Holding

The dying declarations were deemed reliable and sufficient to uphold the conviction under Section 302 IPC.

Summary

The appellant, Bapu, was convicted under Section 302 IPC for allegedly setting his wife, Shobhabai, on fire. The prosecution's case rested on three dying declarations made by the deceased—two recorded in a rural hospital before an Executive Magistrate and a police constable, and a third before family members in a civil hospital—each implicating the appellant. The trial and appellate courts upheld the conviction, and the appellant appealed to the Supreme Court, challenging the reliability of the dying declarations. The Court examined the consistency of the statements, the deceased's conscious condition as affirmed by the attending doctor and witnesses, and the absence of any motive for falsehood. Relying on precedents that a reliable dying declaration need not be corroborated, the Court found the declarations trustworthy and affirmed the conviction. The appeal was dismissed.

Issues considered

Whether the dying declarations made by the deceased are reliable and can form the sole basis for conviction under Section 302 IPC without corroboration.
Whether the deceased was in a fit mental state to make the dying declarations.

Legislation cited

Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 302

Subjects

dying declarationsection 32 evidence actsection 302 ipcmurderreliability of evidencecorroborationSupreme Court of Indiaconviction upheld

Judgment

......

A BAPU
\'.

STATE OF MAHARASHTRA ...,

NOVEMBER 16, 2006

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Evidence Act, 1872-s.32:
.
Three dying declarations-One each before the Executive Magistrate
c and the Head Constable-Third one before relatives of deceased-All of them
implicating deceased's husband as the culprit-Conviction based on the
dying declarations-Justification of-Held, justified-Evidence of Executive •,

Magistrate, Doctor and other witnesses unequivocal that deceased was
conscious and able to answer the questions-No reason to disbelieve the
D dying declarations especially since there is consistency between all of them-
Penal Code, 1860-S.302.

Deceased gave three dying declarations to the effect that her husband
(Appellant) poured kerosene on her and set her on fire with a matchstick.
Two dying declarations were recorded while deceased was in the Rural
E Hospital; one by the Executive Magistrate in presence of the Doctor who
endorsed it, and, the other by the Police Head Constable in presence of Doctor
who endorsed it and another person. In both the declarations, deceased named
Appellant as the culprit. Deceased made the third dying declaration before
her mother, brother and cousin when she was shifted to the Civil Hospital
wherein also she implicated the Appellant. Very soon thereafter, deceased
F succumbed to her burn injuries. The Trial Court convicted appellant under
Section 302 IPC. The conviction was upheld by the High Court.

In appeal to this Court, the question which arose for consideration is
whether the veracity of the dying declarations was doubtful and the Courts
below erred in convicting appellant under Section 302, IPC.
G
Dismissing the appeal, the Court
HELD: 1.1. The evidence on record shows that the incident occurred in
the house of the accused-appellant. The deceased was initially admitted in

H 52
,..,.,.-
BAPU v. ST ATE OF MAHARASHTRA 53
Rural Hospital, Bhadgaon where the dying declaration was recorded by the A
Police as well as the Executive Magistrate. The deceased was thereafter shifted
to Civil Hospital, Jalgaon and the deceased repeated her dying declaration
before several other persons. In all these dying declarations, the deceased
has stated that it was the appellant who poured kerosene on her and set her
on fire by a matchstick and all these dying declarations are consistent with B
each other. According to the Doctor, who had examined the deceased, she had
sustained 88% burns which were deep. However, the Doctor has stated that
deceased was speaking in an audible voice and it was not true to say that she
was not in a position to speak. The witnesses all have stated that the deceased
was at the time of recording dying declarations in a fit mental condition.
(55-F-G; 56-B-C) C
1.3. There is no reason to doubt the veracity of the dying declarations
especially since there is consistency between all of them. There is also no
·- reason why the Executive Magistrate or the Doctor or the other witnesses
should make a false statement about the dying declaration. There is no
allegation of enmity between the accused and these persons. (56-F) D
2. A perusal of the various decisions of this Court shows that if a dying
declaration is found to be reliable then there is no need for corroboration by
any witness, and conviction can be sustained on Ks basis alone. (59-EJ

Narain Singh v. State of Haryana, AIR (2004) SC 1616; Babula/ & Ors. E
v. State of MP., (2003) 12 SCC 490; Ravi & Anr. v. State of T.N. [2004( 10
SCC 776 and Mutl;u Kutty & Anr. v. State, (2005) 9 SCC 113, relied on.

3. In the present case, the evidence of the Executive Magistrate, the
Doctor and the other witnesses is unequivocal that the deceased was conscious
and was able to answer the questions. If some persons other than the accused F
had poured kerosene on the deceased and burnt her, there was no reason why
the deceased should have thought of implicating the accused instead of the
real culprits. Therefore, there is no reason to disbelieve the dying declaration
of the deceased. Hence the judgment of the Courts below is upheld. [59-F, GI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1531 of G
2004.

From the final Judgment and Order dated 17-10-2003 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Crl. A. No. 255 of 1998.

Bhaskar Y. Kulkarni for the Appellant. H
54 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. ..._
A V.N. Raghupathy (for Ravindra Keshavrao Adsure) for the Respondent.

The Judgment of the Court was delivered by

MARKANDEY KATJU, J. This appeal has been filed against the
impugned judgment dated 17.10.2003 of the Bombay High Court (Aurangabad
B Bench). By that Judgment the High Court has upheld the conviction of the
appellant by the Second Additional Session Judge, Jalgaon by its judgment
dated 24.8.1998, finding the appellant guilty of an offence under Section 302
1.P.C: and awarding him the sentence oflife imprisonment and fine of Rs.1,000.

We have heard the counsel for the parties and perused the record. ...
c
The appellant and the deceased Shobhabai were married to each other
for about 1112 years prior to the incident in question which took place on
21.8.1997 at about 3.00 a.m. According to the prosecution, the deceased
.
Shobhabai was being harassed and treated cruelly by the appellant because
-·
)"
a gift by way of 'Mui' was not being paid or given by the parents of the
D deceased Shobhabai after the marriage, which is a practice in their community,
and on that count there was a demand of Rs. I 0,000/- by the appellant prior
to the incident. 1t is alleged that the appellant had taken the deceased
Shobhabai to the house of her parents and left her there with an understanding
that unless she brings Rs. 10,000/- by way of 'Mui', she will not return to her
....
E matrimonial home. However, the parents and brother as also the mediator of
the marriage of Shobhabai with the appellant, somehow or the other, convinced
her and brought her back to the house of the appellant. The brother of the
deceased Shobhabai and the mediator also persuaded the accused person
that they should not trouble Shobhabai and their demands will be satisfied
within a short period. However, within a period of 2-3 days thereafter, the
F incident in question took place in the night at 3.00 a.m. on 21.8.1997.

According to the prosecution, in that night, prior to going to bed, the
mother of the appellant had abused the deceased Shobhabai on account of
not washing and cleaning utensils and also on a suspicion of theft of silver "
ornaments of the sister-in-law of deceased Shobhabai by the deceased. It is
G alleged that in the morning at 3.00 a.m. when deceased Shobhabai got up, the
appellant quarreled with her and when the deceased came outside the house
on a platform, the appellant poured kerosene on her and set her on fire with
a matchstick. The villagers gathered and extinguished the fire. Thereafter she
was taken to Rural Hospital, Bhadgaon where her dying declarations were
H recorded initially by the Executive Magistrate in the presence of Dr. Damodar
~ ,,, BAPU v. STATE OF MAHARASHTRA [MARKANDEY KATJU, J.) 55
who endorsed it, and later by Police Head Constable PW6 Yanushka Tadavi A
in the presence of PWS Lata Patil and the doctor (who endorsed it), in which
Shobhabai named the appellant as the culprit. Thereafter she was shifted from
Rural Hospital, Bhadgaon to Civil Hospital, Jalgaon where also she made
dying declaration to her mother Reshmabai PW2, her brother Suresh PW3 and
her cousin Dattatreya PW4, in which also she implicated the appellant. She
succumbed to her bum injuries on 22.8.1997 at about 9.30 a.m. B

In order to prove the guilt of the accused person, the prosecution has
examined eleven witnesses viz., PW2 Reshmabai, mother of the deceased,
PW3 Suresh, brother of the deceased, PW4 Dattatraya, maternal cousin of the
deceased, PW5 Govind Pardeshi, Executive Magistrate at Bhadgaon, PW6
Yanushka, Head Constable at P.S. Bhadgaon, Dr. Damodar PW7, Latabai PWS,
c
Adhikar Shamrao Patil PWIO, the mediator in the settlement of the marriage
of deceased Shobhabai with the appellant and Dinkar Ingale PWI I.

PWI is a witness on the scene of the offence and the recoveries from
the said place, while PWs 3 to 8 were examined by the prosecution to prove D
the dying declarations recorded by Executive Magistrate at Ext.32 and by
Police Head Constable at Ext.35. PWI I Mr. Ingale is the P.S.I., who has
investigated the crime. PW9 was a witness on the point of ill-treatment meted
... out to the deceased at the hands of accused and his mother, but he has not
supported the prosecution and was declared hostile by the prosecution.
E
The accused examined two defence witnesses, namely, DWI Shivaji
Patil and DW2 Appa Shankar Patil, in order to prove the fact that the appellant
was not responsible for setting the deceased on fire and that the deceased
caught the fire accidentally, and that at the relevant time the accused was
sleeping at the threshing floor.
F
The evidence on record shows that the incident occurred in the house
of the accused-appellant. The deceased Shobhabai was initially admitted in
.... Rural Hospital, Bhadgaon where the dying declaration was recorded by the
Police as well as the Executive Magistrate. The deceased was thereafter
shifted to Civil Hospital, Jalgaon and the deceased repeated her dying G
declaration before several other persons. Thus the deceased has made her
dying declaration before PW2 Reshambai, the mother of the deceased, PW3
Suresh, the brother of the deceased, PW4 Dattatraya, the cousin brother of
the deceased, PW5 Govind Pardeshi, the Executive Magistrate, PW6 Yanushka
Tadavi, Head Constable in Bhadgaon Police Station, PW7 Dr. Damodar
Sonawane, who was attached to Rural Hospitai Bhadgaon and PWS Latabai H

"-<
56 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Patil, who was the President of the Taluka Women Vigilance Committee,
Bhadgaon.

In all these dying declarations, the deceased Shobhabai has stated that
it was the appellant who poured kerosene on her and set her on fire by a
matchstick and all these dying declarations are consistent with each other.
B According to Dr. Damodar, who had examined the deceased, she had sustained
88% burns which were deep. However, Dr. Damodar has stated that Shobhabai
was speaking in an audible voice and it was not true to say that she was not .
in a position to speak. The witnesses all have stated that the deceased was
at the time of dying declarations in a fit mental condition. Dr. Damodar has
C stated that Shobhabai made her dying declaration to the Executive Magistrate
in the presence of Dr. Damodar and he has signed on the same vide Exh.32A.
What was narrated was recorded by the Executive Magistrate.

In this dying declaration Shobhabai has stated that there was a quarrel
between her and her mother-in-law about cleaning and washing utensils and
D suspicion of theft of silver ornaments by the deceased. Her mother-in-law
then talked to the appellant, who came to the house and poured kerosene on
his wife Shobhabai and set her on fire. The statement of the deceased was
recorded by PW6 Yanushka, Head Constable as per the narration of Shobhabai,
whose thumb mark was taken on the statement and it was signed by the PW6 . ,,
and endorsement of the Medical Officer as well as Latabai Patil were also
E obtained vide Ext.35.

We see no reason to doubt the veracity of the dying declarations
espt:cially since there is consistency between all of them. We see no reason
why the Executive Magistrate Govind or Dr. Damodar or the other witnesses
F should make a false statement about the dying declaration. There is no
allegation of enmity between the accused and these persons.

As observed by the Supreme Court in Narain Singh v. State of Haryana,
AIR (2004) SC 1616 vide paragraph 7:

" ......... "A dying declaration made by a person on the verge of his
G death has a special sanctity as at that solemn moment a person is
most unlikely to make any untrue statement. The shadow of impending
death is by itself guarantee of the truth of the statement of the
deceased regarding circumstances leading to his death. But at the
same time the dying declaration like any other evidence has to be
H tested on the touchstone of credibility to be acceptable. It is more so,
BAPU v. STATE OF MAHARASHTRA [MARKANDEY KA nu. J.] 57

as the accused does not get an opportunity of questioning veracity A
of the statement by cross-examination. The dying declaration if found
reliable can form the base of conviction."

In Babula/ & Ors. v. State of MP., [2003] 12 SCC 490 the Supreme Court
observed vide in paragraph 7 of the said decision as under:
B
" ..... A person who is facing imminent death, with even a shadow of
continuing in this world practically non-existent, every motive of
falsehood is obliterated. The mind gets altered by most powerful
ethical reasons to speak only the truth. Great solemnity and sanctity
is attached to the words of a dying person because a person on the
verge of death is not likely to tell lies or to concoct a case so as to C
implicate an innocent person. The maxim is "a man will not meet his
Maker with a lie in his mouth" (nemo moriturus praesumitur mentire).
Mathew Arnold said, "truth sits on the lips of a dying man". The
general principle on which the species of evidence is admitted is that
they are declarations made in extremity, when the patty is at the point D
of death, and when every hope of this world is gone, when ever:)t
motive to falsehood is silenced and mind induced by the most powerful
consideration to speak the truth; situation so solemn that law considers
thf same as creating an obligation equal to that which is imposed by
a positive oath administered in a court of justice" ....
E
In Ravi & Anr. v. State of T.N., [2004] I 0 SCC 776 the Supreme Court
observed that "if the truthfulness of the dying declaration cannot be doubted,
the same alone can form the basis of conviction of the accused and the same
does not require any corroboration whatsoever, in law."

In Muthu Kutty & Anr. V. State, [2005] 9 sec 113, vide paragraph 15 F
the Supreme Court observed as under: -

"Though a dying declaration is entitled to great weight, it is
worthwhile to note that the accused has no power of cross-examination.
Such a power is essential for eliciting the truth as an obligation of
oath could be. This is the reason the court also insists that the dying G
declaration should be of such a nature as to inspire full confidence
of the court in its correctness. The court has to be on guard that the
statement of the deceased was not as a result of either tutoring, or
prompting or a product of imagination. The court must be further
satisfied that the deceased was in a fit state of mind after a clear H
58 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A opportunity to observe and identify the assailant. Once the court is
satisfied that the declaration was true and voluntary, undoubtedly,
it can base its conviction without any further corroboration. It
cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborated The rule requiring corroboration is merely a rule of
B prudence. This Court has laid down in several judgments the principles
governing dying declaration, which could be ·summed up as under as
indicated in Paniben v. State of Gujarat, [1992] 2 SCC 474, pp.480-81,
paras 18-19.

(emphasis supplied)
c
(i) There is neither.rule oflaw nor of prudence that dying declaration
cannot be acted upon without corroboration. (See Munnu Raja
v. State of MP., [1976] 3 SCC 104.
(ii) If the Court is satisfied that the dying declaration is true and
D voluntary it can base conviction on it, without corroboration (See
State of UP. v. Ram Sagar Yadav, [1985] l SCC552 and Ramawati
Deviv . .stateofBihar, [1983] l SCC211).
(iii) The Court has to scrutinise the dying declaration carefully and
must ensure that the declaration is not the result of tutoring, ."

E prompting or imagination: The deceased had an opportunity to
observe and identify the assailants and was in a fit state to make
the declaration. (See K Ramachandra Reddy v. Public Prosecutor,
[197613 sec 618).
{iv) Where dying declaration .is suspicious, it should not be acted
F upon without cort:oborative evidence. (See Rasheed Beg v. State
ofMP., [1974] 4 SCC 264).
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be rejected.
(See Kake Singh v. State of MP., (1981] Supp. SCC 25).
G (vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. (See Ram Manorath v. State of UP., (1981]
2 sec 654).

(vii) Merely because a dying declaration does not contain the details
as to the occurrence, it is not to be rejected. (See State of
H
......
)
BAPU v. STATE OF MAHARASHTRA [MARKANDEY KA TJU, J.] 59
Maharashtra v. Krishnamurti Laxmipati Naidu [1980] Supp. SCC A
455).

(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Ojha v. State of Bihar, [ 1980]
Supp. sec 769). B
(ix) Normally the Court in order to satisfy whether deceased was in
a fit mental condition to make the dying declaration look up to
the medical opinion. But where the eyewitness said that the
·~
deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. (See Nanhau C
Ram v. State of MP., [1988] Supp. SCC 152).

(x) Where the prosecution version differs from the version as given
in the dying declaration, the said declaration cannot be acted
upon. (See State of UP. v. Madan Mohan, [1989] 3 SCC 390).

(XI) Where there are more than one statement in the nature of dying D
declaration, one first in point of time must be preferred. Of course,
if the plurality of dying declaration could be held to be trustwo11hy
.,. . and reliable, it has to be accepted. (See Mohan/al Gangaram
Gehani v. State of Maharashtra, [1982] I SCC 700)."

A perusal of the various decisions of this Court, some of which have E
been referred to above, shows that if a dying declaration is found to be
reliable then there is no need for corroboration by any witness, and conviction
can be sustained on its basis alone.

In the present case, the evidence of the Executive Magistrate, the F
Doctor and the other witnesses is unequivocal that the deceased was conscious
and was able to answer the questions. If some persons other than the
accused had poured kerosene on the deceased and burnt her, there was no
reason why the deceased should have thought of implicating the accused
instead of the real culprits. We, therefore, see no reason to disbelieve the
dying declaration of the deceased. Hence we uphold the judgment of the G
courts below.

With the above observations this appeal is dismissed.

B.B.B. Appeal dismissed.