http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: KISHAN LAL

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       17/08/1999

BENCH: K.T.Thomas, A.P.Misra

JUDGMENT:

A.P. MISRA, J.

     The  appellant,  Kishan Lal, husband of deceased  Smt. Sulochana has filed this appeal against his conviction under Section  302  read with Section 34 of the Indian Penal  Code (hereinafter referred to as I.P.C.)

     The  High  Court convicted the appellant on an  appeal filed  by the State against an order of acquittal passed  by the  Additional  Sessions Judge.  The brief facts  are  that Smt.   Sulochana,  according  to the prosecution  case,  was sleeping  on  the  intervening night between 11th  and  12th September,  1976  with  the  mother of the  appellant  on  a separate  cot when she was burnt by sprinkling kerosene  oil on  her chest.  She was shifted to the hospital at Pilibanga at 2.00 a.m.  Doctor of the hospital sent information to SHO Police Station Lekhuwali on which investigation started.  At 4.30  a.m.   police recorded the statement of the  deceased. The  statement recorded by the police was not brought on the record  by  the prosecution.  She was initially  treated  at Pilibanga   hospital  and  was   later  shifted  to  Bikaner Hospital.   While  in  the hospital on the  17th  September, 1976,  Smt.  Sulochana gave birth to a macerated male child. On 28th October, 1976 skin grafting was done on her.

     The  case  of  the complainant is that  deceased  Smt. Sulochana has given an oral dying declaration to her father, grandmother  and uncle that she was burnt by the  appellant, his  mother,  father  and brother.  On 11th  November,  1976 complaint  was  made  by  the father of  the  deceased  Smt. Sulochana  that  her  daughter  was burnt and  on  his  said complaint   a   dying  declaration   was  recorded  by   the Magistrate.

     On  the  15th  of November, 1976 all of a  sudden  the condition  of  Smt.  Sulochana deteriorated and she died  in the evening.  On the basis of the above complaint dated 11th November, 1976 a case was registered against the accused and investigation  was started.  The police after  investigation could   not  find  any   sustainable  evidence  against  the appellant   and  other  family   members  mentioned  in  the complaint, hence submitted final report.

     Thereafter,  a  complaint  was filed  by  Chandu  Lal, father  of  the  deceased  before   the  Court  of  Judicial Magistrate  First  Class in which he referred to  one  dying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

declaration  dated 6th November, 1976 made to him, his wife, grand-mother  and  other  relatives  apart  from  one  dated 11.11.1976  before  a  Magistrate.  It  also  mentions  oral extra-judicial  confession alleged to have been made by  the appellant in a Panchayat.  Though complaint was made against four  persons, namely, the appellant, his mother Poora,  his father  Banwari  Lal  and his brother Om  Prakash,  but  the Magistrate  took  cognizance only against the appellant  and his  mother Smt.  Poora under Section 302 read with  Section 34, I.P.C.

     During  trial, complainant produced 11 witnesses which included  PW.10  Murarilal, Munsif and  Judicial  Magistrate (who  recorded  the  statement of Smt.   Sulochana  on  11th November,  1976)  and  PW.11 Dr.  Sharad  Chand  Kalla  (who conducted  the  post-mortem  examination on  16th  November, 1976).   It is significant to note that the complainant  did not  examine either the Investigating Officer or called  for police  record  which contained the earliest version of  the deceased,  which is said to have been recorded at 4.30  a.m. on  the 12th September, 1976 itself in which police  finally submitted final report.

     The   complainant  relied  strongly   on   two   dying declarations,  one oral declaration, as aforesaid, dated 6th November, 1976 and the other 11th November, 1976 recorded by a Judicial Magistrate and extra judicial confessions made by the appellant before Panchayat on two different occasions.

     To  a  question  raised for the appellant,  when  Smt. Sulochana  was  admitted  in  the   hospital  on  the   12th September, 1976 why it is only on 6th November, 1976 for the first  time  oral dying declaration is alleged to have  been made  by her to her father, grand mother and uncle etc.  The answer  given  is that she remained unconscious during  this period.   The trial court disbelieved this fact on the basis of  the  hospitals  bed head ticket Ex.D.11.   It  held,  it reveals  that  she was not unconscious for all  this  period rather  she was conscious from time to time and had regained consciousness.

     Dealing  with  the oral dying declaration,  the  trial court  held that the three witnesses had stated differently. This creates doubt.  To one she stated that she saw one lady and  three  gents  before she became  unconscious.   To  the second,  she  stated that she became unconscious  on  seeing herself on fire and before the third witness she stated that she  was sleeping and when she woke up all the four  accused set  fire  to her clothes.  For all these reasons the  trial court  disbelieved this story and consequently the case that appellant  Kishan Lal poured kerosene oil on her and set her on  fire.  The trial court also rejected the  extra-judicial confession as alleged by the complainant by disbelieving the statement  of  witnesses  in its support and held  them  not trustworthy.  Thus trial court acquitted both, the appellant and his mother Smt.  Poora.  After acquittal, though earlier the  police  filed final report referring the case  and  the trial  proceeded only on a private complaint the State filed an  appeal  against this acquittal both against the  present appellant  and his mother Smt.  Poora.  The complainant  did not file any appeal.  Before dealing with how the High Court dealt  with this case it is necessary to refer to some basic facts.

     The  marriage  of  deceased Smt.  Sulochana  with  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

appellant  was  held on 17th July, 1975.  There  arose  some dispute  between  her  father Chandu Lal and father  of  the appellant  Banwari  Lal  regarding the amount  paid  in  the marriage.   The  prosecution  case  is  that  the  appellant (Kishan Lal), her mother in law (Smt.  Poora), her father in law  (Shri  Banwari  Lal) and brother in  law  (Om  Prakash) continuously  pressurised Smt.  Sulochana to bring Rs.5100/- from  her  father.  On the 12th of September, 1976  she  was given beating by her husband.  He took all her ornaments and threatened her that she would be killed.  After midnight, at about  1  a.m.   when Smt.  Sulochna was sleeping  with  her mother-in-law-Poora  the accused persons poured kerosene oil on her and set her on fire.

     The High Court with reference to the dying declaration dated 11th November, 1976 before a Magistrate held;  though in  the said statement she did not name the appellant or any accused  persons  but  the tenor of  her  statement  clearly reveals  that she indirectly named her husband and mother in law as the persons who took part in her burning.

     With   reference   to  the   alleged   earlier   dying declaration   dated  6.11.1976  made   before  her   father, grand-mother,  uncle  and  other relatives, the  High  Court believed the statement of Chandu Lal PW.1, Shri Ram PW.3 and Mst.   Sajna PW.6 viz.  the father, uncle and grandmother of the   deceased.   The  High   Court  further  accepted   the extra-judicial  confession  by believing the  statements  of Chandu  Lal PW.1, Ganesh Dutt PW.2, Shri Ram PW.3 Khubi  Ram PW.4  and Hans Raj PW.5.  The High Court recorded that these witnesses  have stated before the Panchayat that in the  one held in Rai Singh Nagar School, the appellant, Smt.  Poora - the  mother, Banwari Lal - the father, admitted their  guilt and sought for forgiveness.  The findings of the trial court thus  were  set aside with reference to this  extra-judicial confession.   Though  the  High Court recorded  that  P.W.1, P.W.3, P.W.4 and P.W.5 were brothers learned judges believed this  extra-judicial confessions on the basis of  deposition of  Ganesh  Dutt  PW.2 who was Pujari of the family  of  the deceased  father.   The High Court further recorded even  if the  extra-judicial  confession was ignored the evidence  of dying  declaration leads to the irresistible conclusion that appellant was the person who burnt Smt.  Sulochana.

     It  is necessary to point out that during the pendency of  the  said  appeal before the High  Court,  accused  Smt. Poora,  the  mother of the appellant died.  Hence  the  case against  her abated.  Aggrieved by this judgment of the High Court  which  set  aside  the judgement  of  acquittal,  the present  appeal  has  been  filed  by  the  appellant.   The judgement  of  High Court reveals that conviction by  it  is based  on  two  dying  declarations and  the  alleged  extra judicial confession.

     We  have heard learned counsel for the parties.   With reference to the dying declaration dated 11th November, 1976 made  before  the Magistrate, it is not in dispute that  the deceased  did not name any accused including the  appellant. It is also not in dispute that at this point of time she was fully  conscious  and gave statement before the  Magistrate. The   relevant  portion  recorded   therein  is   reproduced hereunder :-

     Then  I  felt  falling of the drops.  I  got  up  and started running and at that time I got fire.  At the time of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

getting  fire  I saw one lady and two/three  gents  standing there.   This incident took place in the house of my in-laws at  Pilibanga.   On  specific questions being  put  by  the Magistrate  as to who were those persons, she could not name any.   This  part  of  her   statement  is  also  reproduced hereunder :-

     Who  were the persons:  Due to the fire darkness came in  my eyes, I became unconscious and fell down and I  could not recognise the lady and the gents standing there.

     This  dying  declaration does not in any way help  the prosecution.   When admittedly at this point of time she was fully  conscious,  still  she  could not  name  any  of  the accused.   She states she could not recognise any because of fire  darkness  coming in her eyes.  This dying  declaration could  in no way be said to implicate the appellant.  If  at all,   it  runs  counter  to   the  alleged  earlier   dying declaration.   The other oral dying declaration is dated 6th November, 1976, which is said to have been deposed by her to her  father PW.1, her uncle PW.3 and grandmother PW.5.   The High  Court seems to have taken great strain to believe  the deposition  of  these  witnesses.   We  have  examined   the testimony   of   these  witnesses.     There   are   serious discrepancies  in  their  testimony with reference  to  this dying declaration, apart from the fact that they are closely related  to  the  deceased being father,  grand  mother  and uncle.   They made different statements with respect to  the same  declaration made by her to them.  The trial court  has in  detail  rightly recorded such discrepancies and did  not believe  the  story  of this other oral  dying  declaration. Further it is significant that the oral dying declaration is said   to  have  been  made   five  days  before  the  dying declaration  made  to the Magistrate.  It is  incredible  to note   that   according  to   the  complaint  she   regained consciousness on the 6th of November, 1976 and when she gave the first oral dying declaration, she named accused therein. But  in the second dying declaration dated 11th of November, 1976  made  before a Magistrate she did not name any of  the accused  even  on  specific  question  being  asked  by  the Magistrate.

     Examining  these  two dying declarations, we find  not only  that  they gave two conflicting versions but there  is inter  se discrepancies in the depositions of the  witnesses given  in  support  of  the other  dying  declaration  dated 6.11.1976.   Finally,  in  the dying  declaration  before  a Magistrate  on which possibly more reliance could have  been placed  the deceased did not name any of the accused.  Thus, we  have  no  hesitation  to   hold  that  these  two  dying declarations  do not bring home the guilt of the  appellant. High  Court,  therefore, erred in placing reliance on it  by erroneously evaluating them.

     Now  we proceed to examine the principle of evaluation of  any dying declaration.  There is distinction between the evaluation  of  dying declaration under the English Law  and that  under the Indian Law.  Under the English Law, credence and the relevancy of a dying declaration is only when person making such statement is in hopeless condition and expecting an  imminent  death.   So  under the  English  Law  for  its admissibility,  the  declarant  should have been  in  actual danger  of death at the time when they are made, and that he should  have  had a full apprehension of his danger and  the death  should  have ensued.  Under the Indian Law the  dying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

declaration  is relevant whether the person who makes it was or  was  not  under  expectation of death  at  the  time  of declaration.   Dying  declaration is admissible not only  in the  case  of homicide but also in civil suits.   Under  the English Law, the admissibility rests on the principle that a sense  of impending death produces in a mans mind the  same feeling  as  that of a conscientious and virtuous man  under oath.   The  general  principle  on which  this  species  of evidence  are 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   only  the  truth.   If evidence  in a case reveals that declarant has reached  this state while making declaration then within the sphere of the Indian  Law,  while  testing the credibility of  such  dying declaration  weightage can be given.  Of course depending on other relevant facts and circumstances of case.

     The  incident is said to have taken place on the night of  11th and 12th September, 1976.  She died on the 15th  of November,  1976  and  post-mortem   was  conducted  on  16th November,  1976.  In other words the date of post-mortem  is more than two months after the alleged incidence of burning. In  this light we proceed to examine the post- mortem report and the deposition of doctor Mr.  Sharad Chand Kala P.W.11.

     In  the post-mortem report we find the doctor recorded that all her organs to be healthy, namely, skull, brain, the spinal  cord,  ribs,  larynx, trachea, lungs,  heart,  lever spleen and kidney, etc.  The cause of the death according to the  doctor is syncope which is attributable to heart.  This report  does  not record even deep burns on the body of  the deceased.   Thus  on its basis no inference could  be  drawn that  she died on account of the alleged burn injuries.   In his deposition this doctor, Kala P.W.  11, deposed;

     The  superficial burns of the patient had been cured. There  were wounds of deep burn which I had not recorded  in the post-mortem.

     This  is  the  state of medical evidence,  which  only records, the superficial burns which has been cured and does not  record  any  deep burn.  On the basis of  this  medical evidence  how  could  any inference be drawn that  cause  of death  after  more  than  two months of  the  incidence  was because  of  the  burn  injuries.   This  coupled  with  the evidence  during this period, she gave birth to a dead child and  on  her  person  a skin grafting was  done.   For  this additional reason also no reliance can be placed on the said two dying declarations.

     In   the   present  case,  as  aforesaid   the   dying declaration  was after two months of the alleged  incidence. It  was  not  at  a time when  the  deceased  was  expecting imminent  death.  Neither the post-mortem nor deposition  of doctor  carry any definite inference that the cause of death was  on account of burning.  There is a conflict between two dying  declarations, in one there is inter se  inconsistency as revealed in the depositions of witnesses, in the other no naming  of  any accused, when made before a Magistrate.   On such  an  evidence  trial court rightly declined to  base  a conviction.   The  High  Court committed manifest  error  in placing reliance on it.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

     So  far as the extra-judicial confession is  concerned it  is  said  that  the  same was made  by  the  accused  at Panchayat  on two occasions.  First Panchayat is alleged  to have  taken  place  at Chak 22 P.S.  and the  other  in  the school  at Raisinghnagar.  The fathers testimony in  cross- examination  when  confronted with his statement  in  Ex.D.2 (made  by  him during the enquiry made under Section 202  of the  Code of Criminal Procedure) wherein he did not name any of  the  accused persons, he made the usual answer that  the name  might  not have been recorded by mistake.  But in  the alleged  second  Panchayat,  the names of  large  number  of persons  were referred to as to have confessed their  guilt, including  the  appellant.   It includes even the  names  of those  who  are not even accused.  It is alleged  that  they sought  for the pardon of the local leaders for this  guilt. We find even in this alleged confession, there is no mention that  the  accused had burnt the deceased  Smt.   Sulochana. The alleged confession by large number of persons is more in a  general and vague term.  Before a confession is relied on it  must  be  clear  and unequivocal, whether  it  is  in  a judicial or in an extra judicial confession.

     On  the facts discussed above we have no hesitation to hold  that  reliance should not have been placed on  the  so called confessions.  The trial court rightly rejected it but unfortunately the High Court very casually accepted it which cannot be sustained.

     Further  the  present case is a complaint  case.   The complainant  has  not  attempted  to  bring  on  record  the earliest  version of the deceased which is said to have been recorded  by  police at 4.30 a.m.  on the date  of  incident itself.   The prosecution has not examined the Investigating Officer.   Prosecution has not thus proved the guilt of  the appellant  by  any cogent evidence.  In this background,  we hold  that the High Court has committed an error by  setting aside  the  acquittal  of the appellant and  convicting  him under  Section 302 I.P.C.  The finding recorded by the trial court   were   based  on   proper  evaluation   and   proper appreciation of evidence on record.

     Accordingly,  the  present appeal of the appellant  is allowed.  His conviction and sentence under section 302 read with  section 34 IPC are set aside.  We restore the order of acquittal.   If  the accused is in jail he shall be  set  at liberty unless required in connection with some other case.