“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1818 OF 2009

Puran Chand … Appellant

Versus

State of Haryana … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. The  judgment  of  the  High  Court  confirming  the  conviction  and  

sentence for the offences under Section 302 read with Section 34, Indian  

Penal Code is in challenge in this appeal.   Originally,  there were three  

accused persons, namely, Gurdial (accused No.1), Puran Chand (accused  

No.2),  the present  appellant  and Rajo  Devi  (accused No.3).   However,  

accused No.3, Rajo Devi was acquitted by the High Court and accused  

No.1, Gurdial has not chosen to file an appeal.  It is only Puran Chand  

(accused No.2) who is in appeal before us.  

2. Gurdial got married to one Santosh on 08.12.1997.  According to the  

prosecution,  she  was  harassed  for  dowry  just  after  one  week  of  the  

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marriage and was set to fire on the fateful day i.e. on 15.12.1997 by as  

many as three accused persons, they being, Gurdial, her husband, Puran  

Chand,  her  elder  brother-in-law  and  Rajo  Devi,  the  paternal  aunt  of  

accused No.1, Gurdial.   The incident took place at about 4 a.m. in the  

morning.  According to the prosecution, accused No.1 and accused No.2  

sprinkled Kerosene Oil  and in this conspiracy even Rajo Devi (accused  

No.3) was a party.  All this was done on account of the less dowry received  

in the marriage which had taken place hardly a week earlier to the incident.  

Santosh  was  taken  to  the  General  Hospital,  Sector-13,  Chandigarh  by  

Pawan Kumar, PW-4 and ultimately she breathed her last in the evening  

on the same day.  It was found that she had suffered 90 per cent of burns  

but before that her dying declaration was got recorded by PW-13, Shri A.K.  

Bishnoi.   According  to  the  prosecution,  before  recording  this  dying  

declaration, an opinion was taken about her fitness by Dr. Siri Niwas, PW-

14.  The said dying declaration is Ex.P.F/3 and the medical certificate is  

Ex.P.F/5.  Fourteen  witnesses  were  examined  at  the  trial  including  her  

relations, investigating team, Magistrate and the Doctor.  The Trial Court  

convicted  all  the  three  accused  persons.  However,  the  High  Court  

acquitted  Rajo  Devi,  giving  her  the  benefit  of  doubt  and  that  is  how  

accused  No.2,  Puran  Chand  has  come  up  before  us  challenging  his  

conviction.

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3. The defence was that of denial and it was stated to be an accident.  

It was also stated by the present appellant that he was staying separate  

from his brother Gurdial and had unnecessarily been implicated.  Three  

defence witnesses were also examined.

4. The defence did not prevail and that is how accused No.2 is before  

us.

5. The  main  thrust  of  the  argument  of  the  Learned  Counsel  was  

against the dying declaration.  It  was claimed that the dying declaration  

was tutored one. Learned Counsel earnestly argued that there were some  

intrinsic  defects  in  the  dying  declaration  which  militated  against  its  

credibility.  It was pointed out that, firstly, the name of Puran Chand, the  

present appellant was not to be found in the dying declaration and there  

was a mere reference to the  Jeth (elder brother of the husband).  It was  

suggested by the Learned Counsel that there was one more brother of  

accused No.1, Gurdial and it was not certain as to whether the deceased  

referred  to  accused No.2,  Puran  Chand.   It  was  then  pointed  out  that  

Santosh, the deceased had suffered 90 per cent of burns and, therefore, it  

was not possible that she would be in her senses while making the dying  

declaration.   Lastly,  it  was pointed out  that  there was  no Kerosene Oil  

residues found on the clothes which were seized. It was also suggested  

further that the evidence of Mohan Lal (PW-5), Chand Kiran (PW-10) and  

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Mam Chand (PW-8), who claimed that an oral dying declaration was made  

to them, was also not reliable in view of the evidence of PW-4, Pawan  

Kumar who had stated that no such oral dying declaration was made by  

Santosh.     

6. We will first examine the claim regarding the oral dying declaration.  

It has come in the evidence that after Santosh got burnt, she was reached  

to the Yamuna Nagar Hospital.  The information of the burning was given  

by PW-4, Pawan Kumar to PW-5, Mohan Lal in the morning itself on which  

both went to the Hospital.  According to Mohan Lal (PW-5), he was told  

orally by Santosh that she was burnt by the two accused persons while  

accused No.3, Rajo Devi held her hands.  The Trial Court has disbelieved  

this part of the evidence of Mohan Lal (PW-5) about the participation of  

accused No.3, Rajo Devi.  However, the rest of the testimony about the  

participation of  accused No.1, Gurdial  and accused No.2, Puran Chand  

has been believed by the Trial Court.  It is to be noted that at the time she  

made oral dying declaration, she did not merely refer to Puran Chand as  

Jeth but had specifically taken his name.   

7. We have closely examined the evidence of PW-5, Mohan Lal.  The  

evidence of  Mohan Lal  (PW-5)  has  been corroborated  by Mam Chand  

(PW-8) who is another witness who was present at the time of seizure of  

material  objects  at  the spot,  which,  according to  him,  were  smelling of  

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kerosene.   This  witness  has  not  stated  anything  about  any  dying  

declaration  in  his  examination-in-chief  but,  strangely  enough,  it  was  

brought in his cross-examination by the defence that he reached the Post  

Graduate Institute at about 3 p.m.  He also referred to a dialogue between  

Chand Kiran and Santosh wherein Santosh told her father that she was  

burnt by her brother-in-law and her husband.  This witness has referred to  

the active advice having been given by her Phupha Saas, meaning sister  

of her father-in-law.  He also asserted that Gurdial and Puran Chand were  

not  present  at  the Post  Graduate Institute at  that  time.   It  is  extremely  

strange that such material things should have been brought on record in  

cross-examination.   

8. The last witness in this line is Chand Kiran (PW-10), the father of  

Santosh who had spoken about the oral dying declaration made to him by  

Santosh involving all the three accused persons.  He had also referred to  

the evidence of Mam Chand, who was the brother-in-law and had claimed  

that his daughter told him that she was burnt by her husband Gurdial and  

her  Jeth, Puran Chand at the instance of Rajo Devi.  Nothing has been  

brought in the cross-examination of this witness.  The evidence of these  

three  witnesses  is  complimentary  to  each  other  and,  thus,  is  more  

acceptable  in  comparison  to  the  evidence  of  Pawan  Kumar  (PW-4).  

Ordinarily, though the oral dying declaration is an extremely weak type of  

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evidence, it would not be unnatural for a burnt woman, to confide in her  

near relations like her cousin, Mohan Lal (PW-5), father Chand Kiran (PW-

1) and Mam Chand (PW-8) who is also a near relation.  Santosh would  

rather be keen to express herself regarding the cause of her death.  Had  

the prosecution relied only on the oral dying declaration, things could have  

been different.  However, there is a dying declaration, Ex. P.F/3, which is  

recorded  by  a  Judicial  Magistrate,  First  class  and  that  will  have  to  be  

critically examined in this case.

9. Learned counsel appearing on behalf of the defence, firstly, pointed  

out that the written dying declaration did not mention accused No.2 by his  

name.  Even accused No.3, Rajo Devi was referred as ‘Bua’.  It was also  

pleaded that there was another brother named Chandiram and, therefore,  

the benefit of doubt, on account of this, must go to accused No.2, Puran  

Chand.   The evidence  of  Dr.  Satbir  Singh  (PW-9),  who  was  the  post-

mortem doctor and who examined Santosh, has referred to superficial to  

deep burns on various parts of her body.  He has also asserted that the  

superficial to deep burns were about 90 per cent and they were sufficient  

to cause her death in the ordinary course of nature.  However,  Dr.  Siri  

Niwas (PW-14),  was  the most  material  witness who examined Santosh  

and had given a certificate that Santosh was in a fit mental state to give the  

statement.  He had also endorsed at the end of the dying declaration that  

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she  was  conscious  and  was  in  the  fit  state  of  mind  while  giving  her  

statement.   He  has  been  cross-examined  in  details  without  any  

breakthrough.  Therefore, it cannot be said that Santosh was not in a fit  

state of mind while making her statement.  

10. What impresses us most about the dying declaration is that, firstly, it  

has been recorded by an independent witness like Shri A.K. Bishnoi who  

was working as a Judicial Magistrate, First Class, and secondly, before it  

commenced,  the  Magistrate  had  satisfied  himself  about  the  ability  of  

Santosh to make a dying declaration.  There is an endorsement obtained  

of Dr. Siri Niwas.  The said dying declaration is in the question & answer  

form  and  we  do  not  see  any  suggestive  questions  having  been  put  

excepting question No.4 which is to the effect “is anyone else responsible  

for this incident?”.  However, it must be said that this question was more  

with an idea to seek more information which could have been legitimately  

put.  This is apart from the fact that the Courts below ultimately gave the  

benefit of doubt to accused No.3, Rajo Devi.  What impresses us is that in  

the dying declaration, Santosh specifically exonerated her mother-in-law  

and  the  father-in-law  by  saying  that  they  treated  her  well.   A  feeble  

argument was raised that the accused was a Tailor, yet,  his occupation  

was stated to be a Teacher by Santosh.  There is a simple explanation that  

usually a tailor is called Tailor Master.  It may be that the same expression  

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might have been used by Santosh. Even elsewhere in the record of this  

case such expression seems to have been used.  The confusion might  

have been created because of the use of the word “master”.  Even at the  

end of the dying declaration, a further endorsement was made by Dr. Siri  

Niwas certifying that, firstly, the witness was conscious all through the time  

when her statement was being recorded and, secondly, that no relatives of  

her  were  present  at  that  time,  which  was  also  countersigned  by  the  

Magistrate  who recorded the statement.  At  the instance of  the defence  

counsel, we have ourselves seen the original dying declaration as also the  

First  Information Report  based on the same.  In our opinion,  the dying  

declaration was not only voluntary but truthful also and, hence, it could be  

relied upon as was done by the Trial Court and the Appellate Court.   

11. The Courts below have to be extremely careful when they deal with  

a dying declaration as the maker thereof  is not  available for the cross-

examination  which  poses  a  great  difficulty  to  the  accused  person.   A  

mechanical approach in relying upon a dying declaration just because it is  

there  is  extremely  dangerous.  The  Court  has  to  examine  a  dying  

declaration scrupulously with a microscopic eye to find out whether the  

dying declaration is voluntary, truthful, made in a conscious state of mind  

and  without  being  influenced  by  the  relatives  present  or  by  the  

investigating agency who may be interested in the success of investigation  

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or which may be negligent while recording the dying declaration.  Number  

of times, a young girl or a wife who makes the dying declaration could be  

under the impression that she would lead a peaceful, congenial, happy and  

blissful married life only with her husband and, therefore, has tendency to  

implicate  the  inconvenient  parents-in-law  or  other  relatives.  Number  of  

times the relatives influence the investigating agency and bring about a  

dying declaration.   The dying declarations recorded by the investigating  

agencies  have  to  be  very  scrupulously  examined  and  the  Court  must  

remain alive to all the attendant circumstances at the time when the dying  

declaration  comes  into  being.   When  there  are  more  than  one  dying  

declarations,  the  intrinsic  contradictions  in  those  dying  declarations  are  

extremely important.  It cannot be that a dying declaration which supports  

the prosecution alone can be accepted while the other innocuous dying  

declarations have to be rejected.  Such trend will be extremely dangerous.  

However,  the  Courts  below  are  fully  entitled  to  act  on  the  dying  

declarations  and  make  them  the  basis  of  conviction,  where  the  dying  

declarations pass all the above tests.   

12. Again,  it  is  extremely difficult  to reject  a dying declaration merely  

because there are few factual errors committed.  The Court has to weigh  

all  the  attendant  circumstances  and  come  to  the  independent  finding  

whether the dying declaration was properly recorded and whether it was  

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voluntary  and  truthful.   Once  the  Court  is  convinced  that  the  dying  

declaration is so recorded, it may be acted upon and can be made a basis  

of conviction. The Courts must bear in mind that each criminal trial is an  

individual aspect.  It may differ from the other trials in some or the other  

respect  and,  therefore,  a  mechanical  approach  to  the  law  of  dying  

declaration has to be shunned.  We have tested the dying declaration with  

all these factors in mind and we are satisfied that even the Trial Court and  

the  Appellate  Court  have  fully  satisfied  themselves  in  respect  of  the  

acceptability of this dying declaration.  

13. The law is now well settled that a dying declaration which has been  

found to be voluntary and truthful and which is free from any doubts can be  

the sole basis for convicting the accused.  This Court in  Sham Shankar  

Kankaria v. State of Maharashtra [(2006) 13 SCC 165] has taken stock  

of  the following  cases where  the principles governing dying declaration  

have been laid down:

i) Paniben v. State of Gujarat [(1992) 2 SCC 474;

ii) Munnu Raja v. State of M.P. [(1976) 3 SCC 104;

iii) State of U.P. v. Ram Sagar Yadav [1985] 1 SCC 552;

iv) Ramawati Devi v. State of Bihar [(1983) 1 SCC 211

v) K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC  

618]

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vi) Rasheed Beg v. State of M.P. [(1974) 4 SCC 264;

vii) Kake Singh v. State of M.P. [(1981) supp. SCC 25;

viii) Ram Manorath v. State of U.P. [(1981) 2 SCC 654;

ix) State of Maharashtra vs. Krishnamurti Laxmipati Naidu [(1980)  

Supp. SCC 455;

x) Surajdeo Ojha v. State of Bihar [(1980) Supp SCC 769]

xi) Nanhau Ram v. State of M.P. [(1988) Supp. SCC 152

xii) State of U.P. v. Madan Mohan [(1989) 3 SCC 390;

xiii) Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1  

SCC 700]

In para 12 of the abovesaid judgment, this Court has held that dying  

declaration is the only piece of untested evidence and must like any other  

evidence, satisfy the court that what is stated therein is the unalloyed truth  

and  that  it  is  absolutely  safe  to  act  upon  it.   This  Court  has  further  

reiterated that if after careful scrutiny the court is satisfied that it is true and  

free from any effort to induce the deceased to make a false statement and  

if it is coherent and consistent, there shall be no legal impediment to make  

it a basis of conviction, even if there is no corroboration.  In that behalf, this  

Court has referred the reported cases of Gangotri Singh v. State of U.P.   

[(1993)  Supp  (1)  SCC  327];  Goverdhan  Raoji  Ghyare  v.  State  of  

Maharashtra  [(1993)  Supp  (4)  SCC  316];  Meesala  Ramakrishan  v.  

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State of A.P. [(1994) 4 SCC 182];  and  State of Rajasthan v. Kishore  

[(1996) 8 SCC 217].  We are in respectful agreement with the law laid  

down  and  would  hasten  to  add  that  in  the  present  case  the  dying  

declaration of Santosh passes all the tests referred to by us above.   

14. Lastly, a point was raised by the learned defence counsel that on the  

half  burnt  clothes  of  Santosh,  there  were  no  traces  of  kerosene  and,  

therefore, the whole story of burning her by pouring kerosene on her body  

has to be disbelieved.  It is to be seen that the seizure of these clothes was  

proved by Mam Chand (PW-8).  He spoke about the seizure of an empty  

can, smelling of kerosene oil, a match box with 4 or 5 burn match sticks, a  

quilted  bed (probably  meaning  ‘mattress’),  smelling  of  kerosene from it  

which was semi burnt and some sample of soil.  According to him, they  

were  packed in  the  parcels  separately  and sealed.   On this  backdrop,  

when the recovery memo is seen, it mentions one empty tin box, match  

box, two burnt match sticks, earth which was put in plastic Dibbi,  clothing  

of the deceased Santosh of light blue colour, bed sheet (Bichhona) with  

marks  of  fresh  burns.   The  witness,  however,  has  not  referred  in  his  

Examination-in-Chief  to  the  cloth  parcel  (Exhibit  4)  with  some  partially  

burnt pieces of clothes.  The FSL report suggests that kerosene residues  

were detected in Exhibit 5, which was a plastic bag containing a partially  

burnt coloured check cotton  gadda,  It clearly suggests that no kerosene  

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residues could be detected on Exhibits 1,  2,  3,  4 or 6.   From this,  the  

learned counsel urged that particularly, the parcel Nos. 1, 3 and 4 were  

bound to  carry  kerosene  residues  if  the  prosecution  story  was  truthful.  

However, it is to be seen that the mattress did have kerosene residues.  

While this incident has taken place on 15.12.1997, parcels seems to have  

been sent  only  on 29.12.1997  i.e.  after  about  14  days of  the incident,  

which reached the FSL Laboratory on 31.12.1997.  The FSL report bears a  

date  5.6.1998.   There  is  thus  the  possibility  of  the  articles  losing  the  

kerosene residues due to the long interval of time, yet it has to be noted  

that  the  mattress  which  undoubtedly  a  thick  material,  did  have  the  

kerosene  residues.   Ordinarily,  there  was  no  reason  for  the  mattress  

having the kerosene residues unless kerosene was poured on the same.  

It is again to be noted that even the plastic container, containing kerosene,  

was  also  found  not  having  any  kerosene  traces.   Therefore,  this  

circumstance will  not  help  the accused as some kerosene traces have  

been found on the mattress where  Santosh was  sleeping.   Even if  we  

ignore this circumstance, the fact of the matter is that the dying declaration  

has been found by us to be voluntarily  truthful and unblemished.   That  

would clinch the issue against the accused.

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15. The appreciation by the Trial Court and the Appellate Court on the  

overall circumstances and their finding of conviction is correct.  The appeal  

has no merits and it deserves to be dismissed.  It is accordingly dismissed.

………………………………….J. [V.S. Sirpurkar]

..……………………………….J. [Dr. Mukundakam Sharma]

New Delhi; May 13, 2010.  

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