REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 305-306 OF 2003

State of Rajasthan ..Appellant

Versus

Champa Lal ..Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. The State of Rajasthan has filed appeals against  the judgment of a

Division Bench of the Rajasthan High Court at Jodhpur allowing the appeal

filed by the respondent directing his acquittal. Respondent faced trial for the

alleged commission of offence punishable under Section 302 of the Indian

Penal  Code,  1860  (in  short  the  ‘IPC’)  and  was  sentenced  to  undergo

imprisonment for life by learned Additional Sessions Judge, No.1, Jodhpur.  

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2. Background facts in a nutshell as projected by the prosecution are as

follows:

On 11.12.1995 at about 10.30 p.m. Om Prakash (PW-8) submitted

a written report at Police Station, Mahamandir, Jodhpur stating inter-alia

that  his sister  Smt. Pani Devi was married to respondent about twenty

five years back. From their wedlock five girls and one boy were born. His

sister  used to earn a livelihood and maintain the children.  Respondent

used to go for earning casually. Respondent used to demand money from

her for consuming liquor. Respondent also used to harass and beat her.

On  the  fateful  day,  when  she  returned  from her  job,  respondent  was

consuming liquor. Respondent abused his sister Pani Devi saying that she

was  keeping  a  number  of  paramours  and  she  used  to  stay  with  them

during  day  hours.  "TUNE  DAS  HAATI  BANA  RAKKHE  HAIN,  DIN

BHAR UNKE SAATH RAHTI HAI." (You have a number of friends and

throughout the day, you stay with them.) He locked the children in one

room. Thereafter,

the  respondent  poured  kerosene  on  her  and with  intention  to  kill  her,

threw a burning matchstick. His sister made hue and cry, which attracted

a  number  of  people  including  Pappu  Ram  (PW-7).  Having  seen  the

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incident, Pappu Ram rushed to his house and narrated the incident. At

that time, his cousin Doonger Singh (PW-6) was also sitting with him.

They rushed to the house of respondent  and found that  his sister Pani

Devi  was burning and lying in  a pit.  She  was taken out  of  the pit  by

Prakash (PW- 18), brother of respondent. The fire was extinguished. On

enquiry,  deceased  Pani  Devi  narrated  the  incident.  She  was  taken  for

treatment to the M.G. Hospital. On this information, police registered a

case  for  the  offence  under  Section  307  IPC  and  proceeded  with

investigation.  At  10:40  p.m.,  Joga  Ram (PW-20),  SHO Police  Station

Mahamandir,  Jodhpur recorded the statement of Smt. Pani  Devi in the

M.G. Hospital in the presence of Dr. M.K. Parihar (PW-13). She died on

12.12.1995 at 4:10 a.m. The police prepared the site plan, inquest report

and sent the dead body for post mortem. The post mortem was conducted

by a Board of three doctors.  The Board found it to be a case of hundred

percent burn. In the opinion of the Board, the cause of death was shock

due to extensive burns. After usual investigation police laid charge sheet

against the respondent for the offence under Section 302 IPC.  Trial was

held  as  accused  abjured  guilt.   Trial  Court  relied  upon  the  dying

declaration and held the accused guilty.  In appeal, High Court directed

acquittal.      

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The High  Court  observed  that  the  dying  declaration  on  which  the

prosecution  relied  and  which  the  trial  Court  found  to  be  the  basis  of

conviction was not in accordance with applicable Police Rules relating to

recording of dying declaration. Therefore, the same was to be kept out of

consideration. Only on the basis of that the acquittal was directed.  

3. Learned counsel for the appellant submitted that the authenticity of

the dying declaration having not been doubted, acquittal is indefensible.

4. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

5. It is to be noted that a decision of this Court in Munna Raja v. State of

Madhya Pradesh (1976 (3) SCC 104), on which High Court placed reliance

related to the efficacy of investigating officer himself recording the dying

declaration and the necessity to discourage the practice. There is nothing in

the  decision  to  show that  whenever  the  investigating  officer  records  the

dying declaration the same has to be kept out of consideration.  In fact in

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Dalip Singh v.  State of Rajasthan (1979 (4) SCC 332)  it was observed as

follows:

“8. There were two dying declarations of Ram Singh - one oral  and  the  other  written  -  which  was  recorded  by  the Assistant  Sub-Inspector  of  Police,  PW 28  on  December  12, 1975.  The  oral  dying  declaration  was  made  to  PW 11  Tara Singh. Neither of the dying declarations was relied upon by the High Court because he had named Baldev Singh also. We may also add that although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided  in  sub-section  (2)  of  Section  162  of  the  Code  of Criminal  Procedure,  1973,  it  is  better  to  leave  such  dying declaration  out  of  consideration  until  and  unless  the prosecution satisfies the court as to why it was not recorded by a  Magistrate  or  by  a  doctor.  As  observed  by  this  Court  in Munnu Raja  v.  State of M.P. the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer  may be  relied  upon  if  there  was  no  time  or  facility available to the prosecution for adopting any better method.  

(Underlined for emphasis)

6. In  Dalip  Singh’s case (supra)  it  was categorically observed that  in

case there was no time or facility available to the prosecution for adopting

any better method the dying declaration can be taken into consideration. In

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fact in the present case that is the categorical statement of PW-20. As rightly

contended by learned counsel  for the State the High Court  discarded the

statement even without indicating any reason.  

7. It is  to be noted that Jora Ram (PW-20) categorically stated that it

was not possible to get a Magistrate to record the dying declaration. The

High Court  dis-believed him without  even recording any reason therefor.

The dying declaration was recorded in the presence of a doctor (PW-13). In

addition, the evidentiary value of the evidence of PWs 7, 9 and 10 has not

been considered in its proper perspective.

8. In  Ramawati  Devi v.  State  of  Bihar (1983  (1)  SCC  211)  it  was

observed as follows:

“7. In our opinion neither of these two decisions relied on by  the  appellant  is  of  any  assistance  in  the  facts  and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause  of  that  person’s  death  comes  into  question,  becomes admissible  under  Section  32  of  the  Evidence  Act.  Such statement made by the deceased is commonly termed as dying declaration.  There  is  no  requirement  of  law  that  such  a

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statement  must  necessarily  be  made  to  a  Magistrate.  What evidentiary  value  or  weight  has  to  be  attached  to  such statement,  must  necessarily  depend  on  the  facts  and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light  of  the facts  and circumstances  of the case.  In  the  instant  case,  the  dying  declaration  has  been properly proved. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state  of  health  to  make  any  such  statement.  The  Doctor’s evidence  also  clearly  indicates  that  it  was  possible  for  the deceased to make the statement attributed to her in the dying declaration  in  which  her  thumb  impression  had  also  been affixed. In the instant case, it cannot also be said that there is no  corroborative  evidence  of  the  statement  contained  in  the dying declaration. The evidence of PWs 1, 4, 5 and 8 clearly corroborates  the  statement  recorded in  the dying declaration. We do not find any material on record on the basis of which the testimony of these witnesses can be disbelieved. It may also be noticed that none of these witnesses including the police officer who recorded the statement could be attributed with any kind of  ill-feeling  against  the  accused.  The  High  Court  has elaborately dwelt on this aspect and has carefully considered all the materials  on record and also  the arguments  advanced on behalf  of  the  appellant.  We are  in  agreement  with  the  view expressed by the High Court and in our opinion the High Court was right in upholding the conviction of the appellant.”

9. In  Laxman v.  State of Maharashtra (2002 (6) SCC 710 at para 3) it

was observed as follows:

“3. The  juristic  theory  regarding  acceptability  of  a  dying declaration is that such declaration is 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

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the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept  the veracity of  his  statement.  It  is  for  this  reason the requirements of oath and cross-examination are dispensed with. Since  the  accused  has  no  power  of  cross-examination,  the courts  insist  that  the  dying  declaration  should  be  of  such  a nature  as  to  inspire  full  confidence  of  the  court  in  its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a  result  of  either  tutoring  or  prompting  or  a  product  of imagination.  The  court  also  must  further  decide  that  the deceased was in a fit state of mind and had the opportunity to observe  and  identify  the  assailant.  Normally,  therefore,  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  eyewitnesses  state  that  the deceased  was  in  a  fit  and  conscious  state  to  make  the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs  or  otherwise  will  suffice  provided  the indication  is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a  Magistrate  absolutely  necessary,  although  to  assure authenticity  it  is  usual  to  call  a  Magistrate,  if  available  for recording  the  statement  of  a  man  about  to  die.  There  is  no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate  there  is  no  specified  statutory  form  for  such recording. Consequently, what evidential  value or weight has to  be  attached  to  such  statement  necessarily  depends  on  the facts  and  circumstances  of  each  particular  case.  What  is

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essentially  required  is  that  the  person  who  records  a  dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor  the declaration can be acted upon provided the court  ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

10. It is to be noted that Rajasthan Police Rules, 1964 on which the High

Court has placed reliance is at the most a set of procedural guidelines.  That

cannot take away the effect of Section 32 of the Indian Evidence Act, 1872

(in  short  the  ‘Evidence  Act’).  To  add  to  the  vulnerability  of  the  High

Court’s  judgment,  the High Court  has concluded that  there was no other

reliable evidence. This conclusion runs counter to the High Court’s earlier

observation  about  the  evidence  of  PWs  6  and  7  which  was  held  to  be

credible.  The evidence of PWs 8 and 9 provide ample corroboration. That

being so, the appeals deserve to be allowed which we direct. The judgment

of acquittal passed by the High Court is set aside and that of the trial Court

is restored. The respondent shall surrender to custody forthwith to serve the

remainder of sentence, if any.  

………………………………J. (Dr. ARIJIT PASAYAT)

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..……………………………..J. (ASOK KUMAR GANGULY)

New Delhi, April 01, 2009  

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