GOPALversusSTATE OF M.P.

                        [2009] 4 S.C.R. 1213


                              GO PAL                               A
                                 v.
                          STATE OF M.P.
                 Criminal appeal No. 564 of 2009
                         MARCH 27, 2009
                                                                   B
     [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,
                           JJ.]
         Penal Code, 1860 - s. 302134 - prosecution under- Two
    dying declarations made - Conviction by courts below - On
    appeal, held: Later dying declaration is not in conformity with C
    FIR and earlier dying declaration - Nature of inconsistency is
    material - Therefore, accused acquitted.
         Evidence Act, 1872 - Dying declaration - Plurality of -
1   Reliance on - Criteria for- Discussed.                         o
          Appellant-accused (A 1) was prosecuted along with
    co-accused (A2) for offence punishable u/s 302 IPC and
    in the alternative u/s 302/34 IPC. Trial court convicted them
    u/s 302/34 IPC. Conviction was confirmed by High Court,
    rejecting the plea of inconsistency between the two dying E
    declarations. Hence the present appeal by appellant A-1.
         Allowing the appeal, the Court
         HELD: 1. It is not the plurality of the dying
    declarations but the reliability thereof that adds weight to F
    the prosecution case. If a dying declaration is found to be
    voluntary, reliable and made in fit mental condition, it can
    be relied upon without any corroboration. The statement
    should be consistent throughout. If there are more than
    one dying declaration, they should be consistent. G
    However, if some inconsistencies are noticed between
    one dying declaration and the other, the court has to
    examine the nature of the inconsistencies, namely,
    whether they are material or not. While scruitinizing the
                                1213                               H
    1214       SUPREME COURT REPORTS                  [2009] 4 S.C.R.


A   contents of various dying declarations, in such a situation,
    the court has to examine the same in the light of the various
    surrounding facts and circumstances. [Para 8] [1217-C-F]
        Kundula Bala Subrahmanyam v. State of A.P (1993) 2
    sec 684-referred to.
B
       2. In the present case, the dying declaration (Exh.P11)
  scribed by the Executive Officer (PW9), was not in
  conformity with the FIR and the earlier dying declaration
  (Exh.P3) scribed by ASI (PW 8) as different motives have
C been described. That is not the only variation; there are
  Several other discrepancies, even as regards the manner
  in which she is supposed to have been sprinkled with
  kerosene and thereafter set on fire. Therefore, the
  discrepancies make the last declaration doubtful. The
  nature of the inconsistencies is such that they are
D certainly material. That being so, it would be unsafe to
  convict the appellant. The conviction is set aside and
  appellant is acquitted of the charges. [Paras 9 and 10]
  [1217-G-H; 1218-A-B]
                         Case Law Reference
E
           (1993) 2 sec 684         Referred to.        Para 8
         CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
    No. 564 of 2009
F        From the Judgement and Order dated 18.06.2007 of the
    High Court of Madhya Pradesh at Jabalpur in Criminal Appeal
    No. 690 of 1993.
           Shiv Sagar Tiwari, Priyanka Singh, for the Appellants.
           Vibha Datta Makhija, for the Respondent.
G
           The Judgement of the Court was delivered by
           DR. ARIJIT PASAYAT, J.
           1. Leave granted.
H          2. Challenge in this appeal is to the judgment of the
                     GOPAL V. STATE OF MP.                        1215
                     [DR. ARIJIT PASAYAT, J.]

    Division Bench of the Madhya Pradesh High Court at Jabalpur, A
    upholding the conviction and sentence of the appellant for the
    offence punishable under Section 302 read with Section 34 of
    the Indian Penal Code, 1860 (in short the 'IPC') and sentence
    of imprisonment for life and fine of Rs.2,000/- with default
    stipulation. Appellant Gopal was arraigned in the charge sheet B
    as A1.
         3. Prosecution version as unfolded during trial is as follows:
          Saraswati Bai-deceased was a woman of questionable
    character. After being deserted by her husband Motilal, she           c
    developed illicit relationship with Amal Singh (A2) who ultimately
    kept her as mistress. At the relevant point of time, she was
    residing in Tapariya (hut) at village Bichhua.
              ih
         On 1 March, 1992 at about 8.00 p.m. hearing screams
' of Saraswati Bai, persons residing in the neighbourhood viz. D
   Rajesh Gupta (PW6), Santosh Gudda (PW2), Mukundi Lal
   (PW4), Kaliram (PW5), Chhindami Lal (PW3), and Chandra
   Bhushan rushed towards her hut. In the transit, some of them
   had seen A 1 running away. They found Saraswati Bai lying in a
   severely burnt condition in the courtyard of the hut. On being E
   enquired, she revealed that both the accused persons had
 " sprinkled kerosene over her body and set her ablaze. According
   to her, A2 was enraged by her act of taking land belonging to
   his adversary Raju Seth for cultivation as Bataidar (crop-sharer).
         It was upon the report (Ex. P-1) lodged by Kotwar Prahlad F
    Singh (PW1) and ASI Bairam (PW8) registered a case under
    Section 307 read with Sect.ion 34 IPC against the appellant.
    He along with Prahlad proceeded to the spot and recorded
    Saraswati's dying declaration (Ex.P-3) in the presence of
'   Chhidami Lal (PW3), Kaliram (PW5), Babulal and Chandra· G
    Bhushan.
         Saraswati Bai was immediately taken to the Government
    Hospital at Gadarwara. Observing that her condition was
    serious, Dr. B.P. Gupta (PW11) not only admitted her for H
    1216      SUPREME COURT REPORTS                   [2009] 4 S.C.R.


A   treatment but also sent a memo (Ex.P-13) to the SHO requiring
    him to take necessary action to get dying declaration recorded.
    Naib Tahsildar and Executive Magistrate R.K. Dimole (PW9),
    after obtaining necessary certificate as to fit state of her mind,
    recorded Saraswati Bai's dying declaration between 4.35 a.m.
B   and 4.50 a.m. thereafter, at 9.10 a.m., Saraswati Bai breathed
    her last in the hospital. Accordingly, the case was altered to one
    under Section 302 IPC.
       After inquest proceedings, dead body of Saraswati Bai
  was sent for post-mortem, Dr. D.S. Choudhary (PW7) found that
c body of Saraswati Bai, who was carrying more than 3 months
  pregnancy, had been burnt to the extent of 89%. According to
  him, the cause of Saraswati Bai's death was shock due to
  extensive burns. However, he preserved the remaining pieces
  of burnt saree and blouse, earrings, nathni, Bangles and bunch
D of scalp hair for forensic examination.                                    •

          During investigation, burnt pieces of saree and blouse,
    one kupiya (Container) of kerosene, a matchbox, one pair of
    shoes belonging to A2, a lathi and a broken mala (necklace)
    were seized from the spot; the appellants were apprehended
E
    and a burn injury was also found by Dr. R.K Patel (PW10) on the
    right forearm of A2.
                                                                         ~


       4. Two accused persons faced trial for offence punishable
  under Section 302 IPC and in alternative under Section 302
F read with Section 34 IPC, as they abjured the guilt. To prove the
  accusations prosecution examined 11 witnesses. On
  consideration of the evidence, the trial court found the accused
  persons guilty of death of the deceased in furtherance of their
  common intention. Accordingly, they were convicted and
G sentenced as afore-stated. Both of them preferred separate                 *
  appeals before the High Court.
        5. Before the High Court, the primary stand was to the
  acceptability of the dying declaration. The High Court rejected
  the plea and held that though there were more than one dying
H declarations, the extent of variance between the two was
                  GOPAL V. STATE OF M.P                      1217
                  [DR. ARIJIT PASAYAT, J]

insignificant. It was noted that the dying declarations were A
consistent in substance as to the complexity of the accused
persons causing burn injury to the person of the deceased and,
therefore, there was no infirmity in the judgment of the trial court
to warrant interference. Accordingly the appeals were dismissed.
                                                                     B
     6. In support of the appeal learned counsel for the appellant
submitted that there was great variance in the so called dying
declarations, which affected credibility of the evidence.

     7. Learned counsel for the respondent-State on the other
hand submitted that minor variance in the dying declarations        c
have no relevance.

       8. Law relating to appreciation of evidence in the form of
 more than one dying declaration is well settled. Accordingly, it
 is not the plurality of the dying declarations but the reliability
 thereof that adds weight to the prosecution case. If a dying D
 declaration is found to be voluntary, reliable and made in fit
 mental condition, it can be relied upon without any corroboration.
 The statement should be consistent throughout. If the deceased
 had several opportunities of making such dying declarations,
 that is to say, if there are more than one dying declaration they E
.should be consistent. (See: Kundula Bala Subrahmanyam v.
 State of A.P. [(1993) 2 SCC 684]. However, if some
 inconsistencies are noticed between one dying declaration and
 the other, the court has to examine the nature of the
 inconsistencies, namely, whether they are material or not. While F
 scruitinizing the contents of various dying declaration, in such a
 situation, the court has to examine the same in the light of the
 various surrounding facts and circumstances.

      9. It is to be noted that the High Court had itself observed
that the dying declaration (Exh.P11) scribed by the Executive G
Officer, (PW9) at about 0435 hours in the same night was not in
conformity with the FIR and the earlier dying declaration (Exh.P3)
scribed by ASI Bairam (PW 8) as different motives have been
described .. That is not the only variation. Several other
discrepancies, even as regards the manner in which she is H
    1218       SUPREME COURT REPORTS                 [2009] 4 S.C.R.


A   supposed to have been sprinkled with kerosene and thereafter
    set on fire.

          10. Therefore, the discrepancies make the last declaration
    doubtful. The nature of the inconsistencies is such that they are
    certainly material. That being so, it would be unsafe to convict
8
    the appellant. The conviction is set aside and appellant is
    acquitted of the charges. He be set at liberty forthwith unless
    required to be in custody in connection with any other case.
           11. The appeal is allowed.

    K.K.T.                                          Appeal allowed.