Evidence Act, 1872 – s.32 – Dying declaration – Appreciation of – Dying declaration recorded by the Magistrate in which deceased specifically stated that due to feud over demand of money, respondents-accused burnt her after pouring kerosene over her – On facts, no reason to doubt the dying declaration recorded by the magistrate – Statements in the dying declaration consistent with medical evidence inasmuch as there were no injuries on the chest and injuries were found only on the head and backside – Such injuries on the head and backside could have been possible only if somebody have poured kerosene on the deceased from behind – Evidentiary value of the dying declaration further enhanced by certificate by physician who treated the deceased prior to her death that at the time of making statements she was fully conscious – High Court erred in acquitting the accused – Penal Code, 1860 – s.302 r/w. s.34.
Evidence – Dying declaration – Evidentiary Value- There can be conviction solely based upon the dying declaration without corroboration.
Allowing the appeal, the Court
HELD:1. Nothing is on record with regard to any allegation against the Magistrate/SDM to the effect that he was biased or interested in recording the dying declaration against the accused. He was summoned during the course of investigation and during the course of investigation he recorded the dying declaration and the statement of deceased. Even the High Court as such has not doubted the credibility of the dying declaration recorded by the Magistrate/SDM on the ground of malice. The reasoning given by the High Court to not rely upon the dying declaration recorded by the Magistrate/SDM is not germane and cannot be accepted. There is no reason to doubt the dying declaration recorded by the Magistrate on 22.12.2011 in which the deceased specifically stated that at 11:00 am due to the feud over demanding money, respondents – accused have burned her after pouring kerosene over her. Therefore, in the statement of dying declaration recorded by the Magistrate on 22.12.2011, the respondents – original accused are specifically named and it is specifically stated that they poured kerosene on her. [Para 10][1172-G-H; 1173-A-B]
2. Even considering the medical evidence on record and the injuries sustained by the deceased, it is found that there were no injuries at all on the chest and injuries were found on the head and on the backside. As rightly observed by the Trial Court if she had committed suicide by pouring kerosene there would have been injuries on the chest as well as injuries would not have been on the head and on the backside. Such injuries as found on the body of the deceased could have been possible only if somebody had poured kerosene on her from behind her. The aforesaid aspect has not at all been considered by the High Court. [Para 10] [1173-E-F]
3. There can be a conviction solely based upon the dying declaration without corroboration. [Para 10.1][1174-B]
4. Although the accused was not specifically named by the deceased in her statement recorded under section 161 of the Cr.P.C, as the person who set the deceased on fire, he has been so named in her dying declaration. Even in the statement recorded under section 161 of the Cr.PC, the deceased has stated that her father--in--law had attacked her with a stick with an intention to kill her and as a result, she locked herself in the room and set herself ablaze. Therefore, there runs a common thread in the statements of the deceased, being that she was attacked by the accused -respondent. Further, the statements made by the deceased in her dying declaration are consistent with medical evidence which reveals that there were burns on all parts of the body except chest and sides of the abdomen and back. The burns are at such parts as could have resulted when a person, other than the deceased poured kerosene and set fire. If the deceased had set herself on fire, her chest ought to have been burnt. Medical evidence is consistent with the dying declaration, thereby allowing this Court to place reliance on the declarations. [Para 10.2] [1175-D-G]
5. The Trial Court has rightly observed as to the weight and reliance that must be placed on the dying declaration of the deceased. There was no reason for the High Court to disregard the dying declaration of the deceased. It is noted that the dying declaration was made by the deceased to Sub--Divisional Magistrate (SDM) . His statement reveals that the deceased at the time of making the statements, was fully conscious and capable of comprehending the questions put forth by the officer to whom the declaration was made. The evidentiary value of the dying declaration is further enhanced by the fact that it was accompanied by a certificate from the physician who was treating the deceased prior to her death, stating that the deceased remained fully conscious while making the statement. The Trial Court rightly placed reliance on the dying declaration having due regard to the statements made by the physician as to the medical condition of the deceased while making such declaration. The Trial Court has also rightly noted that the statements of the SDM and the physician, being independent witnesses in the trial, has added weight to the prosecution case as the same could not be motivated by malice. [Para 10.2][1175-G-H; 1176-A-C]
6. Considering the dying declaration recorded by the SDM/Magistrate on 22.12.2011 the accused can be convicted for which they were tried. Hence, the High Court has committed a grave error in acquitting the accused. The impugned judgment and order passed by the High Court acquitting the accused for the offences punishable under Section 302 read with Section 34 of the IPC is unsustainable and the same deserves to be quashed and set aside. [Para 11][1176-D-E]
Munnu Raja & Anr. v. State of M.P. (1976) 3 SCC 104 : [1976] 2 SCR 764 ; Paniben (Smt) v. State of Gujarat, (1992) 2 SCC 474 : [1992] 2 SCR 197; State of Uttar Pradesh v. Ram Sagar Yadav & Ors. (1985) 1 SCC 552 : [1985] 2 SCR 621; Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 and Kushal Rao v. State of Bombay, AIR 1958 SC 22 : [1958] SCR 552 – relied on. Ravi Chander & Ors. v. State of Punjab (1998) 9 SCC 303; Harjit Kaur v. State of Punjab (1999) 6 SCC 545; Koli Chunilal Savji & Anr. v. State of Gujarat (1999) 9 SCC 562 : [1999] 3 Suppl. SCR 284; Vikas&Ors. v.State of Maharashtra (2008) 2 SCC 516 : [2008]
1 SCR 933; Laxman v. State of Maharashtra (2002) 6 SCC 710; Jagbir Singh v. State (NCT of Delhi) (2019)
8 SCC 779 : [2019] 11 SCR 1137; Amol Singh v. State of M.P., (2008) 5 SCC 468 : [2008] 8 SCR 956; Kundula Bala Subrahmanyam & Anr. v. State of Andhra Pradesh (1993)2SCC684 : [1993] 2 SCR 666 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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