State of Rajasthan  INSC 1802 (15 December 2009)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO.699 OF 2008 Sharda ....Appellant Versus State of Rajasthan ....Respondent
The solitary question that arises for consideration in this appeal
is whether any one of the three dying declarations of deceased Sarla, inspires
confidence, to sustain conviction of appellant Sharda, her mother-in-law for
commission of offence under Section 302 of the I.P.C and sentence of life
Appellant has been found guilty of commission of offence under
Section 302 of the IPC and has been awarded life imprisonment by learned
Additional District and Sessions Judge, Dungarpur. On D.B. Criminal Appeal No.
1071/2003 being filed by her in the High Court of Judicature for Rajasthan at
Jodhpur, Crl.A.No. 699/08 2 the same has been dismissed vide order dated
Judgment of conviction and sentence awarded by the Trial court has been
affirmed. Hence, this appeal after grant of leave to the appellant.
Thumb-nail sketch of the facts of the case is as mentioned herein
below:- Vinod Vyas was married to Sarla on 21.1.1991, almost 8 years prior to
the date of occurrence, which had taken place on 16.8.1999 at the matrimonial
home of the deceased.
According to the prosecution story, for past two- three years,
relations between deceased Sarla, her husband-Vinod and appellant-Sharda were
strained. They used to demand dowry from her which she was not able to accede
to. On 16.8.1999, deceased Sarla was alleged to have been set on fire by her
mother-in-law while she was cooking food on a kerosene stove as a result of
which she had sustained 90% burn injuries. She was immediately rushed to
General Hospital, Sagwara.
On getting the aforementioned information on 16.8.1999, P.W-22
Kishore Singh posted as ASI at the Police Station Sagwara rushed to the General
699/08 3 He reached there at about 9 O'clock at night. In the presence of PW-31
Dr. Gokul Prajapati, her first statement Exh. D-3 was recorded.
As per this first statement, Sarla disclosed that while cooking
meals for the family, she pumped in air in the kerosene stove, which got
inflamed thereby pallu of her saree caught fire. Thus she sustained burn
injuries on her person. She further stated that no one had deliberately or
intentionally put her on fire.
is her first statement recorded at the hospital, in presence of P.W-31 Dr.
Gokul Prajapati, who had put his signatures on the same along with P.W- 22
Kishore Singh. Thumb impression of deceased was also taken on it.
P.W-20 -Ranjit Singh was posted as S.I at the Police Station,
Varda on the date of incident i.e. 16.8.1999. On receiving the information that
Sarla has sustained burn injuries in her matrimonial home, he went to the
hospital where Sarla was admitted.
before going to the hospital, he contacted SDM in his house, so that he could
also be taken there for the purpose of recording her statement but was informed
Crl.A.No. 699/08 4 by SDM that he was not well, thus would not be in a position
to go with him.
P.W-20 Ranjit Singh, after reaching hospital recorded another
statement of deceased Sarla on the said date marked as Exh P-3. In the said
statement, she reiterated that she had sustained burn injuries, while she was
trying to extinguish burning stove, after cooking meals, which got inflamed and
her Saree caught fire. Exh. P-3 bears signatures of Dr. Ravindra Mehta (not
examined by prosecution), P.W-2 Ganesh Lal and P.W-20 Ranjit Singh besides the
thumb impression of deceased Sarla. This was her second statement in point of
time recorded in the Hospital.
Since the condition of Sarla had deteriorated, she was referred to
Civil Hospital, Ahmedabad. She was accordingly taken there for better
treatment. However, she died at Ahmedabad on 19.08.1999.
P.W-3 Purushottam, cousin of the deceased had submitted an
application on 19.8.1999, on behalf of her grand-father PW-2 Ganeshlal to the
Dy. Superintendent of Police, Sagwara stating that on the night of Monday,
16.8.1999 Sarla had been set on fire by her husband Crl.A.No. 699/08 5 Vinod
and mother-in-law Sharda. This set the investigating agency into motion in
registering a case against them initially under Section 498-A and 307/34 of the
As per prosecution, before her death, one more dying declaration
was recorded by P.W-23 Suresh Chandra Dixit, Executive Magistrate, Ahmedabad,
marked as Exh. P-18. This is in question - answer form. In the said last
statement, for the first time, she alleged that kerosene was poured on her by
her mother-in-law, the present appellant Sharda and she was set on fire by
lighting a match-stick. She suffered burn injuries on account of her
mother-in-law. When she cried for help, her father-in-law came downstairs and
along with other neighbours, tried to extinguish the fire. She was carried to
hospital by her father-in-law for treatment.
this would be her third statement at the Hospital at Ahmedabad.
As mentioned hereinabove, initially on the report being filed at
the instance of P.W-2 Ganesh Lal, offence was registered against Sharda under
Section 498-A, 307/34 IPC and against her husband Vinod and Crl.A.No. 699/08 6
four other relatives only under Section 498-A of the IPC. However, after her
death, charge sheet was filed against appellant under Section 302 of the IPC
and against others under Section 498-A/34 of the IPC.
after her death, all the three statements of the deceased Sarla, Exh. D-3, Ex.
P-3 and Exh. P-18 would be treated as her dying declarations.
To bring home the charges levelled against the accused,
prosecution has examined, in all, 31 witnesses. In defence, no witness was
examined by the appellant. On appreciation of evidence available on record, as
mentioned hereinabove, the trial court recorded the finding of `not guilty'
against other accused including husband of the deceased and they were acquitted
but appellant was found guilty of commission of offence under Section 302 of
the IPC and was awarded life imprisonment. The appeal preferred by her in the
High Court was dismissed by Division Bench. Hence, this appeal.
It has neither been disputed before us nor was disputed in appeal
in the High Court that deceased had met with her death on account of 90% burn
injuries Crl.A.No. 699/08 7 sustained in matrimonial home. This even otherwise
stands proved from her post-mortem Report Exh. P-22 and evidence of P.W-30 Dr.
Ashwini Sanghvi, who had performed post-mortem on her body and has opined that
her death was due to Septecimia and shock on account of extensive external burn
injuries sustained by her.
Now, the question that arises for consideration is whether the
present appellant Sharda, mother-in-law of deceased Sarla was the perpetrator
of the crime or it was an accidental death.
We have already mentioned hereinabove that there are, in all,
three dying declarations - Exh.D-3, is first in point of time, Exh P.3, is
second in point of time and Exh. P.18, is the third and last in point of time
recorded by Executive Magistrate, Ahmedabad.
Since the case revolves around the three dying declarations of
deceased Sarla, it is really not necessary to critically examine other evidence
as no charge was levelled against this appellant under Section 498-A IPC and
the said charge was not found proved against other co-accused.
In the light of this, we are not dealing with Crl.A.No. 699/08 8
other prosecution witnesses who have deposed either with regard to demand of
dowry or harassment of the deceased by the appellant for the same as the same
is not germane to the facts of this case.
However, we would start with the first dying declaration of
deceased Sarla recorded at 9.00 p.m on 16.8.1999 by P.W-22 Kishore Singh. It
was recorded in presence of P.W-31 Dr. Prajapati.
Even though PW-31 was examined by the prosecution to prove Exh.
D-3, but surprisingly neither the trial court nor the High Court cared to go
through his evidence and to discuss the same at all. Thus, it is necessary for
us to discuss the same in detail.
Dr. Prajapati has deposed that on 16.8.1999, he was posted as
Surgeon in Deen Dayal Upadhyay Hospital.
Sarla w/o Vinod Vyas resident of Tamtiya, P.S. Varda, was admitted in the
hospital on account of burn injuries sustained by her. She had given her
statement which was recorded in his presence, marked as D-3. The same bears his
signature and thumb impression of Sarla.
In his cross-examination, he has categorically deposed that during
the time her statement was Crl.A.No. 699/08 9 recorded, she was mentally alert
and was in a condition to get her statement recorded. He has further admitted
that the said statement was not recorded under pressure from anyone and was
given on her own free will and accord. He has further clarified that in Exh.
D-3, her first dying declaration, she had stated that while cooking food, on
Primus stove, she pumped air which inflamed the same, her clothes accordingly
caught fire and she sustained burn injuries. She further stated that no one had
set her on fire.
Thus, his cross-examination fully establishes that she had
sustained burn injuries on her own while cooking food and has not fastened
liability on anyone else much less on the present appellant.
To further corroborate Exh. D-3, the evidence of PW-22 Kishore
Singh is on record. He has categorically deposed the manner in which statement
of deceased was recorded in Exh. D-3. He has also deposed that at that time
P.W.31 Dr. Gokul Prajapati was also present who certified her to be in mentally
fit and proper condition to get the same recorded. From the aforesaid evidence,
it is crystal clear that the first dying Crl.A.No. 699/08 10 declaration of
deceased Ex.D-3 stood fully corroborated from the evidence of P.W-22 and
Now, we shall take up her second dying declaration recorded by
P.W-20 Ranjit Singh marked P-3 on 16.8.1999.
examination of the same also shows that deceased had stated that after cooking
meals in the evening she was trying to extinguish the stove, but it got
inflamed and her nylon saree caught fire. No one had put her to fire and no one
should be blamed for it.
of the same would show that these two statements are consistent and have been
made by her, before being tutored by anyone.
Now, we shall deal with Exh. P-18, her last statement recorded at
Ahmedabad in presence of P.W-23 Suresh Chand Dixit, Executive Magistrate. We
have critically gone through the same. We have also examined the reasons
assigned by Trial Court and High Court while treating this dying declaration,
Exh P-18, as wholly trustworthy. No doubt, it is true that the same is in
question - answer form but perusal of the original record clearly shows that it
has many over- writings and some dates have been scored out to put new
Crl.A.No. 699/08 11 dates. This itself creates a doubt in mind with regard to
correctness and veracity thereof. It is also to be noted that this was recorded
on 19.8.1999 whereas two earlier statements Exh. D-3 and Exh. P-3 were recorded
on 16.8.1999 in quick succession, soon after the incident.
Thus, the question still arises whether any weightage can be given
to Exh.P-18 which was recorded in presence of the Executive Magistrate or it
has to be completely given a go-by so as to give more credence to Exh. D-3 and
P-3 her earlier statements recorded by the police in presence of doctors.
It is pertinent to mention here that Exh. P-3 has also been signed
by P.W-19 Raman Lal, father of the deceased. Surprisingly, while putting his
signatures on the dying declaration of the deceased, his daughter, he had not
raised any objection that it was not the statement given by deceased. He kept
quiet. When he was confronted with his signatures on it at the time of his
cross-examination, he gave an explanation that since many papers were being
signed at the time of discharge, he signed it without knowing the contents
Crl.A.No. 699/08 12 thereof. Apparently, this appears to be a false and
baseless explanation, which at this point of time is certainly not acceptable
and would amount to an after- thought. No prudent man would put his signatures
on any document without going through the same. Thus, it is clear that if the
complainant had any grievance with regard to foul-play having been played by
the accused then obviously, he would have brought it to the notice of the
police immediately. Not having done so, speaks volumes on the conduct of the
There is yet another factor which would completely discredit the
last dying declaration Exh. P-18. For the first time, a written complaint was
sent by the cousin of deceased to the Deputy Superintendent of Police only on
19.8.1999. This would go to show that between 16.8.1999 to 19.8.1999, until her
third and last dying declaration was recorded, they never suspected that she
has been burnt by her mother-in-law, the present appellant. Their silence
during this period is indicative of the fact that they were also under the
impression that deceased had caught fire only by accident and it was not her
mother-in-law who was Crl.A.No. 699/08 13 perpetrator of the crime.
Cumulative effect of the aforesaid leads to an irresistible
conclusion that Exh. P-18 is not sufficient to hold the appellant guilty of
commission of offence under Section 302 of the IPC. It neither inspires
confidence nor is wholly trustworthy to sustain the conviction of the
appellant. It was an after-thought and has been got prepared after the deceased
appears to have been tutored to say so by her parents. In the light of this, it
has to be completely ignored which we accordingly do so.
In other words, we place greater reliance on Exh. D-3, and Exh.
P-3, her two earlier dying declarations which are not only consistent but also
In the case in hand, the conviction of the appellant is based on
the last dying declaration Exh.P- 18, said to have been recorded in presence of
Executive Magistrate. The principle on which dying declarations are admitted in
evidence is indicated in legal maxim:
moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his
It is indicative of the fact that a man who is on Crl.A.No. 699/08
14 a death bed would not tell a lie to falsely implicate an innocent person.
This is the reason in law to accept the veracity of her statement. It is for
this reason, the requirements of oath and cross-examination are dispensed with.
Besides, if the dying declaration is to be completely excluded in a given case,
it may even amount to miscarriage of justice as the victim alone being the
eye-witness in a serious crime, the exclusion of the statement would leave the
court without a scrap of evidence.
Though a dying declaration is entitled and is still recognized by
law to be given greater weightage but it has also to be kept in mind that
accused had no chance of cross-examination. Such a right of cross- examination
is essential for eliciting the truth as an obligation of oath. This is the
reason, generally, the court insists that the dying declaration should be such
which inspires full confidence of the court of its correctness. The court has
to be on guard that such statement of deceased was not as a result of either
tutoring, prompting or product of imagination. The court must be further
satisfied that deceased was in a Crl.A.No. 699/08 15 fit state of mind after a
clear opportunity to observe and identify the assailants. Once the court is
satisfied that the aforesaid requirement and also to the fact that declaration
was true and voluntary, undoubtedly, it can base its conviction without any
further corroboration. It is not an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is corroborated.
The rule requiring corroboration is merely a rule of prudence.
regard, we may profitably quote the following para from (1985) 4 SCC 476 titled
State "40. We have also come to the conclusion that the High Court failed
to take into account one material aspect while appreciating the evidence of the
prosecution witnesses. It is a fact that Sudha had been burnt and according to
the medical opinion that was to the extent of 70%.
evidence shows, Sudha was in her senses and was capable of talking at the time
when she was being removed to the hospital or even after she had been admitted
as an indoor patient. The two sisters or their respective husbands had no
apprehension that Sudha would not live. In case Sudha came round, she was to
have lived in the family of her husband. No one interested in the welfare of
Sudha was, therefore, prepared to make a statement which might prejudice the
accused persons and lead to the straining of relationship in an irreparable
way. Therefore, Crl.A.No. 699/08 16 the silence or avoidance to make a true
disclosure about the cause of fire particularly so long as Sudha was alive,
cannot be over- emphasised an adverse inference drawn by the High Court from
the conduct of the sisters was indeed not warranted in the facts of the case.
In the light of the aforesaid discussion, we are of the considered
opinion that Exh. P-18 cannot be treated as wholly trustworthy as it is
shrouded by many doubts. On the other hand, for the reasons recorded herein
above, Exh. D-3 and P-3 are more reliable and credible. Going by the same would
fully establish that the deceased had not implicated in the same anyone much
less the appellant.
Thus, we have no doubt in our mind that the impugned judgment and
order of conviction passed by the learned Sessions Judge and confirmed in
appeal by the High Court cannot be sustained in law. The same are hereby set
aside and quashed. The appeal is allowed accordingly. The appellant is in jail,
she would be released forthwith, if not required in any other case.
.....................J. [AFTAB ALAM]