Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 537 OF 2003                 

State of Punjab Rep. through Secretary ..Appellant

Versus

Raj Kumar and Ors. ... Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

Bench  of  the  Punjab  and  Haryana  High  Court  directing

acquittal  of  the respondents  who had faced trial  for  alleged

commission  of  offence  punishable  under  Section  302  read

with Section 34 of the Indian Penal Code, 1860 (in short the

‘IPC’). Each was sentenced to undergo RI for life and to pay a

fine of Rs.1,000/- each with default stipulation.

2. Background  facts  as  projected  by  prosecution  in  a

nutshell are as follows:

Sunita  (hereinafter  referred  to  as  the  ‘deceased’)  had

been married to accused-Raj Kumar about 1½ year prior to

the occurrence and a son had been born to the couple though

he had died some time later. Relationship between the parties

was strained on  account of the demands being made by Raj

Kumar, as also by his parents. Ram Piari and Piara Singh and

as Sunita and her parents had not been able to satisfy their

demands, the three accused had maltreated her. Chaman Lal

(PW.7), one of the brothers of the deceased had an unpleasant

exchange with Ram Piari on account of her behaviour with his

sister and this act had further incensed the accused. Around

midnight on March 12, 1996, Ram Piari sprinkled kerosene oil

on Sunita  and set  her  on fire.  The  alarm raised  by  Sunita

attracted  her  husband's  brother  and  his  wife  and  she  was

immediately  removed  to  the  Guru  Nanak  Dev  Hospital,

Amritsar  by  them.  ASI,  Harjinder  Singh  (PW.8)  of  Police

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Station Sadar,  Amritsar  also  reached the hospital  and after

ascertaining  Sunita's  fitness  to  make  a  statement  from Dr.

Sanjiv Kumar (PW.9) recorded the same (Exh. PM/2) at about

10.20 A.M. on March 13, 1996  and on its basis  the FIR was

registered at the Police  Station at 10.45 a.m. ASI  Harjinder

Singh also made an application to the Deputy Commissioner

for getting  Sunita's statement recorded by a Magistrate. Naib-

Tehsildar  Lakhbir  Slngh  Kahlon  (PW.6)  was  accordingly

deputed to do the needful.  He too went to the hospital and

after  getting  the  opinion  of  Dr.  Kulwar  Singh  (PW.4)  that

Sunita was fit to make a statement recorded the same (Exh.

PL) at 6.00 PM on March 13, 1996. Sunita died on March 14,

1996.  On  the  completion  of  the  investigation,  the  accused

were  charged  for  offence  punishable  under  Section  302/34

IPC and as they pleaded not guilty, were brought to trial.

Prosecution  examined  witnesses  to  establish  the

accusations. Primarily reference was made to the evidence of

PWs 5 and 7 (Ashok Kumar and Chaman Lal respectively) to

whom she had made oral dying declarations about 10.30 a.m.

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on March 13, 1996. Lakhbir Singh (PW-6) had recorded the

dying declaration. Similarly, Harjinder Singh, ASI (PW-8) the

Investigating  Officer  had  recorded  the  dying  declaration

(Exh.PM/2) and Dr. Sanjiv Kumar (PW-9)  had opined  that

the deceased  was in a fit condition to make  statement which

had been recorded  by PWs 6 and 8. Appellant No.1 pleaded

alibi. He further stated that he had taken the deceased to the

hospital in injured condition. Two witnesses were examined to

prove the aforesaid stands. The trial Court observed that the

dying declaration (Exh.PL and PM/2) made to ASI Harjinder

Singh and Lakhbir Singh clearly proved the prosecution case

beyond doubt. It also observed that it appears that last three

lines  of  the  statement  Exh.PM/2  excluded  Raj  Kumar  and

Piara  Singh  from  any  wrong  doing.  It  was  clear  from  the

subsequent statement (Ex.PL) that she had reiterated the facts

already  mentioned  in  the  earlier  statement  (Exh.PM/2)  and

again  there  was  manipulation  in  the  statement  Exh.PM/2).

The trial Court relied on oral dying declaration made to PWs 5

and 7 at 10.30 a.m. on 13.5.1996. Referring to the evidence of

the doctor and PW-8 it was observed that the deceased was in

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a  conscious  and  fit  state  of  mind  to  make  the  dying

declaration. Referring to the fact that the FIR had been lodged

promptly, conviction was recorded.  

Conviction was challenged before the High Court. It was

the  stand of  the  appellants  (respondents  herein)  that  dying

declaration  (Ex.PL)  in  which  manipulations  were  done  had

been recorded after deliberation between the deceased and her

brothers PWs 5 and 7.  

The State supported the judgment of the trial Court.  

The  High Court  observed  that as an after  thought  the

deceased might have added that her mother-in-law set fire on

her and her father-in-law was present in the house, though in

dying declaration (Ex.PL) the deceased had clearly inculpated

all  the  accused  persons  in  the  actual  incidence.  The  High

Court accepted the stand of the accused persons that the last

three lines in the dying declaration (Exh.PM/2) appear to have

been  interpolated.   It  was  however  noted  that  though  the

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mother-in-law had been stated  to have  set  her on fire,  but

there was no reference whatsoever to the other two accused

persons.  The High Court held that in case of eye-witnesses,

there can be dissection of a statement to find out as to what

part  can be  believed.  But  in the  case  of  dying declarations

same cannot be done.  

3. Learned  counsel  for  the  appellant  submitted  that  the

approach of the High Court is clearly erroneous.  Even if it is

accepted that there was some manipulation as urged by the

accused persons, the effect of the dying declaration (Exh.PL)

has not been dealt with at all. In the said dying declaration A-

2 was named. Both the dying declarations clearly referred to

A-2.  

4. This  is  a  case  where  the  basis  of  conviction  of  the

accused  by the  trial  Court  was the  dying declarations.  The

situation  in  which  a  person  is  on  his  deathbed,  being

exceedingly solemn, serene and grave, is the reason in law to

accept the veracity of his statement. It is for this reason that

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the requirements of oath and cross-examination are dispensed

with. Besides should the dying declaration be excluded it will

result  in  miscarriage  of  justice  because  the  victim  being

generally  the  only  eye-witness  in  a  serious  crime,  the

exclusion of the statement would leave the Court without a

scrap of evidence.  

5. Though a dying declaration is entitled to great weight, it

is worthwhile to note that the accused has no power of cross-

examination. Such a power is essential for eliciting the truth

as an obligation of oath could be. This is the reason the Court

also  insists  that  the  dying  declaration  should  be  of  such

nature  as  to  inspire  full  confidence  of  the  Court  in  its

correctness. The Court has to be on guard that the statement

of  the  deceased  was  not  as  a  result  of  either  tutoring  or

prompting  or  a product  of  imagination.  The  Court  must  be

further satisfied that the deceased was in a fit state of mind

after a clear opportunity to observe and identify the assailant.

Once the Court is satisfied that the declaration was true and

voluntary, undoubtedly, it can base its conviction without any

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further corroboration. It cannot be laid down as 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. This Court has laid

down  in  several  judgments  the  principles  governing  dying

declaration, which could be summed up as under as indicated

in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

(i) There  is  neither rule  of  law nor of  prudence  that

dying declaration cannot be acted upon without corroboration.

[See  Munnu  Raja  &  Anr. v.  The  State  of  Madhya  Pradesh

(1976) 2 SCR 764)]

(ii) If the Court is satisfied that the dying declaration is

true  and  voluntary  it  can  base  conviction  on  it,  without

corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav

and Ors. (AIR 1985 SC 416)  and  Ramavati  Devi v.  State of

Bihar (AIR 1983 SC 164)]

(iii) 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

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had an opportunity to observe and identify the assailants and

was  in  a  fit  state  to  make  the  declaration.  [See  K.

Ramachandra Reddy and Anr. v.  The Public Prosecutor (AIR

1976 SC 1994)]

(iv)  Where  the  dying  declaration  is  suspicious,  it

should not be acted upon without corroborative evidence. [See

Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]

(v) Where  the  deceased  was  unconscious  and  could

never make any dying declaration, the evidence with regard to

it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982

SC 1021)]

(vi) A  dying  declaration  which  suffers  from  infirmity

cannot form the basis of conviction. [See  Ram Manorath and

Ors. v. State of U.P. (1981 (2) SCC 654)

(vii) Merely because a dying declaration does contain the

details as to the occurrence, it is not to be rejected. [See State

of Maharashtra v.  Krishnamurthi Laxmipati Naidu (AIR 1981

SC 617)]

(viii) Equally, merely because it is a brief statement, it is

not  to  be  discarded.  On the  contrary,  the  shortness  of  the

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statement itself guarantees truth. [See Surajdeo Oza and Ors.

v. State of Bihar (AIR 1979 SC 1505).

(ix) Normally the Court in order to satisfy whether the

deceased  was  in  a  fit  mental  condition  to  make  the  dying

declaration looks up to the medical  opinion. But  where the

eye-witness said that the deceased was in a fit and conscious

state  to  make  the  dying  declaration,  the  medical  opinion

cannot  prevail.  [See  Nanahau  Ram  and  Anr.  v.  State of

Madhya Pradesh (AIR 1988 SC 912)].

(x) Where  the  prosecution  version  differs  from  the

version as given in the dying declaration, the said declaration

cannot be acted upon. [See State of U.P. v. Madan Mohan and

Ors. (AIR 1989 SC 1519)].

(xi) Where  there  is  more  than  one  statement  in  the

nature of dying declaration, one first in point of time must be

preferred.  Of  course,  if  the  plurality  of  dying  declarations

could  be  held  to  be  trustworthy  and  reliable,  it  has  to  be

accepted.  [See  Mohanlal  Gangaram  Gehani v.State  of

Maharashtra (AIR 1982 SC 839) and  Mohan Lal and Ors. v.

State of Haryana (2007 (9) SCC 151).    

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6. As  rightly  contended  by  learned  counsel  for  the

appellant-State  even  if  the  so-called  interpolations  are  kept

out of consideration the effect of the statement made in the

dying declaration (Exh.PL) cannot be lost sight of.

7. Considering the principles set out above and the factual

scenario, it is crystal clear that the prosecution has been able

to  establish  the  accusations  so  far  as  respondent  No.2  is

concerned.  But  the  question  is  whether  it  is  a  case  under

Section 302 IPC. According to us the factual scenario shows

that a case at hand would be covered by Section 304 Part II

IPC.  Custodial  sentence  of  6 years would meet  the ends of

justice. The sentence has been imposed considering the age of

the respondent No.2. He shall surrender to custody forthwith

to serve the remainder of sentence.  Appeal stands dismissed

vis-à-vis other respondents.  

8. The appeal is allowed to the aforesaid extent.  

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     .…………..................J. (Dr. ARIJIT PASAYAT)

…………...................J. (G.S. SINGHVI)

New Delhi, August 11, 2008

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