REPORTABLE
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
JUDGMENT
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 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 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 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
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
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
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.
(P. SATHASIVAM) New Delhi, May 15, 2008