LAKHANversusSTATE OF M.P.

                     [2010] 9 S.C.R. 705


                           LAKHAN                                   A
                              v.
                       STATE OF M.P.
             (Criminal Appeal No. 2297 of 2009)
                      AUGUST 09, 2010
                                                                    B
     [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

     Evidence Act, 1872:

        s. 32 - Dying declaration, recorded by magistrate/police    c
  officer - Evidentiary value of - Held: Dying declaration
  recorded by magistrate stands on a higher footing than the
  declaration recorded by officer of lower rank provided that
  there is no circumstance giving rise to any suspicion about
  its truthfulness - In the instant case, first dying declaration   0
  recorded by magistrate wherein deceased stated that she got
. burnt accidently not supported by medical evidence - The
  second declaration recorded by police two days later stood
  corroborated not only by the medical evidence but also by
  oral dying oral declarations made by the deceased to her          E
  parents who were examined in the court - Conviction rightly
  based on second dying declaration by courts below discarding
  the first declaration - Concurrent findings of courts below not
  interfered with - Penal Code, 1860 - s. 302 - Bride burning -
  Maxim "Nemo moriturus praesumitur mentire".
                                                                    F
     The prosecution case was that the appellant was
married to the victim (deceased) in June, 1999. In Feb.,
2000, the deceased was brought to hospital by her in-
laws in burnt condition. The statement of the deceased
was recorded by the magistrate wherein she stated that              G
she got burnt accidentally. The said statement was
recorded after the doctor certified that the deceased was
in a fit mental condition to give the statement. Two days
later, PW-19, a police officer recorded the second
                            705                                     H
            SUPREME COURT REPORTS               [2010] 9 S.C.R.

A statement of the deceased wherein she stated that the
  appellant brought a 'kuppi' full of kerosene and poured
  it on her body; thereafter, the fire was lit by him by a lamp
  and she was burnt. She also stated that she was brought
  to the hospital by her in-laws She died after three weeks.
8 The   trial court held that the appellant was guilty for
  commission of offence under Section 302 IPC. The High
  Court upheld the order of conviction. The order of
  conviction was challenged in the instant appeal.

        Dismissing the appeal, the Court
c
      HELD: 1.1. The doctrine of dying declaration is
  enshrined in the legal maxim "Nemo moriturus
  praesumitur mentire", which means "a man will not meet
  his maker with a lie in his mouth". The doctrine of dying
o declaration is enshrined in Section 32 of the Indian
  Evidence Act, 1872 as an exception to the general rule
  contained in Section 60 of the Evidence Act, which
  provides that oral evidence in all cases must be direct i.e.
  it must be the evidence of a witness, who says he saw it.
E The dying declaration is, in fact, the statement of a person,
  who cannot be called as witness and, therefore, cannot
  be cross-examined. Such statements themselves are
  relevant facts in certain cases. The law is that if the court
  is satisfied that the dying declaration is true and made
F voluntarily by the deceased, conviction can be based
  solely on it, without any further corroboration. It is neither
  a rule of law nor of prudence that a dying declaration
  cannot be relied upon without corroboration. When a
  dying declaration is suspicious, it should not be relied
  upon without having corroborative evidence. The court
G has to scrutinize the dying declaration carefully and must
  ensure that the declaration is not the result of tutoring,
  prompting or imagination. The deceased must be in a fit
  state of mind to make the declaration and must identify

H
              LAKHAN v. STATE OF M.P.                    707

 the assailants. Merely because a dying declaration does         A
 not contain the details of the occurrence, it cannot be
 rejected and in case there is merely a brief statement, it
 is more reliable for the reason that the shortness of the
 statement is itself a guarantee of its veracity. If the dying
 declaration suffers from some infirmity, it cannot alone        B
 form the basis of conviction. Where the prosecution
 version differs from the version given in the dying
 declaration, the said declaration cannot be acted upon.
 [Paras 8, 9] [714-B-H; 715-A]

      Kusha/ Rao v. State of Bombay AIR 1958 SC 22;
                                                                 c
  Rasheed Beg & Ors. v. State of Madhya Pradesh AIR 1974
  SC 332; K. R. Reddy & Anr. v. The Public Prosecutor AIR
  1976 SC 1994; State of Maharashtra v. Krishnamurti
· Laxmipati Naidu AIR 1981 SC 617; Uka Ram v. State of
  Rajasthan (2001) 5 SCC 254; Babula/ & Ors. v. State of M.P.    D
  (2003) 12 SCC 490; Muthu Kutty & Anr. v. State (2005) 9 SCC
  113; State of Rajasthan v. Wakteng AIR 2007 SC 2020;
  Sharda v. State of Rajasthan (2010) 2 SCC 85 - relied on.

      1.2. A dying declaration recorded by a competent E
 Magistrate stands on a much higher footing than the
 declaration recorded by an officer of lower rank, for the
 reason that the competent Magistrate has no axe to grind·
 against the person named in the dying declaration of the
 victim; however, circumstances showing anything to the F
 contrary should not be there in the facts of the case. In
 case, there are inconsistent dying declarations, the court
 must rely upon any other evidence, if available, as it is
 not safe to act only on inconsistent dying declarations
 and convict the accused. In case, there are multiple dying G
 declarations and there are inconsistencies between
 them, generally, the dying declaration recorded by the
 higher officer like a Magistrate can be relied upon,
 provided that there is no circumstance giving rise to any
                                                                 H
    708    SUPREME COURT REPORTS              (2010] 9 S.C.R.

A suspicion about its truthfulness. In case, there are
  circumstances wherein the declaration had been made
  not voluntarily and even otherwise it is not supported by
  the other evidence, the court has to scrutinize the facts
  of an individual case very carefully and take a decision
B as to which of the declarations is worth reliance. [Paras
  11, 14, 20] [715-E-F; 716-G; 718-G-H; 719-A-B]

       Munnawar & Ors. v. State of Uttar Pradesh & Ors. (2010)
  5 SCC 451; Ravi Chander & Ors. v. State of Punjab, (1998)
  9 SCC 303; Harjit Kaur v. State of Punjab (1999) 6 SCC 545;
C Kofi Chunilal Savji & Anr. v. State of Gujarat, (1999) 9 SCC
  562; Vikas & Ors. v. State of Maharashtra (2008) 2 SCC 516;
  Balak Ram v. State of UP. AIR 1974 SC 2165; Sayarabano
  @ Su/tanabegum v. State of Maharashtra (2007) 12 SCC
  562; Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC 713;
D Sher Singh & Anr. v. State of Punjab AIR 2008 SC 1426;
  Paras Yadav & Ors. v. State of Bihar (1999) 2 SCC 126;
  Chairman & Managing Director, v. S.P. & Ors. v. Goparaju
  Sri Prabhakara Hari Babu (2008) 5 SCC 468; Kundula Bala
  Subrahmanyam & Anr. v. State of Andhra Pradesh (1993) 2
E SCC 684; Heeralal v. State of Madhya Pradesh (2009) 12
  SCC 671; State of Andhra Pradesh v. P. Khaja Hussain
    (2009) 15 sec 120 - relied on.

       2.1. As per the Injury Report and the medical
F evidence, it was fully proved that the deceased had
  injuries on the upper part of her body. The Doctor, who
  had examined her at the time of admission in hospital,
  deposed that she had burn injuries on her head, face,
  chest, neck, back, abdomen, left arm, hand, right arm,
  part of buttock and some part of both the thighs. The
G deceased was 65% burnt. At the time of admission, the
  smell of kerosene was coming from her body.
  Undoubtedly, the first dying declaration was recorded by
  the Executive Magistrate, DW.1, immediately, after
  admission of the deceased, in the hospital and the Doctor
H
             LAKHAN v. STATE OF M.P.                  709


had certified that she was in a fit condition of health to   A
make the declaration. However, as she was brought to
the hospital by her father-in-law and mother-in-law, she
was under their influence. The trial court was right in
making an observation that generally, most women do
not accuse their husbands for sentimental and religious      B
reasons. The medical report also did not support her first
dying declaration for the reason that the injuries on her
body were found on the upper part of her body and it was
not possible to have such burn injuries in case of the
kind of accident as she had disclosed in the first           c
Declaration. The trial court and the High Court rightly
discarded the same. [Paras 23, 25, 27, 28] [720-8; F-G;
721-F; 722-A-C]
     2.2. The second dying declaration stood fully
corroborated not only by the medical evidence but also       D
by oral dying declarations made by the deceased to her
parents, PW.1 and PW.3, who were examined in the court.
The ASI, (PW.19), in his cross-examination, explained that
he was not aware of the factum of recording of the first
dying declaration of the deceased on 27 .02.2000.            E
Therefore, there was no reason for him to ask the
deceased about the same. Undoubtedly, the witnesses
of the second dying declaration, PW9 and PW18 turned
hostile and did not support the prosecution case;
however, they had admitted their signatures on the dying     F
declaration and could not give any explanation as to why
they had attested the said declaration. Thus, the second
dying declaration cannot be held to be a fabrication.
[Paras 25, 26, 27] [720-F-H; 721-A-F]
     3. There is nothing on record to show for what          G
reason the witnesses would depose falsely against the
appellant. In the facts and circumstances of the case, the
concurrent findings of fact recorded by the courts below
did not warrant any interference from this Court. [Paras
28, 29] [722-G-H]                                            H
    710      SUPREME COURT REPORTS            [2010] 9 S.C.R.

A                       Case Law Reference:
          AIR 1958 SC 22       relied on           Para 9
          AIR 1974 SC 332      relied on           Para 9

B         AIR 1976 SC 1994     relied on           Para 9
          AIR 1981 SC 617      relied on           Para 9
          (2001) 5 sec 254     relied on           Para 9
          (2003) 12 sec 490    relied on           Para 9
c
          (2005) 9 sec 113     relied on           Para 9
          AIR 2007 SC 2020     relied on           Para 9
          (201 O) 2 sec 85     relied on           Para 9
D         (2010) 5 sec 451     relied on           Para 10
          (1998) 9 sec 303     relied on           Para 11
          (1999) 6 sec 545     relied on           Para 11

E         (1999) 9 sec 562     relied on           Para 11
          (2008) 2 sec 516     relied on           Para 11
          AIR 1974 SC 2165     relied on           Para 12
          (2007) 12 sec 562    relied on           Para 13
F
          (2004) 9 sec 113     relied on           Para 14
          AIR 2008 SC 1426     relied on           Para 15
          (1999) 2 sec 126     relied on           Para 16
G
          (2008) 5 sec 468     relied on           Para 17
          (1993) 2 sec 684     relied on           Para 17
          (2009) 12 sec 671    relied on           Para 18
H
              LAKHAN v. STATE OF M.P.                       711


    (2009) 1 s sec 120         relied on             Para 19        A

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2297 of 2009.

    From the Judgment & Order dated 09.07.2008 of the High
Court of Judicature of Madhya Pradesh at Jabalpur in Criminal       B
Appeal No. 2304 of 2000.

    Sudhir Kulshreshtha for the Appellant.

    Sidharth Dave, Jemtiben A.P. Vibha Datta Makhija for the        C
Respondent.

    The Judgment of the Court was delivered by

     DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the judgment and order dated 9.7.2008,            D
passed by High Court of Madhya Pradesh, at Jabalpur, in
Criminal Appeal No.2304/2000 by which the High .Court has
dismissed the said appeal, affirming the judgment and order
of the Sessions Judge, Sagar, dated 31.8.2000 in Sessions
Trial No.180/2000 and convicted the appellant under Section         E
302 of the Indian Penal Code, 1860 (hereinafter called "IPC")
and sentenced him to life imprisonment.

     2. Facts and circumstances giving rise to this case are that
the appellant got married to Smt. Savita (hereinafter referred
to as "deceased") on 22.6.1999. She was brought to the              F
hospital by her in-laws on 27.2.2000 at about 7 p.m. in a burnt
condition. Dr. Subhash Jain informed the Police Station,
Gopalganj, about the arrival of the deceased, Smt. Savita, and
a police party arrived at the hospital. The dying declaration was
recorded by the Executive Magistrate, Smt. Madhu Nahar              G
(DW.1), vide Exh.0/2, wherein, the deceased stated that when
she was cooking, kerosene oil had been put behind her back,
and when she moved herself back, her Saree caught fire. On
29.2.2000, ASI, Damodar Prasad Mahure (PW-19), on the
instructions of the Superintendent of Police recorded the           H
    712     SUPREME COURT REPORTS                  [2010) 9 S.C.R.


A second dying declaration (Ex.P/2), wherein, the deceased
  stated that appellant brought a kuppi (a metallic container for
  lighting) full of kerosene and poured it on her body and as a
  result of which kerosene oil spread all over her body. Thereafter,
  the fire was lit by chimney by him and she was. burnt. She also
B stated that she had been brought to the hospital by her in-laws.
  After recording the dying declaration dated 29.2.2000, ASI
  Damodar Prasad (PW-19), recorded the Dehati Nalishi (Ex.Pl
  14), at 10.40 p.m. on its basis. The kupee, as referred to in
  the dying declaration, was seized from the house of the
c appellant on 2.3.2000.
         3. Smt. Savita died on 20.3.2000, and thus, there was an
    alteration of offences from 307/201 IPC to 302 IPC. After
    completing the investigation, charge sheet was filed against the
    appellant before the court and the case was committed to the
D   Court of Sessions where the appellant was tried. During trial,
    the prosecution examined as many as 19 witnesses and in the
    form of documentary evidence, reliance was placed on the
    statement of Savita, deceased, in the form of dying declaration
    dated 29.2.2000 (Ex.P/2), Dehati Nalishi (Ex.P/14), FIR
E   (Ex.20), deposition of ASI (PW-19) dated 29.2.2000 and case
    diary etc. In defence, appellant placed reliance on the statement
    of the deceased dated 27.2.2000 (Ex.D/2), and examined Smt.
    Madhu Nahar (DW.1 ). The appellant made a statement under
    Section 313 of the Code of Criminal Procedure, 1973
F   (hereinafter called as "Cr.P.C."), that he was, by no means,
    involved in the case. However, the appellant did not explain
    under what circumstances his wife was burnt. The trial Court,
    vide judgment and order dated 31.8.2000, found the appellant
    guilty of offence under Section 302 IPC and accordingly
G   sentenced him to imprisonment for life.

      4. Being aggrieved, the appellant preferred Criminal
  Appeal No. 2304 of 2000 before the High Court of Madhya
  Pradesh, at Jabalpur, which has also been dismissed vide
H judgment and order dated 9.7.2008. Hence, this appeal.
 LAKHAN v. STATE OF M.P. [DR. B.S. CHAUHAN, J.] 713


     5, Shri Sudhir Kulshreshtha, learned counsel appearing for      A
the appellant, has submitted that it is a case of circumstantial
evidence as no eye-witness has been examined by the
prosecution in support of its case. There has been no allegation
of a demand of dowry, though the marriage had taken place
only 9-10 months prior to the death of the deceased, Savita.         B
The only allegation against the appellant had been of
harassment, as alleged by the parents of the deceased, who
were examined as prosecution witnesses before the trial Court.
There were two dying declarations in the case. The first was
recorded by Ms. Madhu Nahar, the Executive Magistrate                c
(DW.1 ), which should have been accepted in toto, without
raising any doubt to its veracity as compared to the dying
declaration, unauthorisedly recorded by Shri Damodar Prasad
Mahure, the ASI (PW.19), subsequently. Where there are two
dying declarations, the first dying declaration recorded by the      D
Magistrate should have been relied upon, particularly when both
the witnesses to the seqond dying declaration had been
declared hostile. Therefore, the appeal deserves to be allowed.

     6. Per contra, Shri Siddharth Dave along with Ms. Vibha
Datta Makhija, learned counsel for the respondent-State, has         E
vehemently opposed the appeal contending that the first dying
declaration had been recorded by the Executive Magistrate
when the deceased, Savita, had been tutored by her in-laws
who had brought her to the hospital. At that time the deceased
was under duress/influence of her in-laws. However, there            F
cannot be any doubt regarding contents of the second dying
declaration recorded by the police officer, particularly when it
stands corroborated with other relevant evidence. The appeal
lacks merit and is liable to be dismissed.
                                                                     G
     7. We have considered the rival submissions made by
learned counsel for the parties. Counsel from both the sides
have canvassed their submissions solely on the issue as to
which of the dying declarations should have been relied upon
by the courts below. No other issue is being· agitated. Therefore,
                                                                     H
    714      SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A   we restrict ourselves only to examining the limited issue of
    which dying declaration can be relied upon in the facts and
    circumstances of this case.

         8. The doctrine of dying declaration is enshrined in the
  legal maxim "Nemo moriturus praesumitur mentire'', which
8
  means "a man will not meet his maker with a lie in his mouth".
  The doctrine of Dying Declaration is enshrined in Section 32
  of the Indian Evidence Act, 1872 (hereinafter called as,
  "Evidence Act") as an exception to the general rule contained
  in Section 60 of the Evidence Act, which provides that oral
C evidence in all cases must be direct i.e. it must be the evidence
  of a witness, who says he saw it. The dying declaration is, in
  fact, the statement of a person, who cannot be called as witness
  and, therefore, cannot be cross-examined. Such statements
  themselves are relevant facts in certain cases.
D
         9. This Court has considered time and again the
  relevance/probative value of dying declarations recorded under
  different situations and also in cases where more than one
  dying declaration has been recorded. The law is that if the court
E is satisfied that the dying declaration is true and made
  voluntarily by the deceased, conviction can be based solely on
   it, without any further corroboration. It is neither a rule of law nor
  of prudence that a dying declaration cannot be relied upon
  without corroboration. When a dying declaration is suspicious,
F it should not be relied upon without having corroborative
  evidence. The court has to scrutinize the dying declaration
  carefully and must ensure that the declaration is not the result
  of tutoring, prompting or imagination. The deceased must be
   in a fit state of mind to make the declaration and must identify
   the assailants. Merely because a dying declaration does not
G contain the details of the occurrence, it cannot be rejected and
   in case there is merely a brief statement, it is more reliable for
   the reason that the shortness of the statement is itself a
   guarantee of its veracity. If the dying declaration suffers from
   some infirmity, it cannot alone form the basis of conviction.
H Where the prosecution's version differs from the version given
LAKHAN v. STATE OF M.P. [DR. B.S. CHAUHAN, J.] 715


in the dying declaration, the said declaration cannot be acted       A
upon. (vide : Kushal Rao v. State of Bombay, AIR 1958 SC
22; Rasheed Beg & Ors. v. State of Madhya Pradesh, AIR
                                                  1




1974 SC 332; K. R. Reddy & Anr. v. The Public Prosecutor,
AIR 1976 SC 1994; State of Maharashtra v. Krishnamurti
Laxmipati Naidu, AIR 1981 SC 617; Uka Ram v. State of                B·
Rajasthan, (2001) 5 SCC 254; Babula! & Ors. v. State of M.P.,
(2003) 12 SCC 490; Muthu Kutty & Anr. v. State, (2005) 9 SCC
113; State of Rajasthan v. Wakteng, AIR 2007 SC 2020; and
Sharda v. State of Rajasthan, (2010) 2 SCC 85].

      10. In Munnawar & Ors. v. State of Uttar Pradesh & Ors. C
(2010) 5 SCC 451, this Court held that a dying declaration can
be relied upon if the deceased remained alive for a long period
of time after the incident and died after recording of the dying
declaration. That may be evidence to show that his condition ·
was not overtly critical or precarious when the dying declaration D
was recorded.

     11. A dying declaration recorded by a competent
Magistrate would stand on a much higher footing than the
declaration recorded by officer of lower rank, for the reason that· E
the competent Magistrate has no axe to grind against the
person named in the dying declaration of the victim, however,
circumstances showing anything to the contrary should not be
there in the facts of the case. [ vide Ravi Chander & Ors. v.
State of Punjab, (1998) 9 SCC 303; Harjit Kaur v. State of F)
Punjab, (1999) 6 SCC 545; Kofi Chunifal Savji & Anr. v. State
of Gujarat, (1999) 9 SCC 562; and Vikas & Ors. v. State of
Maharashtra, (2008) 2 SCC 516.]

     12. In Balak Ram v. State of UP., AIR 1974 SC 2165,
the question arose as to whether a dying declaration recorded        G
by a higher officer can be discarded in case of multiple dying
declarations. The Court held as under:-

     "The circumstances surrounding the dying declaration,
     though uninspiring, are not strong enough to justify the view   H
    716      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A         that officers as high in the hierarchy as the Sub-Divisional
          Magistrate, the Civil Surgeon and the District Magistrate
          hatched a conspiracy to bring a false document into
          existence. The Civil services have no platform to controvert
          allegations, howsoever grave and unfounded. It is
B         therefore, necessary that charges calculated to impair their
          career and character ought not to be accepted except on
          the clearest proof. We are not prepared to hold that the
          dying declaration is a fabrication."

        13. In Sayarabano@Sultanabegum v. State of
C Maharashtra, (2007) 12 SCC 562, two Dying Declarations had
  been recorded. As per the first declaration, the deceased had
  met with an accident. She was hit by the kerosene lamp which
  fell on her body and caught fire. While recording the second
  declaration, the Judicial Magistrate asked her why she was
D changing her statement. The deceased replied that her Mother-
  in-Law had told her not to give any statement against the family
  members of her in-laws and that was the reason, why she had
  not involved any person in the earlier statement. But, in fact, it
  was her Mother-in-Law who threw the kerosene lamp on her
E and thus, she was burnt. She also stated that her Mother-in-Law
  was harassing her. In such a situation, this Court held that the
  second dying declaration was true and inspired confidence. Ill

    treatment of the decreased was clearly established and
F   completely proved on the basis of the evidence of other
    witnesses.

       14. In case, there are inconsistent dying declarations, the
  Court must rely upon any other evidence, if available, as it is
  not safe to act only on inconsistent dying declarations and
G convict the accused. [Vide Lella Srinivasa Rao v. State of A.P.,
  (2004) 9 sec 713].

      15. In Sher Singh & Anr. v. State of Punjab, AIR 2008 SC
  1426, a case of bride burning, three dying declarations had
H been recorded. In the first dying declaration, the decreased had
 LAKHAN v. STATE OF M.P. [DR. B.S. CHAUHAN, J.] 717

denied the role of the accused persons. In second dying              A
declaration deceased attributed a role to the accused but the
said declaration did not contain the Certificate of the Doctor
that the deceased was in a fit state of mind to make a
declaration, however, the Magistrate, who recorded the
declaration, certified that the deceased was in a conscious          B
state of mind and was in a position to make the statement to
him. The third dying declaration was recorded by a police
officer after the Doctor certified that she was in a fit state of
mind to give the statement. This Court held that the conviction
could be based on the third dying declaration as it was              c
consistent with the second dying declaration and the oral dying
declaration made to her uncle, though with some
inconsistencies. First declaration was made immediately after
she was admitted in the hospital and was under threat and
duress by her Mother-in-Law that she would be admitted in            0
hospital only if she would give a statement in favour of the
accused persons,

     16. In Paras Yadav & Ors. Vs. State of Bihar (1999) 2
SCC 126, this Court held that a statement of the deceased
recorded by a police officer in a routine manner as a complaint      E
and not as a dying declaration can also be treated as dying
declaration after the death of the. injured and relied upon if the
evidence of the prosecution witnesses clearly establishes that
the deceased was conscious and was in a fit state of health to
make the statement.                                                  F
     17. In Chairman & Managing Director, V.S.P. & Ors. v.
Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 468, this
Court, placing reliance upon the earlier Judgment in Kundu/a
Bala Subrahmanyam & Anr. v. State of Andhra Pradesh,                 G
(1993) 2 sec 684, held that it is not the plurality of dying
declarations but the reality thereto that aids weight to the
prosecution's case. If a dying declaration is found to be
voluntary, reliable and made in a fit mental condition, it can be
relied upon without any corroboration. If there is more than one     H
    718      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A dying declaration, they should be consistent. In case of
  inconsistencies between two or more dying declarations made
  by the deceased, the Court has to examine the nature of
  inconsistencies namely, whether they are material or not and
  in such a situation, the Court has to examine the multiple dying
B declarations in the light of the various surrounding facts and
  circumstances.

       18. In Heeralal v. State of Madhya Pradesh, (2009) 12
  SCC 671, this Court considered the case having two dying
C declarations, the first recorded by a Magistrate, wherein it was
  clearly stated that the deceased had tried to set herself ablaze
  by pouring kerosene on herself. However, the subsequent
  declaration was recorded by another Magistrate and a contrary
  statement was made. This Court set aside the conviction after
  appreciating the evidence and reaching the conclusion that the
D courts below came to abrupt conclusions on the purported
  possibility that the relatives of the accused might have
  compelled the deceased to give a false dying declaration. No
  material had been brought on record to justify such a conclusion.

E        19. In State of Andhra Pradesh v. P. Khaja Hussain,
    (2009) 15 sec   120, this Court set aside the conviction as there
    was a variation between the two dying declarations about the
    manner in which the deceased was set on fire and for the
    reason that there was no other evidence to connect the accused
F   with the crime.

       20. In view of the above, the law on the issue of dying
  declaration can be summarized to the effect that in case, the
  Court comes to the conclusion that the dying declaration is true
  and reliable, has been recorded by a person at a time when
G the deceased was fit physically and mentally to make the
  declaration and it has not been made under any tutoring/duress/
  prompting; it can be the sole basis for recording conviction. In
  such an eventuality no corroboration is required. In case, there
  are multiple dying declarations and there are inconsistencies
H between them, generally, the dying declaration recorded by the
 LAKHAN v. STATE OF M.P. [DR. B.S. CHAUHAN, J.] 719


higher officer like a Magistrate can be relied upon, provided        A
that there is no circumstance giving rise to any suspicion about
its truthfulness. In case, there are circumstances wherein the
declaration had been made, not voluntarily and even otherwise,
it is not supported by the other evidence, the Court has to
scrutinize the facts of an individual case very carefully and take   B
a decision as to which of the declarations is worth reliance.

     21. The case at hand requires to be examined in the light
of the aforesaid settled legal propositions in this regard. In the
instant case, the first dying declaration reads as under:-
                                                                     c
     "! was cooking and kerosene was put behind, I did not see
     to it. When I turned back on my knee, my sari caught fire"

      However, the deceased has further stated that she was
brought to the hospital by her Father-in-Law and Mother-in-Law.      D
The declaration was recorded by the Executive Magistrate after
getting a certificate from the Doctor that the deceased was in
a fit physical and mental condition to give the statement.

     22. The second dying declaration was recorded by Shri
Damodar Prasad Mahure, Assistant Sub-Inspector of Police             E
(PW.19). He was directed by the Superintendent of Police on
telephone to record the statement of the deceased, who had
been admitted in the hospital. In that statement, she had stated
as under:-
                                                                     F
     "On Sunday, in the morning, at about 5.30 AM, my husband
     Lakhan poured the kerosene oil from a container on my
     head as a result of which kerosene oil spread over my
     entire body and that he (Lakhan) put my Sari a fire with
     the help of a Chimney, due to which I got burnt."               G

    She had also deposed that she had written a letter to her
parents requesting them to fetch her from the matrimonial home
as her husband and in-laws were harassing her.

     The said dying declaration was recorded after getting a         H
    720      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   Certificate from the Doctor stating that she was in a fit physical
    and mental condition to give the statement.

        23. As per the Injury Report and the medical evidence it
  remains fully proved that the deceased had the injuries on the
  upper part of her body. The Doctor, who had examined her at
8
  the time of admission in hospital, deposed that she had burn
  injuries on her head, face, chest, neck, back, abdomen, left arm,
  hand, right arm, part of buttock and some part of both the thighs.
  The deceased was 65% burnt. At the time of admission, the
C smell of kerosene was coming from her body.

        24. After appreciating the evidence on record the High
    Court observed as under :-

          "It is a matter of common knowledge that if a person would
D         move back and his/her body comes in contact of some
          burning object, on the front side of the body i.e. chest,
          abdominal region, face etc. would not burn. In the first
          dying declaration, the deceased has said that while
          moving back, her Sari caught fire. We have also gone
          through the reasonings assigned by learned Sessions
E
          Judge in para 17 of the judgment and we find the reasons
          to be quite cogent."

       25. Undoubtedly, the first dying declaration had been
  recorded by the Executive Magistrate, Smt. Madhu Nahar
F (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 Father-in-Law and
  Mother-in-Law and the medical report does not support her first
G dying declaration, the trial Court and the High Court have rightly
  discarded the same. Even before us, Shri Kulshreshtha, learned
  counsel appearing for the appellant, has not been able to
  explain under what circumstances in the accident case as
  disclosed by the deceased in her first declaration, the
H deceased could get the injuries only on the upper part of the
LAKHAN v. STATE OF M.P. [DR. B.S. CHAUHAN, J.] 721


body and smell of kerosene was coming from her body. The           A
second dying declaration fully stands corroborated not only by
the medical evidence but oral dying declarations made by the
deceased to her parents, i.e. Phool Singh (PW.1) and Sushila
(PW.3) who were examined in the court.
                                                                   B
      26. Sh. Damodar Prasad Mahure, ASI, (PW.19), in his
cross-examination, has explained that he was not aware of the
factum of recording of the first Dying Declaration of the
deceased on 27.02.2000. Therefore, there was no reason for
him to ask the deceased about the same. More so, it is evident     C
that Dr. Umesh Kumar Shastri certified the mental and physical
condition of the deceased at the time of recording of the
second Dying Declaration, while at the time of recording of the
first Dying Declaration, Dr. Subhash Jain (PW13) certified the
mental and physical condition of the deceased. Undoubtedly,
the witnesses of the second Dying Declaration namely,              D
Premchand Jain (PW9) and Sanjay (PW18) turned hostile and
did not support the prosecution case, however, they have
admitted their signatures on the Dying Declaration and could
not give any explanation as to why they had attested the said
Declaration. Thus, in view of the above, the second Dying          E
Declaration cannot be held to be a fabrication.

     27. In the instant case, the deceased Savita was brought
to the hospital by her Mother-in-Law and Father-in-Law and she
was under their influence. The Trial Court is right in making an   F
observation that generally, most women do not accuse .their
husbands for sentimental and religious reasons.

    28. Thus, in view of the above, we reach the following
inescapable conclusions on the questions of fact :-
                                                                   G
     (a) After having the burn injuries, Savita, deceased, was
     brought to the hospital by her Father-in-Law and Mother-
     in-Law and they had tutored not to give any statement
     against her family members.
                                                                   H
    722       SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A         (b) The first Dying Declaration was recorded by the
          Executive Magistrate, Smt. Madhu Nahar (DW.1 ), after
          getting a Certificate from the Doctor, in which Savita did
          not make allegation against any of her family members,
          rather, she said that it was an accident. However, such a
B         statement is not supported by the medical evidence for the
          reason that the injuries on her body were found on the
          upper part of her body and it was not possible to have such
          burn injuries in case of the kind of accident as she had
          disclosed in the first Declaration.
c         (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 free
          from any suspicious circumstances. More so, it stands
D         corroborated by the oral declaration made by the
          deceased to her parents, Phool Singh (PW.1 ), father and
          Sushila (PW3), mother.                           ·

          (d) A kuppi, the container, was recovered by the
E         Investigating Officer from the house of the appellant.

          (e) Savita, deceased, died on 20.03.2000, after about 21
          days of recording of the second Dying Declaration. Thus,
          it is evident that she was not in a precarious condition or
          unable to make the statement, rather this fact suggests that
F         she was in a stable condition.

          (f) There is nothing on record to show for what reason, the
          witnesses would depose falsely against the appellant.

G       29. In view of the above, we are of the view that in the facts
    and circumstances of this case, the concurrent findings of fact
    recorded by the Courts below do not warrant any interference
    from this Court. The appeal lacks merit and is accordingly
    dismissed.

H D.G.                                            Appeal dismissed.