REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2297 of 2009

Lakhan   …Appellant

Versus

State of M.P.        …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and  

order  dated  9.7.2008,  passed  by  High  Court  of  Madhya  

Pradesh,  at  Jabalpur,  in  Criminal  Appeal  No.2304/2000 by  

which the High Court has dismissed the said appeal, affirming  

the judgment and order of the Sessions Judge, Sagar, dated  

31.8.2000 in Sessions Trial  No.180/2000 and convicted the  

appellant under Section 302 of the Indian Penal Code, 1860

(hereinafter  called  “IPC”)  and  sentenced  him  to  life  

imprisonment.   

2. Facts and circumstances giving rise to this case are that  

the appellant got married to Smt. Savita (hereinafter referred  

to  as  “deceased”)  on  22.6.1999.   She  was  brought  to  the  

hospital  by  her  in-laws on 27.2.2000 at  about  7 p.m.  in  a  

burnt  condition.   Dr.  Subhash  Jain  informed  the  Police  

Station,  Gopalganj,  about  the  arrival  of  the  deceased,  Smt.  

Savita, and a police party arrived at the hospital.  The dying  

declaration  was recorded by  the  Executive  Magistrate,  Smt.  

Madhu Nahar  (DW.1),  vide  Exh.D/2,  wherein,  the  deceased  

stated that when she was cooking, kerosene oil had been put  

behind her back, and  when she moved herself back, her Saree  

caught fire. On 29.2.2000, ASI, Damodar Prasad Mahure (PW-

19),  on  the  instructions  of  the  Superintendent  of  Police  

recorded the second dying declaration (Ex.P/2), wherein, the  

deceased  stated  that  appellant  brought  a  kuppi  (a  metallic  

container for lighting)  full  of  kerosene and poured it  on her  

body and as a result of which kerosene oil spread all over her  

body.  Thereafter, the fire was lit by chimney by him and she  

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was burnt.  She also stated that she had been brought to the  

hospital by her in-laws.  After recording the dying declaration  

dated 29.2.2000, ASI Damodar Prasad (PW-19), recorded the  

Dehati  Nalishi  (Ex.P/14),  at  10.40  p.m.  on  its  basis.   The  

kupee, as referred to in the dying declaration, was seized from  

the house of the appellant on 2.3.2000.  

3. Smt. Savita died on 20.3.2000, and thus, there was an  

alteration  of  offences  from 307/201 IPC to  302  IPC.   After  

completing  the  investigation,  charge  sheet  was  filed  against  

the appellant before the court and the case was committed to  

the Court of Sessions where the appellant was tried.  During  

trial, the prosecution examined as many as 19 witnesses and  

in the form of documentary evidence, reliance was placed on  

the  statement  of  Savita,  deceased,  in  the  form  of  dying  

declaration  dated  29.2.2000  (Ex.P/2),  Dehati  Nalishi  

(Ex.P/14),  FIR  (Ex.20),  deposition  of  ASI  (PW-19)  dated  

29.2.2000  and  case  diary  etc.  In  defence,  appellant  placed  

reliance  on  the  statement  of  the  deceased  dated  27.2.2000  

(Ex.D/2),  and  examined  Smt.  Madhu  Nahar  (DW.1).   The  

appellant made a statement under Section 313 of the Code of  

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Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”), that  

he  was,  by  no  means,  involved  in  the  case.   However,  the  

appellant did not explain under what circumstances his wife  

was burnt.  The trial  Court, vide judgment and order dated  

31.8.2000, found the appellant guilty of offence under Section  

302 IPC and accordingly sentenced him to imprisonment for  

life.   

4. Being aggrieved, the appellant preferred Criminal Appeal  

No. 2304 of 2000 before the High Court of Madhya Pradesh, at  

Jabalpur, which has also been dismissed vide judgment and  

order dated 9.7.2008.  Hence, this appeal.

5. Shri Sudhir Kulshreshtha, learned counsel appearing for  

the appellant, has submitted that it is a case of circumstantial  

evidence  as  no  eye-witness  has  been  examined  by  the  

prosecution  in  support  of  its  case.   There  has  been  no  

allegation  of  a  demand of  dowry,  though  the  marriage  had  

taken  place  only  9-10  months  prior  to  the  death  of  the  

deceased,  Savita.   The only allegation against  the  appellant  

had  been  of  harassment,  as  alleged  by  the  parents  of  the  

deceased, who were examined as prosecution witnesses before  

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the trial Court.  There were two dying declarations in the case.  

The first  was recorded by Ms.  Madhu Nahar,  the  Executive  

Magistrate  (DW.1), which should have been accepted in toto,  

without raising any doubt to its veracity as compared to the  

dying declaration, unauthorisedly recorded by Shri Damodar  

Prasad Mahure, the ASI (PW.19), subsequently.  Where there  

are two dying declarations, the first dying declaration recorded  

by the Magistrate should have been relied upon, particularly  

when both the witnesses to the second dying declaration had  

been  declared  hostile.  Therefore,  the  appeal  deserves  to  be  

allowed.   

6. Per contra,  Shri  Siddharth Dave along with Ms.  Vibha  

Datta Makhija, learned counsel for the respondent-State, has  

vehemently opposed the appeal contending that the first dying  

declaration  had  been  recorded  by  the  Executive  Magistrate  

when the deceased, Savita, had been tutored by her in-laws  

who  had  brought  her  to  the  hospital.   At  that  time  the  

deceased  was  under  duress/influence  of  her  in-laws.  

However, there cannot be any doubt regarding contents of the  

second  dying  declaration  recorded  by  the  police  officer,  

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particularly  when it  stands corroborated with other relevant  

evidence. The appeal lacks merit and is liable to be dismissed.  

7. We  have  considered  the  rival  submissions  made  by  

learned counsel for the parties.  Counsel from both the sides  

have canvassed  their submissions solely on the issue as to  

which of the dying declarations should have been relied upon  

by  the  courts  below.   No  other  issue  is  being  agitated.  

Therefore, we restrict ourselves only to examining the limited  

issue  of  which dying  declaration  can be relied  upon in  the  

facts and circumstances of this case.  

8. The doctrine of dying declaration is enshrined in the legal  

maxim “Nemo moriturus praesumitur mentire”, which means “a  

man will not meet his maker with a lie in his mouth”.  The  

doctrine of Dying Declaration is enshrined in Section 32 of the  

Indian  Evidence  Act,  1872  (hereinafter  called  as,  “Evidence  

Act”) as an exception to the general rule contained in Section  

60 of the Evidence Act, which provides that oral evidence in all  

cases must be direct i.e. it must be the evidence of a witness,  

who says he saw it.   The dying declaration is,  in fact,  the  

statement of a person, who cannot be called as witness and,  

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therefore,  cannot  be  cross-examined.  Such  statements  

themselves are relevant facts in certain cases.   

9. This  Court  has  considered  time  and  again  the  

relevance/probative  value  of  dying  declarations  recorded  

under different situations and also in cases where more than  

one dying declaration has been recorded.   The law is that if  

the court is  satisfied that the dying declaration is true and  

made  voluntarily  by  the  deceased,  conviction  can be  based  

solely  on it, without any further corroboration.  It is neither a  

rule of law nor of prudence that a dying declaration cannot be  

relied upon without corroboration.  When a dying declaration  

is  suspicious,  it  should  not  be  relied  upon  without  having  

corroborative evidence.  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  must  be  in  a  fit  state  of  mind  to  make  the  

declaration and must identify the assailants.  Merely because  

a  dying  declaration  does  not  contain  the  details  of  the  

occurrence, it cannot be rejected and in case there is merely a  

brief  statement,  it  is  more  reliable  for  the  reason  that  the  

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shortness of the statement is itself a guarantee of its veracity.  

If the dying declaration suffers from some infirmity, it cannot  

alone form the basis of conviction.  Where the prosecution’s  

version differs from the version given in the dying declaration,  

the said declaration cannot be acted upon. (vide : Kushal Rao  

v. State of Bombay, AIR 1958 SC 22; Rasheed Beg & Ors. v.  

State of Madhya Pradesh, AIR 1974 SC 332; K. R. Reddy &  

Anr. v. The Public Prosecutor, AIR 1976 SC 1994;  State of  

Maharashtra  v.  Krishnamurti  Laxmipati  Naidu,  AIR  1981  

SC 617; Uka Ram v. State of Rajasthan, (2001) 5 SCC 254;  

Babulal & Ors. v. State of M.P., (2003) 12 SCC 490;   Muthu  

Kutty & Anr. v. State, (2005) 9 SCC 113; State of Rajasthan  

v.  Wakteng, AIR  2007  SC  2020;  and  Sharda  v.  State  of  

Rajasthan, (2010) 2 SCC 85].

10. In Munnawar & Ors. v. State of Uttar Pradesh & Ors.  

(2010) 5 SCC 451, this Court held that a dying declaration can  

be relied upon if the deceased remained alive for a long period  

of time after the incident and died after recording of the dying  

declaration.  That may be evidence to show that his condition  

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was  not  overtly  critical  or  precarious  when  the  dying  

declaration was recorded.

11. A dying declaration recorded by a competent Magistrate  

would stand on a much higher footing than the declaration  

recorded  by  officer  of  lower  rank,  for  the  reason  that  the  

competent Magistrate has no axe to grind against the person  

named  in  the  dying  declaration  of  the  victim,  however,  

circumstances  showing  anything  to  the  contrary  should  

not be there in the facts of the case. [ vide Ravi Chander &  

Ors. v. State of Punjab, (1998) 9 SCC 303;  Harjit Kaur v.  

State of Punjab, (1999) 6 SCC 545;  Koli Chunilal Savji &  

Anr. v. State of Gujarat, (1999) 9 SCC 562; and Vikas & Ors.  

v. State of Maharashtra, (2008) 2 SCC 516.]

12. In Balak Ram v. State of U.P.,  AIR 1974 SC 2165, the  

question arose as to whether a dying declaration recorded by a  

higher  officer  can  be  discarded  in  case  of  multiple  dying  

declarations. The Court held as under:-

“The  circumstances  surrounding  the  dying  declaration, though uninspiring, are not strong  enough to justify the view that officers as high  in  the  hierarchy  as  the  Sub-Divisional   Magistrate,  the  Civil  Surgeon  and  the  District   

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Magistrate  hatched  a  conspiracy  to  bring  a  false document into existence. The Civil services  have  no  platform  to  controvert  allegations,   howsoever grave and unfounded. It is therefore,  necessary  that  charges  calculated  to  impair   their  career  and  character  ought  not  to  be  accepted except on the  clearest  proof. We are   not prepared to hold that the dying declaration   is a fabrication.”

13. In  Sayarabano@Sultanabegum  v.  State  of  

Maharashtra, (2007) 12 SCC 562, two Dying Declarations had  

been recorded.  As per the first declaration, the deceased had  

met  with  an  accident.   She  was  hit  by  the  kerosene  lamp  

which fell on her body and caught fire.  While recording the  

second declaration, the Judicial Magistrate asked her why she  

was changing her statement.  The deceased replied that her  

Mother-in-Law had told her not to give any statement against  

the family members of her in-laws and that was the reason,  

why she had not involved any person in the earlier statement.  

But, in fact, it was her Mother-in-Law who threw the kerosene  

lamp on her and thus, she was burnt.  She also stated that  

her Mother-in-Law was harassing her.   In such a situation,  

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this Court held that the second dying declaration was true and  

inspired confidence.  Ill  

treatment  of  the  decreased  was  clearly  established  and  

completely  proved  on  the  basis  of  the  evidence  of  other  

witnesses.

14. In  case,  there  are  inconsistent  dying  declarations,  the  

Court must rely upon any other evidence, if available, as it is  

not  safe  to  act  only  on inconsistent  dying  declarations  and  

convict the accused.  [Vide  Lella Srinivasa Rao v. State of  

A.P., (2004) 9 SCC 713].

15. In Sher Singh & Anr. v. State of Punjab, AIR 2008 SC  

1426, a case of bride burning, three dying declarations had  

been recorded.  In the first dying declaration, the decreased  

had denied the role of the accused persons.    In second dying  

declaration deceased attributed a role to the accused but the  

said declaration did not contain the Certificate of the Doctor  

that  the  deceased  was  in  a  fit  state  of  mind  to  make  a  

declaration,  however,  the  Magistrate,  who  recorded  the  

declaration,  certified  that  the  deceased  was  in  a  conscious  

state of mind and was in a position to make the statement to  

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him.   The third dying declaration was recorded by a police  

officer after the Doctor certified that she was in a fit state of  

mind  to  give  the  statement.   This  Court  held  that  the  

conviction could be based on the third dying declaration as it  

was consistent with the second dying declaration and the oral  

dying  declaration  made  to  her  uncle,  though  with  some  

inconsistencies.  First declaration was made immediately after  

she was admitted in the hospital and was under threat and  

duress by her Mother-in-Law that she would be admitted in  

hospital only if  she would give a statement in favour of the  

accused persons.  

16. In Paras Yadav & Ors. Vs. State of Bihar (1999) 2 SCC  

126, this Court held that a statement of the deceased recorded  

by a police officer in a routine manner as a complaint and not  

as a dying declaration can also be treated as dying declaration  

after the death of the injured and relied upon if the evidence of  

the  prosecution  witnesses  clearly  establishes  that  the  

deceased was conscious and was in a fit  state  of  health to  

make the statement.   

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17. In  Chairman & Managing  Director,  V.S.P.  & Ors.  v.  

Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 468, this  

Court, placing reliance upon the earlier Judgment in Kundula  

Bala Subrahmanyam & Anr. v.  State of  Andhra Pradesh,  

(1993) 2 SCC 684, held that it  is not the plurality of dying  

declarations  but  the  reality  thereto  that  aids  weight  to  the  

prosecution’s  case.   If  a  dying  declaration  is  found  to  be  

voluntary, reliable and made in a fit mental condition, it can  

be relied upon without any corroboration.   If  there  is  more  

than one dying declaration, they should be consistent.  In case  

of  inconsistencies  between  two  or  more  dying  declarations  

made by the deceased, the Court has to examine the nature of  

inconsistencies namely, whether they are material or not and  

in such a situation, the Court has to examine the multiple  

dying declarations in the light of the various surrounding  

facts and circumstances.

18. In Heeralal v. State of Madhya Pradesh, (2009) 12 SCC  

671,  this  Court  considered  the  case  having  two  dying  

declarations, the first recorded by a Magistrate, wherein it was  

clearly stated that the deceased had tried to set herself ablaze  

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by  pouring  kerosene  on  herself.   However,  the  subsequent  

declaration was recorded by another Magistrate and a contrary  

statement was made.  This Court set aside the conviction after  

appreciating the evidence and reaching the conclusion that the  

courts  below came to  abrupt  conclusions  on  the  purported  

possibility  that  the  relatives  of  the  accused  might  have  

compelled the deceased to give a false dying declaration.  No  

material  had  been  brought  on  record  to  justify  such  a  

conclusion.   

19. In State of Andhra Pradesh v. P. Khaja Hussain, (2009)  

15 SCC 120, this Court set aside the conviction as there was a  

variation  between  the  two  dying  declarations  about  the  

manner  in  which the  deceased was set  on fire  and for  the  

reason  that  there  was  no  other  evidence  to  connect  the  

accused with the crime.   

20. In  view  of  the  above,  the  law  on  the  issue  of  dying  

declaration can be summarized to the effect that in case, the  

Court comes to the conclusion that the dying declaration is  

true and reliable,  has been recorded by a person at a time  

when the deceased was fit physically and mentally to make the  

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declaration  and  it  has  not  been  made  under  any  

tutoring/duress/prompting;  it  can  be  the  sole  basis  for  

recording conviction. In such an eventuality no corroboration  

is required.  In case, there are multiple dying declarations and  

there are inconsistencies between them, generally, the dying  

declaration recorded by the higher officer like a Magistrate can  

be relied upon, provided that there is no circumstance giving  

rise to any suspicion about its truthfulness.  In case, there are  

circumstances  wherein  the  declaration  had been made,  not  

voluntarily  and  even  otherwise,  it  is  not  supported  by  the  

other  evidence,  the  Court  has  to  scrutinize  the  facts  of  an  

individual case very carefully and take a decision as to which  

of the declarations is worth reliance.   

21. The case at hand requires to be examined in the light of  

the aforesaid settled legal propositions in this regard.  In the  

instant case, the first dying declaration reads as under:-

“I  was  cooking  and  kerosene  was  put  behind, I did not see to it.  When I turned  back on my knee, my sari caught fire”  

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However, the deceased has further stated that she was  

brought to the hospital by her Father-in-Law and Mother-in-

Law.   The  declaration  was  recorded  by  the  Executive  

Magistrate after getting a certificate from the Doctor that the  

deceased was in a fit physical and mental condition to give the  

statement.   

22. The  second  dying  declaration  was  recorded  by  Shri  

Damodar  Prasad  Mahure,  Assistant  Sub-Inspector  of  Police  

(PW.19).  He was directed by the Superintendent of Police on  

telephone to record the statement of the deceased, who had  

been admitted in  the hospital.   In that  statement,  she  had  

stated as under :-

“On Sunday, in the morning, at about 5.30  AM,  my  husband  Lakhan  poured  the  kerosene oil from a container on my head  as a result  of  which kerosene oil spread  over my entire body and that he (Lakhan)   put  my  Sari  a  fire  with  the  help  of  a  Chimney, due to which I got burnt.”

She had also deposed that she had written a letter to her  

parents  requesting  them to  fetch  her  from the  matrimonial  

home as her husband and in-laws were harassing her.

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The said dying declaration was recorded after getting a  

Certificate  from  the  Doctor  stating  that  she  was  in  a  fit  

physical and mental condition to give the statement.   

23. As  per  the  Injury  Report  and  the  medical  evidence  it  

remains fully proved that the deceased had the injuries on the  

upper part of her body.  The Doctor, who had examined her at  

the time of admission in hospital, deposed that she had burn  

injuries on her head, face,  chest,  neck, back, abdomen, left  

arm, hand, right arm, part of buttock and some part of both  

the  thighs.   The deceased was 65% burnt.   At  the  time  of  

admission, the smell of kerosene was coming from her body.   

24. After appreciating the evidence on record the High Court  

observed  as under :-

“It is a matter of common knowledge that   if a person would move back and his/her  body  comes  in  contact  of  some  burning  object,  on the  front side of  the  body i.e.   chest,  abdominal  region,  face  etc.  would  not  burn.   In  the  first  dying declaration,   the deceased has said that while moving  back, her Sari caught fire.  We have also   gone through the reasonings assigned by  learned Sessions Judge in para 17 of the   judgment and we find the reasons to be  quite cogent.”  

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25. Undoubtedly,  the  first  dying  declaration  had  been  

recorded  by  the  Executive  Magistrate,  Smt.  Madhu  Nahar  

(DW.1), immediately, after admission of the deceased, Savita,  

in the hospital and the Doctor had certified that she was in a  

fit condition of health to make the declaration.  However, as  

she had been brought to the hospital  by her Father-in-Law  

and Mother-in-Law and the medical report does not support  

her first dying declaration, the trial Court and the High Court  

have  rightly  discarded  the  same.   Even  before  us,  Shri  

Kulshreshtha,  learned  counsel  appearing  for  the  appellant,  

has not been able to explain under what circumstances in the  

accident  case  as  disclosed  by  the  deceased  in  her  first  

declaration,  the deceased could get the injuries only on the  

upper part of the body and smell of kerosene was coming from  

her  body.  The  second  dying  declaration  fully  stands  

corroborated not only by the medical evidence but oral dying  

declarations made by the deceased to her parents, i.e. Phool  

Singh (PW.1) and Sushila (PW.3) who were examined in the  

court.  

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26. Sh. Damodar Prasad Mahure, ASI, (PW.19), in his cross-

examination,  has  explained  that  he  was  not  aware  of  the  

factum  of  recording  of  the  first  Dying  Declaration  of  the  

deceased on 27.02.2000.  Therefore, there was no reason for  

him to ask the deceased about the same.  More so, it is evident  

that  Dr.  Umesh  Kumar  Shastri  certified  the  mental  and  

physical condition of the deceased at the time of recording of  

the second Dying Declaration, while at the time of recording of  

the first Dying Declaration, Dr. Subhash Jain (PW13) certified  

the  mental  and  physical  condition  of  the  deceased.  

Undoubtedly, the witnesses of the second Dying Declaration  

namely,  Premchand  Jain  (PW9)  and  Sanjay  (PW18)  turned  

hostile  and did  not  support  the  prosecution  case,  however,  

they have admitted their signatures on the Dying Declaration  

and  could  not  give  any  explanation  as  to  why  they  had  

attested the said Declaration.  Thus, in view of the above, the  

second Dying Declaration cannot be held to be a fabrication.   

27.  In the instant case, the deceased Savita was brought to  

the hospital by her Mother-in-Law and Father-in-Law and she  

was under their influence.  The Trial Court is right in making  

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an observation that generally, most women do not accuse their  

husbands for sentimental and religious reasons.   

28. Thus,  in  view  of  the  above,  we  reach  the  following  

inescapable conclusions on the questions of fact :-

(a) After  having  the  burn  injuries,  Savita,  deceased,  

was brought  to  the  hospital  by  her  Father-in-Law and  

Mother-in-Law  and  they  had  tutored  not  to  give  any  

statement against her family members.   

(b) The  first  Dying  Declaration  was  recorded  by  the  

Executive  Magistrate,  Smt.  Madhu Nahar  (DW.1),  after  

getting a Certificate from the Doctor, in which Savita did  

not make allegation against any of her family members,  

rather, she said that it was an accident.  However, such a  

statement is not supported by the medical evidence for  

the reason that the injuries on her body were found on  

the upper part  of  her body and it  was not possible  to  

have such burn injuries in case of the kind of accident as  

she had disclosed in the first Declaration.   

(c) The  second  Dying  Declaration  was  recorded  by  a  

Police Officer on the instruction of the Superintendent of  

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Police  after  getting  a  Certificate  of  fitness  from  the  

Doctor,  which is  corroborated  by  the  medical  evidence  

and free from any suspicious circumstances.  More so, it  

stands corroborated by the oral declaration made by the  

deceased to her parents, Phool Singh (PW.1), father and  

Sushila (PW3), mother.    

(d) A  kuppi,  the  container,  was  recovered  by  the  

Investigating Officer from the house of the appellant.   

(e) Savita,  deceased,  died on 20.03.2000,  after  about  

21 days  of  recording  of  the  second Dying  Declaration.  

Thus,  it  is  evident  that  she  was  not  in  a  precarious  

condition or unable to make the statement, rather this  

fact suggests that she was in a stable condition.   

(f) There is nothing on record to show for what reason,  

the witnesses would depose falsely against the appellant.  

29. In view of the above, we are of the view that in the facts  

and circumstances of this case, the concurrent findings of fact  

recorded by the Courts below do not warrant any interference  

from this Court.  The appeal lacks merit and is accordingly  

dismissed.           

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…………………………….J.        (P.  

SATHASIVAM)

……………………..… …..J.

(Dr. B.S. CHAUHAN)

New Delhi, August 9, 2010

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