REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    473        OF 2009 (Arising out of SLP (Crl.) No.8631 of 2008)

Heeralal ….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 a Division Bench of the

Madhya Pradesh High Court  at  Jabalpur upholding the conviction  of  the

appellant  for  offence  punishable  under  Section  302  of  the  Indian  Penal

Code, 1860(in short the ‘IPC’).

3. The background facts in a nutshell are as follows:

Prema  Bai  (hereinafter  referred  to  as  the  ‘deceased’)  died  on

18.7.1992 in District Hospital, Chhatarpur. The appellant is the husband of

the deceased.

Relationship  of  the  deceased  was  not  cordial  with  the  appellant

because she was not beautiful. Beside that her brother-in-law attempted to

commit rape on her and a Panchayat was convened by the deceased. The

father-in-law and uncle-in-law of accused executed an agreement Exhibit

(P-4) and assured that no such incident shall occur in future. Consequently,

the deceased on 18-6-1992 came back to her husband house. On 19-6-1992,

a quarrel took place between the appellant and the deceased. Consequently,

the appellant sprinkled kerosene oil on the deceased and set her ablaze. On

20-6-1992,  deceased  was  taken  to  Londhi  hospital  wherefrom  she  was

referred to District Hospital, Chhatarpur, where she died on 18-7-1992. FIR

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was lodged. The dying declaration of deceased was recorded, investigation

was triggered off and after completion of investigation, the appellant was

charge sheeted. The case was committed to the court of Sessions for trial.

The appellant abjured the guilt and pleaded innocence.  His defence is

that he brought the deceased in burnt condition to the hospital, along with

his parents and uncle for treatment.  He was apprehended by the police at

the hospital.  The deceased got burnt during cooking meals, Hemwati Bai

came  to  her  working  place  and  informed  regarding  the  incident.   The

witnesses are lying to take revenge of previous grudge.

The  prosecution  examined  seven  witnesses  while  the  accused

appellant  examined eight  witnesses in defence.  After  hearing the parties

and on consideration of the evidence and material on record, the trial court

convicted the appellant  for  offence punishable under Section 302 IPC as

noted above.  Aggrieved by the judgment of  conviction and sentence, an

appeal was filed before the High Court  where the primary stand was that

there was a lot of difference in the statements made.  There are two dying

declarations  (Exh.D4  and  Exh.D3).   Therefore  the  trial  court  was  not

justified in holding the appellant guilty.  The stand of the State on the other

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hand before the High Court was that the first Dying Declaration (Exh.D4)

was a result of pressure and therefore the same has been rightly discarded.

The High Court upheld the contention of the State and dismissed the appeal.

4. The stand taken before the High Court was reiterated.   

5. Undisputedly,  in  the  first  dying  declaration  recorded  by  a  Nayab

Tehsildar, it has been clearly stated that she tried to set herself ablaze by

pouring kerosene on herself, but in the subsequent declaration, recorded by

the another Nayab Tehsildar, a contrary statement was made.  It appears that

one dying declaration earlier was made before the Doctor.  The trial court

referred to the evidence of Dr. Chaturvedi who stated that the deceased was

admitted on bed No.8, but the father of the deceased stated that her daughter

was admitted on some other bed number.  

6. The trial court and the High Court came to abrupt conclusions on the

purported possibility that the relatives of the accused may have compelled

the deceased to give a false dying declaration.  No material was brought on

record to justify such a conclusion. The evidence of the Nayab Tehsildar

who recorded Exh.D4 was examined as PW8. His statement was clear to the

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effect that nobody else was present when he was recording the statement.

That  being  so,  in  view  of  the  apparent  discrepancies  in  the  two  dying

declarations it would be unsafe to convict the appellant.

7. The conviction is set aside.  The appeal is allowed.  Let the appellant

be released from custody forthwith unless he is required to be in custody in

connection with any other case.

………………………………J. (Dr. ARIJIT PASAYAT)

…………………………………J. (ASHOK KUMAR GANGULY)

New Delhi, March 16, 2009

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