Supreme Court of India
SURESHversusSTATE REP. BY INSPECTOR OF POLICE
- Citation
- 2025 INSC 318
- Decided
- 3 March 2025
- Disposal
- Appeal(s) allowed
- Bench
- SUDHANSHU DHULIA
Holding
A conviction cannot be sustained on a dying declaration that is doubtful and uncorroborated; the benefit of doubt requires acquittal.
Summary
The appellant was convicted of murder under Section 302 IPC for allegedly pouring kerosene on his wife and setting her on fire. The prosecution's case relied heavily on a dying declaration recorded by a Judicial Magistrate, which accused the appellant, while earlier statements by the deceased to a doctor and a police constable described the fire as accidental. The trial and high courts upheld the conviction despite inconsistencies in the dying declaration and lack of corroborative evidence such as the presence of kerosene smell or independent witnesses. The Supreme Court examined the credibility of the dying declaration, noting that it was contradicted by earlier statements and that the observation Mahazar was unreliable. Finding that the dying declaration could not be the sole basis for conviction without corroboration, the Court acquitted the appellant and set aside the high court order.
Issues considered
- Whether a dying declaration that is inconsistent with earlier statements and lacks corroborative evidence can support a conviction under Section 302 IPC.
- Whether the observation Mahazar and other circumstantial evidence sufficiently corroborate the dying declaration.
Legislation cited
- Code of Criminal Procedure, 1973
- Indian Penal Code, 1860s. 302, s. 307
Subjects
dying declarationcorroborative evidencebenefit of doubtlife imprisonmentIPC 302criminal law
Judgment
[2025] 3 S.C.R. 317 : 2025 INSC 318
Suresh
v.
State Rep. By Inspector of Police
(Criminal Appeal No. 540 of 2013)
04 March 2025
[Sudhanshu Dhulia* and Ahsanuddin Amanullah, JJ.]
Issue for Consideration
Whether the High Court was correct to uphold the conviction and
life imprisonment granted by the Trial Court.
Headnotes†
Criminal Procedure Code, 1973 — Whether High Court
correctly appreciated the facts and upheld the conviction of
the accused — Correctness:
Held: While convicting, the Trial Court mainly relied upon the
evidence given by parents of the deceased and the dying
declaration, which was recorded by the Judicial Magistrate — Dying
declaration is an important piece of evidence and a conviction
can be made by relying solely on a dying declaration alone as
it holds immense importance in criminal law – However, such
reliance should be placed after ascertaining the quality of the dying
declaration and considering the entire facts of a given case — The
deceased had given two statements which are totally different from
her subsequent statement made before the Judicial Magistrate,
which casts serious doubts on the veracity of the deceased’s
subsequent statement, where the deceased had blamed the
accused for the incident — No other evidence corroborates the
deceased’s statement that the appellant had poured kerosene on
her and then set her on fire — The doctor, who had examined the
deceased immediately after the incident, denied the presence of
the smell of kerosene in the body of the deceased when she was
brought to the hospital — Reliance of prosecution on Observation
Mahazar is not correct, which is itself doubtful as the seizure
witness to the said Mahazar has turned hostile and there had been
an inordinate delay in sending the Mahazar to Court — Where
the deceased has been changing her stance and has completely
* Author
318 [2025] 3 S.C.R.
Digital Supreme Court Reports
turned around her statements, such a dying declaration cannot
become the sole basis for the conviction in the absence of any
other corroborative evidence — Total reliance on subsequent dying
declaration would be misplaced – Thus, the accused deserves to
be given the benefit of doubt, therefore acquitted. [Paras 11-17]
Case Law Cited
Uttam v. State of Maharashtra [2022] 5 SCR 863 : (2022) 8 SCC
576 – relied upon.
List of Acts
Penal Code, 1860; Criminal Procedure Code, 1973.
List of Keywords
Dying declaration not the sole basis for conviction; Failure of justice.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
540 of 2013
From the Judgment and Order dated 28.02.2012 of the High Court
of Judicature at Madras in Crl.A. (MD) No. 178 of 2011
Appearances for Parties
Advs. for the Appellant:
Abhimanyu Singh, Amicus Curiae (Assisted by: Deepak Raj,
Aravindh S.).
Advs. for the Respondent:
V. Krishnamurthy, A.A.G., Sabarish Subramanian, Vishnu
Unnikrishnan, Ms. Azka Sheikh, Ms. Jahnavi Taneja, Danish Saifi.
Judgment / Order of the Supreme Court
Judgment
Sudhanshu Dhulia, J.
1. The appellant before us has challenged the order dated 28.02.2012
by which the High Court of Madras has upheld the appellant’s
[2025] 3 S.C.R. 319
Suresh v. State Rep. By Inspector of Police
conviction and life sentence for an offence under Section 302 of the
Indian Penal Code (‘IPC’).
2. The brief case of the prosecution is that on 12.09.2008 at around
6 pm, the appellant caused the death of his wife (‘deceased’) by
pouring kerosene on her body and setting her on fire, which ultimately
resulted in her death after a period of approximately three weeks in a
hospital. The appellant used to reside in his house at Narayanachetti
Street, Tuticorin with his wife and a 2 ½ year old son. The Mother-
in-law (PW-1) and Father-in-law (PW-2) of the appellant used to
reside in the street next to the appellant’s street. On the fateful day
i.e., 12.09.2008 when the child of the deceased was crying, the
deceased called her mother (PW-1) to pacify the child and the child
was taken away by her mother (PW-1) to her house which was in
the neighbourhood. Meanwhile, PW-1 and PW-2 were informed by
a neighbourhood child that their daughter Sumathi (deceased) had
caught fire. She was then immediately taken to a nearby hospital,
and then to another hospital (American Hospital) and eventually
admitted in a Government Hospital at Thoothukudi.
3. At around 9:30 pm, when police received the information, PW-9 (Head
Constable) reached the hospital and recorded the statement of the
deceased. In her statement to PW-9, the deceased stated that she
caught fire while working in the kitchen. She also states that at the time
of the incident, the appellant was sleeping and when she screamed,
the appellant woke up and tried to put off the fire. On the basis of this
statement, a general diary entry was made by police on 12.09.2008.
4. Thereafter, on 15.09.2008, a case for accidental fire was registered.
On the same day, PW-15 (Sub-Inspector) visited the scene of the
occurrence and seized a kerosene can and matchstick. On this day,
police recorded another statement of the deceased where she stated
that her husband had set her on fire by pouring kerosene and she
did not state so in her earlier statement as her husband was present
while PW-9 recorded her statement on 12.09.2008. On 15.09.2008,
the accidental fire case was converted to a case under section 307 of
IPC against the appellant. Finally, upon the death of the deceased on
02.10.2008, section 307 of IPC was modified to section 302 of IPC.
5. Before the death of the deceased, on 18.09.2008, a Judicial Magistrate
recorded a statement of the deceased and this statement was used
by the prosecution as the dying declaration. In this statement, the
320 [2025] 3 S.C.R.
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deceased stated before the Judicial Magistrate (PW-12) that it was
the appellant who had poured kerosene on her and set her on fire
on 12.09.2008.
6. The Trial Court treated this statement given to PW-12 as the dying
declaration and convicted the appellant under section 302 of IPC.
In appeal before the High Court, the conviction and sentence of life
imprisonment, imposed by the Trial Court, have been affirmed by
the impugned order dated 28.02.2012. Aggrieved by the same, the
appellant is here before us.
7. We have heard both sides and perused the material before us.
8. Before coming to the issue of dying declaration, we would like to go
through the evidence of other witnesses who were there before the
Trial Court. There were as many as 17 witnesses from the side of
the prosecution. PW-1 and PW-2, who are the mother and father of
the deceased respectively, had both deposed that when they reached
the house of the deceased, they found the deceased was burnt and
also deposed that PW-3 (neighbour) had already reached there and
tried to douse the fire. PW-1 and PW-2 also deposed that they were
the ones who had taken the deceased to the hospital.
9. PW-1 and PW-2 also tried to suggest that the appellant had set the
deceased on fire and neither did he make any attempt to douse the
fire nor did he accompany them when they took the deceased to the
hospital. On the other hand, it is to be noted that PW-3 and PW-4
deposed that they were the first to reach the deceased’s house and
they deposed that the appellant was the one who informed PW-1
and PW-2 about the incident. PW-3 also deposed that she and her
father (PW-4), as well as, the appellant tried to extinguish the fire.
However, these two prosecution witnesses i.e. PW-3 and PW-4 were
declared hostile. Moreover, PW-13 (doctor) had deposed that when
the deceased was brought to the hospital, the appellant was with the
deceased. Here, it is to be noted that the appellant suffers from 40%
physical disability resulting from a polio attack. Also, the version that
the appellant had not made any attempt to take the deceased to the
hospital is not only in contradiction with the deposition of PW-13 but
would also be fatal for the prosecution case itself as the prosecution
case mainly relies on the story that the deceased had made a false
statement due to the presence of the appellant in the hospital, in
other words, appellant was there in the hospital with the deceased
[2025] 3 S.C.R. 321
Suresh v. State Rep. By Inspector of Police
when her statement was recorded by the Police, immediately on the
arrival of the deceased in the hospital.
10. PW-13 is the doctor who attended to the deceased when she
was taken to the Government Hospital. PW-13 deposed that the
deceased had told him that she caught fire while cooking. In his
cross-examination, this witness admitted that there was no smell
of kerosene oil emanating from her body. PW-11, the doctor who
conducted the post-mortem, deposed that the deceased died due to
burn injuries and complications therefrom. In the cross-examination,
PW-11 deposed that there were no external injuries on the body of
the deceased except the burn injuries. This rules out any possibility
of an assault on the deceased before she had caught fire.
11. While convicting the appellant under section 302 of IPC, the Trial
Court mainly relied upon the evidence given by PW-1 and PW-2 and
the dying declaration, which was recorded by the Judicial Magistrate
(PW-12) on 18.09.2008. Thereafter, in appeal, without appreciating
the facts of the case in their proper perspective, the High Court also
mechanically upheld the conviction and life sentence of the appellant.
12. Now coming to the issue of the dying declaration. There is no doubt
regarding the well-settled position of law that a dying declaration
is an important piece of evidence and a conviction can be made
by relying solely on a dying declaration alone as it holds immense
importance in criminal law. However, such reliance should be placed
after ascertaining the quality of the dying declaration and considering
the entire facts of a given case. This Court in Uttam v. State of
Maharashtra (2022) 8 SCC 576, with respect to inconsistent dying
declarations, observed as follows:
“15. In cases involving multiple dying declarations made
by the deceased, the question that arises for consideration
is as to which of the said dying declarations ought to be
believed by the court and what would be the guiding factors
for arriving at a just and lawful conclusion. The problem
becomes all the more knotty when the dying declarations
made by the deceased are found to be contradictory.
Faced with such a situation, the court would be expected
to carefully scrutinise the evidence to find out as to which
of the dying declarations can be corroborated by other
material evidence produced by the prosecution.”
322 [2025] 3 S.C.R.
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In other words, if a dying declaration is surrounded by doubt or there
are inconsistent dying declarations by the deceased, then Courts must
look for corroborative evidence to find out which dying declaration is
to be believed. This will depend upon the facts of the case and Courts
are required to act cautiously in such cases. The matter at hand is
one such case. In the present case, the deceased had given two
statements which are totally different from her subsequent statements
including the statement made before PW-12 on 18.09.2008, which has
been considered a dying declaration based on which the appellant
has been convicted. The first statement was made to the doctor
(PW-13) on the day of the incident itself where she told PW-13 that
the incident occurred while she was cooking. On the same day, the
second statement was made to the police constable (PW-9) where
the deceased said the same thing i.e. she caught fire by accident
while cooking in the kitchen.
13. Now, the variances in deceased’s statements cast serious doubts
on the veracity of her subsequent statement of 18.09.2008 made
before the Judicial Magistrate (PW-12) where the deceased had
blamed the appellant for the incident. The deceased tried to explain
her conduct by stating that she made false statements on the day
of the incident as she could not tell the truth in the presence of her
husband. It is very difficult to believe this version of the deceased
because no other evidence corroborates the deceased’s statement
that the appellant had poured kerosene on her and then set her on
fire. Moreover, in his cross-examination, Judicial Magistrate (PW-
12) admitted that he did not question the deceased with regards to
the details of her previous statements made before the police. The
deceased did not say anything to the Judicial Magistrate regarding
her previous statements of 12.09.2008 and 15.09.2008. In other
words, the deceased did not tell the Magistrate that she lied in her
statement of 12.09.2008. It is not a case of dowry harassment as
all such possibilities were already ruled out during the investigation.
When the Judicial Magistrate (PW-12) questioned the deceased
about the reason for which appellant had set her on fire, as claimed
by the deceased, the deceased answered as follows:
“I had beaten my son Rubiston. My husband had asked
me why you are beating the child. My husband had abused
me with filthy language. I told him that I am going to die.
[2025] 3 S.C.R. 323
Suresh v. State Rep. By Inspector of Police
He said that why do you die and he himself had poured
kerosene and burnt me”
This is also contradictory to the other evidence on record and here,
the timeline of the events becomes important. From the deposition
of PW-1, it comes out that PW-1 was called by the deceased
around 2 pm and PW-1 went to deceased’s house and brought the
deceased’s son to her house. The incident occurred in the evening
at around 6 pm. As per the deceased’s dying declaration, she was
beating her child to which the appellant raised objections and the
matter escalated, leading to the alleged incident. All of this makes
the dying declaration extremely doubtful.
14. As discussed above, in cases where the dying declaration is
suspicious, it is not safe to convict an accused in the absence of
corroborative evidence. In a case like the present one, where the
deceased has been changing her stance and has completely turned
around her statements, such a dying declaration cannot become the
sole basis for the conviction in the absence of any other corroborative
evidence.
15. On this point, the prosecution would argue that Observation Mahazar
prepared by PW-15 talks about the recovery of an empty kerosene
can and match stick from the spot. PW-15 also mentioned in the
Observation Mahazar that when he visited the deceased’s house
on 15.09.2008, it was full of the smell of burnt kerosene. According
to the prosecution, this Mahazar corroborates the dying declaration
made by the deceased. However, the veracity of this Observation
Mahazar is itself in doubt. Apart from the fact that there had been
an inordinate delay in sending the Mahazar to Court, the witnesses
(PW-5 and PW-6) to the seizure of the above articles had also been
declared hostile. PW-5 and PW-6 deposed that the site was visited
by PW-15 but they did not support that any articles with kerosene
smell were seized from the place.
16. Moreover, no other witnesses had deposed about seeing any empty
kerosene can or match stick. Even PW-1 and PW-2, who reached
the scene and hospitalised the deceased, had not deposed anything
like that. On the contrary, PW-13 (doctor) had categorically stated
in his evidence that there was no smell of kerosene in the body
of the deceased when she was brought to the hospital. Normally,
where the death is caused by burning through kerosene, the smell
324 [2025] 3 S.C.R.
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of kerosene would definitely remain for a few hours, however, the
smell does weaken after some time. Since, in the present case, the
deceased was immediately brought to the hospital barely within a
few hours of the incident, if kerosene was involved then the smell of
kerosene ought to have been there. Even the doctor (PW-13), who
had examined the deceased immediately after the incident, states
that there was no such smell.
17. There is also another aspect to the case. It has come on record that
the relations between the two families i.e., the family of the accused
and the family of the deceased, had soured. In 2006, barely two years
before the incident, the appellant’s brother had filed a criminal case
of assault against the appellant’s father-in-law (PW-2) and brother-
in-law. In that case, PW-2 and his son were convicted. Before the
Trial Court as well as the High Court, the appellant had tried to
unsuccessfully contend that the dying declaration of 18.09.2008 is
an afterthought of the deceased and the deceased made such a
statement upon being tutored by PW-1 and PW-2. We are not in a
position to give any definitive view on this aspect but considering
the other evidence on record, the possibility of what the appellant
is suggesting, cannot be ruled out. Thus, in our considered opinion,
inspite of a dying declaration here, for the reasons stated above,
total reliance on it would be misplaced. Consequently, the appellant
deserves to be given the benefit of doubt.
18. We accordingly allow this appeal and acquit the appellant by setting
aside the order of the High Court dated 28.02.2012. The appellant
shall be released from jail forthwith.
19. Pending application(s), if any, stand(s) disposed of.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Gaurav Upadhyay, Hony. Associate Editor
(Verified by: Kanu Agrawal, Adv.)
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