Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 34 OF 2022
State of U.P. ..Appellant(S)
Versus
Veerpal & Anr. ..Respondent(S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 30.05.2020 passed by the
Division Bench of the High Court of Judicature at Allahabad
in Criminal Appeal No. 4658 of 2015 by which the High
Court has allowed the said appeal preferred by the
respondents herein – original accused and has acquitted the
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.02.01
16:55:27 IST
Reason:
accused for the offences under Section 302 read with
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Section 34 of the IPC, the State has preferred the present
appeal.
2. The facts leading to the present appeal in nutshell are as
under:
2.1 That PW1 Bengali Babu gave the First Information Report
which was registered as Crime No.1144/11 initially for the
offences under Section 326 of the IPC to the effect that on
20.12.2011 at about 2:30 pm, he got a call from Radha –
daughter of the deceased that her mother had got burnt. He
immediately reached the hospital and at that time SDM was
taking the deceased’s statement. According to him, the girl
told that her fatherinlaw and motherinlaw demanded the
money and when she refused there was an assault and
thereafter they poured kerosene over her and with a burning
matchstick burnt her. The Investigating Officer started the
investigation. He recorded the statements of the relevant
witnesses and collected the necessary evidence including
the medical evidence. After completion of investigation,
Investigating Officer filed the chargesheet against the
accused for the offences under Section 302 read with
Section 34 of the IPC. The learned Trial Court framed the
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charge against the accused for the aforesaid offences. The
accused denied the charge and pleaded not guilty.
Therefore, they claimed to be tried by the Trial Court for the
aforesaid offences.
2.2 To prove the charge against the accused, the prosecution
examined as many as 10 witnesses. PW5 turned hostile.
The prosecution also brought on record documentary
evidences including two dying declarations, one recorded by
the police officer and another, recorded by the
Magistrate/SDM. On appreciation of evidence and
considering two dying declarations, the learned Trial Court
believed the dying declaration recorded by the Magistrate on
22.12.2011 and further observed that the defence put forth
on behalf of the accused that the deceased herself poured
the kerosene on her is not believable considering the
medical evidence on record. Thereafter the learned Trial
Court convicted the accused for the offences under Section
302 read with Section 34 of the IPC and sentenced the
accused to undergo life imprisonment.
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3. Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence imposed by the Trial Court,
the accused preferred the appeal before the High Court
being Criminal Appeal No.4658/2015. By the impugned
judgment and order, the High Court has acquitted the
accused mainly on the ground that there were two dying
declarations, one recorded on 20.12.2011 and another
recorded on 22.12.2011 and there was a gap of two days
between the two dying declarations. The High Court instead
of relying on the dying declaration recorded by SDM/Deputy
Commissioner of Agra and by disbelieving both the dying
declarations has acquitted the accused by observing that
according to the deceased when she was forced to give the
money and when she refused, the accused tried to assault
and she ran away and under the pressure she might have
poured the kerosene on her.
4. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, acquitting
the accused for the offences under Section 302 read with
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Section 34 of the IPC, the State has preferred the present
appeal.
5. Ms. Garima Prashad, learned Senior Advocate appearing on
behalf of the State has vehemently submitted that in the
facts and circumstances of the case, the High Court has
committed a grave error in acquitting the accused for the
serious offences under Section 302 read with Section 34 of
the IPC.
5.1 It is further submitted by the learned Senior Advocate
appearing on behalf of the State that in the present case,
the High Court ought to have relied upon and considered
the dying declaration recorded by the competent magistrate.
5.2 It is submitted that as such cogent reasons were given by
the Trial Court on appreciation of evidence that the
statement before the IO which was considered to be first
dying declaration on 20.12.2011 does not inspire any
confidence. It is submitted that the aforesaid finding
recorded by the learned Trial Court was on appreciation of
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available evidence on record more particularly the medical
evidence.
5.3 It is submitted that the High Court ought to have
appreciated that the dying declaration recorded by a
competent Magistrate would stand on a higher footing than
the declaration made to IO under Section 161 of Cr.PC.
Reliance is placed upon the decisions of this Court in the
cases of Ravi Chander & Ors. V. State of Punjab (1998) 9
SCC 303 (para 6); Harjit Kaur V. State of Punjab (1999) 6
SCC 545, (para 6); Koli Chunilal Savji & Anr. V. State of
Gujarat (1999) 9 SCC 562 (para 8); Vikas & Ors. V. State
of Maharashtra (2008) 2 SCC 516 (para 48); Laxman V.
State of Maharashtra (2002) 6 SCC 710 and Jagbir Singh
V. State (NCT of Delhi) (2019) 8 SCC 779 (para 21).
5.4 It is submitted that in the present case as such the High
Court has specifically observed that both the dying
declarations cannot be believed and it is not safe to rely
upon multiple dying declarations of the deceased. It is
submitted that the High Court has observed that it would
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not be safe to rely upon multiple dying declarations of the
deceased in the absence of any corroborative evidence. It is
submitted that the aforesaid is contrary to the law laid down
by this Court in the cases of Amol Singh V. State of M.P.,
(2008) 5 SCC 468 (para 13); Kundula Bala
Subrahmanyam & Anr. V. State of Andhra Pradesh
(1993) 2 SCC 684 (para 18); Munnu Raja & Anr. V. State
. It is submitted that as
of M.P., (1976) 3 SCC 104 (para 6)
held by this Court in the aforesaid decisions there can be
conviction on the basis of a dying declaration of the
deceased without there being any corroborative evidence on
record.
5.5 It is submitted that in the present case, the High Court has
erred in not relying upon the dying declarations more
particularly the dying declaration recorded by the
Magistrate/SDM without any cogent reason. It is submitted
that as such the High Court has not doubted the credibility
and/or has not observed anything with regard to malice on
the part of the executive magistrate who recorded the
statement on 22.12.2011. It is submitted therefore the High
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Court ought to have upheld the conviction relying upon the
dying declaration recorded by the Magistrate/SDM on
22.12.2011.
5.6 It is hence submitted that the impugned judgment and
order passed by the High Court is not sustainable and the
impugned judgment and order deserves to be quashed and
set aside and the judgment and order passed by the learned
Trial Court convicting the accused under Section 302 read
with Section 34 of the IPC deserves to be upheld/restored.
6. The present appeal is vehemently opposed by Shri P.S.
Khurana, learned counsel appearing on behalf of the
respondents – original accused. It is vehemently submitted
by learned counsel appearing on behalf of the original
accused that in the facts and circumstances of the case and
in view of multiple dying declarations, the High Court has
rightly acquitted the accused.
6.1 It is submitted that as rightly observed by the High Court
once the dying declaration was recorded by the police officer
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on 20.12.2011, thereafter there was no reason to record
another dying declaration on 22.12.2011.
6.2 It is submitted that in the first dying declaration recorded
on 20.12.2011 she stated that out of fear of fatherinlaw,
she committed suicide and the role assigned to respondent
No.1 – fatherinlaw in her first dying declaration dated
20.12.2011 was only of chasing her for beating and not for
burning, and in the second dying declaration recorded by
the Magistrate, there was a somersault and the victim –
deceased implicated all other family members, the High
Court has rightly refused to rely upon the dying declaration
recorded by the Magistrate/SDM on 22.12.2011.
6.3 It is submitted that on appreciation of evidence, the High
Court has observed that the deceased was mentally weak. It
is submitted that therefore in such a state of mind and
because of the fear of her fatherinlaw that she will be
beaten when she refused to give the money, she committed
suicide by pouring kerosene on herself; no case of murder
has been made out and therefore, the High Court has rightly
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acquitted the accused for the offences punishable under
Section 302 read with Section 34 of the IPC.
7. Making the above submissions, it is prayed to dismiss the
present appeal.
8. We have heard the learned counsel appearing on behalf of
the respective parties at length.
9. At the outset, it is required to be noted in the present case,
there are two dying declarations, one recorded by the Police
Officer on 20.12.2011 and another recorded by the
Magistrate/SDM recorded on 22.12.2011. Even in the
impugned judgment and order, the High Court has as such
specifically observed that none of the dying declarations
inspire confidence. The High Court has not believed the
dying declaration recorded by the Magistrate/SDM on
22.12.2011 mainly on the ground that when the dying
declaration was already recorded by the Police Officer on
20.12.2011, there was no reason to record the second dying
declaration. However, it is required to be noted that what
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was recorded by the Police Officer on 20.12.2011 was the
statement under Section 161 Cr.PC. Therefore, it was
thought fit to record the dying declaration of the deceased
by the Magistrate and that is why SDM was called to record
the dying declaration of deceased on 22.12.2011. At the cost
of repetition, it is observed that even the High Court has
specifically observed that the first statement/dying
declaration recorded by the Police on 20.12.2011 does not
inspire any confidence. In that view of the matter, it is
required to be considered whether the dying declaration
recorded by the Magistrate on 22.12.2011 is to be believed
or not and whether on the basis of such dying declaration
recorded by the Magistrate/SDM, the accused can be
convicted or not.
9.1 While considering the aforesaid question/issue a few
decisions of this Court on the credibility of the dying
declaration recorded by the Magistrate are required to be
referred to.
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9.1.1 In the case of Laxman (supra) after referring to and
considering the earlier decisions on the credibility of the
dying declaration recorded by the Magistrate, it was
observed that the Magistrate being a disinterested witness
and a responsible officer and there being no circumstances
or material to suspect that the Magistrate had any animus
against the accused or was in any way interested for
fabricating a dying declaration, question of doubt on the
declaration, recorded by the Magistrate does not arise.
9.1.2 In the case of (supra) this Court had an
Jagbir Singh
occasion to consider the law relating to the dying
declaration and the problem of multiple dying declarations
in detail. It was observed and held that merely because
there are two/multiple dying declarations, all the dying
declarations are not to be rejected. It was observed and
held that when there are multiple dying declarations the
case must be decided on the facts of each case and the
court will not be relieved of its duty to carefully examine
the entirety of the material on record as also the
circumstances surrounding the making of the different
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dying declarations. Ultimately, in paragraph 32, this Court
concluded as under:
“
Our conclusion on multiple dying
declarations
32 We would think that on a conspectus of the
law as laid down by this Court, when there are
more than one dying declaration, and in the
earlier dying declaration, the accused is not
sought to be roped in but in the later dying
declaration, a somersault is made by the
deceased, the case must be decided on the facts
of each case. The court will not be relieved of its
duty to carefully examine the entirety of
materials as also the circumstances
surrounding the making of the different dying
declarations. If the court finds that the
incriminatory dying declaration brings out the
truthful position particularly in conjunction
with the capacity of the deceased to make such
declaration, the voluntariness with which it was
made which involves, no doubt, ruling out
tutoring and prompting and also the other
evidence which support the contents of the
incriminatory dying declaration, it can be acted
upon. Equally, the circumstances which render
the earlier dying declaration, worthy or
unworthy of acceptance, can be considered.”
Similar views have been expressed by this Court in the
case of (supra), (supra),
Ravi Chander & Ors. Harjit Kaur
Koli Chunilal Savji & Anr. (supra) and Vikas & Ors.
(supra).
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10. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, it is required to
be considered whether the dying declaration recorded by the
Magistrate on 22.12.2011 is to be believed or not. Nothing is
on record with regard to any allegation against the
Magistrate/SDM to the effect that he was biased or
interested in recording the dying declaration against the
accused. He was summoned during the course of
investigation and during the course of investigation he
recorded the dying declaration and the statement of
deceased. Even the High Court as such has not doubted the
credibility of the dying declaration recorded by the
Magistrate/SDM on the ground of malice. The reasoning
given by the High Court to not rely upon the dying
declaration recorded by the Magistrate/SDM is not germane
and cannot be accepted. We see no reason to doubt the
dying declaration recorded by the Magistrate on 22.12.2011
in which the deceased specifically stated that at 11:00 am
due to the feud over demanding money, respondents –
accused have burned her after pouring kerosene over her.
Therefore, in the statement of dying declaration recorded by
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the Magistrate on 22.12.2011, the respondents – original
accused are specifically named and it is specifically stated
that they poured kerosene on her. At this stage, it is
required to be noted that in so far as the statement recorded
by the IO on 20.12.2011, it was recorded that the fatherin
law demanded money and started beating her with a stick,
she ran away and she locked the door from inside and out of
anger she poured the kerosene available in the room and set
herself on blaze is concerned, considering the medical
evidence on record the said statement/ dying declaration
recorded by the Police Officer on 20.12.2011 does not
inspire any confidence. Medical evidence does not support
the version stated in the said dying declaration. It is to be
noted that even according to the accused, the fatherinlaw
took her to hospital. If statement of deceased in first dying
declaration that she locked the door from inside and out of
anger she poured kerosene is accepted, in that case it is not
explained by the accused as to how she was taken to the
hospital, as nothing is on record that the door was
broken/opened by the fatherinlaw – accused and
thereafter she was taken to hospital. Even considering the
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medical evidence on record and the injuries sustained by
the deceased, it is found that there were no injuries at all on
the chest and injuries were found on the head and on the
backside. As rightly observed by the Trial Court if she had
committed suicide by pouring kerosene there would have
been injuries on the chest as well as injuries would not have
been on the head and on the backside. In our view, such
injuries as found on the body of the deceased could have
been possible only if somebody had poured kerosene on her
from behind her. The aforesaid aspect has not at all been
considered by the High Court.
10.1 Now, on the aspect, whether in absence of any corroborative
evidence, there can be a conviction relying upon the dying
declaration only is concerned, the decision of this Court in
the case of Munnu Raja & Anr. (supra) and the subsequent
decision in the case of Paniben (Smt) V. State of Gujarat,
(1992) 2 SCC 474 are required to be referred to. In the
aforesaid decisions, it is specifically observed and held that
there is neither a rule of law nor of prudence to the effect
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that a dying declaration cannot be acted upon without a
corroboration. It is observed and held that if the Court is
satisfied that the dying declaration is true and voluntary it
can base its conviction on it, without corroboration. Similar
view has also been expressed in the cases of State of Uttar
Pradesh V. Ram Sagar Yadav & Ors. (1985) 1 SCC 552
and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211.
Therefore, there can be a conviction solely based upon the
dying declaration without corroboration.
10.2
Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958
SCR 552 is a watershed judgment on the law on the
evidentiary value of dying declarations. This Court laid down
the following principles as to the circumstances under
which a dying declaration may be accepted, without
corroboration:
“ 16. On a review of the relevant provisions of the
Evidence Act and of the decided cases in the different
High Courts in India and in this Court, we have come
to the conclusion, in agreement with the opinion of the
Full Bench of the Madras High Court, aforesaid, ( 1 )
that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form the sole basis of
conviction unless it is corroborated; ( 2 ) that each case
must be determined on its own facts keeping in view
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the circumstances in which the dying declaration was
made; ( 3 ) that it cannot be laid down as a general
proposition that a dying declaration is a weaker kind
of evidence than other pieces of evidence; ( 4 ) that a
dying declaration stands on the same footing as
another piece of evidence and has to be judged in the
light of surrounding circumstances and with reference
to the principles governing the weighing of evidence;
( 5 ) that a dying declaration which has been recorded
by a competent Magistrate in the proper manner, that
is to say, in the form of questions and answers, and,
as far as practicable, in the words of the maker of the
declaration, stands on a much higher footing than a
dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human
memory and human character, and ( 6 ) that in order to
test the reliability of a dying declaration, the court has
to keep in view, the circumstances like the opportunity
of the dying man for observation, for example, whether
there was sufficient light if the crime was committed at
night; whether the capacity of the man to remember
the facts stated, had not been impaired at the time he
was making the statement, by circumstances beyond
his control; that the statement has been consistent
throughout if he had several opportunities of making a
dying declaration apart from the official record of it;
and that the statement had been made at the earliest
opportunity and was not the result of tutoring by
interested parties.”
The relevant facts of the said case are that the
deceased therein had given three successive dying
declarations within a span of two hours, which were, to a
certain degree contradictory to each other. However, one of
the aspects that remained common and was narrated by the
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deceased in all three dying declarations was that he was
attacked by two persons, namely Kushal Rao and Tukaram
with swords and spears. This Court, relying on the common
thread running through all dying declarations, which was
consistent with medical evidence revealing punctured and
incised wounds on various parts of the body, held that the
said declarations could be relied upon in convicting the
accused who had been named in all three dying
declarations.
Corelating the said facts to the facts of the instant
case, we have noted that although the accused was not
specifically named by the deceased in her statement
recorded under section 161 of the Cr.PC, as the person who
set the deceased on fire, he has been so named in her dying
declaration. Even in the statement recorded under section
161 of the Cr.PC, the deceased has stated that her father
inlaw had attacked her with a stick with an intention to kill
her and as a result, she locked herself in the room and set
herself ablaze. Therefore, we find that there runs a common
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thread in the statements of the deceased, being that she
was attacked by the accusedrespondent herein. Further,
we also find that the statements made by the deceased in
her dying declaration are consistent with medical evidence
which reveals that there were burns on all parts of the body
except chest and sides of the abdomen and back. The burns
are at such parts as could have resulted when a person,
other than the deceased poured kerosene and set fire. As
already noted, if the deceased had set herself on fire, her
chest ought to have been burnt. In light of the aforesaid
discussion and the decision in Kushal Rao (supra), we find
that the medical evidence is consistent with the dying
declaration, thereby allowing this Court to place reliance on
the declarations.
The Trial Court has rightly observed as to the weight
and reliance that must be placed on the dying declaration of
the deceased. There was no reason for the High Court to
disregard the dying declaration of the deceased. It is noted
that the dying declaration was made by the deceased to
SubDivisional Magistrate (SDM) Bal Kishan Agarwal, who
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was also examined as a prosecution witness (PW6) before
the Trial Court. His statement reveals that the deceased at
the time of making the statements, was fully conscious and
capable of comprehending the questions put forth by the
officer to whom the declaration was made. The evidentiary
value of the dying declaration is further enhanced by the
fact that it was accompanied by a certificate from the
physician who was treating the deceased prior to her death,
stating that the deceased remained fully conscious while
making the statement. The Trial Court rightly placed
reliance on the dying declaration having due regard to the
statements made by the physician as to the medical
condition of the deceased while making such declaration.
The Trial Court has also rightly noted that the statements of
the SDM and the physician, being independent witnesses in
the trial, has added weight to the prosecution case as the
same could not be motivated by malice.
11. Therefore, considering the dying declaration recorded by the
SDM/Magistrate on 22.12.2011 the accused can be
convicted for which they were tried. Hence in our view, the
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High Court has committed a grave error in acquitting the
accused. The impugned judgment and order passed by the
High Court acquitting the accused for the offences
punishable under Section 302 read with Section 34 of the
IPC is unsustainable and the same deserves to be quashed
and set aside.
12. In view of the above and for the reasons stated above, the
present appeal is allowed. The impugned judgment and
order acquitting the accused for the offences punishable
under Section 302 read with Section 34 of the IPC is hereby
quashed and set aside. The judgment and order passed by
the learned Trial Court convicting the accused for the
offences punishable under Section 302 read with Section 34
of the IPC is hereby restored. Respondent Nos. 1 & 2 –
original accused are held guilty for the offences punishable
under Section 302 read with Section 34 of the IPC and
sentenced to undergo imprisonment for life and a fine of
Rs.10,000/ each as awarded by the learned Trial Court.
Accused to surrender before concerned court or jail
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authority to undergo life sentence forthwith. The present
appeal is allowed to the aforesaid extent.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B. V. NAGARATHNA)
New Delhi,
01.02.2022
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