http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  376 of 2002

PETITIONER: Smt. Shakuntala

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 27/07/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

        1.      Challenge in this appeal is to the order passed by a  Division Bench of the Punjab and Haryana High Court  upholding the conviction of the appellant for an offence  punishable under Section 302 of the Indian Penal Code, 1860  (in short the ’IPC’) and sentence of imprisonment for life as  awarded by the learned Sessions Judge, Rohtak in Sessions  Case No.31 of 1997.  

2.      The appellant was charged for offences punishable under  Sections 498-A, 304-B and 302 IPC. The trial Court found the  accused guilty of offence punishable under Section 302 IPC  while acquitting her from the other charges.  

3.      Background facts in a nutshell are as follows:

Suman (hereinafter referred to as the ’deceased’)  daughter of Balbir Singh had been married with one Bikram  Singh son of accused-appellant,  resident of village Kabulpur  about two years prior to the incident. At about 9.00 A.M. on   6th April, 1997, the deceased and the accused had a quarrel  over the inadequate dowry brought at the time of the marriage.  As the deceased was fed up with the daily squabbles, she  picked up a can of Kerosene oil to scare her mother-in-law-the  appellant with an intention to keep her quiet, but the  appellant on the contrary, took out a match box and set the  deceased on fire and having done so ran out of the room  calling out that deceased had set herself on fire. The villagers,  who had collected there on hearing the noise, rushed her to  the P.G.I.M.S.,  Rohtak, A ruqa sent to the police post, brought  ASI Om Parkash (PW-7) and after collecting the medico-legal  report from the hospital, he moved an application before Dr.  Ranbir Singh (PW-5)  who certified her to be fit to make a  statement. Shri A.K. Singhal, JMIC, Rohtak (PW-6) was  brought to the hospital, who recorded her statement and on its  basis, the formal F.I.R. was registered at 4.45 P.M. on 6th   April,  1997 initially for offences punishable under Section 307  IPC but on Suman’s death on 11th April, 1997, the offence was  converted to one under Section 302 IPC. On completion of the  investigation, the accused was charged for offences punishable  under Sections 498-A and 304-B IPC and in the alternative for  an offence punishable under Section 302 IPC and as she  pleaded not guilty, was brought to trial.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

4.      The prosecution version was centered primarily around  the dying declaration which was recorded by the learned First  Class Judicial Magistrate (PW-6). Dr. Ranbir Singh (PW-5) had  declared the deceased in a fit condition to make the dying  declaration. The trial Court found the dying declaration to be  acceptable and relying on the evidence of PWs 5 and 6,  conviction of the appellant as noted above was recorded.        The  appellant’s stand, that the dying declaration was not  believable, was not accepted. As noted above, appeal before  High Court was dismissed.  

5.      In support of the appeal, learned counsel for the  appellant submitted that the evidence of PWs 5 and 6 so far as  the dying declaration is concerned cannot be accepted. The  deceased suffered from 100% burns and therefore the  statement of PWs 5 and 6 that the deceased was in a fit  condition is not acceptable.  He also submitted that there was  another dying declaration which was recorded by PW-4.  Unfortunately, the same was discarded without any basis.  Alternatively it was submitted that case under Section 302 IPC  is not maintainable.   

6.      Learned counsel for the State on the other hand  supported the judgment of the trial Court.  

7.      At this juncture, it is relevant to take note of Section 32  of the Indian Evidence Act, 1872 (in short ’Evidence Act’)  which deals with cases in which statement of relevant fact by  person who is dead or cannot be found, etc. is relevant. The  general rule is that all oral evidence must be direct viz., if it  refers to a fact which could be seen it must be the evidence of  the witness who says he saw it, if it refers to a fact which  could be heard, it must be the evidence of the witness who  says he heard it, if it refers to a fact which could be perceived  by any other sense, it must be the evidence of the witness who  says he perceived it by that sense. Similar is the case with  opinion. These aspects are elaborated in Section 60. The eight  clauses of Section 32 are exceptions to the general rule against  hearsay just stated. Clause (1) of Section 32 makes relevant  what is generally described as dying declaration, though such  an expression has not been used in any Statute. It essentially  means statements made by a person as to the cause of his  death or as to the circumstances of the transaction resulting  in his death. The grounds of admission are: firstly, necessity  for the victim being generally the only principal eye-witness to  the crime, the exclusion of the statement might deflect the  ends of justice; and secondly, the sense of impending death,  which creates a sanction equal to the obligation of an oath.  The general principle on which this species of evidence is  admitted is that they are declarations 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 mind is induced by the most powerful considerations to  speak the truth; a situation so solemn and so lawful is  considered by the law as creating an obligation equal to that  which is imposed by a positive oath administered in a Court of  justice. These aspects have been eloquently stated by Lyre  LCR in R. v. Wood Cock (1789) 1 Leach 500. Shakespeare  makes the wounded Melun, finding himself disbelieved while  announcing the intended treachery of the Dauphin Lewis  explain:

               "Have I met hideous death within my  view,                 Retaining but a quantity of life,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

               Which bleeds away even as a form of wax,

               Resolveth from his figure ’gainst the fire?                 What is the world should        make me now deceive,                 Since I must lose the use of all deceit?

               Why should I then be false since it is true

               That I must die here and        live hence by truth?"                                 (See King John, Act 5, Sect.4)

The principle on which dying declaration is admitted in  evidence is indicated in legal maxim "nemo moriturus  proesumitur mentiri \026 a man will not meet his maker with a lie  in his mouth."

8.      This is a case where the basis of conviction of the  accused is the dying declaration. The situation in which a  person is on deathbed is so solemn and serene when he is  dying that the grave position in which he is placed, is the  reason in law to accept veracity of his statement. It is for this  reason the requirements of oath and cross-examination are  dispensed with. Besides, should the dying declaration be  excluded it will result in miscarriage of justice because the  victim being generally the only eye-witness in a serious crime,  the exclusion of the statement would leave the Court without a  scrap of evidence.  

9.      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 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 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 Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

       (i)     There is neither rule of law nor of prudence that  dying declaration cannot be acted upon without corroboration.  [See Munnu Raja & Anr. v. The State of Madhya Pradesh  (1976) 2 SCR 764)]         (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 Uttar Pradesh v. Ram Sagar Yadav  and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of  Bihar (AIR 1983 SC 164)]         (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 and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

       (iv)     Where dying declaration is suspicious, it should  not be acted upon without corroborative evidence. [See  Rasheed Beg v. State of Madhya Pradesh (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 Kaka Singh v State of M.P. (AIR 1982  SC 1021)]         (vi)    A dying declaration which suffers from infirmity  cannot form the basis of conviction. [See Ram Manorath and  Ors. v. State of U.P. (1981 (2) SCC 654)         (vii)   Merely because a dying declaration does contain the  details as to the occurrence, it is not to be rejected. [See State  of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981  SC 617)]         (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 Oza and Ors.  v. State of Bihar (AIR 1979 SC 1505).         (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 eye- witness said that the deceased was in a fit and conscious state  to make the dying declaration, the medical opinion cannot  prevail. [See Nanahau Ram and Anr. v. State of Madhya  Pradesh (AIR 1988 SC 912)].         (x)     Where the prosecution version differs from the  version as given in the dying declaration, the said declaration  cannot be acted upon. [See State of U.P. v. Madan Mohan and  Ors. (AIR 1989 SC 1519)].         (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 (AIR  1982 SC 839)]   

10.     In the light of the above principles, the acceptability of  alleged dying declaration in the instant case has to be  considered. The dying declaration is only a piece of untested  evidence and must like any other evidence, satisfy the Court  that what is stated therein is the unalloyed truth and that it is  absolutely safe to act upon it. If after careful scrutiny the  Court is satisfied that it is true and free from any effort to  induce the deceased to make a false statement and if it is  coherent and consistent, there shall be no legal impediment to  make it basis of conviction, even if there is no corroboration.  [See Gangotri Singh v. State of U.P.{JT 1992 (2)SC 417),  Goverdhan Raoji Ghyare v. State of Maharashtra (JT 1993 (5)  SC 87), Meesala Ramakrishan v. State of Andhra Pradesh (JT  1994 (3) SC 232) and State of Rajasthan v. Kishore (JT 1996  (2) SC 595)].

11.     There is no material to show that dying declaration was  result of product of imagination, tutoring or prompting. On the  contrary, the same appears to have been made by the  deceased voluntarily. It is trustworthy and has credibility.  

         12.     The evidence of PWs 5 and 6 clearly established that the  dying declaration was made when the deceased was in a fit  condition to give declaration. It is to be noted that the accident  occurred on 6.4.1997 at about 9.00 a.m. but the deceased  breathed her last on 11.4.1997. The doctor (PW-5) has  categorically stated that the deceased was in a fit condition to  give the statement.  The Judicial Magistrate (PW-6) also stated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

that the deceased was in a fit condition to give the statement  and was able to understand what was being asked and he  answered specifically. In the aforesaid background, it cannot  be said that the dying declaration is not believable.  

13.     Coming to the plea of non applicability of Section 302 IPC  the same is equally without substance. The background in  which the appellant put the deceased on fire clearly indicates  what was her intention as she fully knew that the deceased  would be burnt to death. The deceased sprinkled kerosene all  over her body to scare the appellant but the appellant on the  contrary took the match stick and put the same on the body of  the deceased.  It is crystal clear that the murder was  intentionally committed. Accordingly, the trial Court and the  High Court have rightly held that Section 302 IPC was  applicable.  

14.     The appeal is sans merit and is dismissed.