UMAKANT & ANR.versusSTATE OF CHHATISGARH

                     [2014] 8 S.C.R. 69


                     UMAKANT & ANR.                             A
                              v.
                STATE OF CHHATISGARH
            (Criminal Appeal No.1424 of 2012)
                       JULY 01, 2014
                                                                 B
         [DIPAK MISRA AND N.V. RAMANA, JJ.]

      Penal Code, 1860 - ss. 302 rlw 34 - Conviction and
sentence under, on the basis of dying declaration -
Justification of - Victim-wife admitted in the hospital with burn C
injuries, later succumbed to her injuries - Prosecution case
that husband and his parents harassing the victim for dowry
and subjected her to cruelty and torture - High Court relying
solely on the dying declaration upheld conviction of the
appellants-husband and his parents u/s. 302134, however, D
acquitted them u/ss. 304-8 and 498-A and ss. 3 and 4 of the
Dowry Prohibition Act - On appeal, held: Evidence available
on record and the dying declaration does not inspire
confidence to make it the basis for the conviction of the
appellants - Dying declaration appears to be a product of E
tutoring by family members - Further, the High Court basing
on the same dying declaration, ought not to have convicted
the appellants u/s. 302 when they were acquitted uls. 304-8
and 498A and ss. 3 and 4 of the Dowry Prohibition Act by the
High Court - Thus, conviction and sentence imposed by the F
High Court against the appellants for the offence uls. 302134
set aside.

    Evidence - Dying declaration - Credibility of - Held:
Dying declaration is given lot of credence and importance,
deviating from the rule of evidence since such declaration is    G
made by the victim when he/she is on the verge of death -
Though dying declaration is not recorded in the Court in the
presence of accused nor it is put to strict proof of cross-

                              69                                 H
     70       SUPREME COURT REPORTS              [2014] 8 S.C.R.


A examination by accused, still it is admitted in evidence
  against the general rule that hearsay evidence is not
  admissible in evidence - Dying declaration does not even
  require any corroboration as long as it inspires confidence in
  the mind of the Court that it is free from tutoring - At the same
B time, dying declaration has to be judged and appreciated in
  the light of surrounding circumstances.

        Criminal law - Burden of proof - Held: Prosecution has
  to prove the guilt of the accused beyond all reasonable doubt
  - If two views are possible on the evidence adduced in the
C case, one pointing to the guilt of the accused and the Qtber
  towards his innocence, the view which is favourable to the
  accused should be adopted.

        According to the prosecution case, after six months
D of the marriage, appellant no. 1-husband and his parents
   started harassing 'A'-wife for dowry and subjected her to
   cruelty and torture. It is alleged that on the fateful day, the
   appellant no. 1 poured kerosene on her body and
   appellant no. 2-mother-in-law set her ablaze. The victim
E was taken to the hospital where appellant no. 2 stated to
   the doctor that the victim sustained injuries due to an
   accident with the chimney (lamp). The hospital authorities
   informed the police and FIR was registered. The victim .
   later succumbed to her injuries. The trial court convicted
F the appellant no. 1 and 2 u/ss. 3 and 4 of the Dowry
  ·Prohibition Act, 1961 and u/ss. 498A, 3048 and 302/34 IPC
   and appellant no. 3-father-in-law u/ss. 3 and 4 of the 1961
   Act and u/ss. 498A IPC. However, since there was not
   enough evidence except the dying declaration of the
G victim, the High Court acquitted the appellants of all the
   charges except u/s. 302/34 IPC. The Division Bench of the
   High Court upheld the conviction and sentence u/s. 3021
   34 IPC. Hence, the present appeal.

          Allowing the appeal,· the Court
H·
  UMAKANT & ANR. v. STATE OF CHHATISGARH                 71


    HELD: 1.1. The philosophy of law which signifies the A
importance of a dying declaration is based on the maxim
"nemo moritusus prasumitus mennre", which means, "no
one at the time of death is presumed to lie and he will not
meet his maker with a lie in his mouth". Though a dyin~
declaration is not recorded in the Court in the presence B
of accused nor i-t is put to strict proof of cross-
examination by the accused, still it is admitted in evidence
against the general rule that hearsay evidence is not
admissible in evidence. The dying declaration does not
even require any corroboration as long as it inspires .c
confidence in the mind of the Court and that it is free from
any form of tutoring. At the same time, dying declaration
has to be judged and appreciated in the light of
surrounding circumstances. The whole point in giving iot
of credence and importance to the piece of dying
                                                             0
declaration, deviating from the rule of evidence is that
such declaration is made by the victim when he/she is on
the verge of death. [Para 18] [83-0-G]

     1.2. In spite of all the importance attached and the
sanctity given to the piece of dying declaration, the          E
Courts have to b·e very careful while analyzing the
truthfulness, genuineness of the dying declaration and
should come to a proper conclusion that the dying
declaration is not a product of prompting or tutoring.[Para
19] [83-H; 83-A)                                               F

    Atbir v. Government of NCT of Delhi 2010 (9) SCR
993:2010 (9) SCC 1; Paniben v. State of Gujarat 1992 (2)
SCR 197:1992 (2) SCC 474; Panneerselvam v. State of
Tamilnadu 2008 (8) SCR 962: 2008 (17) SCC 190 - relied G
on.

    1.3. In the light of the legal position that governs the
consideration of a dying declaration, the factual matrix
has to be scrutinised. In the dying declaration, the
deceased stated before the Magistrate that the appellants      H
    72      SUPREME COURT REPORTS             [2014) 8 S.C.R.


A demanded dowry and that the appellants set fire to her
  and she asked her brother-in-law to rescue her, but he
  had chosen not to do so, and further on hearing her cries,
  the neighbours came and extinguished the fire and
  admitted her in the hospital. After she was admitted in the
B hospital, her parents came and she informed them about
  the incident. The deceased is said to have stated that
  when she was pregnant she was beaten up by the
  accused and because of which the child died in the
  womb. At that time, she had taken treatment in 'R' hospital.
c This statement is found in the FIR written by P.W.23-'K.B'
  and not in the dying declaration. [Para 21] [85~0-G]

         1.4. The dying declaration does not inspire
    confidence in the mind of this Court and throws serious
    doubt that the same is a product of tutoring by the family
D   members of the deceased for the reason that, the sister
    of the deceased who was present when the deceased
    was admitted in the hospital had signed in Ex.P-2-
    consent letter wherein it is stated that it was an accident
    and nobody has burnt the deceased, but later she turned
E   around and stated that unless she signed on that, they
    were told that the deceased would not be treated, and the
    High Court took this fact into consideration, whereas ini
    the dying declaration, the deceased stated that when her;
    parents came to the hospital on 06.08.2003, she informed
F   to the parents for the first time and she had not
    mentioned that she informed her sister or anybody before
    that, but according to the sister of the deceased, on
    02.08.2003, she was aware of this, which shows that the
    evidence of the witness is not reliable and clouded with
G   doubt. [Para 22] [85-H; 86-A-D]

        1.5. When the deceased informed her parents on
    06.08.2003, it is quite natural that the parents would
    inform the police about the incident, because it is
    nobody's case that they were restrained in any manner
H
   UMAKANT & ANR. v. STATE OF CHHATISGARH                  73


from informing the police. Even the deceased throughout          A
the stay in the hospital for those 11 days had many an
occasion to meet the doctors and other staff of the
hospital, but she chose not to give any complaint nor
tried to share her agony with them, which throws a grave
doubt on the genuineness of the dying declaration. P.W.7         B
specifically deposed that they have tutored the deceased
to state that she was burnt by the accused. [Para 23] [86-
D-F]

     1.6. The High Court while considering. Ex.P-2               C
concluded that the statement given in that one line is
contradictory to one another. In one line, it says that the
injuries sustained by her are by accident. Nobody has
burnt her and she burnt herself. Hence, the High Court
discarded Ex.P-2. But, the High Court did not appreciate
the same in its proper perspective and interpreted it in a       D
wrong way. What Ex.P-2 states is that it is an accident,
and nobody has pushed her and for that accident, only
the deceased is responsible. [Para 24] [86-G, H; 87-A]

     1.7. The burden of proof in criminal law is beyond all      E
reasonable doubt. The prosecution has to prove the guilt
of the accused beyond all reasonable doubt and it is also
rule of justice in criminal law that if two views are possible
on the evidence adduced in the case, one pointing to the
guilt of the accused and the other towards his innocence,        F
the view which is favourable to the accused should be
adopted. After considering the evidence and the
judgments of the courts below, the evidence available on
record and the dying declaration does not inspire
confidence in the mind of this Court to make it the basis        G
for the conviction of the appellants. Apart from this, the
High Court basing on the same dying declaration, ought
not to have convicted the appellants under Section 302
IPC, when they were ac.quitted under Section 304-B and
498.-A IPC and Sections 3 and 4 of the Dowry Prohibition
                                                                 H
    74       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A   Act by the High Court. Thus, the conviction and sentence
    imposed by the High Court against the appellants for the
    offence u/s. 302/34 IPC is set aside. [Para 25] [87-B-E]

                         Case Law Reference :
B        2010 (9) SCR 993          Relied on             Para 20
         1992 (2) SCR 197          Relied on             Para 20

         2008 (8) SCR 962          Relied on             Para 20

c       CRIMINAL APPELLATE JURISDICTION :Criminal Appeal
    No. 1424 of 2012.

         From the Judgment and Order dated 24.09.2010 of the
    High Court of Chhattisgarh, Bilaspur in Criminal Appeal No. 495.
    of 2005.
D
         Varinder Kumar Sharma for the Appellants.

         Sakshi Kakkar, C. D. Singh for the Respondent.

         The Judgment of the Court was delivered by
E
        N.V. RAMANA, J. 1. Aggrieved by the judgment and order
    dated 24th September, 2010 of the Division Bench of the High
    Court of Chhattisgarh, Bilaspur in Criminal Appeal No. 495 of
    2005 maintaining their conviction and sentence under Section
F   302 read with Section 34, IPC, the appellants have filed this
    appeal by special leave.

       2. Brief history of the case, as per prosecution case, is that
  Anita Jaiswal (deceased) was married to Umakant (appellant
  No.1) and after six months of the marriage, her husband and
G in-laws started harassing her to bring money from her father
  whenever she visits her parental. home and also made a
  demand of Rs.50,000/- as dowry. She was also subjected to
  torture and cruelty every now and then by the husband and in-
  laws. On 2nd August, 2003, within one and a half years of her
H
   UMAKANT & ANR. v. STATE OF CHHATISGARH                       75
              [N.V. RAMANA, J.]
  marriage, the appellant No. 1 (husband) beat her with an iron       A
  rod before night and while she was going to take bath in the
  morning, he caught hold of her and allegedly poured kerosene
  on her body. Appellant No. 2 (mother-in-law).set her ablaze by
  lighting a match stick. The victim was immediately taken to
  Revival Medical Centre, Bhilai where appellant No. 2 stated to      B
  the Doctors that the victim sustained burn injuries due to
  accident (Ext. P-2) with a chimney (local lamp). The victim was
  treated at the Revival Medical Centre till 13th August, 2003 on
· which date, when the condition of the victim was getting
  deteriorated, the Revival Medical Centre intimated the police       c
  about the incident vide Ext. P-21. Immediately thereafter, F.l.R.
  (Ext. P-24) was registered by the ASI, PS Newai (PW23).
  Investigation was taken up by PWs 26 and 27, the
  Superintendent of Police and the Station House Officer
  respectively who also seized a bottle of kerosene oil, one
                                                                      D
  wooden stool, one iron pipe etc., and a seizure memo was
  accordingly prepared. On 13th August, 2003 itself the victim's
  dying declaration (Ext. P-13) was also recorded by the
  Executive Magistrate (PW 12). The victim was then shifted to
  Jawaharlal Nehru Hospital & Research Centre, Bhilai for further
                                                                      E
  treatment. However, on 7th September, 2003, during the course
  of her treatment, the victim died.

      3. After the death of the deceased, investigation continued,
 witnesses were summoned, inquest was made, dead body
 was sent for autopsy, spot map was prepared. Having recorded         F
 statements of witnesses under Section 161, Cr.P.C., charge
 sheet was filed against the accused (husband, mother-in-law
 and father-in-law). The learned Judicial Magistrate, First Class
 committed the case to the Court of Session. The learned Trial
 Judge framed charges against the accused under Sections 3            G
 & 4 of Dowry Prohibition Act, 1961 and under Sections 3048/
 34, 302/34 and 498-A, IPC. In their statement under Section
 313, Cr.P.C. the accused denied the charges and claimed to
 be tried. At the trial, they took the plea that the deceased died
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    76       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A   as a result of accident of chimney (local lamp) and they have
    been falsely implicated.

       4. To bring home the charges against the accused, the
  prosecution in all examined 27 witnesses whereas the accused,
B in their defence examined two witnesses.

       5. The Trial Court, after analyzing the statements of
  witnesses and keenly considering the material evidence came
  to the opinion that the prosecution had got established its case
  and the dying declaration (Ext. P-13) was also proved from its
C writer (PW-12). After going through the entire process of trial
  and in the light of various rulings of this Court, the Trial Court
  came to the conclusion that all the three accused were guilty
  of the offences charged against them, except charge under
  Section 304/B/34, IPC against father-in-law of the deceased.
D The Trial Court accordingly acquitted him of the said charge
  and sentenced all the accused in the following terms.

        Accused No.1-Umakant (Appellant No.1-husband of the
    deceased)
E    Under Section 3 of Dowry        R. I. for 5 years and fine o'
     Prohibition Act, 1961           Rs.2000/~. in default,
                                     additional RI for one year

     Under section 4 of Dowry        R.I. for 1 year and fine of
F    Prohibition Act, 1961           Rs.1000/-, in default,
                                     additional RI for six months.

     Under Section 498-A of !PC      RI for 3 years and fine of
                                     Rs.2,000/-, in default,
                                     additional RI for six months.


     Under Section 304-B of IPC      Life imprisonment and fine o'
                                     Rs.2,000/-, in default,
                                     additional RI for one year
H
  . UMAKANT & ANR. v. STATE OF CHHATISGARH                77
               [N.V. RAMANA, J.]
 Under Section 302/34, IPC     Life imprisonment and fine o1     A
                               Rs.2,000/-, in default,
                               additlonal R.I. for one year.

 Accused No. 2-Yashoda (Appellant No. 2-mother-in-law of the
 deceased)                                                       B
I Under Section 3 of Dowry     R.J. for 5 years and fine of
 Prohibition Act, 1961         Rs.1000/-, in default,
                               additional RI for six months.
 Under section 4 of Dowry      R.I. 6 month and fine of
 Prohibition Act, 1961         Rs.1000/-, in default,
                                                                 c
                               additional RI for one month.
 Under Section 498-A of IPC    RI for 3 years and fine of
                               Rs.1,000/-, in default,       .
                               additional RI for six months.     D

 Under Section 304-B of IPC    Life imprisonment and fine o'
                               Rs.1,000/-, in default,
                               additional RI for six months.
                                                                 E
 Under Section 302/34 of IPC Life imprisonment and fine o
                             Rs.1,000/-, in default,
                             additional RI for six months.
 Accused No. 3 - Om Prakash (father-in-law of the deceased)
 Under Section 3 of Dowry      R.I. for 5 years and fine of      F
 Prohibition Act, 1961         Rs.2,000/-, in default,
                               additional RI for six months.


 Under section 4 of Dowry      R.I. for 1 year and fine of
                                                                 G
 Prohibition Act, 1961         Rs.1,000/-, in default,
 -                             additional RI for two months.
 Under Section 498-A of IPC    RI for 3 years and fine of
                               Rs.2,000/-, in default,
                               additional RI for six months.     H
    78        SUPREME COURT REPORTS                [2014] 8 S.C.R.


A         6. While dealing with the appeal filed by the accused, the
    High Court formed the opinion that there was not enough
    evidence to uphold the conviction and sentence of the
    appellants as awarded by the Trial Court under Sections 498-
    A, 304-8, IPC and Sections 3 & 4 of the Dowry Prohibition Act,
B   1961. Therefore, the High Court acquitted all the accused from
    the charges against the aforementioned Sections. But, placing
    reliance solely on the dy~ng declaration (Ext. P-13), the High
    Court thought it fit to convict the appellants under Section 302
    read with Section 34, IPC on the basis of dying declaration
c   itself. Accordingly, the High Court maintained the conviction and
    sentence awarded by the Trial Court against the appellants
    under Section 302 read with Section 34, IPC.

         7. In view of the above conviction and sentence maintained
    by the High Court, the appellants approached this Court in this
D   appeal finding fault with the decision of the High Court, which
    is impugned herein.

        8. Learned counsel for the appellants contended that the
  Courts below have dealt with the case without proper
E application of mind and there were several discrepancies and
  contradictories in the statements of witnesses. Normally, before
  convicting an accused under Section 302, IPC, Courts provide
  so many safeguards to the defence, whereas in the present
  case those safeguards have not been provided. Thus, entire
F process of trial has been vitiated and led to the miscarriage of
  justice against the appellants. He also contended that when the
  High Court was of the opinion that there is no cogent evidence
  to sustain the order of conviction passed by the Trial Court
  under Sections 498A, 3048, IPC and Sections 3 & 4 of the
G Dowry Prohibition Act, 1961, the dying declaration also ought
  not have been relied upon for punishing the accused under
  Section 302/34, IPC. The alleged dying declaration was a
  product of tutoring and not voluntarily given by the deceased,
  hence it is not trustworthy. He, therefore, argued that the
  conviction of appellants under Section 302/34, IPC. is
H
  UMAKANT & ANR. v. STATE OF CHHATISGARH                      79
             [N.V. RAMANA, J.]

completely erroneous, misconceived and deserves to be set            A
aside.

     9. On the contrary, learned counsel for the State submitted
that the impugned judgment was rendered by the High Court
after a thorough analysis of the entire case with scrutiny of the    8
evidence of all material witnesses. Considering the facts and
circumstances of the case, particularly the nature of cruelty and
torture caused by the appellants to the victim which stands
proved by the dying declaration, the High Court has rightly
convicted and sentenced the appellants and there is no illegality    C
in the impugned order. He therefore submitted that there is no
ground calling for interference by this Court and the appeal
deserves to be dismissed.

     10. We have heard learned counsel for the parties and
carefully gone through the records of both the Trial Court as well   D
as the High Court.

     11. Before we deal with the judgment of the High Court
which is impugned before us, whereby it has acquitted the
accused of the charges under Section 498-A, 304-B IPC and E
s·ections 3 & 4 of the Dowry Prohibition Act and convicted
them for the offence under Section 302 IPC, curiously the basis
for acquittal under the other offences and conviction of the
accused under Section 302 IPC is based on the dying
declaration of the deceased which is marked as Ex.P-13. For F
better appreciation, we shall refer to the important facts of the
case. As per the case of the prosecution, the deceased was
admitted in the hospital i.e. Revival Medical Centre on
02.08.2003 with burn injuries. The deceased when enquired by
the Doctor as to how she sustained burn injuries, she informed G
him that she caught fire accidentally. This version of the
deceased, was recorded by the Doctor, in the presence of her
sister. Her sister and brother-in-law gave consent letter, which
was marked as Ex.P-2, and it reveals that the deceased
suffered burn injuries accidentally and the deceased Anita had
                                                                  H
    80       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A   burnt herself. Nobody had burnt her. When the Doctor asked
    the deceased several times, she gave the same answer. On
    06.08.2003, her parents also came to Bhilai and stayed with
    her. She remained in the hospital till 10.00 p.m. of 13.08.2003.
    Thereafter, as her condition deteriorated, she was shifted to
B   another hospital. On 13.08.2003, for the first time, Police were
    informed about the incident. On that day, her dying declaration
    was recorded by the Magistrate who was later examined as
    P .W.12. The deceased succumbed to the burn injuries on
    07.09.2003.
c        12. The trial Court basing on the evidence available on
    record convicted and sentenced the appellants under Section
    498-A, 304-B, 302 r/w 34 IPC and Sections 3 and 4 of the
    Dowry Prohibition Act. While the High Court though acquitted
    the accused under Section 498-A and 304-B IPC and Sections
D   3 and 4 of the Dowry Prohibition Act, but found them guilty for
    the offence under Sections 302 r/w 34 IPC and confirmed the
    sentence imposed by the trial Court on that count.

         13. We have given our anxious consideration to the
E   judgment pf the High Court which is impugned before us, to find
    out the legality or otherwise of the judgment of conviction and
    order of SEjlltence passed against the appellants for the offence
    under Section 302 r/w 34 IPC. The whole basis for the High
    Court to convict and sentence the accused under Section 302
F    IPC is the dying declaration recorded by the Magistrate which
    was marked as Ex.P-13. It would be appropriate to extract the
    same, which reads:

         "Question: Whether w6uld you able to give your
         statement?
G
         Answer: Yes.

         Q: What is your name? What is the Qame of your husband?
             .., do you live at? Please te!I your complete name .
         Where

H
UMAKANT & ANR. v. STATE OF CHHATISGARH                      81
           [N.V. RAMANA, J.]
 A: My name is Anita Jaiswal. Urilakant is the name of my          A
 husband. I reside in Marauda Bhilai.

 Q: Who had admitted you at this place and when they had
 admitted you?

 A My husband a'nd mother-in-law have admitted me at this          B
 place. I do not remember the date of my admission. I have
 been burnt therefore they have admitted me.

 Q: How you were burnt, the incident is of which date,
 please tell the whole description.                                c
  A: My mother-in~law was cotnmitting cruelty against me,
  whenever I went my Mayeka she used to tell me for taking
  Rs.50,000/- from my Mayeka. We are total four sisters and
  four brothers. Whenever I returned from my Mayeka, upon
                                                                   0
  not taking the money she used to torture me badly, recently
  some mothers back while I went to Gujarat, my mayeka,
  when I came back my Sasural then they started telling
  about the money. One day prior to the date of the incident
  my husband had heavily beaten me, he beaten me from
  the Pirha (wooden structure) and from the iron rod, on the       E
· next day to that at about 8.00 a.m. after holding me my
  husband poured kerosene oil over me and after lit up a
  match stick niy mother-in-law thrown the same at me, after
  becoming frightened, I held the hands of my Jeth, while my
  Jeth also started burning then after giving jolt at me, he got   F
  me fell down, the ladies residing in the back side of my
  residence arrived there and they changed my clothes after
  than by arranging a temp, I got admitted in the hospital.

 Q: Whether you did not tell your parents that your husband        G
 and mother-in-law were harassing you?

 A: After the marriage, I visited Mayeka for three times, then
 on the third occasion while I had gone to Mayeka then I
 had told my father then my father had told me that presently
 his position was not good, after managing the money as            H
    82       SUPREME COURT REPORTS                [2014] 8 S.C.R. · ·


A        earliest he would sent the money. I had told abiout the
         cruelty of my husband and mother-in-law.

         Q: Since how may days from the marriage they have been
         committing cruelty? You have been burnt at which body
         parts?
B
         A: They have been harassing me since 4 -5 months after
         the marriage. They were committing cruelty for the dowry.
         My whole body parts below the neck have been burnt.

c        Q: Whether you want to tell anything more?

         A: No".

       14. According to the High Court, Ex.P-2, the alleged
  consent letter given by sister and brother-in-law, which says that
D burn injuries sustained by the deceased was a case of accident
  and Anita had burnt herself, runs contrary to each other,
  because in the case of accident, the patient will burn herself,
  but if she burnt herself, then it cannot be a case of accident.
  Hence, the High Court disbelieved Ex.P-2. The High Court
E further observed that not giving the information about the
  incident by the Revival Medical Centre to the police shows that
  the hospital staff in connivance with the accused, treated the
  deceased without informing about the incident to the police.

F       15. Another reason given by the High Court for convicting
  the accused under Section 302, IPG is that, as per the dying
  declaration, the deceased had stated that when her mother-in-
  law and husband lit fire to her, she asked the brother-in-law and
  caught hold of him, and at that time, he also sustained burn
G injuries, which is supported by the evidence of the Doctor
  P.W.13, who has deposed that the injury on the hands of the
  brother-in-law P.W.14 is possible if a person who is in flames
  catch holds of another person. The High Court disbelieved the
  evidence of Doctor Vijay Kumar Sharma, which is in favour of
  the accused, basing on the contradictions in his evidence with
H regard to the nature of injuries and not informing about the
  UMAKANT & ANR. v. STATE OF CHHATISGARH                        83
             [N.V. RAMANA, J.]
incident to the police.                                                A

     16. Finally, the High Court convicted and sentenced the
accused, basing on the dying declaration that the deceased
was not having cordial relationship with the accused. The
appellant No.1 poured kerosene oil upon the deceased and
                                                                       B
appellant No.2 had set her ablaze. As the dying declaration
inspires confidence, it is trustworthy and drew inference that the
appellants Umakanth and Yashoda poured kerosene oil upon
the deceased, set her afire and caused her death. However,
the High Court felt that there is no cogent evidence to convict        C
the accused under Section 498-A and 304-8 IPC and Sections
3 and 4 of the Dowry Prohibition Act.

     17. Now the issue that falls for consideration before us is
whether the High Court was right in convicting and sentencing
the accused under Section 302 IPC basing on the dying                  D
declaration of the deceased?

     18. The philosophy of law which signifies the importance
of a dying declaration is based on the maxim "nemo moritusus
prasumitus mennre", which means, "no one at the time of death
                                                                       E
is presumed to lie and he will not meet his maker with a lie in
his mouth". Though a dying declaration is not recorded in the
Court in the presence of accused nor it is put to strict proof of
cross-examination by the accused, still it is admitted in
evidence against the general rule that hearsay evidence is not
admissible in evidence. The dying declaration does not even
                                                                       F
require any corroboration as long as it inspires confidence in
the mind of the Court and that it is free from any form of tutoring.
At the same time, dying declaration has to be judged and
appreciated in the light of surrounding circumst~nces. The
whole point in giving lot of credence and importahce to the            G
piece of dying declaration, deviating from the rule of evidence
is that such declaration is made by the victim when he/she is
on the verge of death.

     19. In spite of all the importance attached and the sanctity      H
    84         SUPREME COURT REPORTS                [2014] 8 S.C.R.


A   given to the piece of dying declaration, Courts nave to be very
    careful while analyzing the truthfulness, genuineness of the dying
    declaration and shoula come to a proper conclusion that the
    dying declaration is not a product of prompting or tutoring.

B        20. The legal position about the admissibility of a dying
    declaration is settled by this Court in several judgments. This
    Court in Atbir v. Government of NCT of Delhi - 2010 (9) SCC
    1, taking into consideration the earlier judgments of this Court
    in Paniben v. State ofGujarat-1992 (2) sec 474 and another
    judgment of this Court in Panneerselvam v. State of Tamilnadu
c   - 2008 (17) sec 190 has given certain guidelines while
    considering a dying declaration:         ·

          1.    Dying declaration can be the sole basis of
                com".iction if it inspires full confidence of the Court.
D
          ~-    The Court should be satisfied that the deceased
                was in a fit state of mind at the time of making the
                statement and that it was not the result of tutoring,
                prompting or imagination.
E         3.    Where· the Court is satisfied that the declaration is
                true and voluntary, it can base its conviction without
                any further corroboration.

          4.    It cannot be laid down as an absolute rule of law
F               that the dying declaration cannot form the sole basis
                of conviction unless it is corroborative. The rule·
                requiring corroboration is merely a rule of prudence.

          5.    Where the dying declaration is suspicious, it should
                not be acted upon without corroborative evidence.
G
          6.    A dying declaration which suffers from infirmities,
                such as the deceased was unconscious and could
                never make any statement cannot form the basis
                of conviction.
H
   UMAKANT & ANR. v. STATE OF CHHATISGARH                        85
              [N.V. RAMANA, J.]
     7.     Merely because a dying declaration does not                A
            contain all the details as to the occurrence, it is not
            to be rejected.

     8.     Even if it is a brief statement, it is not to be
            discarded.
                                                                       B
     9.     When the eye-witness affirms that the deceased
            was not in a fit and conscious state to make the
            dying declaration, medical opinion cannot prevail.

      10.   If after careful scrutiny the Court is satisfied that it   c
            is free from any effort to induce the deceased to
            make a false statement and if it is coherent and
            consistent, there shall be no legal impediment to
            make it basis of conviction, even if there is no
            corroboration.
                                                                       D
      21. In the light of the above legal position that governs the
consideration of a dying declaration, the factual matrix has to
be scrutinised. As already extracted above, in the dying
declaration Ex.P-13, the deceased stated before the
Magistrate that the appellants demanded dowry and that the E
appellants set fire to her and she asked her brother-in-law to
rescue her, but he had chosen not to do so, and further on
hearing her cries, the neighbours came and extinguished the
fire and admitted her i11 the hospital. After she was admitted in .
the hospital, her par~nts came and she informed them about F
the incident.

    The deceased is said to have stated that when she was
pregnant she was beaten up bv the accused and because
of which the child died in the womb. At that time, she had
                                                                       G
taken treatment in Revival Hospital]. This statement is found in
Ex.P-23. FIR written by K.B. Singh (P.W.23), and not in Ex.P13
dying declaration.

    22. When we look at the dying declaration, it is not inspiring
                                                                       H
    86        SUPREME COURT REPORTS                [2014] 8 S.C.R.


A confidence in the mind of this Court and throws serious doubt
  that the same is a product of tutoring by the family members of
  the deceased for the reason that, the sister of the deceased
  who was present when the deceased was admitted in the
  hospital had signed in Ex.P-2 wherein it is stated that it was
8 an  accident and nobody has burnt the deceased, but later she
  turned around and stated that unless she signed on that, they
  were told that the deceased wou_ld not be treated, and the High
  Court has taken this fact into consideration, whereas in the
  dying declaration, the deceased has stated that when her
C parents came to the hospital on 06.08.2003, she informed to
  the parents for the first time and she had not mentioned that
  she informed her sister or anybody before that, but according
  to the sister of the deceased, on 02.08.2003, she was aware
  of this, which shows that the evidence of the witness is not
  reliable and clouded with doubt.
D
        23. The other circumstances which draw our attention is
  when the deceased informed her parents on 06.08.2003, it is
  quite natural that the parents will inform the police about the
  incident, because it is nobody's case that they were restrained
E in any manner from informing the police. Even the deceased
  throughout the stay in the hospital for those 11 days had many
  an occasion to meet the Doctors and other staff of the hospital,
  but she had chosen not to give any complaint nor tried to share
  her agony with them, which throws a grave doubt on the
F genuineness of the dying declaration. We have gone through
  the judgment of the High Court, where P.W.7 who has
  specifically deposed that they have tutored the deceased to
  state that she was burnt by the accused .

      .24. The High Court while considering Ex.P-2 has come to
G a conclusion that the statement given in that one line is
  contradictory to one another. In one line, it says that the injuries
  sustained by her are by accident. Nobody has burnt her and
  she burnt herself. Hence, the High Court discarded Ex.P-2. But,
  in our considered opinion, the High Court did not appreciate
H
   UMAKANT & ANR. v. STATE OF CHHATISGARH                     87
              [N.V. RAMANA, J.]
the same in its proper perspective and interpreted it in a wrong     A
way. What Ex.P-2 states is that it is an accident, and nobody
has pushed her and for that accident, only the deceased is
responsible.

      25. The burden of proof in criminal law is beyond all
                                                                     B
reasonable doubt. The prosecution has to prove the guilt of the
accused beyond all reasonable doubt and it is also rule of
justice in criminal law that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the
accused and the other towards his innocence, the view which
is favourable to the accused should be adopted. After                C
considering the evidence and the judgments of the Courts
below, we are of the considered opinion that the evidence
available on record and the dying declaration does not inspire
confidence in the mind of this Court to make it the basis for
the conviction of the appellants. Apart from this, the High Court    D
basing on the same dying declaration, ought not to have
convicted the appellants under Section 302 IPC, when they
were acquitted under Section 304-B and 498-B IPC and
Sections 3 ·and 4 of the Dowry Prohibition Act by the High
 Court.                                                              E

     26. Accordingly, this Criminal Appeal is allowed. The
conviction and sentence imposed by the High Court vide its
judgment dated 24th September, 2010 in Criminal Appeal No.
495 of 2005, against the appellants for the offence under            F
Section 302 r/w 34 IPC, is set aside. Consequently, the
appellants shall be released forthwith, if they are not required
in any other case.
Nidhi Jain                                         Appeal allowed.