SHAILESHBHAI @ PAPPU BALUBHAI CHUNARA & ANR.versusSTATE OF GUJRAT

                   [2014] 8 S.C.R. 1075

SHAILESHBHAI @ PAPPU BALUBHAI CHUNARA & ANR.                    A
                             v.
                    STATE OF GUJRAT
            (Criminal Appeal No. 1974 of 2012)
                    AUGUST 07, 2014
                                                                B
     [DIPAK MISRA AND V. GOPALA GOWDA, JJ.]

     Penal Code, 1860 - ss. 302134, 323 and 114 - Murder -
Conviction and sentence u/ss. 302134, 323 and 114 on basis
of dying declaration that accused persons poured kerosene C
on victim and set her ablaze - Defence case that there were
three inconsistent dying declarations - On appeal, held: Two
doctors made an endor5ement respectively and the executive
magistrate recorded the dying declaration - No inconsistency
in the said recordings - Testimony of the magistrate reliable D
as also testimony of victim consistent - Thus, order of
conviction and sentence upheld - Evidence.

    Dismissing the appeal, the Court
      HELD: On the scrutiny of the dying declaration, it is     E
 found that .there is no inconsistency in all the recordings,
 namely, by doctor 'S', who had made an endorsement at
 the time of admission; doctor 'KP', who also made an
 endorsement and recorded three names; and the
 Executive Magistrate who had recorded the dying                F
 declaration. Nothing has been brought on the evidence
 to discredit the testimony of the Executive Magistrate who
 recorded the dying declaration in questionnaire form.
 There was no circumstance from which it could remotely
 be inferred that she was tutored or her statement was          G
·embellished by any kind of influence. On the contrary, her
 testimony was consistent and, therefore, the reliance
 placed on the same by the trial judge as well as by the

                            1075                                H
        1076    SUPREME COURT REPORTS              [2014] 8 S.C.R.


    A   High Court was absolutely impeccable and, therefore,
        there was no flaw in the judgment of conviction and
        order of sentence. [Paras 6, 14, 15] [1082-C-D; 1083-D-F]

           Lella Srinivasa Rao v. State of A.P 2004 (2 ) SCR 659:
      (2004) 9 SCC 713; Amo/ Singh v. State of Madhya Pradesh
    B (2008) 5 SCC 469; Sharda v. State of Rajasthan 2009 (16)
      SCR 441: (2010) 2 SCC 85; State of Rajasthan v. Sharavan
      Ram & Anr. 2013 (5) SCR 1076: (2013) 12 SCC 255; Kam/a
      v. State of Punjab (1993) 1 SCC 1; Kishan Lal v. State of
      Rajasthan 1999 (1) Suppl. SCR 517: (2000) 1 SCC 31 O;
    C State of A.P. v. P. Khaja Hussain 2009 (6) SCR 660': (2009)
      15 SCC 120; Laxmi (Smt) v. Om Prakash and others 2001
      (3) SCR 777: (2001) 6 SCC 118; Kundula Bala
      Subrahmanyam and another v. State of Andhra Pradesh
      1993 (2) SCR 666: (1993) 2 SCC 684 - referred to.
    D
                            Case Law Reference
          2004 (2 ) SCR 659         Referred to         Para 7, 8
\         (2008) 5 sec 469          Referred to         Para 7, 9
    E     2009 (16) SCR 441         Referred to         Para 7, 10
          2013 (5) SCR 1076         Referred to         Para 7
          (1993) 1 sec 1            Referred to         Para 11
    F     1999 (1) Suppl. SCR 517 Referred to           Para 11
          2009 (6 ) SCR 660         Referred to         Para 11
          2001 (3) SCR 777          Referred to.        Para 12
          1993 (2) SCR 666          Referred to         Para 13
    G
            CRIMINAL APPELLATE JURl9DICTION : Criminal Appeal
        No. 1974 of 2012.

            From the Judgment and Order dated 02.05.2012 in
    H
   SHAILESHBHAI @ PAPPU BALUBHAI CHUNARA v.               1077
               STATE OF GUJRAT
Criminal Appeal No. 1644 of 2005 of the High Court of Gujarat      A
at Ahmedabad.

    Dr. Sumant Bharadwaj, Dr. Sushi! Kr. Gupta, Mridula Ray
Bharadwaj, Manoj Kumar for the Appellants.

    Hemantika Wahi, Jesal, Puja Singh for the Respondent.          B

    The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. In this appeal, by special leave, the
assail is to the judgment of conviction and order of sentence      C
dated 02/05/2012 passed by the High Court of Gujarat at
Ahmedabad in Criminal Appeal No. 1644 of 2005,·whereby the
Division Bench, placing reliance on the dying declaration of the
deceased Champaben, has affirmed the decision of the
learned Trial Judge, who had found the accusedappellants guilty    D
of offence punishable under Section 302/34, 332 and 114 of
the Indian Penal Code, 1860 (for short, "the IPC").

     2. The broad essential facts, which need to be stated for
the adjudication of this appeal, are that the deceased,
Champaben, was staying with her mother-in-law, brother-in-law      E
and children in a hut near the Water Tank, Macchipir Area,
Baalvatika, Ahmedabad and the said hut was sold off by her
mother-in-law. The said transaction had brought the deceased
Champaben and her children to a miserable state of penury
and eventually they were forced to live on the footpath. As        F
alleged, the mother-in-law and brother-in-law had left them in
the lurch and went to live elsewhere. On 13.12.2001, as per the
case of the prosecution, the accused-appellants attacked her
and gave her fist and kick blows and then A-3, namely,
Chinabhai caught hold of her and Balubhai Hemabhai Chunara         G ·
poured kerosene and set her ablaze. A-2, Shailesbhai @
Pappu Balubhai Chunara, aided and abetted the offence. On
the basis of the statement made by the deceased on
13.12.2001, the criminal law was set in motion and accused
persons were arrested. The dying declarations of Champaben         H
    1078     SUPREME COURT REPORTS                [2014] 8 S.C.R.


A were recorded regard being had to her sinking condition.
  Eventually, she succumbed to her injuries on 22.12.2001.

        3. After completing the investigation, the prosecution laid
  the chargesheet under Sections 302/34, 323 and 114 of the
  IPC before the competent Court which in turn committed the
8
  matter to the Court of Session. The learned Sessions Judge,
  on the basis of the evidence brought on record and placing
  reliance on the dying declarations of Champaben, convicted the
  accused persons and imposed the sentence. Suffice it to say,
  all of them were convicted under Section 302/34 IPC, apart
C from separate sentence imposed under Sections 323 and 114
  of the IPC. The learned trial Judge repelled the plea of the
  defence that there were three dying declarations and there was
  manifest inconsistency and hence, they did not deserve
  acceptance.
D
       4. On an appeal being preferred; the High Court adverted
  at length to the legal acceptability of the dying declarations and
  found that there was actually no inconsistency and accordingly
  affirmed the judgment of conviction and order of sentence.
E
          5. We have heard Dr. Sumant Bharadwaj learned counsel
    for the appellants and Ms. Hemantika Wahi learned counsel for
    the State.

        6. There is no dispute that the conviction has been
F recorded on the sole basis of the dying declaration. As the
  material brought record woule reveal, on the date of occurrence,
  the deceased was immediately taken to L.G. Hospital, where
  initially she was treated by Dr. Sandip, PW-2, and there is an
  endorsement in the case papers that "alleged history of burns
G over body by Shailesbhai Chunara's friends at Water tank,
  Baalvatika." After the said endorsement, the treatment
  commenced and about 3.15 p.m. she was taken to Dr. Kunjan
  Patel, who recorded the history of injuries and noted that she
  had,suffered severe burn injuries being burnt by three persons,
H namely, Balubhai Hemabhai, Shailesbhai Balubhai and
     SHAILESHBHAI @ PAPPU BALUBHAI CHUNARA v.                1079
          STATE OF GUJRAT [DIPAK MISRA, J.]

Chinabhai Balubhai. Thereafter, a dying declaration was  I
                                                                     A
recorded a.fter the investigating agency requisitioned the
presence of Executive Magistrate, namely, Binodbhai Mafatbhai
Patel (PW-3). On a. perusal of the said dying declaration, we
find that Dr Kunjan Patel had certified that patient was
conscious and fit for making a dying declaration. The Executive      B
Magistrate has recorded the dying declaration in the
questionnaire form wherein the deceased had clearly stated that
she had a quarrel with the accused-appellants and they had
caused burn injuries on her legs, chest and other part of the
body. The learned Magistrate has also deposed that he had            c
taken care that no one else was present at the time of recording
of the dying declaration.

     7. Mr. Bharadwaj learned counsel for the appellant
attacking the acceptability of the dying declaration has urged
that when there are more than one dying declaration, and D
inconsistency is perceptible, the Court should be extremely
careful before placing reliance on it. To bolster the said
submission he has drawn inspiration from the decisions in Lella
Srinivasa Rao v. State of A.P1, Amo/ Singh v. State of Madhya
Pradesh 2 , Sharda v. State of Rajasthan 3 and State of E
Rajasthan v. Shara van Ram & Anr. 4 •

      8. In Lella Srinivasa Rao (supra) the Court, appreciating
the evidence on record, noticed that there was inconsistency
between the two dying declarations and, therefore, thought it        F
unsafe to base the conviction on the basis of the second dying
declaration. It is apt to state here that in the said case, in the
first dying declaration there was no mention about the appellant
having treated the deceased with cruelty or of his having
caused harassment to the deceased. That apart, the Court             G
noticed that his name did not find place in the relevant portion
1.   (2004) 9 sec 713.
2.   (2008) 5 sec 469.
3.   c2010) 2 sec 85.
4.   (2013) 12 sec 255.                                              H
    1080       SUPREME COURT REPORTS             [2014] 8 S.C.R.


A of the first dying declaration though the said dying declaration
  was recorded by a Magistrate after taking all precautions.

       9. In Amo/ Singh (supra) the Court noticed c~rtain
  inconsistencies between one dying declaration and the other.
  In that context, it was opined that the Court has to examine the
8
  nature of the inconsistencies, namely, whether they are material
  or not and while scrutinizing the contents of various dying
  declarations it becomes the duty of the court to examine the
  same in the light of various surrounding facts and
  circumstances. In the said case the Court found several
C discrepancies even as regards the manner in which the
  kerosene was sprinkled and on facts did not find the dying
  declaration inspiring credence.

       10. In the case of Sharda (supra) the Court observed that
D a dying declaration to deserve acceptance should inspire full
  confidence of the court of its correctness and the court is
  required to see that such statement of the deceased is not a
  result of either tutoring, prompting or product of imagination.
  Emphasis was also laid on the satisfaction of the fact that the
E deceased was in a fit state of mind.

       11. In Shravan Ram and another (supra) the Court
  referred to the decisions in Kam/a v. State of Punjab 5 , Kishan
  Lal v. State of Rajasthan 8, Lella Srinivasa Rao (supra), Amo/
  Singh (supra) and State of A.P. v. P. Khaja Hussain 7, and,
F eventually, came to hold that there were discrepancies and
  contradictions between the two dying declarations and,
  therefore, the conviction could not be based on such dying
  declaration.

G         12. In Laxmi (Smt) v. Om Prakash and others8, the Court

    5.   (1993) 1 sec 1.
    a.   c2000) 1 sec 310.
    7.   (2009) 15 sec 120.
H 8. c2001) a sec 110.
     SHAILESHBHAI@ PAPPU BALUBHAI CHUNARA v.                  1081
          STATE OF GUJRAT[DIPAK MISRA, J.]

after referring to the maxim "Nemo moriturus praesumitur                A
mentire" which means, "No one at the point of the death is
presumed to lie'', opined that: -

      "If in a given case a particular dying declarationsuffers from
      any infirmities, either of its own or asdisclosed by other        8
      evidence adduced in the caseor circumstances coming to
      its notice, the courtmay as a rule of prudence look for
      corroboralionand if the infirmities be such as render the
      dyingdeclaration so infirm as to prick the conscience ofthe
      court, the same may be refused to be accepted as forming          C
      a safe basis for conviction."

    13: At this juncture, we may also fruitfully refer to a two-
Judge Bench decision in Kundula Bala Subrahmanyam and
another v. State of Andhra Pradesh 9 where the Court observed
fu~                                                                     D
      "A dying declaration made by person on the vergeof his
      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 the guarantee of           E
      thetruth of the statement made by the deceased regarding
      the causes or circumstances leading tohiE; death. A dying
      declaration, therefore, enjoysalmost a sacrosanct status,
      as a piece of evidence,coming as it does from the mouth
      of the deceasedvictim. Once the statement of the dying
                                                                        F
      personand the evidence of the witnesses testifying to
      thesame passes the test of careful scrutiny of the courts,
      it becomes a very important and a reliablepiece of
      evidence and if the court is satisfied thatthe dying
      declaration is true and free from anyembellishment such
      a dying declaration, by itself, can be sufficient for recording   G
      conviction even without looking for any corroboration. If
      there are more than one dying declarations then the
      courthas also to scrutinise all the dying declarations tofind

9.    (1993) 2 sec 684.                                                 H
    1082     SUPREME COURTREPORTS                   [2014] 8 S.C.R.


A        out if each one of these passes the test ofbeing trustworthy.
         The Court must further find outwhether the different dying
         declarations are consistent with each other in material
         particularsbefore accepting and relying upon the same."

s        14. Keeping mind the aforesaid principles, we shall
    scrutinize whether the dying declarations withstand the attack
    made by the learned counsel for the appellant or they survive
    the assault to stand erect on the pedestal of credibility. To
    appreciate the controversy, .as raised, we required the learned
c   counsel for the State to read out the statements in original to
    us. That apart, the learned counsel for the State has translated
    the same for better appreciation. On a keen scrutiny of the same
    we find that Dr. Sandip had only made an endorsement at the
    time of admission. Dr. Kunjan Patel also had made an
D   endorsement and at that time he had recorded the three names
    and thereafter the Executive Magistrate had recorded the dying
    declaration. Emphasis of Dr. Bharadwaj, learned counsel is that j
    the deceased should have mentioned all the names to Dr.
    Sandip. As is perceivable, Dr. Sandip has not recorded the
E   dying declaration. He, at the time of entry to the hospital, only
    mentioned the same as a requisite endorsement. In any case,
    we do not see any inconsistency in all the recordings, namely,
    by Dr. Sandip, Ext. 20, Dr. Kunjan Patel, Ext. 13, and Mr.
    Vinodbhai Mafatbhai Patel, Executive Magistrate, Ext. 16.

F         15. We are disposed to hold so, as from the endorsement
    it is manifest that the deceased had, while availing treatment,
    said that the accused persons were totally hostile to her and in
    order to extinguish her life spark had poured kerosene on her.
    It is also reflectible from the hospital records tendered in
G   evidence that the patient was conscious and well oriented and
    was in a position to follow the instructions. While the patient was
    in that condition, the Magistrate was called to record the dying
    declaration. About the fitness of the patient Dr. Kunjan Patel
    had examined the patient and clearly stated that she was in a
H   fit and conscious condition to give a dying declaration. The
   SHAILESHBHAI @ PAPPU BALUBHAI CHUNARA v.               1083
        STATE OF GUJRAT [DIPAK MISRA, J.]
Executive Magistrate had taken precautions by removing all the A
relatives of the injured from the room and approached the
doctor to verify about the fitness of the patient, and after being
satisfied that she was fit enough to give dying declaration,
recorded the same in a questionnaire form. The deceased
during recording of the statement has categorically stated that B
she had a quarrel on the date of occurrence with Balu Hema,
Shailesh Balu and China Balu and, therefore, Balu Hema
poured kerosene on her and China Balu caught hold of her and
Shailesh Balu burnt her by igniting a match stick. It is submitted
by Mr. Bhardwaj that the deceased should have mentioned all c
the names before the doctor at the first instance. The said
submission suffers from fundamental fallacy inasmuch as Dr.
Sandip was only making an endorsement at the time of entry
into the hospital. He was not recording any dying declaration.
It was only an endorsement which was required for the hospital D
record. As is evident, she has mentioned the names before Dr.
Kunjan Patel who really treated her. Nothing has been brought
on the evidence to discredit t~e testimony of the Executive
Magistrate who has recorded the dying declaration in
questionnaire form. There is no circumstance from which it can
remotely be inferred that she was tutored or her statement was E
embellish.ed by any kind of influence. On the contrary, her
testimony has been consistent and, therefore, the reliance
placed on the same by the learned trial Judge as well as by
the High Court is absolutely impeccable and, therefore, we do
not find flaw in the judgment of conviction and order of sentence. F

    16. Consequently, the appeal, being devoid of merit.
stands dismissed.          ·
Nidhi Jain                                     Appeal dismissed.