REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  564       OF 2009 (Arising out of SLP (Crl.) No.9194 of 2008)  

Gopal    ..Appellant

Versus

State of M.P.   ..Respondent

J U D G M E N T

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  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 Gopal was arraigned in

the charge sheet as A1.

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 Amol Singh (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 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 accused persons had sprinkled kerosene over her

body and set her ablaze.  According to her, A2 was enraged by her act of

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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 appellant.  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 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.

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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 been 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 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

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convicted  and  sentenced  as  afore-stated.   Both  of  them preferred

separate appeals before the High Court.

5. Before the High Court, the  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 declarations,  the  extent  of

variance  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.

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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 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 night was not in conformity  with the

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FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram

(PW 8) 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 they 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.  

11. The appeal is allowed.

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

         …………..…..........................J.

        (ASOK KUMAR GANGULY) New Delhi, March 27, 2009

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