Amol Singh Vs. State of M.P. [2008] INSC 933 (15 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 898 OF 2008 (Arising out of
S.L.P. (Crl.) No.7721 of 2007) Amol Singh ....Appellant Versus State of M.P.
....Respondent
DR. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to
the judgment of the Division Bench of the Madhya Pradesh High Court at Jabalpur
upholding the conviction and sentence of the appellant for the offence
punishable under Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the `IPC') and sentence of imprisonment for life and fine of
Rs.2,000/- with default stipulation. Appellant Amol Singh was arraigned in the
charge sheet as A2.
3. Prosecution version as unfolded
during trial is as follows:
Saraswati Bai-deceased was a woman
of questionable character. After being deserted by her husband Motilal, she
developed illicit relationship with A2 who ultimately kept her as mistress. At
the relevant point of time, she was residing in Tapariya (hut) at village
Bichhua.
On 17th March, 1992 at about 8.00 p.m. hearing screams of
Saraswati Bai, persons residing in the neighbourhood viz.
Rajesh Gupta (PW6), Santosh Gudda
(PW2), Mukundi Lal (PW4), Kaliram (PW5), Chhindami Lal (PW3), and Chandra 2
Bhushan rushed towards her hut. In the transit, some of them had seen A1
running away. They found Saraswati Bai lying in a severely burnt condition in
the courtyard of the hut.
On being enquired, she revealed
that both the appellants had sprinkled kerosene over her body and set her
ablaze.
According to her, A2 was enraged
by her act of taking land belonging to his adversary Raju Seth for cultivation
as Bataidar (crop-sharer).
It was upon the report (Ex. P-1)
lodged by Kotwar Prahlad Singh (PW1) and ASI Balram (PW8) registered a case
under Section 307 read with Section 34 IPC against the appellants. He along
with Prahlad proceeded to the spot and recorded Saraswati's dying declaration
(Ex.P-3) in the presence of Chhidami Lal (PW3), Kaliram (PW5), Babulal and
Chandra Bhushan.
Saraswati Bai was immediately
taken to the Government Hospital at Gadarwara. Observing that her condition was
serious, Dr. B.P. Gupta (PW11) not only admitted her for 3 treatment but also
sent a memo (Ex.P-13) to the SHO requiring him to take necessary action to get
dying declaration recorded. Naib Tahsildar and Executive Magistrate R.K.
Dimole (PW9), after obtaining
necessary certificate as to fit state of her mind, recorded Saraswati Bai's
dying declaration between 4.35 a.m. and 4.50 a.m. thereafter, at 9.10 a.m.,
Saraswati Bai breathed her last in the hospital. Accordingly, the case was
altered to one under Section 302 IPC.
After inquest proceedings, dead
body of Saraswati Bai was sent for post-mortem, Dr. D.S. Choudhary (PW7) found
that body of Saraswati Bai, who was carrying more than 3 months pregnancy, had
burnt to the extent of 89%. According to him, the cause of Saraswati Bai's
death was shock due to extensive burns. However, he preserved the remaining
pieces of burnt saree and blouse, earrings, nathni, Bangles and bunch of scalp
hair for forensic examination.
During investigation, burnt pieces
of saree and blouse, one kupiya (Container) of kerosene, a matchbox, one pair
of 4 shoes belonging to A2, a lathi and a broken mala (necklace) were seized
from the spot; the appellants were apprehended and a burn injury was also found
by Dr. R.K Patel (PW10) on the right forearm of A2.
4. Two accused persons faced trial
for offence punishable under Section 302 IPC and in alternative under Section
302 read with Section 34 IPC, as they abjured the guilt.
To prove the accusations
prosecution examined 11 witnesses. On consideration of the evidence, the trial
court found the accused persons guilty of death of the deceased in furtherance
of their common intention.
Accordingly, they were convicted
and sentenced as aforestated. Both of them preferred separate appeals before
the High Court.
5. Before the High Court primary
stand was to the acceptability of the dying declaration. The High Court
rejected the plea and held that though there were more than one dying
declaration, the extent of variance 5 between the two was insignificant. It was
noted that the dying declarations were consistent in substance as to the complexity
of the accused persons causing burn injury to the person of the deceased and,
therefore, there was no infirmity in the judgment of the trial court to warrant
interference. Accordingly the appeals were dismissed.
6. In support of the appeal
learned counsel for the appellant submitted that there was great variance in
the so called dying declarations, which affected credibility of the evidence.
7. Learned counsel for the
respondent-State on the other hand submitted that minor variance in the dying
declarations have no relevance.
8. Law relating to appreciation of
evidence in the form of more than one dying declaration is well settled.
Accordingly, it is not the
plurality of the dying declarations but the reliability thereof that adds
weight 6 to the prosecution case. If a dying declaration is found to be
voluntary, reliable and made in fit mental condition, it can be relied upon
without any corroboration. The statement should be consistent throughout. If
the deceased had several opportunities of making such dying declarations, that
is to say, if there are more than one dying declaration they should be
consistent. (See: Kundula Bala Subrahmanyam v. State of A.P. [ (1993) 2 SCC
684]. However, if some inconsistencies are noticed between one dying
declaration and the other, the court has to examine the nature of the
inconsistencies, namely, whether they are material or not. While scruitinizing
the contents of various dying declaration, in such a situation, the court has
to examine the same in the light of the various surrounding facts and
circumstances.
9. It is to be noted that the High
Court had itself observed that the dying declaration (Exh.P11) scribed by the
Executive Officer, (PW9) at about 0435 hours in the same 7 night was not in
conformity with the FIR and the earlier dying declaration (Exh.P3) scribed by
ASI Balram (PW 8) in so far as different motives have been described. That is
not the only variation. Several other discrepancies, even as regards the manner
in which she is supposed to have been sprinkled with kerosene and thereafter
set on fire.
10. Therefore, the discrepancies,
make the last declaration doubtful. The nature of the inconsistencies is such
that there are certainly material. That being so, it would be unsafe to convict
the appellant. The conviction is set aside and appellant is acquitted of the
charges. He be set at liberty forthwith unless required to be in custody in
connection with any other case.
..................................J.
(Dr. ARIJIT PASAYAT) ......
............................J.
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