Paragraph numbers below are the court’s original numbering, recovered from the source text.
21. In the above case following reasons were given by the court c c for not placing reliance on the dying declaration. "If, (IS " 111(/fter of /"ct, tile dece"sed knew tile appe/l(lllt then he would not h"ve committed tlte mistake of mentioning the wrong C(ISte which throws "" element of doubt "bout his knowledge (IS to the possibility of the dece(lsed lwving idelltifietl tlte appellant. In tltis regard, /e(lr11etl counsel for tlte "ppellant placed reliance 011 tlte judgment of this Court in tlte case of Blw/apm.wul v. State of Malwrttshtr"l. wherein in a simil"r c"se of ide111ificatio11 by a region from where the accused came, tltis Court held that the difference pointed out as to the description of the assailant was a material difference casting doubt 011 the ide11tificatio11 of theassaila11t. Therefore, we are of the co11sidered opi11ion tit at it is not safe to rely 011 tltis tlyi11g declamtio11 to base a co11victio11, if this piece of evidence is escltewed from co11sideratio11, then the mere fact of the prosecution ltaving recovered a sword at tlte i11sta11ce. of tlte appellant, 011 facts am/ circumstances of tltis case, would not permit us to base a co11victio11 under Section 302 /PC in tlte background of tlte fact tltat "lmost all otlter evidences produced by tlte prosecution are disbelieved by tlte courts below."
22. In the facts of the above case, the court has observed that it is not safe to rely on the dying declaration which caused doubts on the identity of the accused. Thus above case, in no manner, helps the appellant.
23. Another case which is relevant is St"te of Pu11jab versus Parveen Kumar, 2005 (9) SCC 769. The test for relying on a dying declaration in a case where there is more than one dying declaration has clearly been laid down by this court in para I 0 following was observed: "Tlte court must be satisfied tltat tlte t/yiug declaration is trutl~ful. If there are two t()'iug declaratio11s gfring two tliffereut 1•er.\·io11s, a serious doubt is created "bout the tr11ll({u/11e.B· t~{ the dying dec/(lrttfions. It may be t/t(lf if tit ere was (lllY otlter reliable evidence 011 record, this Court could have considered suclt corroborative e1•itfe11ce to test tlte truthfulness of the dying declarations. The two dying declarations, ltowever, in tlte instant case stand by tltemsefres and tltere is 110 otlter reliable evidence 011 record by reference to which their truthfulness can be tested."
24. An elaborate consideration of whole issue in context of multiple dying declarations was examined by this court in Sudlwkar versus State of Madhya Pradesh, 2012 (7) SCC 569. In para I of the judgment th is court noted the issue. Foil owing was observed in para I: "An important question of criminal jurisprudence as to in a case of multiple variable dying declarations, which of the dying declarations would be taken into consideration by the court, what principles shall guide the judicial discretion of the court or whether such contradictory dying declarations would 1111exceptio11al/y result in prejudice to the case of the prosecution, arises in tlte present case."
25. In the above case the accused was married to deceased Ratanmala. Prosecution case was that on 25.7.1995 there was heated arguments between husband and wife and the accused poured kerosene on her and put her ablaze by lighting match-stick. People living nearby came to the house, seeing the smoke and finding Ratanmala in burning condition took her to the hospital.
26. The Naib Tehsildar OW 1 recorded the first dying declaration at 04.35 pm on same day. In the first dying declaration, she did not implicate her husband but in second and third dying declaration, which were also recorded on the same day she clearly stated that accused poured kerosene on her and sat her on fire. The accused was convicted under Section 302 Cr. P.C., he in his statement under Section 313 Cr. P.C. stated that his wife Ratanmala died in a fire accident. In the above context, this court proceeded to examine the test in case of multiple dying declarations. It is useful to refer to para 21, 22 & 23: "21. /laving referred to the law relating to dying declaration, 11ow we may examine the issue that i11 cases i11vo/vi11g multiple tlyi11g declarations /11(/de by the deceased, which of the various dying dec/(lrations slumld be believed by the court (llld what are the principles goveming such determit1{ltio11. Tit is becomes import(lllt wltere tlte multiple dying declarations made by tile dece(lsed are either co11tradictory or (Ire at variance witlt eaclt other to a large extent. The test of common prudence would be to first examine wlticlt of the dying declarations is corroborated by other prosecution evidence. Further, the c .A c attendant circumstances, the co11ditio11 of tlte dece{lsed at tlte relev(lnt time, tlte medical evidence, tlte vo/unt(lri11ess and ge11uinelless of tlte statement made by tlte deceased, pltysical alld mental flt11ess of the dece(lsed a11d possibility of tlte deceased being tutored are some of lite factors wlticlt would guide the exercise of judicial discretioll by tlte court ill such matters." "22. Ill Laklta11 tltis Court provided clarity, not ollly to tlte law of dyillg declarations, but {I/so to lite questio11 llS to which of the dying declllrations ltlls to be preferably relied upoll by tlte court in deciding the questio.11 of guilt of lite llccused under lite offence witlt wlticlt lie is charged. Tlte f(lc/s of tlt(I/ case were quite similar, if 1101 identical to lite facts of the present case. 111 tltat case also, tlte deceased W([S bumt by pourillg kerosene oil mu/ was brought to tlte lwlpital by tlte ([Cc11sed therein mu/ !tis family members. Tlte deceased had made two different <(ving declarations, wlticlt were mutually at variance. The Co11rt held llS 11uder: (SCC pp. 518-19 & 522- 24, jJllraS 9-10, 23-24, J6 & 30) "9.
The doctrine of dying decillration is enshrined in the leglll maxim nenw moriturus praesumitur meutire, which means 'll man will not meet !tis Mllker witlt ll lie in !tis moutlt '. Tlte doctrine of c(ving declaration is emltrined in Section 32 of the Evidence Act, 1872 (hereinafter called as 'tlte Evidence Act') as an exception to tlte general rule contained in Section 60 of lite Evidence Act, wltich provides tltlll oral evidence ill all cases 11111st be direct i.e. it must be the evidence of a witness, who sllys he smv it. Tlte t{Villg declar(ltioll is, in fact, the statement of a person, who cannot be clllled llS witness m1d, therefore, cannot be cross-examilled. Such statemellts themsefres are relevant facts in certain cases. W. 111is Co11rt has considered time am/ again tlte relevance/ probative value of c(vi11g decl(/ratio11s recorded Ullder different situations mu/ {I/so in cases where more titan one dying declaration ltas been recorded.
The lmv is that if the court is satisfied that tlte crying declaration is true mu/ made voluntarily by tlte deceased, collviction ca11 be based sole(V Oil it, without any further corroboration. It is 11eitlter a rule of lllw nor of flrttdence tltllt ll dyin1: declllrlltion cannot he relied upon without corroboration. 1Vhen a dying declaration is suspicious, it sltould not be relied upon wit/tout lwvi11g corroborative evidence. The court has to scrutinise tlte dying declaration caref u/Jy and mmt ensure tltat the declaration is not tlte result of tutoring, pro111pting or imagination. Tlte deceased must be ill a fit slllte of 111i11d to make the declaration am/ must identify tlte ltssailants. Merely because a dying declaration does not contain tlte details of the occurrence, it cannot be rejected lllUI in case there is 111erely a brief statement, it is more reliable for tlte reason tltat the shortness of tlte statement is itself a guarantee of its veraci(I'· If the dying declaration suffers from some infirmity, it cannot alone form tlte basis of conviction.
Where tlte prosecution version differs fro111 the version given i11 tile dying declaration, tile said declaration cannot be acted upon." "The second dying declaration was recorded by Sllri Damodar Prasad Malrnre, Assistant Suh-Inspector of Police (PW 19). He was directed by tlte Superintendent of Police 011 telephone to record tlte statement of the deceased, who had been ad111itted in the ltospital. Jn that state111e11t, she fwd stated as under: 'On Sunday, ill lite morning, at about 5.30 a.111., my husband lakltan poured tlte kerosene oil from a contailler 011 my Item/ as a result of wlticlt kerosene oil spread over my entire body and tltat lte (Lakhan) put my sari afire with tlte help of a chimney, due to wlticlt I 1:01 bum/.' Site fwd also deposed tltat site /tad written a letter to lter parents requesting /Item to fetclt lter from lite matrimonial !tome as lter ltusbaml mu[ in-laws were lwrassi11g her.
Tlte said dying declar.'ltio11 was recorded after getting a certificate from lite doctor stating tit at site was in ll fit pltysical llluf me11tal condition to give tlte swtement." "As per lite injury report and tlte medical evidence it renutim fully proved tltat lite deceased /tad the injuries on lite upper part of her bo<{P. Tlte doctor, wlto fwd examined lter at tlte time of admission in ltospital, deposed tltat site !tad bum injuries on lter ltead, face, cltest, neck, back, abdomen, left arm, /tam/, rigltt arm, part of buttocks 1111<1 some part of botlt c [2016) 3 S.C.R. the thighs. The deceased was 65% burnt. At the time of admission, tlte smell of kerosene was coming from her body." c "Undoubtedly, tlte first dying declaration fwd been recorded by the Executive Magistrate, Smt Mad/zu Nalwr (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 fatlter-in-law mu/ motlter-in-law and the medical report does not support her first dying. declaration, the trill/ court and the High Court ltave rightly discarded the same." "Titus, in view of the above, we reach the following · inescapable conclusions on the questions of/act: (c) The second dying declaration was recorded by a police officer on the instruction of the Superintendent of Police after getting a certificate of fitness from the doctor, which is corroborated by the medical evidence and is free from any suspicious circumstances. More so, it stands corroborated by the oral declaration made by the deceased to her parents, Pkoo/ Singh (PW l),father and Sushi/a (PW 3), mother." "23. In Na/lam Veera Staymwndam v. Public Prosecutor this Court, while declining to accept thefimlings <>[the trial court, held that the trial court had erred because in tlte case of multiple dying declarations, each <lying declaration has to be considered independelllly on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents <>/ tlte other. Jn cases where there is more titan one <{ving declaration, it is the duty of the court to consider eaclt one of tltem in its correct perspective and satisfy itself – which one of them reflects the true state of affairs."
27. This court had clearly laid down that the each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiaiy value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaratio1~, it is the duty of the court to consider the each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs.
28. It is also relevant to refer to judgment of this court in Ranjit Singh and others versus State of Punjab, 2006 (13) SCC 130 wherein this court has clearly laid down that the conviction can be recorded on the basis of the dying declaration alone ifthe same is wholly reliable. In the event, if there are suspicions as regards to the said dying declaration, the court should look for some corroborating·evidences. Court has further observed. that in the event of inconsistencies in the dying declarations the court should lean towards th~ first dying declaration. Following was observed in para 13: · "It is now well ~·ett/ed that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, b_ut in the event there exists any suspicion as regards correctness or otherwise of the said t/ying declaration, tlte courts in arriving at the judgment of conl'iction sit al/ look for Sf!flle corroborating evidence. lt"is also well known that in a case where inconsistencies in the dying declarations, in relation to the actil'e role played by one ,or tlte otlter accused persons, exist, the court shal/ /ean more towanjs thejirst dying declaration than the second one.''.
29. Learned counsel forthe appellant has also referred to Prem Kumar Gulati versus State of Haryana and another, 2014 (14) SCC · 646, to buttress his submission that even if, dying declaration 'is not in a question answer form same cannot be rejected, In the present case, it is relevant to note that the third dying declaration recorded by Shri Tandale was not in question answer form. It is true that this court in the above case has laid down that merely because dying declaration was not in question answer form sanctity attached to dying declaration cannot be brushed aside nor its reliability can be doubted.
30. The Sessions Judge has rejected the third dying declaration not merely on the ground that it was not recorded_ in the question answer form but the Sessions Judge has given other valid reasons for not ·aepepting the third dying declaration as has been extracted above.
31. From the evidence on record, it is clear that all the witnesses c 'H c including PW 1 doctor Ashok Surushe who carried the autopsy of the dead body supported that deceased died of burns. The case which was put up by the defence was that the death was on account of the accidental fire which was caught by falling of chimney (burning lamp) on the body of the Baby while she was sleeping in the house.
32. As noted above, within an hour of incident on 04.03.1989 that is as soon as the Baby arrived at the Rural Hospital at about I 0/10.30 pm police inspector came and took her oral statement in which she clearly stated that it was Raju who poured kerosene oil on her body and ignited the match-stick. Baby the deceased in her oral statement as well as in her dying declaration recorded by Shri Ramesh Giri has also stated the motive of the accused. 33. ft has come on the evidence of PW 4 Dilawarsha that the Baby, her sister was having a love affair with Raju the accused. She was pregnant and she asked Raju to marry her. On the day of the incident, she met Raju and repeated her request to him to marry her. Raju who was carrying a tin of kerosene then poured kerosene on Baby to finish her since he never wanted to live with Baby and wanted to keep her out from his life.
34. The doctor in her statement has recorded about 72 per cent burns. The theory of burn being caused by chimney (burning lamp) has rightly been rejected by courts below by giving cogent reasons.
35. We are not inclined to take any different view to one which has been taken by both Sessions Judge and the High Court rejecting the case of the defence that it was a case of accidental death caused by falling of the chimney (burning lamp).
36. The dying declaration recorded by Executive Magistrate was witnessed by two employees of the hospital, who were present at the relevant time. There being no certificate of the doctor on 04.03 .1989 is of no consequences since it has come in the evidence that doctor was not present at the time when victim was taken to the hospital and there were only two employees i.e. a waterman and a maid-servant who were present in the Rural Hospital and attended the victim. The High Court has expressed its anguish regarding working of the Rural Hospital, Mehkar. High Cowi was fully justified in expressing its anguish over the working of the Rural Hospital, Mehkar where no trained Para-medical Staff/Medical Staff was available to attend the patient.
37. Thus submission of learned counsel for the appellant that in view of the third dying declaration in which accused was exonerated no reliance could have been placed on dying declaration recorded by Shri G iri the Executive Magistrate, is not acceptable for the reasons as noted above. The court below observed that there was no occasion of implicating the accused by the Police Inspector since there is nothing to indicate that he had any grudge against the accused or even the accused was known to the police inspector.
38. Oral statement of victim was recorded by the police on 04.03.1989 which followed by recording of dying declaration by the Executive Magistrate in which same statement was made by victim implicating the accused of the crime. In the facts and circumstances of the case the conviction has rightly been recorded relying on the dying declaration of the deceased recorded by Executive Magistrate Giri.
39. The death has been caused by burn injuries, which is proved on record. The theory put up by the defence that it was accidental death having been rightly rejected and the prosecution by cogent evidences having proved the prosecution case both Sessions Judge and the High Court have rightly convicted the accused of offence under Section 302 !PC. We do not see any merit in the appeal. The appeal is dismissed. Nidhi Jain App~al dismissed. c