RAJARAMversusSTATE OF MADHYA PRADESH & ORS

                        [2022] 16 S.C.R. 99                              99


                            RAJARAM                                      A
                                  v.
            STATE OF MADHYA PRADESH & ORS.
                 (Criminal Appeal No. 2311 of 2022)
                       DECEMBER 16, 2022                                 B
  [S. RAVINDRA BHAT AND SUDHANSHU DHULIA, JJ.]
       Evidence Act, 1872 – s. 32 – Inconsistencies between Multiple
dying declaration – Prosecution case that victim-deceased was
brought to hospital by her husband (appellant) in burnt condition
                                                                         C
– Her first dying declaration (Ex. P-11) was recorded in which
appellant was not named – Her second dying declaration (Ex.
P-26) was recorded by the police before she succumbed to the injuries
in which she named her husband – The trial Court convicted one
accused u/s.302 IPC and the appellant & other accused for the
offences u/s 498A of IPC – Appellant and other accused challenged        D
their conviction and sentence, however, the High Court rejected
their appeals – High Court in its judgment accepted the first dying
declaration and rejected the second dying declaration recorded by
the police – On appeal, held: The weight and utility of a dying
declaration depend upon the surrounding circumstances and the
                                                                         E
credibility which the court attaches to it, having regard to the
evidence led before it – Therefore, whether it is essential to have
medical certification before the statement is recorded, who records
it, etc. are all fact dependent, and no stereotypical approach can
be adopted by courts – In case of the second dying declaration, the
High Court was of the opinion that even though PW-15 was not             F
required to obtain fitness certificate from the doctor, yet in view of
the last line in the dying statement that her condition was bad, it
was unsafe to rely on such statement – The second dying declaration
is the only piece of evidence which names the appellant as one of
the perpetrators of cruelty on the deceased along with the other
                                                                         G
accused – The only evidence against the appellant, i.e., second
dying declaration was discredited by the High Court, there is no
other material to sustain his conviction – The recoveries of article
and the other circumstances do not further the prosecution’s case
u/s. 498A as against the appellant – Appellant’s conviction and
sentence set aside – Penal Code, 1860 – ss.302, 307, 304-B,498-A.        H
                                   99
100            SUPREME COURT REPORTS                    [2022] 16 S.C.R.


A           Allowing the appeal, the Court
              HELD: 1. The principles enunciated by the decision of this
      court, especially Laxman and the decisions dealing with multiple
      dying declarations, adduced in the course of a criminal trial,
      especially where the deceased had been a victim of burns and
B     had succumbed to burn injuries and had prior to death made more
      than one dying declaration have indicated that test of credibility
      having regard to the overall facts on record, has to be adopted.
      This court notices that the present is a case where the second
      dying declaration has been rejected completely by the High Court.
      In these circumstances, the cumulative weight of evidence relied
C     upon by the High Court needs to be examined to ascertain
      whether the appellant is guilty of the offence he stands convicted
      for, i.e., Section 498A IPC. Ex. P-26, the second dying declaration
      is the only piece of evidence which names the appellant as one of
      the perpetrators of cruelty on the deceased along with the other
D     accused. Both the courts below have noticed that in Ex. P-11, the
      first dying declaration, the appellant has not been named; rather
      he along with his father took the deceased in a critically injured
      state to the hospital. Undoubtedly, the focus of the first dying
      declaration is only upon the incident involving pouring of kerosene
      and setting the deceased on fire. The second dying declaration,
E     Ex. P-26 alone elaborates acts of cruelty. That is the only piece of
      incriminating evidence against the accused. As far as the recovery
      of articles and the smell of kerosene in the report considered by
      the court are concerned, they are circumstances relating to the
      incident of setting the deceased on fire. They do not further the
F     prosecution’s case under Section 498A as against the appellant.
      Having regard to the above circumstances, especially the fact
      that the only evidence against the appellant, i.e., Ex. P-26 was
      discredited by the High Court, there is no other material to sustain
      his conviction. [Paras 19-21][111-D-H; 112-A-B]
G           Laxman v. State of Maharashtra [2002] Suppl. SCR
            697 – followed.
            Jagbir Singh v. State of NCT Delhi (2019) 8 SCC 779 :
            [2019] 11 SCR 1137; Lakhan v. State of Madhya
            Pradesh [2010] 9 SCR 705 – relied on.
H
     RAJARAM v. STATE OF MADHYA PRADESH & ORS.                              101


                           Case Law Reference                               A
[2002] Suppl. SCR 697                followed              Para 14
[2010] 9 SCR 705                      relied on            Para 15
[2019] 11 SCR 1137                    referred to          Para 16
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                  B
2311 of 2022.
     From the Judgment and Order dated 18.04.2022 of the High Court
of Madhya Pradesh, Bench at Gwalior in CRA No. 148/2011.
     Divyakant Lahoti, Ms. Madhur Jhavar, Prarikshit Ahuja,
                                                                            C
Ms. Vindyha Mehra, Ms. Praveena Bhist, Advs. for the Appellant.
      Yashraj Singh Bundela, Gaurav Chaudhary, Gopal Jha, Advs. for
the Respondents.
      The Judgment of the Court was delivered by
      S. RAVINDRA BHAT, J.                                                  D

       1. Special leave granted. The appellant (husband of the deceased)
is aggrieved by his conviction under Section 498A of the Indian Penal
Code (IPC) and the sentence imposed on him. His appeal, against the
conviction and sentence in respect of that offence, was dismissed by the
impugned judgment of the Madhya Pradesh High Court.                         E

       2. The prosecution alleged that on 23-04-2009 at 10:00 A.M.,
information was received from the hospital that a woman had been brought
there by her husband (the appellant) in a burnt condition. At the request
of Police Station Ashok Nagar District Ashoknagar, Guna, M.P, the medico
legal certificate (MLC) of the injured Pushpa was issued. Her dying         F
declaration was recorded.
       3. On 23-04-2009, some burnt clothes smelling of kerosene oil,
one chimani, one broken mangalsutra smelling of kerosene oil, a match
box with “Anand” containing 3-4 match sticks were seized. A spot map
too, was prepared. Statements of witnesses were recorded. The injured       G
Pushpa succumbed to her injuries on 10-05-2009 in the district hospital,
Guna. A post-mortem was conducted. The seized articles were sent for
FSL. Police, after completing the investigation filed the charge sheet
against the Appellants for offence under Sections 302, 307, 304B, 498A/
34 of Indian Penal Code (IPC) and under Section 3 and 4 of the Dowry
                                                                            H
102             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     Prohibition Act. The trial court, by order dated 30-9-2009, framed charges
      under Sections 498A, 302 or in the alternative 304B of IPC against the
      Santi Bai, whereas framed charges under Sections 498A, 304B of IPC
      against remaining accused, namely the appellant, Ramdayal, Ram Singh,
      Kamla Bai and Susheela Bai @ Halki. The accused pleaded not guilty.
      The prosecution examined 15 witnesses. Susheela Bai @ Halki had
B
      initially appeared before the trial court and thereafter absented herself;
      she was declared absconding and a perpetual warrant of arrest was
      issued. The trial court, by the impugned judgments, convicted and
      sentenced Santi Bai for the offence under Section 302 IPC and the
      appellant and other accused for the offence under Section 498A IPC.
C           4. The appellant and the other accused challenged their conviction
      and sentence. The High Court, by the impugned order, rejected their
      appeals. Consequently, the appellant’s conviction and sentence under
      Section 498A IPC was affirmed.
             5. Mr. Divyakant Lahoti, learned counsel appearing on behalf of
D     the appellant Rajaram, urged that the courts below fell into error in relying
      on the dying declaration by the deceased, his wife. It was argued that
      where a statement is made by a person as to the cause of her death or
      as to any of the circumstances of the transaction resulting in death, that
      statement would be admissible. It was argued that hence, allegations
E     made by the deceased against the accused, i.e., the appellant Rajaram,
      in her dying declaration would be inadmissible as they were not of the
      circumstances of the transaction which resulted in her death.
             6. It was next submitted that Dashrath Raikwar (P.W.1), the
      deceased’s brother; Phool Chandra (P.W.2), the deceased’s father;
F     Mayabai (P.W.3), the deceased’s sister; and Ramcharan (P.W.4) the
      deceased’s brother-in-law did not support the prosecution version about
      cruelty inflicted upon her. In the circumstances, the appellant’s conviction
      is unsustainable.
             7. Learned counsel also urged that the courts below fell into error
G     in not giving weight to the significant contradictions between the so-
      called dying declarations, Ex. P-11 and Ex. P-26. It was submitted that
      the testimonies of PW-7, who recorded Ex. P-11 and PW-10, the doctor,
      are inconsistent and improbable with respect to the time attributable to
      the document. Furthermore, the later declaration Ex. P-26 is suspicious;
      it was not recorded by securing clearance from any doctor about the
H     conscious state of the late Pushpa. Given the fact that all material
     RAJARAM v. STATE OF MADHYA PRADESH & ORS.                                   103
                 [S. RAVINDRA BHAT, J.]

witnesses who could have alleged cruelty, relating to dowry demands,             A
except the appellant, were named in Ex. P-11, the inclusion of the
appellant, in the later dying declaration (Ex. P-26) is untrustworthy. The
absence of the doctor when the statement was recorded and the fact
that the appellant was not named for the first dying declaration, but in
the second declaration renders both the dying declarations unbelievable.
                                                                                 B
It was submitted that the High Court, in fact, discarded the second dying
declaration.
       8. It was lastly urged on behalf of the appellant that since the
prosecution could not prove the charge on the count under Section 304B,
he could not have been convicted on the basis of the dying declaration,
because Section 32 of the Evidence Act renders relevant only statements          C
relating to the circumstances surrounding the death of the person making
it and that in the present case, the only dying declaration, Ex. P-11
nowhere mentions any act of cruelty attributable to the appellant.
        9. On behalf of the state, it was argued by Mr. Yashraj Singh
Bundela, learned counsel, that no interference with the concurrent findings      D
of the courts below is called for and that the appeal involves appreciation
of evidence. As there is nothing that can be termed as perverse or
unreasonable as regards these findings, which are based on the evidence
led, this court should not exercise its discretionary jurisdiction to upset or
interfere with the findings.                                                     E
        10. It was submitted that the fact that the witnesses turned hostile
may no doubt be a relevant aspect. Yet, this has to be weighed in with
other factors, the most important being the dying declaration recorded
as Ex. P-26. Counsel submitted that the first dying declaration, i.e., Ex.
P-11 listed the actual perpetrators of the crime, which is those responsible     F
for dousing the deceased with kerosene and setting her on fire, whereas
Ex. P-26 contained details of the cruelty meted out to her since she had
a disability and had a girl child. These and the people who treated her
cruelly, taunted her, and demanded dowry were all named. They included
the appellant, her husband. There was close proximity between the first
and second statements. It was submitted that the absence of any                  G
endorsement by a doctor about the mental condition, or fitness to record
the statement, or that it was recorded by a policeman cannot ipso facto
result in its being ruled out.

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104            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A           Analysis and Findings
              11. As can be gathered from the factual discussion, the incident,
      i.e., setting of the deceased on fire, her subsequently being moved to the
      hospital, where two statements were recorded, one by the Naib Tehsildar,
      certified by the doctor, and the other, a statement recorded by the police,
B     are crucial for consideration in this case. In the dying declaration, Ex.
      P-11 recorded by PW-7, after the victim was examined by the doctor,
      the deceased mentioned the circumstances surrounding the Incident,
      i.e., how she was burnt:
            “I was sitting in the courtyard in the morning. Fighting was
C           taking place. My both elder sisters-in-law (Jethani) were
            fighting. There was big adi, had poured kerosene oil one from
            it. My sisters-in-law (Jethani) Kiran and Shanti poured
            kerosene oil upon me and set me on fire from the match stick.
            My elder mother-in law was seeing by standing just there. My
            mother-in-law as not at home. My husband was out of the
D           house.”
             Later, during the course of recording of the declaration, she also
      stated:
            “There are two Jeth, actually they are three Jeth, there are
            two mothers-in-law, the name of third Jethani is Sushila. She
E           was not at home at that time. She used to fight and beat up
            me. My younger son is 6-7 months old. All used to beat.
            Mother-in law also used to beat up me. All the three Jeths
            used to fight with me. They called me lame. They used to
            demand dowry from me.”
F            12. The recording of Ex. P-11 started at 10:35 and ended at 10:50.
      The appellant sought to make out a contradiction between the statement
      of witnesses. However, this court is unpersuaded that such contradiction
      is material. From the evidence, it appears that the second statement Ex.
      P-26 was recorded later by PW-15, the Officer in charge. After stating
      the circumstances under which the incident occurred-which were
G
      consistent with the contents of Ex. P-11, the deceased further stated:
            “…. I started burning and cried for saving me then they both
            fled away by leaving me burnt, then Dukra, my elder father-
            in-law by coming saved me, he died out the fire by throwing
            water on me. I have burnt up completely. Full clothes on my
H           body have burnt. My face, breast, thigh, legs, hands have
     RAJARAM v. STATE OF MADHYA PRADESH & ORS.                          105
                 [S. RAVINDRA BHAT, J.]

      completely burnt. I am feeling very much pain. Then my            A
      husband and neighbouring persons have brought me to Ashok
      nagar for treatment. I had become unconscious at that time.
      My in-laws, husband, elder brothers-in-law Beeran, Halle
      alias Ramsingh, Praansingh alias Ramdayal, elder sisters-in-
      law Sushila, Kiranbai, Shantibai and mother in- law Kamlabai
                                                                        B
      often by taunting for dowry used to beat up me for dowry
      demand. They used to tease me by calling lame. They used to
      demand rupees, motorcycle in dowry. These people had beaten
      up me last night also which I had told to my younger sister
      Mayabai over phone and that my condition is bad.”
      13. Section 32 of the Evidence Act, which is material for the     C
purposes of this appeal, reads as under:
      “32. Cases in which statement of relevant fact by person who
      is dead or cannot be found, etc., is relevant. — Statements,
      written or verbal, of relevant facts made by a person who is
      dead, or who cannot be found, or who has become incapable         D
      of giving evidence, or whose attendance cannot be procured
      without an amount of delay or expense which under the
      circumstances of the case appears to the Court unreasonable,
      are themselves relevant facts in the following cases: —
      (1) When it relates to cause of death.—When the statement is      E
      made by a person as to the cause of his death, or as to any of
      the circumstances of the transaction which resulted in his
      death, in cases in which the cause of that person’s death comes
      into question.
      Such statements are relevant whether the person who made          F
      them was or was not, at the time when they were made, under
      expectation of death, and whatever may be the nature of the
      proceeding in which the cause of his death comes into question.
      (2) Or is made in course of business.—When the statement
      was made by such person in the ordinary course of business,       G
      and in particular when it consists of any entry or memorandum
      made by him in books kept in the ordinary course of business,
      or in the discharge of professional duty; or of an
      acknowledgment written or signed by him of the receipt of
      money, goods, securities or property of any kind; or of a
                                                                        H
106     SUPREME COURT REPORTS                       [2022] 16 S.C.R.


A     document used in commerce written or signed by him; or of
      the date of a letter or other document usually dated, written
      or signed by him.
      (3) Or against interest of maker.—When the statement is against
      the pecuniary or proprietary interest of the person making
B     it, or when, if true, it would expose him or would have
      exposed him to a criminal prosecution or to a suit for damages.
      (4) Or gives opinion as to public right or custom, or matters
      of general interest.—When the statement gives the opinion of
      any such person, as to the existence of any public right or
C     custom or matter of public or general interest, of the existence
      of which, if it existed, he would have been likely to be aware,
      and when such statement was made before any controversy
      as to such right, custom or matter had arisen.
      (5) Or relates to existence of relationship.—When the statement
D     relates to the existence of any relationship [by blood, marriage
      or adoption] between persons as to whose relationship [by
      blood, marriage or adoption] the person making the statement
      had special means of knowledge, and when the statement was
      made before the question in dispute was raised.

E     (6) Or is made in will or deed relating to family affairs.—
      When the statement relates to the existence of any relationship
      [by blood, marriage or adoption] between persons deceased,
      and is made in any will or deed relating to the affairs of the
      family to which any such deceased person belonged, or in
      any family pedigree, or upon any tombstone, family portrait
F     or other thing on which such statements are usually made,
      and when such statement was made before the question in
      dispute was raised.
      (7) Or in document relating to transaction mentioned in
      Section 13, clause (a).—When the statement is contained in
G     any deed, will or other document which relates to any such
      transaction as is mentioned in Section 13, clause (a).
      (8) Or is made by several persons and expresses feelings
      relevant to matter in question.—When the statement was made
      by a number of persons, and expressed feelings or impressions
H     on their part relevant to the matter in question.”
        RAJARAM v. STATE OF MADHYA PRADESH & ORS.                              107
                    [S. RAVINDRA BHAT, J.]

       14. This court has considered the above provision in numerous           A
decisions and held that the weight and utility of a dying declaration depend
upon the surrounding circumstances and the credibility which the court
attaches to it, having regard to the evidence led before it. Therefore,
whether it is essential to have medical certification before the statement
is recorded, who records it, etc. are all fact dependent, and no
                                                                               B
stereotypical approach can be adopted by courts. In Laxman vs. State
of Maharashtra1 a five-member Bench of this court explained the position,
in law, as follows:
         “A dying declaration can be oral or in writing and in any
         adequate method of communication whether by words or by
         signs or otherwise will suffice provided the indication is            C
         positive and definite.
         In most cases, however, such statements are made orally before
         death ensues and is reduced to writing by someone like a
         magistrate or a doctor or a police officer. When it is recorded,
                                                                               D
         no oath is necessary nor is the presence of a magistrate is
         absolutely necessary, although to assure authenticity it is usual
         to call a magistrate, if available for recording the statement
         of a man about to die.
         There is no requirement of law that a dying declaration must
                                                                               E
         necessarily be made to a magistrate and when such statement
         is recorded by a magistrate there is no specified statutory form
         for such recording. Consequently, what evidential value or
         weight has to be attached to such statement necessarily
         depends on the facts and circumstances of each particular
         case. What is essentially required is that the person who records     F
         a dying declaration must be satisfied that the deceased was
         in a fit state of mind.
         Where it is proved by the testimony of the magistrate that the
         declarant was fit to make the statement even without
         examination by the doctor the declaration can be acted upon           G
         provided the court ultimately holds the same to be voluntary
         and truthful. A certification by the doctor is essentially a rule
         of caution and therefore the voluntary and truthful nature of
         the declaration can be established otherwise.”
1
    2002 (SUPP1) SCR 697                                                       H
108               SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A           15. In a decision, Lakhan v. State of Madhya Pradesh,2 this court
      considered and indicated the approach which may be adopted, where
      the evidence includes multiple dying declarations, that may contain
      inconsistent facts:
               “In view of the above, the law on the issue of dying declaration
B              can be summarised 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 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
C              conviction. In such an eventuality no corroboration is
               required. In case there are multiple dying 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
D              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 scrutinise the facts of
               an individual case very carefully and take a decision as to
               which of the declarations is worth reliance.”
E
            16. Recently, in Jagbir Singh v State of NCT Delhi,3 this court
      reviewed several previous decisions involving multiple dying declarations
      and re-stated the law in these terms:
               “30. A survey of the decisions would show that the principles
F              can be culled out as follows:
                   a. Conviction of a person can be made solely on the basis
                   of a dying declaration which inspires confidence of the
                   court;
                   b. If there is nothing suspicious about the declaration, no
G                  corroboration may be necessary;
                   c. No doubt, the court must be satisfied that there is no
                   tutoring or prompting;

      2
          2010 (9) SCR 705
      3
H         (2019) 8 SCC 779
RAJARAM v. STATE OF MADHYA PRADESH & ORS.                          109
            [S. RAVINDRA BHAT, J.]

   d. The court must also analyse and come to the conclusion       A
   that imagination of the deceased was not at play in making
   the declaration. In this regard, the court must look to the
   entirety of the language of the dying declaration;
   e. Considering material before it, both in the form of oral
   and documentary evidence, the court must be satisfied that      B
   the version is compatible with the reality and the truth as
   can be gleaned from the facts established;
f. However, there may be cases where there are more than one
dying declaration. If there are more than one dying
declaration, the dying declarations may entirely agree with        C
one another. There may be dying declarations where
inconsistencies between the declarations emerge. The extent
of the inconsistencies would then have to be considered by
the court. The inconsistencies may turn out to be reconciliable.
g. In such cases, where the inconsistencies go to some matter      D
of detail or description but is incriminatory in nature as far
as the Accused is concerned, the court would look to the
material on record to conclude as to which dying declaration
is to be relied on unless it be shown that they are unreliable;
h. The third category of cases is that where there are more        E
than one dying declaration and inconsistencies between the
declarations are absolute and the dying declarations are
irreconcilable being repugnant to one another. In a dying
declaration, the Accused may not be blamed at all and the
cause of death may be placed at the doorstep of an unfortunate
accident. This may be followed up by another dying                 F
declaration which is diametrically opposed to the first dying
declaration. In fact, in that scenario, it may not be a question
of an inconsistent dying declaration but a dying declaration
which is completely opposed to the dying declaration which
is given earlier. There may be more than two.”                     G
i. In the third scenario, what is the duty of the court? Should
the court, without looking into anything else, conclude that
in view of complete inconsistency, the second or the third dying
declaration which is relied on by the prosecution is demolished
by the earlier dying declaration or dying declarations or is it
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110            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A           the duty of the court to carefully attend to not only the dying
            declarations but examine the rest of the materials in the form
            of evidence placed before the court and still conclude that
            the incriminatory dying declaration is capable of being relied
            upon?”
B           17. In light of the above principles, it is necessary to consider the
      evidentiary value of the dying declaration, which was relied on by the
      prosecution to convict the appellant.
             18. The trial court had relied upon the circumstances such as the
      presence of kerosene, the nature of burn injuries on the deceased, the
C     articles such as match box which smelt of kerosene, and a broken
      mangalsutra, apart from two dying declarations (Ex. P-11 and Ex.
      P-26). The testimonies of the deceased’s relatives were not of much
      consequence as none of them supported the prosecution. The High
      Court, in its impugned judgment, accepted and relied upon the dying
      declaration recorded by PW-7 (Ex. P-11), Naib Tehsildar Yasha Rai.
D     However, the High Court held that the second dying declaration recorded
      by the Officer-in-Charge, PW-15 – in the form of a statement, could not
      be relied upon. The court was of the opinion that even though PW-15
      was not required to obtain fitness certificate from the doctor, yet in view
      of the last line in the dying statement that her condition was bad, it was
E     unsafe to rely on such a police statement. The High Court’s findings
      on this aspect are as follows:
            “39. Before considering the submissions made by the Counsel
            for the Appellants, this Court would like to consider as to
            whether the police statement of the injured Pushpa, Ex. P.26
F           is reliable or not?
            40. As already pointed out, S.K. Chaturvedi (P.W. 15), who
            had recorded Police Statement of injured Pushpa, was not
            examined after the re-arrest of Appellant Susheela Bai @
            Halki, and as evidence of S.K. Chaturvedi (P.W.15) was
G           recorded in absence of Susheela Bai @ Halki, therefore, his
            evidence cannot be read either in favor or against the
            Appellant Susheela Bai @ Halki. Thus, there is only one dying
            declaration, Ex. P.11 against the Appellant Susheela Bai @
            Halki.

H
     RAJARAM v. STATE OF MADHYA PRADESH & ORS.                                  111
                 [S. RAVINDRA BHAT, J.]

      41. S.K. Chaturvedi (P.W.15) has stated that he had recorded              A
      the statements of the witnesses including that of injured/
      deceased Pushpa. If the police statement of injured/deceased
      Pushpa is considered then at the end of the statement, it is
      mentioned that her condition is very bad. Therefore, it is not
      clear as to whether the injured/deceased Pushpa was in a fit
                                                                                B
      state of mind or not. Even otherwise, this witness has not
      clarified that on what date he had recorded the statement of
      injured/deceased Pushpa. It is true that while recording the
      police statement under Section 161 of Cr.P.C., this witness
      was not required to obtain the fitness certificate from the Doctor,
      but in view of the last line of her statement, that “ her condition       C
      is very bad”, this Court is of the considered opinion, that it
      would not be safe to rely on the Police Statement of the injured/
      deceased Pushpa, Ex. P.26.
      42. Accordingly, the Police Statement of the injured/deceased
      Pushpa Bai, Ex.P.26 is hereby disbelieved.”                               D
       19. The principles enunciated by the decision of this court,
especially Laxman and the decisions dealing with multiple dying
declarations, adduced in the course of a criminal trial, especially where
the deceased had been a victim of burns and had succumbed to burn
injuries and had prior to death made more than one dying declaration            E
have indicated that test of credibility having regard to the overall facts
on record, has to be adopted.
       20. This court notices that the present is a case where the second
dying declaration has been rejected completely by the High Court. In
these circumstances, the cumulative weight of evidence relied upon by           F
the High Court needs to be examined to ascertain whether the appellant
is guilty of the offence he stands convicted for, i.e., Section 498A IPC.
Ex. P-26, the second dying declaration is the only piece of evidence
which names the appellant as one of the perpetrators of cruelty on the
deceased along with the other accused. Both the courts below have
noticed that in Ex. P-11, the first dying declaration, the appellant has not    G
been named; rather he along with his father took the deceased in a critically
injured state to the hospital. Undoubtedly, the focus of the first dying
declaration is only upon the incident involving pouring of kerosene and
setting the deceased on fire. The second dying declaration, Ex. P-26
alone elaborates acts of cruelty. That is the only piece of incriminating       H
112              SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A     evidence against the accused. As far as the recovery of articles and the
      smell of kerosene in the report considered by the court are concerned,
      they are circumstances relating to the incident of setting the deceased
      on fire. They do not further the prosecution’s case under Section 498A as
      against the appellant.
B            21. Having regard to the above circumstances, especially the fact
      that the only evidence against the appellant, i.e., Ex. P-26 was discredited
      by the High Court, there is no other material to sustain his conviction. For
      these reasons, the impugned judgment and the appellant’s conviction
      and sentence are hereby set aside. The appeal is allowed but without
      any order as to costs.
C

      Ankit Gyan                                                    Appeal allowed.
      (Assisted by : Rahul Rathi, LCRA)



D




E




F




G




H