration and recorded concurrent
findings of fact that Ext. P11 dying declaration is reliable
and inspires confidence of the court. We find no perversity
in such findings.
14. PW-7, Dhan Singh is the uncle of deceased Anita.
In his evidence PW-7 stated that when they reached the
hospital, the deceased told him and her father Chhotu Ram
that her brother-in-law Prempal had scuffled with her and
pushed her down and in the meanwhile, Jai Singh came and
asked Prempal to bring kerosene and set her on fire and
Prempal brought kerosene and poured on her and Jai Singh
12
Page 13
set her on fire and thereafter Jai Singh and Prempal tried to
extinguish the fire. It was submitted that during crossexamination
of PW-7, he was also confronted with
reference to his statement recorded during investigation
under Section 161 Cr.P.C. Learned counsel for the appellant
contended that there are two conflicting statements by the
deceased and in one statement before PW-4, Tehsildar, Anita
named only the appellant whereas in the other statement
before PW-7, she not only named two accused persons but
also categorically defined the roles individually to the
respective accused persons and this contradiction raises
serious doubts about the incident and the veracity of the
statement by Anita and this aspect was not properly
appreciated by the Trial Court and the High Court.
15. Countering the above arguments, the learned
counsel for the respondent-State took us through the
evidence of PW-7 and also the judgment of the trial court
and submitted that in his statement recorded during
inquest PW-7 had stated that Anita told him that appellant
was responsible for her burns and the courts rightly held
13
Page 14
that there is no inconsistency between dying declaration and
the statement of PW-7.
16. We have gone through the evidence of PW-7 and
the judgment of the trial court. So far as overt act of the
appellant, pouring kerosene on the deceased, we find no
material inconsistency between the evidence of PW-7 and
Ext. P11 dying declaration. Referring to the statement of
PW-7 recorded during inquest, the trial court recorded
factual finding that in his anxiety, PW-7, Dhan Singh tried to
rope in Jai Singh also and that in his earlier statement
recorded during inquest PW-7, Dhan Singh did not implicate
Jai Singh and on those findings, trial court acquitted Jai
Singh. In the light of such factual finding recorded by the
trial court, we find no merit in the submission of the learned
counsel for the appellant that there were two contradictory
version of the deceased.
17. The defence version is that Anita committed
suicide as she was frustrated because she could not
conceive a child. The appellant-Prempal in his statement
under Section 313 Cr.P.C. stated that on 24.10.2001 he had
14
Page 15
gone to Narnaund for purchase of domestic articles and
returned home at 5.00 p.m. and only then he came to know
that his sister-in-law Anita had set herself on fire and his
father Jai Singh had taken her to Shanti Hospital for
treatment and that deceased Anita used to remain
depressed as she did not conceive the child and therefore
she committed suicide. The appellant placed reliance upon
the statement of his father Jai Singh recorded under Section
313 Cr.P.C. and also the burn injuries sustained by Jai Singh.
The fact that Jai Singh sustained burn injuries, does not lead
to the conclusion that it was a suicide.
18. In burn injury cases, two possible hypothesis arise
in the judicial mind – was it suicide or was it homicide. In
cases where the dying declaration projected by the
prosecution gets credence, the alternative hypothesis of
suicide has to be justifiably eliminated. In the present case,
had it been a suicide, Anita who was at the point of death
had no reason to falsely implicate her brother-in-law
Prempal. We do not find any substance in the defence
version of suicide theory.
15
Page 16
19. A perusal of various judgments of this Court,
some of which we have referred to above, shows that if a
dying declaration is found to be reliable, then there is no
need for corroboration by any witness and conviction can
be sustained on that basis alone.
20. In the present case evidence of Tehsildar, the
Doctor and other witnesses is cogent and consistent that
the deceased was conscious and in a fit state of mind to
give dying declaration and courts rightly based the
conviction upon the same. When the trial court as well as
the High Court have appreciated the entire evidence in its
right perspective, we see no reason to interfere and the
appeal fails. In the result, the appeal is dismissed.
………………………..J.
(T.S. Thakur)
………………………..J.
(R. Banumathi)
New Delhi;
September 3, 2014
16
No comments:
Post a Comment