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                                          REPORTABLE                 IN THE SUPREME COURT OF INDIA

            CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 898 OF 2008          (Arising out of S.L.P. (Crl.) No.7721 of 2007)

Amol Singh                                       ....Appellant

                           Versus

State of M.P.                                   ....Respondent

                        JUDGMENT

DR. ARIJIT PASAYAT, J.

1.   Leave granted.

2.   Challenge in this appeal is to the judgment of the

    Division Bench of the Madhya Pradesh High Court at

    Jabalpur upholding the conviction and sentence of the

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    appellant for the offence punishable under Section 302

    read with Section 34 of the Indian Penal Code, 1860 (in

    short the ‘IPC’) and sentence of imprisonment for life and

    fine of Rs.2,000/- with default stipulation.     Appellant

    Amol Singh was arraigned in the charge sheet as A2.

3.   Prosecution version as unfolded during trial is as follows:

    Saraswati Bai-deceased was a woman of questionable

character. After being deserted by her husband Motilal, she

developed illicit relationship with A2 who ultimately kept her

as mistress. At the relevant point of time, she was residing in

Tapariya (hut) at village Bichhua.

    On 17th March, 1992 at about 8.00 p.m. hearing screams

of Saraswati Bai, persons residing in the neighbourhood viz.

Rajesh Gupta (PW6), Santosh Gudda (PW2), Mukundi Lal

(PW4), Kaliram (PW5), Chhindami Lal (PW3), and Chandra

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Bhushan rushed towards her hut.         In the transit, some of

them had seen A1 running away. They found Saraswati Bai

lying in a severely burnt condition in the courtyard of the hut.

On being enquired, she revealed that both the appellants had

sprinkled kerosene over her body and set her ablaze.

According to her, A2 was enraged by her act of taking land

belonging to his adversary Raju Seth for cultivation as

Bataidar (crop-sharer).

    It was upon the report (Ex. P-1) lodged by Kotwar

Prahlad Singh (PW1) and ASI Balram (PW8) registered a case

under Section 307 read with Section 34 IPC against the

appellants. He along with Prahlad proceeded to the spot and

recorded   Saraswati’s    dying   declaration   (Ex.P-3)   in   the

presence of Chhidami Lal (PW3), Kaliram (PW5), Babulal and

Chandra Bhushan.

    Saraswati Bai was immediately taken to the Government

Hospital at Gadarwara.      Observing that her condition was

serious, Dr. B.P. Gupta (PW11) not only admitted her for

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treatment but also sent a memo (Ex.P-13) to the SHO

requiring him to take necessary action to get dying declaration

recorded.   Naib Tahsildar and Executive Magistrate R.K.

Dimole (PW9), after obtaining necessary certificate as to fit

state of her mind, recorded Saraswati Bai’s dying declaration

between 4.35 a.m. and 4.50 a.m. thereafter, at 9.10 a.m.,

Saraswati Bai breathed her last in the hospital. Accordingly,

the case was altered to one under Section 302 IPC.

    After inquest proceedings, dead body of Saraswati Bai

was sent for post-mortem, Dr. D.S. Choudhary (PW7) found

that body of Saraswati Bai, who was carrying more than 3

months pregnancy, had burnt to the extent of 89%. According

to him, the cause of Saraswati Bai’s death was shock due to

extensive burns. However, he preserved the remaining pieces

of burnt saree and blouse, earrings, nathni, Bangles and

bunch of scalp hair for forensic examination.

    During investigation, burnt pieces of saree and blouse,

one kupiya (Container) of kerosene, a matchbox, one pair of

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shoes belonging to A2, a lathi and a broken mala (necklace)

were seized from the spot; the appellants were apprehended

and a burn injury was also found by Dr. R.K Patel (PW10) on

the right forearm of A2.

4.   Two accused persons faced trial for offence punishable

    under Section 302 IPC and in alternative under Section

    302 read with Section 34 IPC, as they abjured the guilt.

    To prove the accusations prosecution examined 11

    witnesses.     On consideration of the evidence, the trial

    court found the accused persons guilty of death of the

    deceased in furtherance of their common intention.

    Accordingly, they were convicted and sentenced as

    aforestated.    Both of them preferred separate appeals

    before the High Court.

5.   Before the High Court primary stand was to the

    acceptability of the dying declaration.   The High Court

    rejected the plea and held that though there were more

    than one dying declaration, the extent of variance

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    between the two was insignificant. It was noted that the

    dying declarations were consistent in substance as to the

    complexity of the accused persons causing burn injury to

    the person of the deceased and, therefore, there was no

    infirmity in the judgment of the trial court to warrant

    interference. Accordingly the appeals were dismissed.

6.   In support of the appeal learned counsel for the

    appellant submitted that there was great variance in the

    so called dying declarations, which affected credibility of

    the evidence.

7.   Learned counsel for the respondent-State on the other

    hand submitted that minor variance in the dying

    declarations have no relevance.

8.   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

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    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 scruitinizing the contents of

    various dying declaration, in such a situation, the court

    has to examine the same in the light of the various

    surrounding facts and circumstances.

9.   It is to be noted that the High Court had itself observed

    that the dying declaration (Exh.P11) scribed by the

    Executive Officer, (PW9) at about 0435 hours in the same

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     night was not in conformity with the FIR and the earlier

     dying declaration (Exh.P3) scribed by ASI Balram (PW 8)

     in so far as different motives have been described. That is

     not the only variation. Several other discrepancies, even

     as regards the manner in which she is supposed to have

     been sprinkled with kerosene and thereafter set on fire.

10.   Therefore, the discrepancies, make the last declaration

doubtful. The nature of the inconsistencies is such that there

are certainly material. That being so, it would be unsafe to

convict the appellant. The conviction is set aside and

appellant is acquitted of the charges.            He be set at liberty

forthwith unless required to be in custody in connection with

any other case.

                                          ..................................J.                                            (Dr. ARIJIT PASAYAT)

                                                 ......       ............................J.                                            (P. SATHASIVAM)

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New Delhi, May 15, 2008

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