[2016] 3 S.C.R. 818

RAJU DEVADE

STATE OF MAHARASHTRA

(Criminal Appeal No. I 012 of2008)

JUNE29,2016

[ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.]

Penal Code, 1860 - s. 302 - Murder - Conviction on basis of dying declaration - Death of 18 year old girl on sustaining burn injuries - Oral statement 111ade by the victi111 recorded by the Police sub-inspector - Thereafte1~ Magistrate recorded dying declaration in question answer form and answers were recorded in own language of the victim - Both declarations had thumb impression of the victim and victim had implicated the accused - Thereafter, victi111 shifted to another hospital ll'herein an Executive Magistrate recorded the dying declaration that it was a case of accidental death caused by falling of the chimney - Declaration not in yuestion answer form and did not bear thu111b impression of the victim - Conviction by courts below relying on the oral state111ent and the first dying declarations made by the victim - On appeal, held: Conviction rightly recorded relying on the dying declaration of the deceased recorded by the Magistrate - Courts below rightly rejected the theory put up by the defence that it was accide11tal death - lt is proved on record that death was caused by burn injuries - Prosecution by cogent evidences proved the prosecution case - Thus. accused rightly convicted for offence u/s. 302 - Evidence Act. 1872

- s.32.

Evidence Act. 1872 - s.32 - More than one c(ving declaration

- Reliance upon - Duty of the court - Held: Each dying declaration is to be considered independently 011 its 011•11 merit and cannot be rejected because of the contents of the other - It is the duty of the court to consider each one of the111 in its correct perspective and -satisfy itself that which one of theui reflects the true state of affairs.

Dismissing the appeal, the Court

HELD: 1. Each dying declaration has to be considered

independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. Jn cases where there is more than one dying declaration, 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. [Para 27) [830-H; 831-A)

2.1 _In the instant case, the third dying declaration recorded by Executive Magistrate DWl, was not in question answer form.

It is true that this court 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. The Sessions Judge rejected the third dying declaration not merely on the ground that it was not recorded in the question answer form but the Sessions Judge gave other valid reasons for not accepting the third dying declaration. [Paras 29,

30] (831-F-H]

2.2 Within an hour of incident on 04.03.1989 that is as soon as the victim arrived at the Hospital at about 10/10.30 pm police inspector came and took her oral statement in which she clearly stated that it was the accused who poured kerosene oil on her body and ignited the match-stick. The victim in her oral statement as well as in her dying declaration recorded by Magistrate also stated the motive of the accused. [Para 32] [832-B-C]

2.3 It has come on the evidence of PW 4 that the victfm, her sister was having a love affair with the accused. She was pregnant and she asked the accused to marry her. On the day of the incident, she met the accused and repeated her request to him to marry her. The accused who was carrying a tin of kerosene then poured kerosene on the victim to finish he1~ since he never wanted to live with the accused and wanted to keep her out from his life. 1Para_33] 83~-Dl

2.4 The dying declaration recorded by Executive Magistrate G was witnessed by two employees of the hospital, who were present at tlie 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 expressed its anguish regarding working of the Rural Hospital. The High Court was fully justified in expressing its anguish over the working of the Rural Hospital, where no trained Para-medical Staff/Medical Staff was available to attend the patient. Thus, submission of 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 the Executive Magistrate, is not acceptable. 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. (Paras 36,

371 [832-G-H; 833-A-BJ

2.5 From the evidence on record, it is clear that all the witnesses including PW 1 doctor who carried the autopsy of the

dead body supported that deceased died of burns. The doctor in her statement has recorded about 72 per cent burns. The theory of burn being caused by chimney (burning lamp) was rightly been rejected by courts below by giving cogent reasons. There is no inclination to take any different view to one which was taken by the courts below rejecting the case of the defence that it was a case of accidental death caused by falling of the chimney (burning lamp). [Paras 31, 34, 35] (831-11; 832-A, E-F]

2.6 The 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 was rightly recorded relying on the dying declaration of the deceased recorded by Executive Magistrate. The death has been caused by burn injuries, which is proved on record. The p_rosecution 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.IPC. [Paras 38, 39] [833-C-D]

Bhupa11 v. State of Madhya Pradesh 2002 (2) SCC 556; State of Punjab v. Parveen Kumar 2005 (9) SCC 769; Sudhakar v. State of Madhya Pradesh 2012 (7) SCR

128 : 2012 (7) sec 569; Ranjit Singh and others V.

A State of Punjab 2006 (8) Suppl. SCR 802 : 2006 (13) SCC 130; Prem Kumar Gulati v. State of Haryana and another 2014 (14) sec 646 - referred to.

Case Law Reference

2002 (2) sec 556 referred to Para 19 B

2005 (9) sec 769 referred to Para 23

2012 (7) SCR 128 referred to Para 24

2006 (8) Suppl. SCR 802 referred to Para 28

2014 (14) sec 646 referred to Para 29 c

CRIMINAL APPELLATE JURISDICTiON: Criminal Appeal No.

I 012 of2008.

From the Judgment and Order dated 13.04.2007 in Criminal Appeal No. 226 of 1991 passed by the High Court of Judicature at Bombay D Nagpur Bench Nagpur.

Kumar Parimal, Ms. Praveena Gautam, Advs. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Adv. for the Respondents.

The Judgment of the Court was delivered by E

ASHOK BHUSHAN, J. I. This appeal has been filed by the appellant against the judgment of the High Court of Bombay dated

13.04.2007, dismissing the appeal filed by the appellant against the judgment of the Sessions Judge. The Sessions Judge had convicted the appellant for an offence under Section 302 IPC and sentenced him to F undergo life imprisonment.

2. The prosecution case in nutshell is, Baby a girl of 18 years was residing at Mehkar with her parents, sister and brother. On 04.03.1989 in late evening, she was alone at house. Her parents had gone out and her brother and sister had gone to watch an evening movie. At about G 9.30 pm when her brother Dilawarsha returned to the house from movie, he saw Baby in flames in bushes near the house. Dilawarsha used a quilt to put off the fire and thereafter on a push-cart took Baby to Rural Hospital, Mehkar. There being no doctor available, waterman Narayan Mahure and maid-servant Smt. Magar took the Baby in the hospital and 1-1

cleaned her wounds and administered I. V. saline.

3. Police Sub-Inspector Meghrajani immediately came to the hospital and met the Baby. Baby gave a statement before the police Sub-Inspector that she was having a love affair with one Raju who was residing nearby. She was pregnant, she had pregnancy of two months but the same was aborted. She asked Raju to marry her. At 9.00 pm she saw Raju in the bye-lane by side of her house. On seei-ng him she again asked him to marry her. Raju poured kerosene on her person and then set her on fire with a burning match-stick. Police Sub-Inspector recorded the oral statement on which left thumb impression of Baby was also put.

4. On the basis of the above oral statement, a case No. 63/89 was registered for an offence punishable under Section 307 IPC. On a requisition sent by Police Sub-Inspector one Ramesh Giri the Executive Magistrate, Mehkar came to the Rural Hospital and in the presence of two employees of the Rural Hospital Narayan Mahure and Smt. Magar recorded the dying declaration of the Baby. Baby had also put her thumb impression on the dying declaration.

5. The Executive Magistrate sealed the dying declaration and sent it to the police. After recording the dying declaration Baby was shifted to the District Hospital, Buldhana. On 05.03.1989 one another Executive Magistrate, namely, Narayan Tandale came to hospital and recorded a dying declaration in his own words. In the statement it was noted that due to burns thumb impression could not be put by Baby.

6. On 9.03.1989 Baby died in the hospital. On the same day one doctor, Ashok Surushe, Medical Officer conducted autopsy on the dead body. The criminal case was converted under Section 302 !PC. Accused was put on trial before the Sessions Judge. Prosecution produced seven witnesses and certain documentary evidences. On behalf of the defence only one witness, Shri Narayan Tandale Naib Tehsildar/Executive Magistrate was produced.

7. Learned Sessions Judge after hearing the parties and considering the entire evidence on record found that it was accused who had put the deceased on fire. The statement of Baby recorded by the Police Sub-

Inspector was treated as dying declaration. Dying declaration recorded by Mr. Ramesh Giri Naib Tehsildar/Executive Magistrate on 04.03.1989 was found acceptable. Sessions Judge rejected the dying declaration recorded on 05.03.1989 by Shri Narayan Tandale. The case put up by

RAJU DEVADE v. STATE OF MAHARASHTRA 823 [ASJ-IOK Bl-IUSHAN, J.]

the defence that death took place on account of chimney (kerosene A lamp) falling on the Baby while she was sleeping and death was by accident, was not accepted.

8. An appeal was filed by the accused before the High Court. After elaborately considering the submission and the grounds raised in appeal, the High Court maintained the conviction. Aggrieved by the judgment, B this appeal has been filed.

9. We have heard the learned counsel for the parties and perused the record. Learned counsel for the appellant in support of the appeal contends that there being three dying declarations on the record, it was unsafe for courts below to rely on the first two dying declaration. The . C third dying declaration which was recorded by the Executive Magistrate which also had certificate of doctor ought to have been relied by the courts below wherein the victim had exonerated the accused from any role and it was stated by the victim that she caught fire from chimney (burning lamp) which was hanging against the wall.

I 0. It is submitted that when there is inconsistency between the two dying declarations as a rule of caution the comt has to take the dying declaration with caution and in view of the third dying declaration recorded on 05.03.1989 the prosecution theory falls on the ground.

11. It is fmther submitted that the oral evidence of PW 4 Dilawarsha was relied, which contained the contradictions and omissions. The Dilawarsha being brother of the victim was terribly interested witness.

The victim Baby was not able to give the surname of the accused. Neither in the statement of the Dilawarsha nor in the dying declaration of the deceased anywhere accused has been named. Also there is no independent witness to show that accused had any connection with the said Baby. The truth is that deceased Baby was sleeping in her house, a chimney (kerosene lamp) hanging against wall fell on the Baby as a result of which she caught fire, thus the case was oi1e of the accidental death.

12. PW 5 S. K. Manwar did not support the panchnama of the spot. As per the dying declaration of Baby, she was married to the accused four/five months before whereas PW 4 Dilawarsha has stated that accused was not married with Baby.

13. Learned counsel appearing for the State has suppo1ted the judgment of the High Court as well as of the Sessions Judge. It is H

A submitted that courts have not committed any error in relying on the dying declaration. For relying on the first two dying declarations of deceased cogent reasons have been given by the learned Sessions Judge and the High Court. There were valid reasons for not accepting the third dying declaration recorded on 05.03.1989.

14. Learned counsel for the parties has also placed reliance on the

judgments of this court which shall be referred to hereinafter.

15. The present is the case where both the Sessions Judge and the High Court have relied on the dying declaration r, nade by the victim. It has come in the statement of the PW 4 that when he returned from the rnovie alongwith his younger sister at about 9.30 pm, he heard the cries of his sister, he put off the fire by using the quilt which was lying there for drying. He on a push-cart took Baby to the Rural Hospital.

16. The Police Sub-Inspector Meghrajani arrived at the hospital immediately and met the victim and took her oral statement. In the oral statement which was duly signed by victim, she clearly stated that it was Raju .the accused who poured kerosene on her and set her on fire with a burning match-stick. Police Inspector had already sent a requisition to the Executive Magistrate before going to the Rural Hospital and an Executive Magistrate Ramesh Giri on same day at about 11.30 pm recorded the dying declaration. Dying declaration is in question answer form and answers were recorded in own language of Baby. The doctor being unavailable, both the employees of the Rural Hospital were present and in their presence the dying declaration was recorded by the Executive

Mistrate Giri.

17. Sometime after recording the dying declaration, the Baby was shifted to district hospital, Buldhana. On 05.03.1989 another Executive Magistrate OW I came and recorded the dying declaration. The dying declaration recorded by Shri N. P. Tandale as is clear from his statement made before the court that dying declaration was recorded in his own words by Shri Tandale and was not in question answer form. The dying declaration recorded by Shri Tandale also does not bear the thumb impression of the deceased. It was mentioned in the dying declaration that thumb is sustaining burns and hence thumb impression cannot be obtained. In the dying declaration which was given to Shri Tandale, deceased is claimed to have said that when she was sleeping in the house chimney (kerosene lamp) which was hanging against the wall fell

on her body as a result of which she caught fire. She shouted and her brother came and extinguished the fire.

18. After examining the entire evidence on record, the cogent reasons were given by learned Sessions Judge for not accepting the dying declaration recorded by Shri Tandale. It is useful to refer the observations made by the learned Sessions Judge at para 28 of the judgment. It is to the following effect:

"The circumstances brought 011 record also do 11ot i11dicate statement recorded by Sltri Taudale might be true. I have already poillted out that Dilawars//(/ mu/ Rani !tad go11e to cinema show. Mother of Baby fwd gone to her mother, while father of Baby was not at home. The time was 011/y 9 pm. It was not time for had especially when other family members were 11ot at home. Them why Baby slwultf go to bed so earv and how the accident should take place. Furthermore, the evidence brought 011 record i11dicutes that Baby was outside her house near the bushes. The statement recorded by Sltri

Timdale i11dicates that site was iuside the house wlte11 lier brother put off the fire. This circumstance also indicates that Slzri Ta11dale has recorded the statement as per his own whims mu/ not as per the statement nuule by Baby. No reliance cmt be placed 011 evidence of Sltri Tam/ale and Ex. 59 cannot be treated as dying declaration of Baby. It has to be discarded."

19. Before we proceed further it is relevant to refer to principles enunciated by this court with regard to a case where there is more than one dying declaration. Learned counsel for the appellant has relied on judgment of this court in Bl111pa11 versus State of Madhya Pmcleslt, 2002 (2) sec 556 .

. 20. In the above case, there was only one dying declaration in which name of the appellant was mentioned with wrong caste. The court convicted the accused rejecting of almost all evidences produced by prosecution, however, reliance was placed on the said dying declaration only against the appellant exonerating all other accused. The court held that the dying declaration as it was, there being difference as to the description of assailant which creates doubt on the identification of the assailant hence it was not safe to rely on the said dying declaration.

21. In the above case following reasons were given by the court

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

trutlful. 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

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

A the thighs. The deceased was 65% burnt. At the time of admission, tlte smell of kerosene was coming from her body."

* * * "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

RAJU DEVADE v. STATE OF MAHARASHTRA

[ASHOK BHUSHAN, J.]

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 corroboratingevidences. 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

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 Appal dismissed.