Holding

A dying declaration, if found after careful scrutiny to be true, coherent and made in expectation of death, is admissible and can constitute the sole basis for conviction even in the absence of corroboration.

Summary

The deceased Guddi, wife of the accused Kishore, suffered 80 % burns after kerosene was poured on her and she later died. Three dying declarations were recorded – one in the FIR, one under Section 161 of the Cr.P.C., and a judicial‑magistrate’s statement (Ex P‑8). The Sessions Court convicted Kishore under Section 302 IPC based primarily on the magistrate’s dying declaration and acquitted his mother‑in‑law; the High Court later acquitted Kishore, citing lack of a doctor’s certificate of mental fitness, timing discrepancies, and investigative lapses such as failure to send burnt clothes for chemical analysis. On appeal, the Supreme Court held that the dying declaration was clear, coherent, and made in expectation of death, and that, after careful scrutiny, it was reliable and could form the sole basis of conviction even without corroboration. The Court further ruled that investigative irregularities and the acquittal of a co‑accused do not vitiate the declaration’s veracity. Consequently, the conviction was upheld and the High Court’s order set aside.

Issues considered

Whether a dying declaration recorded by a Judicial Magistrate without a doctor’s certificate of mental fitness is admissible and can alone sustain a conviction.
Whether discrepancies in timing and lack of corroborative forensic evidence affect the reliability of the dying declaration.
Whether investigative irregularities, such as failure to send burnt clothes for chemical examination, invalidate the prosecution case.
Whether the acquittal of a co‑accused undermines the credibility of a dying declaration that names multiple persons.
Application of Section 32 of the Evidence Act to the dying declarations in this case.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 109, s. 302, s. 34

Subjects

dying declarationSection 32 Evidence Actcorroborationcriminal proceduremurder convictionforensic evidenceinvestigation irregularitiesmental fitness certificateappeal

Judgment

'r
l(

STATE OF RAJASTHAN A
v.
KISH ORE

FEBRUARY 27, 1996

. [K. RAMASWAMY, S. SAGHIR AHMAD AND B
_..,.. G.B. PATTANAIK, JJ.]

Evidence Act 1872-Section 32.

Dying declaration-Sole basis f01'-Conviction-Co1mboration by the C
FIR and statement recorded under Section 161 Cr.P. C-Evidentia1y
value-Held, dying declaration contains all grains of tmth as they are :ipon-
taneously made in expectation of death.

Conviction based upon dying declaration--Acceptance by the
cowt-Though named in the dying declaration, co-accused-Acquitted- D
Held, the acquittal was wrong but does not cast any doubt on the veracity of
the dying declaration.

Oiminal Procedure Code 1973:

Investigation into b1ide buming case--Omission by the Investigating E
Officer to send the bumt clothes and other inoiminating mate1ial for chemical
examination-Effect-Held, mere act that the Investigating Office Rcom-
mitted irregulaTity or illegality during the course of the investigation would not
cast doubt on the prosec1ttion case-Nor tn1stw01thy and reliable evidence can
be ignored to record acq1tittal on that account.
F
According to the prosecution, the deceased was the wife of respon-
dent and mother of one daught~, staying with her in- laws and sisters-in-
law. On June 21, 1984 at 2,0 clock in the afternoon, the respondent lit the
body of the deceased after pouring kerosene oil on her at the instigations
of his mother. During that time, even her sisters-in-law and daughter were G
present at home. The deceased was admitted to the hospital with 80 percent
burn injuries.

P.W. 6 (S.H.0.) received the telephone information about the inci-
dent and admission of the victim at the hospital. PW 6 went to hospital
and recorded the statement of the deceased as per Ex. P 16 and drew up H
1103
y

1104 SUPREME COURT REPORTS [1996] 2 S.C.R.
)
\

A the FIR. PW 8, the investigating Officer recorded the statement of the
deceased as per Ex. P 19 and sent the requisition to Chief Judicial
Magistrate to record her dying de'claration. PWl the Addi. Chief Judicial
Magistrate reached the hospital at 10.10 p.m. and waited till 10.50 p.m. for
a doctor after sending a nurse for this purpose. When no one turned up,
he proceeded to record the statement of the victim by way of questions and
B answers under Ex. P 8. Victive died on June 22, 1984. P.W. 7 (the doctor)
conducted autopsy and issued post-mortem certificate as per Ex. P. 21. ...,._
Charges were framed under Section 302 Indian Penal Code against respon-
dent and his mother.

C The Session Judge belie~·ed all the three dying declarations and
giving primacy to Ex. P.8 held the respondent guilty of an offence under
Section 302 Indian Penal Code and convicted and sentenced him to life
imprisonment but acquitted his mother.

The High Court gave benefit of doubt to the respondent on the
D ground that th"e Judicial Magistrate did not get any confirmation about
the mental condition of the_ deceased before recording Ex. P. 8 and ac-
quitted the respondent. The State did not file any appeal against acquittal
of respondent No. 2, the mother-in-law.

E Hence this appeal by the State.

Allowing the appeal, this Court

HELD : 1. The statement of the' deceased is clear, coherent and
specific. There is no inkling of any vaci~ation or doubt when the deceased
F had given answers to the questions put by P.W.1. It is seen that to question
no. 2 though the deceased had mentioned the presence of the mother-in-law
and sisters-in-law of the deceased, she bad.clearly put the nail of blame on
the husband and and mother-in-law. The omission to mention his name in
question no. 2 does not create any doubt since a major role was attributed
G only to the respondent. The omission to attribute motive to the respondent
is not a material consequence since it was done at the instigation of his
mother. [1115-F-H]

2. Ex. P. 8 is the dying declaration recorded by a Judicial Magistrate.
Ex. P.16 is the FIR which reached the court at the earliest. It contained an
H elaborate statement given by the deceased to P.W. 6, the SHO. The only
l
t STATEv. KISHORE 1105

variation between Ex. P. 8 and Ex. P. 16 is as regards the timings. It must A
be remembered that the deceased was an innocent, illiterate, poor lady and
was not so much conscious of the time factor. It would be only approximate
and could not be accurately described. The difference of timings in this
case is not of material consequence since admittedly, she had the burn
injuries. At what point of time the injuries were sustained would not be of B
material consequence. Even the witness P.W. 4 who turned hostile, men-
tioned the presence of the respondent at the time of occurrence. One
important factor which cannot be lost sight of is that no one was present
with the deceased at the time of recording Ex. P. 8 to tutor her to give any
false statement or to implicate anyone falsely. As a fact, all the three
declarations are sponteneous. That would lend reliability to her declara- C
tion coupled with the brutality, frank statement given by the deceased to
P.W.1 accusing only the respondent and her mother-in-law which inspires
this Court to believe that Ex. P. 8 contains all grains of truth and is a
reliable statement made by the deceased in expectation of her death due
to extensive 80 percent .b!Jrn injuries. Therefore, it would by itself form D
basis for conviction. [1114-F-H; 1115-A-C]

3. In his evidence P.W. 1 has stated that he reached the hospital at
10.10 p.m. and went to the victim, sent the nurse to call the doctor and he
waited till 10.50 p.m . .for the doctor to turn up but no doctor had come.
There is nothing intrinsic for the Magistrate to speak falsely against the E
inaction on the part of the doctor. He discharged the duty of recording the
statement of the deceased by putting questions and answers given by her
were recorded in her own language. He did not record verbatim of what
she has stated. A perusal of the answers clearly indicates that she was
conscious and had given cogent, coherent and direct answers to the ques- F
tions put by the Magistrate from which it could easily be inferred that she
was in a mentally fit condition at that time to give the statement. Nothing
has been elicited from the post-mortem conducted by the doctor P.W. 7
and no contra-evidence was brought on record that the deceased was not
in a mentally fit condition to give the st~tement either prior to P.W. l's
going to the hospital or thereafter. [1113-F-H; 1114-A-B] G

4. ~cquittal of mother-in-law of the deceased by the Sessions Court
may be wrong but it does not cast any doubt on the veracity of the
statement under Ex. P.8. The law does not make any distinction between
the dying declaration in which one person is named and a dying declara- H
(

1106 SUPREME COURT REPORTS [1996J 2 S.C.R.
)
A tion in which several persons are named as culprits. The dying declaration
may well be false when it implicated only one person while dying declara-
tion implicating several persons may be true. If just one of the many
persons is mentioned as culprit by a person claiming to be the witness in
the evidence adduced before the court, the court has to take care to
scrutinise the evidence and decide whether he has spoken falsely or has
B made a mistake about any of them. Therefore, when dying declaration
mentions number of culprits that by itself is not suspect. It is added duty
of the court to subject the statement to careful scrutiny and if it is found
to be credible and believable, mere fact that number of persons were
named as culprits but were nrt at all charged or were acquitted, does not
C render the declaration suspect or untrustworthy. Therefore, though co-ac-
cused was wrongly acquitted of the charge of murder, it does not cast any
doubt on the veracity of the statement of the deceased under Ex. P.8. nor
can it be suspect to act upon the self-same evidence against the respondent.
Every suspicion is not a doubt. Only reasonable doubt gives benefit to the
D accused and not the doubt of a vascillating Judge. [1117-A-F]

Khushall Rao v. The state of Bombay,. [1958) SCR 552, relied upon.

5. The investigating Officer P.W. 8 committed grave irregularity in
omitting to send the burnt clothes and other incriminating material for
E chemical examination to lend corroboration to the evidence. Mere act that
the investigating officer committed irregularity or illegality during the
course of the investigation would not and does not cast doubt on the
prosecution case nor trustworthy and reliable evidence can be cast aside
to record acquittal on that account. It is seen from the Panchanama
p recovery of the incriminating material from the scene of offence that there
was an attempt to screen the offence by destroying the evidence. Others
were prevented from entering the room. That by itself indicates an at-
tempts on the part of the accused to destroy the incriminating evidence
and to prevent others from saving the life of the deceased. Therefore, the
absence of smell of kerosene oil mi the hair sent for chemical examination
G does not render the dying declaration of the deceased suspect nor would
it become unbelievable.

It is settled law that the dying declaration, if after careful scrutiny, the
court is found to be true and free from any effort to induce the deceased to
H make a false statement and if it is coherent and consistent, the~-there is no
STATEv. KISHORE [K RAMASWAMY; J.] 1107

legal impediment to form such dying declaration as the basis of conviction, A
even if there is no corroboration. [1117-G-H; 1118-A-B; 1113-A-B]

Tarachand Damu Sutar v. The State of Maharastra, [1962) 2 SCR 775;
Kusa & Ors. v. State of Olissa, [1980) 2 SCC 207; Meesala Ramakrishan v.
State of A.P., [1994] 4 SCC 181; Govardhan Raoji Ghyare v. State of
Maharastra, [1993] 4 Supp. SCC 316 and Gangotri Singh v. State of U.P., B
[1993] Supp. 1 SCC 327, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
265 of 1996.

From the Judgment and Order dated 13.5.88 of the Rajasthan High C
Court in D.B. Crl. A. No. 116 of 1986.

K.S. Bhati and M.K. Singh for the Appellant.

Sushil Kumar Jain for the Respondent.
D
The Judgment of the Court was delivered by

K. RAMASWAMY, J. Leave granted.

Despite issuance of non-bailable warrant and attachment of the E
properties, presence of the respondent could not be secured for executing
the warrants as it was reported that his whereabouts were not known.
Consequentially, as per the directions of the Court, the Legal Aid Com-
mittee assigned Shri S.K. Pasi to assist the Court as a counsel for the
respondent. After hearing the counsel for the State and the respondent, we
had reserved the judgment on January 30, 1996. However, on February 2, F
1996, the respondent was brought and his counsel Shri Sushi! Kumar Jain
requested the Court to give an opportunity for hearing. Accordingly we
hear"d the matter again. This case also indicates avoidance on the part of
the people like the respondent to delay the disposal of the appeal in this
Court. When the attempts were found to be unsuccessful, he made ap- G
pearance in the Court which gave us an insight to adopt such appropriate
procedure for securing presence for early disposal to avoid miscarriage of
·justice.

On June 21, 1984, PW 6, Station House Officer, Sodala Police Station
in Jaipur, Rajasthan State had received a telephonic message, recorded H
1108 SUPREME COURT REPORTS [1996] 2 S.C.R.

A under Ex. P-22, that Guddi, the deceased was burnt of injuries and was
admitted in the hospital. After its entry in the G.D., he proceeded to the
hospital and recorded her statement Ex. P-16, came back to the police
station, issued the F.I.R. and set the investigation in motion. PW. 8 took
over the investigation, went to the deceased and recorded her statement
Ex. P-19 under Section 161 of the Code of Criminal Procedure, [Cr. P.C.]
B and sent the requisition Ex. P7 to the Chief Judicial Magistrate, Jaipur to
record her declaration. The latter directed PW. l, the Addi. Chief Judicial
Magistrate by name Hari Singh Punia to proceed to the hospital and record
the statement. Accordingly, PW.l on receipt of the order at 9.45 p~m.
proceeded to the hospital and reached the hospital at about l0.10 p.m. on
C June 21, 1984. He sent a nurse to get the doctor for his proceeding with
the recording of her statement. He waited till l0.50 p.m . .but no doctor
turned up. Consequentially, he proceeded to record her statement by way
of questions and answers under Ex. P-8. He put 8 questions in all. Relevant
questions are : Question Nos. 1, 2 and 3. They along with answers read as
D under:
"1. Question - What was the time of incident ?

Answer - It was 2 O'Clock at day. After pouring kerosene oil, lit
match-box.
E 2. Question - Who were present at your house at that time ?

Answer - My mother-in-law, four sisters-in-law and my daughter.
Sisters-in-law are Suman, Guddi, Wanchuki, Sampat.

3. Question - How did you ~et burnt ?
F
Answer - In the morning, my ~other-in-law poured kerosene oil
on me but I did not get burnt/ After this, my husband come for
lunch at noon and my mother-in-law asked him to lit match-box
on me. Then my husband after pouring kt:rosene oil on me, lit
match-box and my husband came out of the house. My mother-in
G
law kept on watching:"

'The ·other qu~stions are not relevant for the purpose of this case;
hence o~tted She died onJ~e 22, 1984 due to 80 per cent buminjuries.
The crime was covered ~oder Section 302, Indian Penal Code [IPC). PW
H 7, the doctor conducted autopsy and issued· post- mortem certificate,
STATEv. KISHORE[K.RAMASWAMY,J.J 1109

-- Ex.P-21. At the trial, prosecution had examined as many as 8 witnesses A
including PW 3 and PW 4, the immediate neighbours and PW 2, brother
of the deceased to prove motive. PW 3 and PW 4 turned hostile. The
Sessions Judge relied upon the three dying declarations and he has given
primacy to the dying declaration recorded by the Judicial Magistrate under
Ex.P- 8 and held that the charge under Section 302, IPC was proved against B
the respondent and convicted him under Section 302 and sentenced him
to undergo rigorous imprisonment for life. But he acquitted the deceased's
mother-in-law, Pushpa.

The State did not file any appeal against the acquittal of the mother-
in-law. The respondent filed appeal in the high Court. The Division Bench C
of the High Court in Criminal Appeal No. 116 of 1986 by order dated May
13, 1988 has acquitted the respondent. Reasons in support thereof are that:
the Judicial Magistrate had not recorded her mental condition; he did not
get any confirmation of the mental condition of the deceased before
recording the declaration; the articles seized at the scene of the offence D
. were not sent for chemical examination; the hair of the deceased sent for
chemical examination did not contain the smell of kerosene oil; doctors
would normally be available in the ward; the Judicial Magistrate without
waiting for the doctor and without obtaining from him proper certificate
of the mental condition of the deceased, recorded Ex. P-8 declaration
which would be highly irregular on the part of the Magistrate to record E
such statement; the deceased was under agony with 80 per cent of burn
injuries. Therefore, the story set up by the prosecution is not genuine and
is shrouded with doubts. The prosecution, therefore, has not proved the
case beyond reasonable doubt. Accordingly the Division Bench acquitted
the respondent giving him the benefit of doubt.
F
.·.
It is contended for the State that the view taken by the High Court
is unjustified on the facts of this case. PW. 1, the Judicial Magistrate waited
for the doctor for 40 minutes near the deceased before reconJing the
statement of the c:leceased, which has now turned out to be dying declara-
tion, but no one had turned up. Therefore, he thought it expedient to G
proceed with recording the dying declaration. He put questions and
elicited answers from the deceased. The answers given by her clearly
indicate her mental condition. Therefore, the absence of certificate from
the doctor does not cast any cloud on the correctness of the declaration
by the deceased. They get corroboration from the F.I.R.., Ex.P-16 and H
}
\
1110 SUPREME COURT REPORTS {1996] 2 S.C.R.

A Section 161 statement, Ex. P-19 which consistently spoke of the offence
committed by the respondent. The omission on the part of the investigation
-
officer to have the seized clothes sent for chemical examination is a lapse
on the part of the investigation officer but that does not cast any doubt on
the prosecution case. In view of the evidence on record that after the
deceased was burnt her clothes were changed and the burnt clothes were
B found under the Panchnama showed that evidence of offence was
destroyed. In view of the doctor's evidence that she died due to 80 per cent
burn injuries, the conclusion would be ~hat the cause of the death was
burns. The omission to find kerosene oil smell on the hair sent for chemical·
examination also does not cast any doubt on the prosecution case. The
C statement of the deceased, Ex. P-8 is clear and unequivocal that the
respondent had poured kerosene on her and set to fire and consequentially
she sustained 80 per .cent burn injuries and died due to shock. The offence,
therefore, of murder, has been made out. Though Pushpa, mother-in-law
of the deceased was wrongly acquitted, the acquittal does not cast any •.
D doubt on the veracity of the declaration, Ex. P-8. ·

Shri Pasi, learned counsel with his thorough preparation has con-
tended that the High Court was right in its conclusion that the prosecution
has not proved the case beyond doubt. There is inconsistency in the timings
mentioned in Ex. P-16, F.l.R. and Ex.P-8, dying declaration. Therefore,
E whereas under Ex.P-8, according to the deceased the occurrence had taken
place at 2 p.m., as per Ex. P-16, the occurrence had taken place at about
5 p.m. and death must be only subsequent to 2 p.m. which might necessarily
be due to accident or suicide. It is evident from these statements that the
deceased made an attempt to rope in Pushpa, her mother-in-law attributing
F her unsuccessfully attempting to set the deceased on fire in the morning.
It would be unlikely that the deceased might not have complained to the
neighbours or escaped from the house. Therefore1 the possibility of the
deceased setting herself to fire by pouring kerosene oil to commit suicide
and falsely implicating the respondent and his mother cannot be ruled out.
-
G Obviously for that reason the seized clothes were not sent for chemical
examination. The witnesses who came to the scene and spoke under
Section 161 that the respondent prevented them to get into the room, had
not supported the prosecution case which obviously is false. The
Magistrate, before recording the statement, had not secured the presence
of the.duty doctor who would always be available in the hospital, to testify
H the mental condition of the deceased who had admittedly suffered 80 per
\

l
- STATEv. KISHORE[K.RAMASWAMY,J.) 1111

cent burn injuries. No certificate even thereafter was appended by the A
doctor. It is, therefore, unlikely that the deceased would have given such a
lengthy statement in the form of answers to 8 questions put to her in that
agony. The High Court, therefore, was not prepared to accept the dying
declarations. If the dying declarations are excluded there is no other
evidence to establish the culpability of. the respondent beyond reasonable B
doubt.

Shri S.K. Jain contended that in all the three dying declarations, the
deceased attributed major role to her mother-in-law which was found by
the Division Bench to be false and accordingly it acquitted the mother-in- C
law. In other words, part of the dying declarations was disbelieved by the
courts. Consequently, it is difficult to place implicit reliance on the dying
declarations of the deceased without any corroboration from independent
evidence. S.M.S. Hospital at jaipur is a big hospital where hundreds of
doctors including the doctor on· medical jurisprudence would always be
available but none were brought at the time PW. 1 recorded the dying D
declaration, Ex. P-8. PW.l admitted that he did not read the dying decla-
ration after he had recorded the same. In none of the three dying declara-
tions any motive was attributed to the respondent. PW.1 without any
identification of the deceased had recorded the declaration in the hospital
where several other persons similarly injured were admitted. There was no E
identification of the deceased when PW.1 had recorded the statement. The
case sheet of the deceased from the hospital was not produced either to
identify the deceased or to know the nature of the treatment given before
PW.1 recorded the statement, Ex. P-8. The deceased was married to the
respondent about 8-9 years ago and there was no previous ill-feelings or
estrangement between the respondent and the deceased. The name of the F
respondent was not specifically mentioned in the first part of Ex. P-8, the
statement. There is a considerable time lapse as mentioned by the deceased
herself, of different timings in her successive statements. The hair of the
deceased sent for chemical examination did not emir smell of kerosene oil.
The clothes belonging to the deceased seized by the police were not sent G
for chemical examination. These circumstances clearly indicate that there
are strong suspicious features to disbelieve the prosecution case. It being
a case of pure appreciation of evidence and the High Court having had
gone into that question and recorded the findings, it would not be safe to
reverse those findings. H
)
1112" SUPREME COURT REPORTS (1996] 2 S.C.R.

A From the evidence on record, the pros~cution has established that
the deceased died of 80 per cent burn injuries on June 22, 1984 and she
sustained the same in the afternoon of June 21, 1984. The question,
therefore, is : whether she died of suicide or homicide? There is no
clinching evidence regarding the previous mental condition of the deceased
B to show any tendency to c;ommit suicide. In view of the finding by the
doctor under Ex.P-21, post-mortem certificate that she died due to shock
of 80 per cent burn injuries, if it is proved to have been committed by any
one, indisputably it would be a murder punishable under Section
302, I.P.C.

c The primary question, therefore, is : whether the pro£ecution has
established the case against the respondent beyond reasonable doubt? The
evidence in this case consists of_ three successive dying declarations of the
deceased Guddi. She principally attributed the acts to the respondent, her
husband, and abetment by her mother-in-law, Pushpa who stood acquitted.
D The question, therefore, is : whether the dying declarations are reliable
pieces of evidence ? Section 32(1) of the Evidence Act brings an exception
to the rule of hearsay evidence when the statement is made by a person as
to the cause of his death or as to any of the circumstances of the transaction
which result in the death, in cases in which the cause of the person's death
E comes into question. Therefore, under Section 32(1) of the Evidence Act,
if the statement of Guddi as to the cause of her death is believable as a
reliable peace of evidence, it would form basis to convict the accused-
resporl.dent. In Khushall Rao v. The State of Bombay, [1958] SCR 552, this
Court had held that it is not an absolute rule nor even a rule of prudence
that has ripened to a rule of law that dying declaration to sustain the order
F
of conviction, must be corroborate.cl by other independent evidence. The
rule of corroboration requires that the dying declaration be subjected to
close scrutiny since the evidence is .untested by cross-examination. The
declaration must be accepted, unless such declaration can be shown not to
-
have been made in expectation of death or to be otherwise unreliable. Any
G evidence adduced for this purpose can only detract from its value but does
not affect its admissibility. The dying declaration, therefore, may be tested
as any other pi_ece of evidence. Once the court reaches the conclusion that
the dying declaration is true, no question of corroboration arises. The dying ~
,.
~-

I

declaration cannot be placed in the same category as evidence of an
H accomplice or a confessio,:i..
STATEv. KISHORE [K. RAMASWAMY,J.] 1113

It is settled law by series of judgments of this Court that the dying A
declaration, if after careful scrutiny the court is satisfied that it is true and
free from any effort to induce the deceased to make a false statement and
if it is coherent and consistent, is no legal impediment to form such dying
declaration the basis of conviction, even if there is no corroboration vide
Tarachand Damu Sutar v. 17ze State of Maharashtra, [1962] 2 SCR 775; Kusa
& Ors. v. State of 01issa, [1980] 2 SCC 207; Meesala Ramak1ishna11 v. State
B
of A.P., [1994] 4 SCC 181; Goverdlzan Raoji Ghyare v. State of Maharashtra,
[1993] Supp. 4 SCC 316 and Gangotri Singh v. State of U.P., [1993j Supp.
1 sec 327.

We have scanned the dying declaration recorded by the Magistrate, C
PW.1 under Ex. P-8. Therein the first question put was to ascertain the
time of occurrence; the second question put was as to the place of occur-
rence and the persons present and the third question was as to who was
responsible for causing the burns to her; the fourth question related to the
participation of her sisters-in-law; the fifth question related to the persons D
who extinguished the fire; the sixth question was regarding her burnt
clothes; seventh question related to the identification of the persons who
brought her to the hospital; and the eighth question related to the previous
hostility between herself, mother-in-law and her husband, i.e., the motive.
The learned Judicial Magistrate put these questions and elicited answers
given by her were written in her own language and translated English E
version is placed on record. These questions are not only germane but also
absolutely relevant and pertinent to the cause of the occurrence and
circumstances leading to the occurrence. The deceased had suffered 80 per
cent burn injuries; yet her answers are coherent, clear and unequivocal. In
his evidence PW.l has stated that he reached the hospital at 10.10 p.m., F
went to the victim Guddi, sent the nurse to call the doctor and he waited
till 10.50 p.m. for the doctor to turn up but no doctor had come. There is
nothing intrinsic for the Magistrate to speak falsity against the inaction on
the part of the doctor. It is also not uncommon that the deceased being a
poor lady, no one was there to care to attend to her all the while. It is not
uncommon that in the general hospital such a shabby treatment is meted G
out to the poor patients. Under these circumstances, having waited for 40
minutes and finding that no doctor had turned up, he discharged the duty
of recording the statement of the deceased. He did not record verbatim of
what she has stated. He put questions and answers given by her were
recorded in her own language. H
)
'
1114 SUPREME COURT REPORTS [1996] 2 S.C.R.

A A perusal of the answers clearly indicates and inspires us to believe
that she was conscious and had given cogent, coherent and direct answers
to the questions put by the Magistrate from which it could easily be
inferred that she was in a mentally fit condition at that time to give the
statement. Nothing has been .elicited from the post-mortem conducted by
the doctor P.W. 7 and no contra evidence was brought on record that the
B
deceased was not in a mentally fit condition to give the statement either
prior to PW.l's going to the hospital or thereafter. As a fact no one had
attended on her. She was alone left in the bed. There was no occasion for
anybody to induce her to make a false statement against her husband and.
mother-in-law. Admittedly, she had 80 per cent burn injuries and it is
C obvious that she was in expectation of her death due to burns. She would
not have willingly excluded the real culprits and implicated falsely the
innocent. As a fact, she did not make any attempt to implicate her sisters-
in-law or father-in-law though their presence at the time of occurrence was
spoken by her in the declaration. That would clearly indicate that she was
D not interested to falsely implicate anyone except the real culprits, viz., her
husband and mother-in-law. PW.1 obtained her thumb impression on Ex.
P-8. It is neither in evidence nor elicited from PW. 7, the doctor or PW 1
that her fingers were burnt and she was not in a position to put her thumb
impression. Therefore, no doubt can be cast on her capacity to give the
statement or on her putting thumb impression on the statement under Ex.
E P-8. the declaration reflects the true state of affairs at the time of occur-
rence and her statement is a truthful version and is reliable one.

The tenor of reasoning by the High Court was solely directed to
criticise the Magistrate, PW. 1 which is uncalled for in the circumstances.
p Therefore, the High Cou~t"'was not right in doubting Ex. P-8, dying decla-
ration recorded by a Judicial Magistrate. It is seen that Ex.P-16 is the F.l.R.
which reached the court at the earliest. It contained an elaborate statement
given by Guddi, the deceased to PW.6, the S.H.O. The only variation
between Ex.P-8 and Ex.P-16 is as regards the timing. It must be remem-
G bered that the deceased was an innocent, illiterate poor lady and was not
so much conscious of the time factor. It would be only approximate and
could not be accurately described. The difference of the timings in this case
i~ not of material consequence since, admittedly, she had the burn injuries.
At what point of time the injuries were sustained would not be of material
consequence. Even the witness PW.4 who turned hostile mentioned the
H presence of the respondent at the time of occurrence. Ex.P-19, Section 161
STATEv. KISHORE [K.RAMASWAMY,J.] 1115

statement recorded by PW.8, the investigating officer is very simple and A
specific. It is not as elaborate as the F.l.R. It is PW.8 that sent the
requisition Ex. P-7 to the Chief Judicial Magistrate to record the statement
of the deceased pursuant to which PW.1 had come and recorded the.
statement Ex. P-8. One important factor which cannot be lost sight of is
that no one was present with the deceased at the time of recording Ex. P-8 B
to tutor her to give any false statement or to implicate falsely anyone. As
a fact, all the three declarations are spontaneous. That would lend
reliability to her declaration coupled with the brutally frank statement given
by the deceased Guddi to PW. 1 accusing only the respondent and her
mother-in-law which inspires us to believe that Ex. P-8 contains all grains
of truth and is a reliable statement made by Guddi, the deceased in C
expectation of her death due to extensive 80 per cent burn injuries. There-
fore, it would be itself form basis for conviction. If, at all, any corroboration
is needed, Ex. P-16, FIR and Ex. P-19 would corroborate her evidence.

It is true as contended by Shri S.K. Jain that S.M.S. Hospital is a big D
institute but it is not uncommon that to a poor and lonely patient like the
deceased, the doctor after attending on her and giving treatment had not
turned up, in spite of PW.l's sending the nurse to bring the doctor. It is
equally true that PW.1 admitted that he did not read out the statement
again after recording the declaration of the deceased but the tenor of the
questions put and answers given and recorded in her own language appears E
to have persuaded PW.1 to feel that there was no necessity to read once
over the statement to the deceased. It is equally true that the bad case sheet
in the hospital of the deceased was not produced. The nature of the
treatment given to the deceased before PW.1 recorded the statement is not
available on record but that lapse does not create any doubt on the capacity F

.. of the deceased or on her mental condition at the time of giving the
statement. It is already seen that the statement of the deceased is clear,
coherent and specific. There is no inkling of any vacillation or doubt when
the deceased had given answers to the questions put by PW.l. It is seen
that to question No. 2 though the deceased had mentioned the presence
of the mother-in-law and sisters-in-law of the deceased, she did not men- G
tion the name of the husband, the respondent but to the third question she
had clearly put the nail of blame on the husband and mother-in-law. The
omission to mention his name in question No. 2 does not create any doubt
since a major role was attributed only to the respondent. The omission to
attribute motive to the respondent is not a material consequence since it H
1116 SUPREME COURT REPORTS (1996) 2 S.C.R. j
\

A was done at the instigation of his mother.

In the Meesala Ramakrishnan's case (supra), this Court had accepted
the dying declaration on the basis of gestures not only as admissible but
also possessing evidentiary value. The statement was recorded by the
B Magistrate and a certificate of mental condition was appendeci by the
doctor who had stated that the nods given by the deceased were effective
and meaningful. So the dying declaration formeq sole basis for conviction.
In Ganpat Mahadeo Mane v. State of Maharashtra, [1993) Supp. 2 SCC 242,
there were three dying declarations regarding burning by the accused in
C bride burning case, viz., one recorded by the doctor, another by police
constable and the third by the Executive Magistrate and they were held
sufficient to prove the offence and result in conviction. Though answers
were not elicited by way of questions and answers and the declaration was
recorded verbatim, the dying declarations were accepted to be truthful and
as such they formed basis for conviction. In Govardhan Raoji Ghyare's case
D [supra], the minor discrepancy in two dying declarations by the deceased-
bride was held to be not of material consequence. Both the declarations
were similar in material particulars. The minor discrepancies were held to
be inconsequential. The two dying declarations were accepted to be admis-
sible to form the basis for conviction. In Jose & Ors. ·v. State of Kera/a,
E [1994) Supp. 3 sec 1, the dying declaration recorded by the doctor in the
form of questions and answers was accepted by this Court. Similarly the
declaration recorded by the police officer in his own words by way of
statement under ·section 161, Cr.P.C. was held to corroborate the other
statement. It also corroborated evidence of direct witnesses. It was held
that dying declaration recorded by the doctor could not be discarded on
F the ground that there were t~o dying declarations with variations. In
Gangotri Singh 's case (supra), the dying declaration recorded by the
Magistrate shortly after the occurrence was accepted in spite of bitter
enmity between the accused and the deceased. In Kundula Bala Subrah-
manyam & Am: v. State of Andhra Pradesh, (1993) 2 SCC 684, the dying
G declaration relating to the circumstances leading to the death was accepted
being consistent with other evidence. In State of Maharashtra v. Rajendra
Garbad Patil, (1992) Supp. 3 SCC 55, the dying declaration recorded within
an hour of the occurrence and made by the injured without being in-
fluenced by others was held reliable and conviction could be ordered on
H that basis alone.
STATEv. KISHORE [K RAMASWAMY, J.] 1117

- It is true that Pushpa, mother of the accused-respondent was ac- A
quitted by the Sessions Court of the offence under Section 302 read with
Sections 109 and 34, I.P.C. and the State did not file any appeal against
the acquittal. The acquittal may be wrong but it does not cast any doubt
on the veracity of the statement under Ex.P-8. The law does not make any
distinction between the dying declaration in which one person is named B
and a dying declaration in which several persons are named as culprits.
The dying declaration may well be false when it implicated only one person
while dying declaration implicating several persons may be true. If just one
of the many persons is mentioned as culprit by a person claiming to be the
witness in the evidence adduced before the court, the court has to take
care to scrutinise the evidence and decide whether he has spoken falsely C
or has made a mistake about any of them. Therefore, when dying declara-
tion mentions number of culprits that by itself is not suspect. As stated
earlier, it requires careful scrutiny of the declaration in the light of the facts
and circumstances of each case, in particular if the accused did not have
the opportunity to cross-examine the declarant. It is added duty of the D
court to subject the statement to careful scrutiny and if it is found to be
credible and believable, mere fact that number of persons were named as
culprit but were not at all charged or were acquitted, does not render the
declaratio~ suspect or untrustworthy. In Kusa's case (supra), in the dying
declaration, apart from the accused, others also had been named as culprits
but no charge-sheet was laid against them. This Court had held that merely E
because some other persons, though named in the dying declaration, were
not charge-sheeted, would not by itself prove falsity of the declaration. It -
is, therefore, clear that though co-accused Pushpa was wrongly acquitted
of the charge of murder, it does not cast any doubt on the veracity of the
statement of the deceased under Ex. P-8 nor can it be suspect to act upon F
the self-same evidence against the respondent. Every suspicion is not a
doubt. Only reasonable doubt gives benefit to the accuse and not the doubt
of a vacillating Judge.

It is equally true that the investigating officer PW.8 committed grave
irregularity in omitting to send the burnt clothes and other incriminating G
material for chemical examination to lend corroboration to the evidence.
Mere fact that the investigating officer committed irregularity or illegality
during the course of the. investigation would not and does not cast doubt
on the prosecution case nor trustworthy and reliable evidence can be cast
·aside to record acquittal on that account. It is seen from the Panchnama H
1'

1118 . SUPREMECOURTREPORTS [1996] 2 s.c.R~
)
A recovery of the incriminating material from the scene of offence that there
was an attempt to screen the offence by destroying the evidence. Others
were prevented from entering the room. That by itself indicates an attempt
on the part of the accused to destroy the incriminating evidence and to
-
prevent others from saving the life of the deceased. Therefore, the absence
of smell of kerosene oil on the hair sent for chemical examination does not
B render the dying declaration of the deceased suspect nor would it become
unbelievable. The High Court, therefore, has not considered the evidence
in the proper and legal perspective but felt it doubtful like Doubting
Thomas with vacillating mind to accept the prosecution case for invalid
reasons and wrongly gave to the respondent the benefit of doubt.
c The reasons, therefore, are clearly erroneous a_nd unsustainable to a
close and careful scrutiny and meticulous examination of the evidence and
circumstances in the case. The evidence proves the prosecution case
beyond reasonable doubt that the respondent had poured kerosene oil on
the deceased, lit the fire with match-stick causing 80 per cent burn injuries
D to the deceased which resulted in her death. Thereby, the offence of
murder punishable under Section 302, IPC has been established beyond
reasonable doubt. The Sessions Court, therefore, rightly recorded the
conviction under Section 302, IPC and senten~ed him to undergo imprison-
ment for life.
E The appeal is allowed. The order of acquittal of the High Court is
set aside and that of the conviction and SC(ntence by the Sessions Court is
r~stored. The respondent who is presently consigned in Central Jail, Jaipur,
as per our order dated February 2, 1996, should undergo rigorous im-
prisonment for life.
F
The appeal is accordingly allowed.

M.K Appeal allowed.