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REPORTABLE    IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.699 OF 2008

Sharda ....Appellant Versus

State of Rajasthan     ....Respondent  J U D G M E N T

Deepak Verma, J.

1. The  solitary  question  that  arises  for  consideration in this appeal is whether  any one of the  three dying declarations of deceased Sarla, inspires  confidence, to sustain conviction of appellant Sharda,  her  mother-in-law  for  commission  of  offence  under  Section  302  of  the  I.P.C  and  sentence  of  life  imprisonment.  2. Appellant has been found guilty of commission of  offence  under  Section  302  of  the  IPC  and  has  been  awarded  life  imprisonment  by  learned  Additional  District  and  Sessions  Judge,  Dungarpur.  On  D.B.  Criminal Appeal No. 1071/2003 being filed by her in the  High  Court  of  Judicature  for  Rajasthan  at  Jodhpur,

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the same has been dismissed vide order dated 25.7.2007.  Thus Judgment of conviction and sentence awarded by the  Trial court has been affirmed. Hence, this appeal after  grant of leave to the appellant. 3. Thumb-nail sketch of the facts of the case is as  mentioned herein below:-

Vinod  Vyas  was  married  to  Sarla  on  21.1.1991,  almost 8 years prior to the date of occurrence, which  had taken place on 16.8.1999 at the matrimonial home of  the deceased.  4. According to the prosecution story, for past two- three  years,  relations  between  deceased  Sarla,  her  husband-Vinod and appellant-Sharda were strained. They  used to demand dowry from her which she was not able to  accede to.  On 16.8.1999, deceased Sarla was alleged to  have been set on fire by her mother-in-law while she  was cooking food on a kerosene stove as a result of  which she had sustained 90% burn injuries.  She was  immediately rushed to General Hospital, Sagwara. 5. On  getting  the  aforementioned  information  on  16.8.1999, P.W-22 Kishore Singh posted as ASI at the  Police Station Sagwara rushed to the General Hospital.

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He reached there at about 9 O’clock at night.  In the  presence  of  PW-31  Dr.  Gokul  Prajapati,  her  first  statement Exh. D-3 was recorded. 6. As per this first statement, Sarla disclosed that  while cooking meals for the family, she pumped in air  in the kerosene stove, which got inflamed thereby pallu  of her  saree caught fire.  Thus she sustained burn  injuries on her person.  She further stated that no one  had  deliberately  or  intentionally  put  her  on  fire.  Exh.  D.3  is  her  first  statement  recorded  at  the  hospital, in presence of P.W-31 Dr. Gokul Prajapati,  who had put his signatures on the same along with P.W- 22  Kishore Singh.     Thumb impression of deceased was  also taken on it.  7. P.W-20  -Ranjit  Singh  was  posted  as  S.I  at  the  Police  Station,  Varda  on  the  date  of  incident  i.e.  16.8.1999.  On receiving the information that Sarla has  sustained  burn  injuries  in  her  matrimonial  home,  he  went  to  the  hospital  where  Sarla  was  admitted.  However, before going to the hospital, he contacted SDM  in his house, so that he could also be taken there for  the purpose of recording her statement but was informed

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by SDM that he was not well, thus would not be in a  position to go with him. 8.   P.W-20  Ranjit  Singh,  after  reaching  hospital  recorded  another  statement  of  deceased  Sarla  on  the  said date marked as Exh P-3.  In the said statement,  she reiterated that she had sustained burn injuries,  while she was trying to extinguish burning stove, after  cooking meals, which got inflamed and her Saree caught  fire.  Exh. P-3 bears signatures of Dr. Ravindra Mehta  (not examined by prosecution),  P.W-2 Ganesh Lal and  P.W-20  Ranjit  Singh  besides  the  thumb  impression  of  deceased Sarla. This was her second statement in point  of time recorded in the Hospital. 9. Since the condition of Sarla had deteriorated, she  was referred to Civil Hospital, Ahmedabad.  She was  accordingly taken there for better treatment. However,  she died at Ahmedabad on 19.08.1999.  10. P.W-3  Purushottam,  cousin  of  the  deceased  had  submitted an application on 19.8.1999, on behalf of her  grand-father PW-2 Ganeshlal to the Dy. Superintendent  of Police, Sagwara stating that on the night of Monday,  16.8.1999 Sarla had been set on fire by her husband

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Vinod  and  mother-in-law  Sharda.  This  set  the  investigating agency into motion in registering a case  against them initially under Section 498-A and 307/34  of the IPC. 11.  As  per  prosecution,  before  her  death,  one  more  dying declaration was recorded by P.W-23 Suresh Chandra  Dixit, Executive Magistrate, Ahmedabad, marked as Exh.  P-18. This is in question - answer form.  In the said  last statement, for the first time, she alleged that  kerosene was poured on her by her mother-in-law, the  present appellant Sharda and she was set on fire by  lighting a match-stick.  She suffered burn injuries on  account of her mother-in-law. When she cried for help,  her father-in-law came downstairs and along with other  neighbours,  tried  to  extinguish  the  fire.   She  was  carried to hospital by her father-in-law for treatment.  Thus, this would be her third statement at the Hospital  at Ahmedabad.   12. As mentioned hereinabove, initially on the report  being  filed  at  the  instance  of  P.W-2  Ganesh  Lal,  offence  was  registered  against  Sharda  under  Section  498-A, 307/34 IPC and against her husband Vinod and

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four other relatives only under Section 498-A of the  IPC.  However, after her death, charge sheet was filed  against  appellant  under  Section  302  of  the  IPC  and  against  others  under  Section  498-A/34  of  the  IPC.  Obviously, after her death, all the three statements of  the deceased Sarla, Exh. D-3,  Ex. P-3 and  Exh. P-18  would be treated as her dying declarations. 13.   To bring home the charges levelled against the  accused,  prosecution  has  examined,  in  all,  31  witnesses.  In defence, no witness was examined by the  appellant.  On appreciation of evidence available on  record,  as  mentioned  hereinabove,  the  trial  court  recorded the  finding of ‘not guilty’ against other  accused including husband of the deceased and they were  acquitted but appellant was found guilty of commission  of offence under Section 302 of the IPC and was awarded  life imprisonment. The appeal preferred by her in the  High Court was dismissed by Division Bench.  Hence,  this appeal.  14. It has neither been disputed before us nor was  disputed in appeal in the High Court that deceased had  met with her death on account of 90% burn injuries

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sustained  in  matrimonial  home.   This  even  otherwise  stands  proved  from  her  post-mortem  Report  Exh.  P-22  and evidence of P.W-30 Dr. Ashwini Sanghvi,  who had  performed post-mortem on her body and has opined that  her death was due to Septecimia and shock on account of  extensive external burn injuries sustained by her.   15.  Now, the question that arises for consideration is  whether the present appellant Sharda, mother-in-law of  deceased Sarla was the perpetrator of the crime or it  was an accidental death.   16.  We have already mentioned hereinabove that there  are,  in  all,  three  dying  declarations  -  Exh.D-3,  is  first in point of time, Exh P.3, is second in point of  time and Exh. P.18, is the third and last in point of  time recorded by Executive Magistrate,  Ahmedabad.  17.  Since the case revolves around the three dying  declarations  of  deceased  Sarla,  it  is  really  not  necessary to critically examine other evidence as no  charge  was  levelled  against  this  appellant  under  Section 498-A IPC and the said charge was not found  proved against other co-accused.   18.  In the light of this, we are not dealing with

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other  prosecution  witnesses  who  have  deposed  either  with regard to demand of dowry or harassment of the  deceased by the appellant for the same as the same is  not germane to the facts of this case.  19.   However,  we  would  start  with  the  first  dying  declaration of deceased Sarla recorded at 9.00 p.m on  16.8.1999 by P.W-22 Kishore Singh.  It was recorded in  presence of P.W-31 Dr. Prajapati.   20.  Even though PW-31 was examined by the prosecution  to  prove  Exh.  D-3,  but  surprisingly  neither  the  trial court nor the High Court cared to go through his  evidence and to discuss the same at all.  Thus, it is  necessary for us to discuss the same in detail.   21. Dr. Prajapati has deposed that on 16.8.1999, he  was posted as Surgeon in Deen Dayal Upadhyay Hospital.  That day Sarla w/o Vinod Vyas resident of Tamtiya, P.S.  Varda, was admitted in the hospital on account of burn  injuries sustained by her.  She had given her statement  which was recorded in his presence, marked as D-3.  The  same bears his signature and thumb impression of Sarla. 22. In  his  cross-examination,  he  has  categorically  deposed  that  during  the  time  her  statement  was

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recorded, she was mentally alert and was in a condition  to get her statement recorded. He has further admitted  that the said statement was not recorded under pressure  from anyone and was given on her own free will and  accord.  He has further clarified that in Exh. D-3, her  first  dying  declaration,  she  had  stated  that  while  cooking food, on Primus stove, she pumped air which  inflamed the same, her clothes accordingly caught fire  and she sustained burn injuries.  She further stated  that no one had set her on fire.   23. Thus, his cross-examination fully establishes that  she  had  sustained  burn  injuries  on  her  own  while  cooking food and has not fastened liability on anyone  else much less on the present appellant.   24. To further corroborate Exh. D-3, the evidence of  PW-22 Kishore Singh is on record.  He has categorically  deposed the manner in which statement of deceased was  recorded in Exh. D-3.  He has also deposed that at that  time P.W.31 Dr. Gokul Prajapati was also present who  certified  her  to  be  in  mentally  fit  and  proper  condition to get the same recorded.  From the aforesaid  evidence,  it  is  crystal  clear  that  the  first  dying

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declaration of deceased Ex.D-3 stood fully corroborated  from the evidence of P.W-22 and P.W-31. 25. Now, we shall take up her second dying declaration  recorded by P.W-20 Ranjit Singh marked P-3 on 16.8.1999.  Critical  examination  of  the  same  also  shows   that  deceased  had  stated  that  after  cooking  meals  in  the  evening she was trying to extinguish the stove, but it  got inflamed and her nylon  saree  caught fire.  No one  had put her to fire and no one should be blamed for it.  Perusal of the same would show that these two statements  are consistent and have been made by her, before being  tutored by anyone. 26. Now,  we  shall  deal  with  Exh.  P-18,  her  last  statement recorded at Ahmedabad in presence of P.W-23  Suresh  Chand  Dixit,  Executive  Magistrate.   We  have  critically gone through the same. We have also examined  the  reasons  assigned  by  Trial  Court  and  High  Court  while  treating  this  dying  declaration,  Exh  P-18,  as  wholly trustworthy.  No doubt, it is true that the same  is  in   question  -  answer  form  but  perusal  of  the  original record clearly shows that it has many over- writings and some dates have been scored out to put new

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dates.  This itself creates a doubt in mind with regard  to correctness and veracity thereof.   It is also to be  noted that this was recorded on 19.8.1999 whereas two  earlier statements Exh. D-3 and Exh. P-3 were recorded  on  16.8.1999  in  quick  succession,  soon  after  the  incident.   27. Thus,  the  question  still  arises  whether  any  weightage can be given to Exh.P-18 which was recorded  in presence of the Executive Magistrate or it has to be  completely given a go-by so as to give more credence to  Exh. D-3 and P-3 her earlier statements recorded by the  police in presence of doctors. 28. It is pertinent to mention here that Exh. P-3 has  also been signed by P.W-19 Raman Lal, father of the  deceased.  Surprisingly,   while putting his signatures  on the dying declaration of the deceased, his daughter,  he had not raised any objection that it was not the  statement given by deceased.  He kept quiet.  When he  was confronted with his signatures on it at the time of  his  cross-examination,  he  gave  an  explanation  that  since many papers were being signed at the time of  discharge, he signed it without knowing the contents

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thereof.  Apparently, this appears to be a false and  baseless explanation, which at this point of time is  certainly not acceptable and would amount to an after- thought.  No prudent man would put his signatures on  any document without going through the same.   Thus, it  is clear that if the complainant had any grievance with  regard to foul-play having been played by the accused  then obviously, he would have brought it to the notice  of the police immediately.  Not having done so, speaks  volumes on the conduct of the complainant party. 29. There is yet another factor which would completely  discredit the last dying declaration Exh. P-18.  For  the first time, a written complaint was sent by the  cousin  of  deceased  to  the  Deputy  Superintendent  of  Police only on 19.8.1999.  This would go to show that  between  16.8.1999  to  19.8.1999,  until  her  third  and  last  dying  declaration  was  recorded,  they  never  suspected that she has been burnt by her mother-in-law,  the present appellant. Their silence during this period  is indicative of the fact that they were also under the  impression  that  deceased  had  caught  fire  only  by  accident  and  it  was  not  her  mother-in-law  who  was

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perpetrator of the crime. 30. Cumulative  effect  of  the  aforesaid  leads  to  an  irresistible  conclusion  that  Exh.  P-18  is  not  sufficient to hold the appellant guilty of commission  of offence under Section 302 of the IPC.  It neither  inspires  confidence  nor  is  wholly  trustworthy  to  sustain the conviction of the appellant.  It was an  after-thought  and  has  been  got  prepared  after  the  deceased appears to have been tutored to say so by her  parents. In the light of this, it has to be completely  ignored which we accordingly do so.   31. In other words, we place greater reliance on Exh.  D-3, and Exh. P-3, her two earlier dying declarations  which  are  not  only  consistent  but  also  inspire  confidence.   32. In  the  case  in  hand,  the  conviction  of  the  appellant is based on the last dying declaration Exh.P- 18, said to have been recorded in presence of Executive  Magistrate.  The principle on which dying declarations  are admitted in evidence is indicated in legal maxim:  

“Nemo moriturus proesumitur mentiri – a man  will not meet his Maker with a lie in his mouth.”

33. It is indicative of the fact that a man who is on

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a death bed would not tell a lie to falsely implicate  an  innocent  person.   This  is  the  reason  in  law  to  accept the veracity of her statement.  It is for this  reason, the requirements of oath and cross-examination  are dispensed with.   Besides, if the dying declaration  is to be completely excluded in a given case, it may  even amount to miscarriage of justice as the victim  alone being the eye-witness in a serious crime, the  exclusion  of  the  statement  would  leave  the  court  without a scrap of evidence.   34. Though  a  dying  declaration  is  entitled  and  is  still recognized by law to be given greater weightage  but it has also to be kept in mind that accused had no  chance  of  cross-examination.  Such  a  right  of  cross- examination is essential for eliciting the truth as an  obligation of oath.  This is the reason, generally, the  court insists that the dying declaration should be such  which  inspires  full  confidence  of  the  court  of  its  correctness.  The court has to be on guard that such  statement of deceased was not as a result of either  tutoring,  prompting  or  product  of  imagination.   The  court must be further satisfied that deceased was in a

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fit state of mind after a clear opportunity to observe  and  identify  the  assailants.   Once  the  court  is  satisfied that the aforesaid requirement and also to  the  fact  that  declaration  was  true  and  voluntary,  undoubtedly,  it  can  base  its  conviction  without  any  further corroboration.  It is not an absolute rule of  law that the dying declaration cannot form the sole  basis of conviction unless it is corroborated.  The  rule  requiring  corroboration  is  merely  a  rule  of  prudence.   

In  this  regard,  we  may  profitably  quote  the  following  para  from  (1985)  4  SCC  476  titled  State  (Delhi Administration) Vs Laxman Kumar & Ors   :   

“40. We have also come to the conclusion that  the High Court failed to take into account one  material aspect while appreciating the evidence  of the prosecution witnesses.  It is a fact that  Sudha  had  been  burnt  and  according  to  the  medical opinion that was to the extent of 70%.  As the evidence shows, Sudha was in her senses  and was capable of talking at the time when she  was being removed to the hospital or even after  she had been admitted as an indoor patient.  The  two sisters or their respective husbands had no  apprehension that Sudha would not live. In case  Sudha came round, she was to have lived in the  family of her husband.  No one interested in the  welfare  of  Sudha  was,  therefore,  prepared  to  make  a  statement  which  might  prejudice  the  accused  persons  and  lead  to  the  straining  of  relationship in an irreparable way. Therefore,

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the  silence  or  avoidance  to  make  a  true  disclosure about the cause of fire particularly  so  long  as  Sudha  was  alive,  cannot  be  over- emphasised  an  adverse  inference  drawn  by  the  High Court from the conduct of the sisters was  indeed not warranted in the facts of the case.

35.  In the light of the aforesaid discussion, we are  of  the  considered  opinion  that  Exh.  P-18  cannot  be  treated as wholly trustworthy as it is shrouded by many  doubts. On  the other hand, for the reasons recorded  herein above, Exh. D-3 and P-3 are more reliable and  credible.  Going by the same would fully establish that  the deceased had not implicated in the same anyone much  less the appellant.   36. Thus,  we  have  no  doubt  in  our  mind  that  the  impugned judgment and order of conviction passed by the  learned Sessions Judge and confirmed in appeal by the  High Court cannot be sustained in law.  The same are  hereby set aside and quashed.  The appeal is allowed  accordingly.  The appellant is in jail, she would be  released forthwith, if not required in any other case.

.....................J. [AFTAB ALAM]

New Delhi. .....................J. December 15, 2009. [DEEPAK VERMA]