Supreme Court of India
SHUDHAKARversusSTATE OF M.P.
- Citation
- 2012 INSC 301
- Decided
- 24 July 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
When multiple dying declarations exist, the court must rely on the declaration(s) that are voluntary, made in a fit state of mind, and corroborated by other evidence, and may disregard those that are involuntary or uncorroborated.
Summary
The appellant Shudhakar was convicted of murder under Section 302 IPC for allegedly setting his wife on fire. The deceased gave three dying declarations: the first, recorded by a Naib Tehsildar, exonerated the husband and claimed the fire originated from a stove; the second and third, recorded later by a Tehsildar and a Sub‑Inspector after medical fitness certification, implicated the husband. The Supreme Court examined which declaration should be relied upon, emphasizing that a dying declaration must be voluntary, made in a fit state of mind, and corroborated by other evidence. It found the first declaration was not voluntary, was made under duress, and lacked medical certification, whereas the second and third were authentic, voluntary, and supported by medical and eyewitness evidence. Consequently, the Court upheld the conviction, dismissing the appeal. The Court also clarified that Section 114 adverse inference does not apply when the declaration is produced and examined, and that a doctor's certificate, while advisable, is not mandatory if the recorder is satisfied of the declarant’s fitness.
Issues considered
- Which of multiple contradictory dying declarations should be given effect to?
- Does the absence of a medical fitness certificate render a dying declaration inadmissible?
- Can an earlier dying declaration that absolves the accused be preferred over later contradictory statements?
- Does Section 114 of the Evidence Act allow an adverse inference when a dying declaration is produced but not relied upon?
- Whether conviction can be based solely on later dying declarations corroborated by other evidence
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 114, s. 32
- Indian Penal Code, 1860s. 302
Subjects
dying declarationmultiple dying declarationsvoluntarinesscorroborationsection 32 Evidence Actsection 114 Evidence Actsection 302 IPCmedical certificationcourt discretioncriminal law
Judgment
[2012] 7 S.C.R. 128
A SHUDHAKAR
v.
STATE OF M.P.
(Criminal Appeal No. 2472 of 2009)
JULY 24, 2012
B
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Evidence Act, 1872 - s.32 - Multiple dying declarations -
C Which one should be believed by the Court - Principles
governing such determination - Death of appellant's wife due
to severe burn injuries - Deceased made three dying
declarations - Naib Tehsi/dar, DW1, recorded the first dying
declaration wherein deceased stated that she received the
D burn injuries from a stove while cooking food - Second and
third dying declarations were recorded by Tehsi/dar (PW9)
and Sub-Inspector (PW?), respectively, in both of which
deceased stated that appellant had put kerosene oil on her
and set her on fire and further that earlier she had given wrong
E statement on the tutoring of appellant - Conviction of appellant
u/s.302 /PC - Challenge to - Held: In cases where multiple
dying declarations are involved and such qeclarations are
either contradictory or at variance with each other to a large
extent, the test of common prudence would be to first examine
F which of the dying declarations is corroborated by other
prosecution evidence - Further, the attendant circumstances,
the condition of the deceased at the relevant time, the medical
evidence, the voluntariness and genuineness of the statement
made by the deceased, physical and mental fitness of the
deceased and possibility of the deceased being tutored are
G some of the factors which would guide the exercise of judicial
discretion by the Court in such matters - In the instant case,
on examination of the evidence, it is clear that the first dying
declaration, which had completely absolved the appellant,
H 128
SHUDHAKAR v. STATE OF M.P. 129
was not voluntary and not made by free will of the deceased A
- Relatives of appellant were present at the time of making
the first dying declaration and deceased had stated wrongly
on the tutoring of appellant - Further, before recording the
dying declaration, DW1 had not obtained fitness certificate
from the doctor on duty - The second and third dying B
declarations, which implicated the appellant, however, had
been recorded after due certification by the doctor and were
a/so authentic, voluntary and duly corroborated by other
prosecution witnesses including the medical evidence, and,
thus, could safely be made the basis for conviction - c
Conviction of appellant accordingly sustained - Penal Code,
1860 - s. 302.
Evidence Act, 1872 - s. 32 - Dying declaration -
Admissibility and evidentiary value of - Held: 'Dying
declaration' is the last statement made by a person at a stage D
when he is in serious apprehension of his death and expects
no chances of his survival - At such time, it is expected that
a person will speak the truth and only the truth - Normally in
such situations the courts attach the intrinsic value of
truthfulness to such statement - Once such statement has E
been made voluntarily, it is reliable and is not an attempt by
the deceased to cover up the truth or falsely implicate a
person, then the courts can safely rely on such dying
declaration and it can form the basis of conviction - More so,
where the version given by the deceased as dying declaration F
is supported and corroborated by other prosecution evidence,
there is no reason for the courts to doubt the truthfulness of
such dying declaration.
Evidence Act, 1872 - s.114 - Adverse inference under - G
When arises - Held: Question of presumption in terms of s. 114
only arises when an evidence is withheld from the Court and
is not produced by any of the parties to the /is.
Criminal Trial - Onus of proof - On prosecution and on
defence - Held: The prosecution has to prove its case beyond H
130 SUPREME COURT REPORTS [2012] 7 S.C.R.
A any reasonable doubt while the defence has to prove its case
on the touchstone of preponderance of probabilities.
The appellant's wife received severe burn injuries
and was admitted in the hospital where she ultimately
8 died. It was alleged by the prosecution that the appellant
had assaulted his wife and poured kerosene oil on her
and thereafter, put her ablaze by lighting a match stick.
Before her death, the appellant's wife made three dying
declarations. The Naib Tehsildar, DW1, recorded the first
C dying declaration (Exhibit D/2). In her first dying
dec*+laration, the deceased did not implicate appellant
and stated that she received the burn injuries from a
stove while cooking food. Two hours later, the second
declaration (Exhibit P-12) was recorded by the Tehsildar
(PW9) . The third dying declaration (Exhibit P-6) was
D recorded by Sub-Inspector (PW7) in presence of two
independent witnesses, 'BK' and 'AR'. In the two
subsequent dying declarations recorded by PW9 and
PW7, respectively, the deceased specifically implicated
the accused by stating that he had put kerosene oil on
E her and set her on fire and further stating that earlier she
had given wrong statement on the tutoring of the
appellant.
The trial court convicted the appellant under Section
F 302 IPC and sentenced him to rigorous imprisonment for
life. The conviction and sentence was affirmed by the
High Court.
The appellant inter alia contended before this Court
that since the first dying declaration had completely
G absolved him, the subsequent dying declarations could
not be made the basis of his conviction; that the first
dying declaration should be preferred as it is the most
genuine statement made by the deceased and in the
present case it entitled the appellant for an order of
H acquittal.
SHUDHAKAR v. STATE OF M.P. 131
Thus, an important question of criminal A
jurisprudence as to in a case of multiple variable dying
declaratfons, which of the dying declaration would be
taken into consideration by the Court, what principles
shall guide the judicial discretion of the Court or whether
such contradictory dying declarations would B
unexceptionally result in prejudice to the case of the
prosecution, arose for consideration in the instant
appeal.
Dismissing the appeal, the Court
c
HELD: 1. It is a settled principle of law that the
prosecution has to prove its case beyond any reasonable
doubt while the defence has to prove its case on the
touchstone of preponderance of probabilities. Despite
such a concession, the accused-appellant has miserably D
failed to satisfy the court by proving his stand which itself
was vague, uncertain and, to some extent, even
contradictory. [Para 9] [140-C-D]
2. The 'dying declaration' is the last statement made
E
by a person at a stage when he is in serious
apprehension of his death and expects no chances of his
survival. At such time, it is expected that a person will
speak the truth and only the truth. Normally in such
situations the courts attach the intrinsic value of
truthfulness to such statement. Once such statement has F
been made voluntarily, it is reliable and is not an attempt
by the deceased to cover up the truth or falsely implicate
a person, then the courts can safely rely on such dying
declaration and it can form the basis of conviction. More
so, where the version given by the deceased as dying G
declaration is supported and corroborated by other
prosecution evidence, there is no reason for the courts
to doubt the truthfulness of such dying declaration. [Para
20] [149-B-D]
H
132 SUPREME COURT REPORTS [2012] 7 S.C.R.
A Laxman v. State of Maharashtra (2002) 6 SCC 710;
Bhajju@ Karan v. State of M.P. (2012) 4 SCC 327; Surinder
Kumar v. State of Haryana (2011) 10 SCC 173: 2001 (12)
SCR 1205; Chirra Shivraj v. State of Andhra Pradesh (2010)
14 SCC 444: 2010 (15) SCR 673 and Govindaraju @
B Govinda v. State of Sriramapuram P. S. & Anr. (2012) 4 SCC
722 - referred to.
Muthu Kutty v. State (2005) 9 SCC 113: 2004 (6) Suppl.
SCR 222 - cited.
C 3.1. In cases where multiple dying declarations are
involved and such declarations are either contradictory
or at variance with each other to a large extent, the test
of common prudence would be to first examine which of
the dying declarations is corroborated by other
D prosecution evidence. Further, the attendant
circumstances, the condition of the deceased at the
relevant time, the medical evidence, the voluntariness and
genuineness of the statement made by the deceased,
physical and mental fitness of the deceased and
E possibility of the deceased being tutored are some of the
factors which would guide the exercise of judicial
discretion by the Court in such matters. [Para 21) [149-
E-G]
3.2. In the instant case, after examining the evidence
F it is clear that the first dying declaration was not voluntary
and not made by free will of the deceased for the
following reasons: i) When the deceased was brought to
the hospital, she was accompanied by the accused-
appeellant and other relations. While her statement
G Exhibit D-2 was recorded by DW1, Naib Tehsildar, the
accused-appellant and his relations were present by the
side of the deceased; ii) DW1, though mentions in his
statement that the deceased was fully conscious, chose
not to obtain any fitness certificate from the doctor on
H duty. In spite of it being a rule of caution, in the peculiar
SHUDHAKAR v. STATE OF M.P. 133
facts of the present case where the deceased had A
suffered 97 per cent burn injuries, OW1 should have
obtained the fitness certificate from the doctor; iii) The
statement of the deceased was totally tilted in favour of
her husband and the version put forward was that she
had caught fire from the stove while cooking. This B
appears to be factually incorrect inasmuch as if she had
caught fire from the stove, the question of the mattress
and other items catching fire, which were duly seized and
recovered by the Investigating Officer, would not have
arisen; iv) Furthermore, within a short while, after her first c
statement, she changed her view. Exhibit P12, the
second dying declaration, was recorded at 6.30 p.m. on
the same day after due certification by the doctor that she
was conscious and in a fit condition to make the
statement. This statement was recorded by PW9, the 0
Tehsildar. In his statement, PW9 has categorically stated
that he was directed by the SOM to record the dying
declaration. He had even prepared memo, Exhibit P-13,
and sent the same to the Police Station. He specifically
stated that the deceased was in a great pain and was
groaning. She was not even fully conscious. According E
to him, he was not even informed of recording of the fact
of the previous dying declaration. He had carried with
him the memo issued by the SOM for recording the
statement of the deceased. No such procedure was
adhered to by OW1. All these proceedings are F
conspicuous by their very absence in the exhibited
documents and the statement of the said witnesses; v)
The third dying declaration which was recorded by PW7,
Sub-Inspector, was also recorded after due certification
and in presence of the independent witnesses 'BK' and G
'AR'. Furthermore, PW6 gave the complete facts right
from the place of occurrence to the recording of dying
declaration of the deceased. He categorically denied the
suggestion that the deceased had stated to him that she
caught fire from the stove. Rather, he asserted that the H
134 SUPREME COURT REPORTS [2012] 7 S.C.R.
A deceased had specifically told him that the accused had
put her on fire; vi)The second and third dying
declarations of the deceased are quite in conformity with
each other and are duly supported by PWG, PW7, PW9
and the medical evidence produced on record. The
B accused, having suffered 97 per cent burns, could not
have been fully conscious and painless, as stated by
DW1. According to DW2, the doctor, the accused could
suffer the injuries that he suffered when the deceased
would have pushed him back when he was attempting
c to burn the deceased; vii) Besides all this, the accused
had admitted the deceased to be his wife and they were
living together and that she caught fire. It was expected
of him to explain to the Court as to how she had caught
the fire. Strangely, he did not state the story of his wife
catching fire from the stove in his statement under
0
Section 313 CrPC, though the trend of cross-examination
of the prosecution witnesses on his behalf clearly
indicates that stand; viii) The theory of the deceased
catching fire from the stove is neither probable nor
E possible in the facts of the present case. The kind of burn
injuries she suffered clearly shows that she was
deliberately put on fire, rather than being injured as a
result of accidental fire; ix) Besides the deceased had
herself stated the reason behind her falsely making the
first declaration. According to her, her husband was likely
F to lose his job if she implicated him. It is clear from the
record that the relatives of the accused were present at
the time of making the first dying declaration and the
deceased had stated wrongly on the tutoring of her
husband; x) The recoveries from the place of occurrence
G clearly show a struggle or fight between the deceased
and the accused before she suffered the burn injuries
and xi) Another significant aspect of the present case is
that the deceased had also made a dying declaration,
even prior to the three written dying declarations, to PW1,
H the landlady and PWG. She had categorically stated to
SHUDHAKAR v. STATE OF M.P. 135
these witnesses when death was staring her in the eyes A
that she was burnt by her husband by pouring kerosene
oil on her. Both these witnesses successfully stood the
subtle cross-examination conducted by the counsel
appearing for the accused. There is no reason to
disbelieve these witnesses who were well known to both, B
the deceased as well as the accused. [Para 23] [155-D-
H; 156-A-H; 157 -A-H; 158-A-E]
3.3. In conclusion, the second and third dying
declarations are authentic, voluntary and duly
corroborated by other prosecution witnesses including C
the medical evidence. These dying declarations, read in
conjunction with the statement of the prosecution
witnesses, can safely be made the basis for conviction
of the accused. [Para 24] [158-F-G]
D
Lakhan v. State of M. P. (2010) 8 SCC 514: 2010 (9) SCR
705; Na/lam Veera Stayanandam and Others v. Public
Prosecutor, High Court of A.P. (2004) 10 SCC 769 and Sher
Singh & Anr. v. State of Punjab (2008) 4 SCC 265: 2008 (2)
SCR 959 - referred to.
E
4. The argument that the first dying declaration
recorded by DW1 had not been produced on record by
the prosecution and, therefore, an adverse inference
should be drawn against the prosecution in terms of
Section 114 of the Evidence Act , is without any merit. F
This document has not only been produced but has even
been critically examined by the Trial Court as well as the
High Court. It is a settled principle of law of evidence that
the question of presumption in terms of Section 114 of
the Evidence Act only arises when an evidence is G
withheld from the Court and is not produced by any of
the parties to the lis. [Para 25] [158-G-H; 159-A]
5. There is no infirmity in the appreciation of evidence
and law in the concurrent judgments of the courts below.
[Para 26] [159-B] H
136 SUPREME COURT REPORTS [2012] 7 S.C.R.
A Case Law Reference:
(2002) 6 sec 11 o referred to Para 14
2004 (6) Suppl. SCR 222 cited Para 14
2010 (9) SCR 705 referred to Para 15
B
(2012) 4 sec 327 referred to Para 16
2001 (12) SCR 1205 referred to Para 16
2010 (15) SCR 673 referred to Para 17
c
(2012) 4 sec 122 referred to Para 19
(2004) 10 sec 769 referred to Para 22
2008 (2 ) SCR 959 referred to Para 22
D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2472 of 2009.
From the Judgment & Order dated 26.11.2007 of the High
Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
E 827 of 1996.
Nirmal Chopra for the Appellant.
Sidhartha Dave, Jemtiben AO, Vibha Datta Makhija for the
Respondent.
F
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. An important question of
criminal jurisprudence as to in a case of multiple variable dying
G declarations, which of the dying declaration would be taken into
consideration by the Court, what principles shall guide the
judicial discretion of the Court or whether such contradictory
dying declarations would unexceptionally result in prejudice to
the case of the prosecution, arises in the present case.
H 2. The facts as brought out in the case of the prosecution
SHUDHAKAR v. STATE OF M.P. 137
[SWATANTER KUMAR, J.]
are that the accused Shudhakar was married to the deceased A
Ratanmala and they used to live at Ganesh Chowk Seoni, Tehsil
and District Seoni, Madhya Pradesh. They were living in the
house of one Krishna Devi Tiwari. The accused was suspicious
about the character of his wife Ratanmala. On the date of
occurrence, i.e., 25th July, 1995, there was argument between B
the husband and the wife in consequence to which the accused
assaulted Ratanmala. Thereafter, he poured kerosene oil on
her and put her ablaze by lighting a match stick due to which
there was smoke in the house. The people living nearby
gathered around the house upon seeing the smoke and finding c
Ratanmala in burning condition, took her to the hospital wherein
she was admitted by PW8, Dr. M.N. Tiwari and was occupying
bed No.10 of the surgical ward of the district hospital. Except
the upper portion, her entire body had been burnt. Her body was
smelling of kerosene. The injuries were fresh. According to the D
medical evidence, they were caused within five hours and the
burn injuries were fatal for life. As per the statement of PW4,
Dr. H.V. Jain, one Dr. Smt. A. Verma, lady doctor,
gynaecologist had accompanied him for the post mortem of the
dead body of the deceased which was brought by Constable E
Bhoje Lal from Seoni. Statement of PW4 clearly shows that
upon post mortem examination, Rigor Mortis was found on the
entire dead body. Both the eyes were closed, superficial burns
were present on the entire body. The skin had separated at a
number of places. The body was burnt between 97 per cent to
100 per cent. There were burn injuries on the skull and occipital F
region. The cause of death was shock and hipobolamar which
was caused due to severe burn injuries and due to fluid loss.
3. It is the case of the prosecution that Ratanmala had told
the people gathered there that the accused had burnt her by G
pouring kerosene oil on her. When she reached the hospital,
the doctor had informed the police. The doctors also informed
the Naib Tehsildar, DW1, who came to the hospital and recorded
the first dying declaration (Exhibit D/2) of the deceased
Ratanmala at 4.35 p.m. on 25th July, 1995. In her first dying H
138 SUPREME COURT REPORTS [2012) 7 S.C.R.
A declaration, she did not implicate her husband and stated tha·
she received the burn injuries from a stove while cooking food.
Before her death, two more dying declarations were recorded
in the hospital. One (the second) declaration (Exhibit P-12) was
recorded by Rajiv Srivastava, Tehsildar (PW9) at 6.30 p.m. on
B the same date. In relation thereto, Dr. Jain had endorsed the
certificate of fitness of the deceased to make the statement.
The third dying declaration (Exhibit P-6) was recorded by Sub-
Inspector D.C. Doheria, (PW?) in presence of two independent
witnesses, Bharat Kumar and Abdul Rehman. In these two
c subsequent dying declarations recorded by PW9 and PW?,
respectively, the deceased had specifically implicated the
accused by clearly stating that he had put kerosene oil on her
and set her on fire. The reason for not implicating her husband
in her first dying declaration was that there was every likelihood
D that his husband would lose the job.
4. Unfortunately, she succumbed to the burn injuries and
died in the hospital itself. Inquest proceedings were carried out.
The Investigating Officer prepared the site plan and the body
of the deceased was subject to post mortem which was
E performed by PW4, Dr. H.V. Jain. The Investigating Officer
recovered matches as well as burnt match, broken mangalsutra
and burnt saree from the place of occurrence. Among certain
other articles recovered from the site, one can was also
recovered in which about one litre of kerosene oil was still
F remaining.
5. Now, we may discuss some of the prosecution
witnesses. PW1, Krishna Bai Tiwari is the landlady in whose
house the accused and the deceased used to live. According
G to her, quarrels used to take place between the husband and
the wife and even cooked food used to be left behind in their
house. The accused frequently used to be under the influence
of liquor. About 4-6 days prior to the date of occurrence, she
had been called by the deceased to request the accused to
H have food. According to this witness, on the date of occurrence,
SHUDHAKAR v. STATE OF M.P. 139
[SWATANTER KUMAR, J.]
the deceased had requested her to accompany her to the bank A
for opening an account, which she had done and a bank account
in the name of the deceased was opened. Thereafter, she went
upstairs but after some time, the boys of the locality told her
that smoke was coming out from the room upstairs. When she
went upstairs along with other people, she saw the deceased B
in flames. They doused the flames in the mattress in an attempt
to save the deceased. On being asked, Ratanmala told her
that she had been burnt by the accused by pouring kerosene
oil on her.
6. PW3, Gunwant, father of the deceased, is another C
witness who stated that the deceased often told him that the
accused, after drinking liquor, used to beat her. The sister of
the accused had come and informed him that the deceased
had received burn injuries and was admitted to the hospital.
D
7. PW5, Rajender Dubey, is a witness who was present
near the house of the accused at the time of the occurrence
and after seeing the fire, he had gone up to the house of the
accused and saw that smell of kerosene was coming from the
room. The deceased's body was burnt and she told him that E
her husband had poured kerosene on her body and set her on
fire. To similar effect is the statement of PW6, Mohan Lal Yadav.
This witness, however, added that the accused was trying to
extinguish the fire. Further, as already noticed, PW7, D.C.
Daharia, had recorded her statement (Exhibit P-6). Even the F
accused was stated to be present at the time of recording of
the third dying declaration and she clarified that she had not
received burn injuries from the stove, as said by her earlier. We
have already noticed the evidence of the doctors.
8. It is evident that the defence had examined two G
witnesses, namely, DW1, Sumer Singh, Naib Tehsildar and
DW2, Dr. S.L. Multani. DW1 had recorded the first dying
declaration of the deceased. According to this witness and as
per Exhibit 02, the statement recorded by him, it is clear that
he did not take the certification of the doctor prior to the H
140 SUPREME COURT REPORTS [2012] 7 S.C.R.
A recording of the statement to the effect that she was in a fit state
of mind to make the statement. Exhibit P12 was the second
dying declaration that was recorded and Kamat Prasad
Sonadia, the witness was present at the time of recording of
this dying declaration. DW2, Dr. S.L. Multani who was examined
B by the defence also stated that if a person tries to burn another
and the burnt person pushes, then it is possible to suffer such
injuries as had been suffered by the accused.
9. It is a settled principle of law that the prosecution has
to prove its case beyond any reasonable doubt while the
C defence has to prove its case on the touchstone of
preponderance and probabilities. Despite such a concession,
the accused has miserably failed to satisfy the court by proving
his stand which itself was vague, uncertain and, to some extent,
even contradictory.
D
10. Exhibit P12, the second declaration of the deceased
can be usefully referred to at this stage as under :
"Certified that Ratnabai W/o Sudhakar admitted in FSW
is fully conscious to give her statement.
E
Sd/-
25.7.95.
6.30 P.M.
F What is your name :- Ratna Time 6.30
Husband's name Sudhakar
Age and place of 21 Years Ganesh
Residence Chowk.
G
What happened My husband
Sudhakar burnt me.
Shy burnt Today I had gone along
with mother to get
H passbook prepared. After
SHUDHAKAR v. STATE OF M.P. 141
[SWATANTER KUMAR, J.]
returning back, my A
husband quarreled with
me and gave filthy abuses
and said that you are a
bad character and that
you have illicit relationship. B
After that my husband
pour kerosene oil over
me and set me on fire.
Earlier I had given wrong
statement on tutoring of c
my husband.
Sd/-
25.7.95 D
Time 6.30 P.M.
Certified that Pt was conscious to giver her statement.
Sd/- 25.7.95
Time 6.45"
E
11. To similar effect is the third dying declaration, however,
in some more detail, which was recorded in presence of
witnesses by the Investigating Officer. After the prosecution
evidence was concluded, the statement of the accused under
Section 313 of the Code of Criminal Procedure, 1973 (CrPC)
F
was recorded wherein the accused admitted the fact that the
deceased was his wife and she died because of burn injuries.
Rest of the incriminating circumstances and evidence put to him
were disputed and denied by the accused. However, in answer
to question number 13, as to whether he would like to say
something in his defence, he stated that his wife Ratanmala G
died in a fire incident and he had made efforts to save her and
in that process he also suffered some injuries. The accused
denied that he had put her on fire and deposed that he was
innocent.
H
142 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 12. The learned Trial Court found that the prosecution had
been able to prove its case beyond reasonable doubt and,
thus, held the accused guilty of an offence under Section 302
IPC and punished him to undergo imprisonment for life and to
pay a fine of Rs.5,000/-, in default thereof to undergo one year's
B rigorous imprisonment.
13. Upon the appeal preferred by the accused, the High
Court affirmed the judgment of conviction and order of sentence
and dismissed the appeal, giving rise to the present appeal.
C 14. The main argument advanced by the learned counsel
appearing for the appellant, while impugning the judgment under
appeal, is that the deceased had made various dying
declarations. The first dying declaration had completely
absolved the accused. Recording of subsequent dying
D declarations (Exhibit 02) could not be made the basis of
conviction keeping in view the facts and circumstances of the
present case. Reliance was placed upon the judgment of this
Court in the case of Laxman v. State of Maharashtra [(2002)
6 sec 710) to contend that the first dying declaration should
E be believed and accused be acquitted as it was not necessary
that there should be due certification by the doctor as a
condition precedent to recording of the dying declaration. It has
also been argued that the prosecution concealed from the
Court and did not itself produce the first dying declaration which
F has been proved by DW1. Thus, presumption under Section
114 ol the Indian Evidence Act, 1872 (for short the 'the
Evidence Act') should be drawn against the prosecution and
benefit be given to the accused. The first dying declaration
should be preferred as it is the most genuine statement made
G by the deceased and in the present case will entitle the
accused for an order of acquittal by this Court. Reliance has
been placed upon the judgment of this Court in the case of
Muthu Kutty v. State [(2005) 9 SCC 113) in that regard.
15. To the contrary, the argument on behalf of the State is
H that the first dying declaration is based on falsehood and was
SHUDHAKAR v. STATE OF M.P. 143
[SWATANTER KUMAR, J.]
made under the influence of the family members of the accused. A
The second and third dying declarations had been recorded
after due certification by the doctor and are duly corroborated
by other prosecution evidence. The deceased herself has
provided the reason why she had made the first dying
declaration which was factually incorrect. While placing reliance B
upon the judgment of this Court in the case of Lakhan v. State
of M.P. [(2010) 8 SCC 514], it has been contended that in the
case of contradictory dying declarations, the one which is
proved and substantiated by other evidence should be
believed. Since Exhibit P12 is the true dying declaration of the · c
deceased, the accused has rightly been convicted under
Section 302 IPC and the present appeal is liable to be
dismissed.
16. We may, now, refer to some of the judgments of this
Court in regard to the admissibility and evidentiary value of a D
dying declaration. In the case of Bhajju @ Karan v. State of
M.P. [(2012) 4 SCC 327], this Court clearly stated that Section
32 of the Evidence Act was an exception to the general rule
against admissibility of hearsay evidence. Clause (1) of
Section 32 makes statement of the deceased admissible, E
which has been generally described as dying declaration. The
court, in no uncertain terms, held that it cannot be laid down as
an absolute rule of law that dying declaration cannot form the
sole basis of conviction unless it is corroborated by other
evidence. The dying declaration, if found reliable, could form F
the basis of conviction. This principle has also earlier been
stated by this Court in the case of Surinder Kumar v. State of
Haryana (2011) 10 SCC 173 wherein the Court, while stating
the above principle, on facts and because of the fact that the
dying declaration in the said case was found to be shrouded G
by suspicious circumstances and no witness in support thereof
had been examined, acquitted the accused. However, the Court
observed that when a dying declaration is true and voluntary,
there is no impediment in basing the conviction on such a
declaration, without corroboration. H
144 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 17. In the case of Chirra Shivraj v. State of Andhra
Pradesh [(2010) 14 SCC 444], the Court expressed a caution
that a mechanical approach in relying upon the dying
declaration just because it is there, is extremely dangerous. The
court has to examine a dying declaration scrupulously with a
B microscopic eye to find out whether the dying declaration is
voluntary, truthful, made in a conscious state of mind and without
being influenced by other persons and where these ingredients
are satisfied, the Court expressed the view that it cannot be
said that on the sole basis of a dying declaration, the order of
c conviction could not be passed.
18. In the case of Laxman (supra), the Court while dealing
with the argument that the dying declaration must be recorded
by a Magistrate and the certificate of fitness was an essential
feature, made the following observations. The court answered
D both these questions as follows:
"3. The juristic theory regarding acceptability of a dying
declaration is that such declaration is made in extremity,
when the party is at the point of death and when every hope
E of this world is gone, when every motive to falsehood is
silenced, and the man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the
same, great caution must be exercised in considering the
weight to be given to this species of evidence on account
F of the existence of many circumstances which may affect
their truth. The situation in which a man is on the deathbed
is so solemn and serene, is the reason in law to accept
the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are
G
dispensed with. Since the accused has no power of cross-
examination, the courts insist that the dying declaration
should be of such a nature as to inspire full confidence of
the court in its truthfulness and correctness. The court,
however, has always to be on guard to see that the
statement of the deceased was not .as a result of either
H
SHUDHAKAR v. STATE OF M.P. 145
[SWATANTER KUMAR, J.]
tutoring or prompting or a product of imagination. The court A
also must further decide that the deceased was in a fit
state of mind and had the opportunity to observe and
identify the assailant. Normally, therefore, the court in order
to satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up to the B
medical opinion. But where the eyewitnesses state that the
deceased was in a fit and conscious state to make the
declaration, the medical opinion will not prevail, nor can it
be said that since there is no certification of the doctor as
to the fitness of the mind of the declarant, the dying c
declaration is not acceptable. A dying declaration can be
oral or in writing and any adequate method of
communication whether by words or by signs or otherwise
will suffice provided the indication is positive and definite.
In most cases, however, such statements are made orally 0
before death ensues and is reduced to writing by someone
like a Magistrate or a doctor or a police officer. When it is
recorded, no oath is necessary nor is the presence of a
Magistrate absolutely necessary, although to assure
authenticity it is usual to call a Magistrate, if available for E
recording the statement of a man about to die. There is
no requirement of law that a dying declaration must
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 F
statement necessarily depends on the facts and
circumstances of each particular case. What is essentially
required is that the person who records 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 G
that the declarant was fit to make the statement even
without examination by the doctor the declaration can be
acted upon 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 H
146 SUPREME COURT REPORTS [2012] 7 S.C.R.
A truthful nature of the declaration can be established
otherwise."
19. In Govindaraju@ Govinda v. State of Sriramapuram
P. S. & Anr. [(2012) 4 SCC 722], the court inter alia discussed
the law related to dying declaration with some elaboration: -
8
"23. Now, we come to the second submission raised on
behalf of the appellant that the material witness has not
been examined and the reliance cannot be placed upon
the sole testimony of the police witness (eyewitness).
c
24. It is a settled proposition of law of evidence that it is
not the number of witnesses that matters but it is the
substance. It is also not necessary to examine a large
number of witnesses if the prosecution can bring home the
D guilt of the accused even with a limited number of
witnesses. In La/Ju Manjhi v. State of Jharkhand (2003)
2 SCC 401, this Court had classified the oral testimony
of the witnesses into three categories:
(a) wholly reliable;
E
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be
F cautious and see if the statement of such witness is
corroborated, either by the other witnesses or by other
documentary or expert evidence.
25. Equally well settled is the proposition of law that where
G there is a sole witness to the incident, his evidence has to
be accepted with caution and after testing it on the
touchstone of evidence tendered by other witnesses or
evidence otherwise recorded. The evidence of a sole
witness should be cogent, reliable and must essentially fit
H into the chain of events that have been stated by the
SHUDHAKAR v. STATE OF M.P. 147
[SWATANTER KUMAR, J.]
prosecution. When the prosecution relies upon the A
testimony of a sole eyewitness, then such evidence has
to be wholly reliable and trustworthy. Presence of such
witness at the occurrence should not be doubtful. If the
evidence of the sole witness is in conflict with· the other
witnesses, it may not be safe to make such a statement B
as a foundation of the conviction of the accused. These
are the few principles which the Court has stated
consistently and with certainty.
26. Reference in this regard can be made to Joseph v. C
State of Kera/a (2003) 1 SCC 465 and Tika Ram v. State
of M.P. (2007) 15 sec 760. Even in Jhapsa Kabari V.
State of Bihar (2001) 10 SCC 94, this Court took the view
that if the presence of a witness is doubtful, it becomes a
case of conviction based on the testimony of a solitary
witness. There is, however, no bar in basing the conviction D
on the testimony of a solitary witness so long as the said
witness is reliable and trustworthy.
27. In Jhapsa Kabari (supra), this Court noted the fact that
simply because one of the witnesses (a fourteen-year-old E
boy) did not name the wife of the deceased in the
fardbeyan, it would not in any way affect the testimony of
the eyewitness i.e. the wife of the deceased, who had given
a graphic account of the attack on her husband and her
brother-in-law by the accused persons. Where the F
statement of an eyewitness is found to be reliable,
trustworthy and consistent with the course of events, the
conviction can be based on her sole testimony. There is
no bar in basing the conviction of an accused on the
testimony of a solitary witness as long as the said witness G
is reliable and trustworthy.
28. In the present case, the sole eyewitness is stated to
be a police officer i.e. PW 1. The entire case hinges upon
the trustworthiness, reliability or otherwise of the testimony
of this witness. The contention raised on behalf of the H
148 SUPREME COURT REPORTS [2012] 7 S.C.R.
A appellant is that the police officer, being the sole
eyewitness, would be an interested witness, ::ind in that
situation, the possibility of a pollce officer falsely
implicating innocent persons cannot be ruled out.
29. Therefore, the first question that arises for consideration
B
is whether a police officer can be a sole witness. If so, then
with particular reference to the facts of the present case,
where he alone had witnessed the occurrence as per the
case of the prosecution.
c 30. It cannot be stated as a rule that a police officer can
or cannot be a sole eyewitness in a criminal case. It will
always depend upon the facts of a given case. If the
testimony of such a witness is reliable, trustworthy, cogent
and duly corroborated by other witnesses or admissible
D evidence, then the statement of such witness cannot be
discarded only on the ground that he is a police officer and
may have some interest in success of the case. It is only
when his interest in the success of the case is motivated
by overzealousness to an extent of his involving innocent
E people; in that event, no credibility can be attached to the
statement of such witness.
31. This Court in Girja Prasad (2007) 7 SCC 625 while
particularly referring to the evidence of a police officer said
that it is not the law that police witnesses should not be
F relied upon and their evidence cannot be accepted unless
it is corroborated in material particulars by other
independent evidence. The presumption applies as much
in favour of a police officer as any other person. There is
also no rule of law which lays down that no conviction can
G be recorded on the testimony of a police officer even if such
evidence is otherwise reliable and trustworthy. The rule of
prudence may require more careful scrutiny of their
evidence. If such a presumption is raised against the
police officers without exception, it will be an attitude which
H could neither do credit to the magistracy nor good to the
SHUDHAKAR v. STATE OF M.P. 149
[SWATANTER KUMAR, J.]
public, it can only bring down the prestige of the police A
administration."
20. The 'dying declaration' is the last statement made by
a person at a stage when he in serious apprehension of his
death and expects no chances of his survival. At such time, it 8
is expected that a person will speak the truth and only the truth.
Normally in such situations the courts attach the intrinsic value
of truthfulness to such statement. Once such statement has been
made voluntarily, it is reliable and is not an attempt by the
deceased to cover up the truth or falsely implicate a person, C
then the courts can safely rely on such dying declaration and it
can form the basis of conviction. More so, where the version
given by the deceased as dying declaration is supported and
corroborated by other prosecution evidence, there is no reason
for the courts to doubt the truthfulness of such dying declaration.
D
21. Having referred to the law relating to dying declaration,
now we may examine the issue that in cases involving multiple
dying declarations made by the deceased, which of the various
dying declarations should be believed by the Court and what
are the principles governing such determination. This becomes E
important where the multiple dying declarations made by the
deceased are either contradictory or are at variance with each
other to a large extent. The test of common prudence would be
to first examine which of the dying declarations is corroborated
by other prosecution evidence. Further, the attendant F
circumstances, the condition of the deceased at the relevant
time, the medical evidence, the voluntariness and genuineness
of the statement made by the deceased, physical and mental
fitness of the deceased and possibility of the deceased being
tutored are some of the factors which would guide the exercise G
of judicial discretion by the Court in such matters. In the case
of Lakhan (supra), this Court provided clarity, not only to the
law of dying declaration, but also to the question as to which
of the dying declarations has to be preferably relied upon by
the Court in deciding the question of guilt of the accused under H
150 SUPREME COURT REPORTS [2012] 7 S.C.R.
A the offence with which he is charged. The facts of that case
were quite similar, if not identical to the facts of the present
case. In that case also, the deceased was burnt by pouring
kerosene oil and was brought to the hospital by the accused
therein and his family members. The deceased had made two
B different dying declarations, which were mutually at variance.
The Court held as under :
"9. 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
c mouth". The doctrine of dying declaration is enshrined in
Section 32 of the Evidence Act, 1872 (hereinafter called
as "the Evidence Act") 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.
D 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.
E
10. 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
F is that if the court 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, it should not be
G
relied upon without having corroborative evidence. The
court has to scrutinise 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
SHUDHAKAR v. STATE OF M.P. 151
[SWATANTER KUMAR, J.]
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 form B
the basis of conviction. Where the prosecution version
differs from the version given in the dying declaration, the
said declaration cannot be acted upon. (Vide Khusha/
Rao v. State of Bombay1, Rasheed Beg v. State of M.P.,
K. Ramachandra Reddy v.. Public Prosecutor, State of c
Maharashtra v. Krishnamurti Laxmipati Naidu, Uka Ram
v. State of Rajasthan, Babula/ v. State of M.P., Muthu
Kutty v. State, State of Rajasthan v. Wakteng and Sharda
v. State of Rajasthan.)
xxx xxx xxx D
23. The second dying declaration was recorded by Shri
Damodar Prasad Mahure, Assistant Sub-Inspector of
Police (PW 19). He was directed by the Superintendent
of Police on telephone to record the statement of the E
deceased, who had been admitted in the hospital. In that
statement, she had stated as under:
"On Sunday, in the morning, at about 5.30 a.m., my
husband Lakhan poured the kerosene oil from a
container on my head as a result of which kerosene
F
oil spread over my entire body and that he (Lakhan)
put my sari afire with the help of a chimney, due to
which I got burnt."
She had also deposed that she had written a letter to her G
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
certificate from the doctor stating that she was in a fit
physical and mental condition to give the statement. H
152 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 24. 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 the time of admission in hospital, deposed that she
had burn injuries on her head, face, chest, neck, back,
B abdomen, left arm, hand, right arm, part of buttocks and
some part of both the thighs. The deceased was 65%
burnt. At the time of admission, the smeJI of kerosene was
coming from her body.
c
xxx xxx xxx
26. Undoubtedly, the first dying declaration had been
recorded by the Executive Magistrate, Smt Madhu Nahar
(DW 1), immediately after admission of the deceased
Savita in the hospital and the doctor had certified that she
D was in a fit condition of health to make the declaratipn.
However, as she had been brought to the hospital by trer
father-in-law and mother-in-law and the medical report .
does not support her first dying declaration, the trial court
and the High Court have rightly discarded the same.
E
xxx xxx xxx
30. Thus, in view of the above, we reach the following
inescapable conclusions on the questions of fact:
F (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 is free from any
G suspicious circumstances. More so, it stands
corroborated by the oral declaration made by the
deceased to her parents, Phool Singh (PW 1),
father and Sushila (PW 3), mother.
22. In the case of Na/lam Veera Stayanandam and Others
H v. Public Prosecutor, High Court of A.P. [(2004) 10 SCC 769],
SHUDHAKAR v. STATE OF M.P. 153
[SWATANTER KUMAR, J.]
this Court, while declining to except the findings of the Trial A
Court, held that the Trial Court had erred because in the case
of multiple dying declarations, each dying declaration has to be
considered independently on its own merit so as to appreciate
its evidentiary value and one cannot be rejected because of the
contents of the other. In cases where there is more than one B
dying declaration, it is the duty of the court to consider each
one of them in its correct perspective and satisfy itself which
one of them reflects the true state of affairs. Similarly, in the case
Sher Singh & Anr. v. State of Punjab ((2008) 4 SCC 265], the
Court held that absence of doctor's certification is not fatal if c
the person recording the dying declaration is satisfied that the
deceased was in a fit state of mind and the requirement of
doctor's certificate is essentially a rule of caution. The Court,
while dealing with the case involving two dying declarations
observed that the first dying declaration could not be relied upon
0
as it was not free and voluntary and second statement was
more probable and natural and mere contradiction with the first
will not be fatal to the case of the prosecution. The Court held
as under:
"16. Acceptability of a dying declaration is greater because E
the declaration is made in extremity. When the party is at
the verge of death, one rarely finds any motive to tell
falsehood and it is for this reason that the requirements of
oath and cross-examination are dispensed with in case of
a dying declaration. Since the accused has no power of F
cross-examination, the court would insist that the dying
declaration should be of such a nature as to inspire full
confidence of the court in its truthfulness and correctness.
The court should ensure that the statement was not as a
result of tutoring or prompting or a product of imagination. G
It is for the court to ascertain from the evidence placed on
record that the deceased was in a fit state of mind and
had ample opportunity to observe and identify the culprit.
Normally, the court places reliance on the medical
evidence for reaching the conclusion whether the person H
154 SUPREME COURT REPORTS [2012] 7 S.C.R.
A making a dying declaration was in a fit state of mind, but
where the person recording the statement states that the
deceased was in a fit and conscious state, the medical
opinion will not prevail, nor can it be said that since there
is no certification of the doctor as to the fitness of mind of
B the declarant, the dying declaration is not acceptable. What
is essential is that the person recording the 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
c without there being the doctor's opinion to that effect, it can
be acted upon provided the court ultimately holds the same
to be voluntary and truthful. A certificate by the doctor is
essentially a rule of caution and, therefore, the voluntary and
truthful nature of a statement can be established otherwise.
0 17. In the present case, the first dying declaration was
recorded on 18-7-1994 by ASI Hakim Singh (OW 1). The
victim did not name any of the accused persons and said
that it was a case of an accident. However, in the statement
before the court, Hakim Singh (OW 1) specifically deposed
E that he noted that the declarant was under pressure and
at the time of recording of the dying declaration, her
mother-in-law was present with her. In the subsequent dying
declaration recorded by the Executive Magistrate Rajiv
Prashar (PW 7) on 20-7-1994, she stated that she was
F taken to the hospital by the accused only on the condition
that she would make a wrong statement. This was
reiterated by her in her oral dying declaration and also in
the written dying declaration recorded by SI Arvind Puri
(PW 8) on 22-7-1994. The first dying declaration
G exonerating the accused persons made immediately after
she was admitted in the hospital was under threat and
duress that she would be admitted in the hospital only if
she would give a statement in favour of the accused
persons in order to save her in-laws and husband. The first
H dying declaration does not appear to be coming from a
SHUDHAKAR v. STATE OF M.P. 155
[SWATANTER KUMAR, J.]
person with free mind without there being any threat. The A
second dying declaration was more probable and looks
natural to us. Although it does not contain the certificate
of the doctor that she was in a fit state of mind to give the
dying declaration but the Magistrate who recorded the
statement had certified that she was in a conscious state 8
of mind and in a position to make the statement to him.
Mere fact that it was contrary to the first declaration would
not make it untrue. The oral dying declaration made to the
uncle is consistent with the second dying declaration
implicating the accused persons stating about their C
involvement in the commission of crime. The third dying
declaration recorded by the SI on the direction of his
superior officer is consistent with the second dying
declaration and the oral dying declaration made to her
uncle though with some minor inconsistencies. The third
dying declaration was recorded after the doctor certified D
that she was in a fit state of mind to give the statement."
23. Examining the evidence in the present case in light of
the above-stated principles, we have no hesitation in holding
that the first dying declaration was not voluntary and made by E
free will of the deceased. This we say so for variety of reasons:
1) When the deceased was brought to the hospital,
she was accompanied by the accused and other
relations. While her statement Exhibit D-2 was
F
recorded by DW1, Naib Tehsildar, the accused and
his relations were present by the side of the
deceased.
2) DW1, though mentions in his statement that the
deceased was fully conscious, chose not to obtain G
any fitness certificate from the doctor on duty. In
spite of it being a rule of caution, in the peculiar
facts of the present case where the deceased had
suffered 97 per cent burn injuries, DW1 should have
H
156 SUPREME COURT REPORTS [2012) 7 S.C.R.
A obtained the fitness certificate from the doctor.
3) The statement of the deceased- was totally tilted in
favour of her husband and the version put forward
was that she had caught fire from the stove while
cooking. This appears to be factually incorrect
B
inasmuch as if she had cat1ght fire from the stove,
the question of the mattress and other items
catching fire, which were duly seized and recovered
by the Investigating Officer, would not have arisen._
c 4) Furthermore, within a short while, after her first
statement, she changed her view. Exhibit P12, the
second dying declaration, was recorded at 6.30
p.m. on the same day after due certification by the
doctor that she was conscious and in a fit condition
D to make the statement. This statement was
recorded by PW9, the Tehsildar. In his statement,
PW9 has categorically stated that he was directed
by the SDM to record the dying declaration. He had
even prepared memo, Exhibit P-13, and sent the
E same to the Police Station. He specifically stated
that the deceased was in a great pain and was
groaning. She was not even fully conscious.
According to him, he was not even informed of
recording of the fact of the previous dying
declaration. He had carried with him the memo
F
issued by the SDM for recording the statement of
the deceased. No such procedure was adhered to
by DW1. All these proceedings are conspicuous by
their very absence in the exhibited documents and
the statement of the said witnesses.
G
5) The third dying declaration which was recorded by
PW7, Sub-Inspector, was also recorded after due
certification and in presence of the independent
witnesses Bharat Kumar and Abdul Rehman.
H
SHUDHAKAR v. STATE OF M.P. 157
[SWATANTER KUMAR, J.]
Furthermore, PW6 gave the complete facts right A
from the place of occurrence to the recording of
dying declaration of the deceased. He categorically
denied the suggestion that the deceased had
stated to him that she caught fire from the stove.
Rather, he asserted that the deceased had B
specifically told him that the accused had put her
on fire.
6) The second and third dying declarations of the
deceased are quite in conformity with each other
and are duly supported by PW6, PW?, PW9 and
c
the medical evidence produced on record. The
accused, having suffered 97 per cent burns, could
not have been fully conscious and painless, as
stated by DW1. According to DW2, the doctor, the
accused could suffer the injuries that he suffered D
when the deceased would have pushed him back
when he was attempting to burn the deceased.
7) Besides all this, the accused had admitted the
deceased to be his wife and they were living E
together and that she caught fire. It was expected
of him to explain to the Court as to how she had
caught the fire. Strangely, he did not state the story
of his wife catching fire from the stove in his
statement under Section 313 CrPC, though the F
trend of cross-examination of the prosecution
witnesses on his behalf clearly indicates that stand.
8) We have already discussed that the theory of the
deceased catching fire from the stove is neither
probable nor possible in the facts of the present G
case. The kind of burn injuries she suffered clearly
shows that she was deliberately put on fire, rather
than being injured as a result of accidental fire.
9) Besides the deceased had herself stated the H
158 SUPREME COURT REPORTS [2012] 7 S.C.R.
A reason behind her falsely making the first
declaration. According to her, her husband was
likely to lose his job if she implicated him. It is clear
from the record that the relations of the accused
were present at the time of making the first dying
B declaration and the deceased had stated wrongly
on the tutoring of her husband.
10) The recoveries from the place of occurrence clearly
show a struggle or fight between the deceased and
the accused before she suffered the burn injuries.
c
11) In addition to the above, another significant aspect
of the present case is that the deceased had also
made a dying declaration, even prior to the three
written dying declarations, to PW1, the landlady and
D PW6. She had categorically stated to these
witnesses when death was staring her in the eyes
that she was burnt by her husband by pouring
kerosene oil on her. Both these witnesses
successflllly stood the subtle cross-examination
E conducted by the counsel appearing for the
accused. We see no reason to disbelieve these
witnesses who were well known to both, the
deceased as well as the accused.
24. Thus, in our considered view, the second and third
F dying declarations are authentic, voluntary and duly
corroborated by other prosecution witnesses including the
medical evidence. These dying declarations, read in
conjunction with the statement of the prosecution witnesses, can
safely be made the basis for conviction of the accused.
G
25. The argument that the first dying declaration recorded
by DW1 had not been produced on record by the prosecution
and, therefore, an adverse inference should be drawn against
the prosecution in terms of Section 114 of the Evidence Act
H ,is without any merit. This document has not only been produced
SHUDHAKAR v. STATE OF M.P. 159
[SWATANTER KUMAR, J.]
but has even been critically examined by the Trial Court as well A
as the High Court. It is a settled principle of law of evidence
that the question of presumption in terms of Section 114 of the
Evidence Act only arises when an evidence is withheld from
the Court and is not produced by any of the parties to the lis.
8
26. As a result of the above discussion, we find no infirmity
in the appreciation of evidence and law in the concurrent
judgments of the courts. Hence, we dismiss this appeal.
8.8.B. Appeal dismissed.
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