Whether Each & every word and sentence of dying declaration cannot be treated as Gospel’s truth?

 Each & every word and sentence of the dying declaration cannot be
treated as Gospel’s truth. Still the oral and written dying declaration
is a kind of evidence that too hear-say evidence. The Courts are
required to scrutinize the dying declaration along with other
surrounding & attending circumstance minutely with a view to
dispense
substantial
justice.
Part
of
a
dying
declaration
corroborated by other attending circumstances can be relied upon
and part of a dying declaration insufficient for placing reliance in
absence of other attending circumstances may not be relied upon as
such reliance would not be safe.
HIGH COURT OF CHHATTISGARH AT BILASPUR
DIVISION BENCH:
Hon’ble Shri T.P. Sharma &
Hon’ble Shri C.B. Bajpai, JJ
Criminal Appeal No.557/2009

 Rajendra @ Matauva

Vs

State of Chhattisgarh

Citation; 2014 CRLJ 2695 chhatisgarh

2. Challenge in above two appeals are to the judgment of conviction and
order of sentence dated 01.08.2009 passed by the 1 st Additional
Sessions Judge, Mungeli in S.T. No.25/07 whereby & whereunder the
Additional
Sessions
Judge
after
holding
the
appellants
for
constituting unlawful assembly having its common object to commit
murder of Sushila Bai and in furtherance of common object of
unlawful assembly, members of the unlawful assembly committed
murder of Sushila Bai, convicted them under Sections 147 & 302/149
of the Indian Penal Code (for short ‘IPC’) and sentenced to undergo
R.I. for 02 years and R.I. for life & fine of Rs.1,000/- respectively,
in default to under R.I. for 03 months for each default.
3. Conviction is impugned on the ground that without an iota of evidence
the trial Court has convicted & sentenced the appellants, as
aforementioned, and thereby committed illegality.
4. As per case of the prosecution, Sushila Bai (since deceased) was
married to appellant-Rajendra @ Matauva by chudi custom prevailing
in their community.
On 16.10.2006 at about 8.00 a.m. appellant
Rajendra was present in his field along with his aunt appellant-
Saraswati Bai. They were in compromising position and appellant
Rajendra
was
committing
intercourse
with
her.
Unfortunate
deceased noticed the said act when she reached to the field. She
became upset, returned to her home where all the appellants were
present. She narrated the said fact to them then they condemned
her by saying that she is defaming them and thereafter they took
her inside the room, poured kerosene oil and set her ablaze.
On
hearing her screams, Geeta Bai (PW-5), Sonic (PW-15), Chitrarekha
(PW-6), Baggal @ Mangal (PW-7) came to spot and witnessed second
part of the incident. She extinguished fire. She was brought to the
hospital for treatment where she made dying declaration to Dr. G.S.
Dau (PW-8) that the appellants & Sonu had caused burn injuries to
her, which was recorded by the doctor in the medical examination
report (Ex.P-12) and obtained her thumb impression. Thereafter she
Page 3 of 23
Cr. App. No.557/09 & 984/11
was referred to the Burn Unit, CIMS, Bilaspur for further
treatment.
She received 95% burn injuries.
The doctor sent
intimation to the police vide Ex.P-11 at 10.00 a.m.
Police Station
Lormi recorded roznamcha vide Ex.P-33.
Head Constable Harish Chandra (PW-13) reached hospital and
vide Ex.P-11 requested the doctor to opine whether Sushila Bai is fit
to give statement or not. Dr. G.S. Dau (PW-8) gave certificate (Ex.P-
13) that the injured is in a position to give statement. Head
Constable Harish Chandra (PW-16) also recorded statement of
Sushila Bai under Section 161 of Cr.P.C. vide Ex.P-34.
Shri P.R.
Nirmal (PW-12) received request vide Ex. P-32 for recording
statement of the injured whereupon he went to the hospital and
recorded her dying declaration vide Ex.P-14. At that time, she was
in a fit state of mind to give statement which was certified by Dr.
G.S. Dau (PW-8).
During the course of treatment, Sushila Bai
succumbed to the injuries on 20.10.2006. Death was intimated to
the police station City Kotwali, Bilaspur and merg was recorded vide
Ex.P-33. Finally, first information report was recorded vide Ex.P-34
& 34A.
The Investigating Officer reached to the spot on 16.10.2006
and seized burnt slipper, mala, match-box, piece of saree, lamp
containing some kerosene oil vide Ex.P-1. Burnt pieces of red colour
blouse, petticoat and bed sheet were recovered from the spot vide
Ex.P-2. After the death of Sushila Bai, after summoning the
witnesses vide Ex.P-4, the Investigating Officer prepared inquest of
the dead body of the deceased vide Ex.P-3 on 20.10.2006. Spot map
was prepared vide Ex.P-6. Dead body was sent for autopsy to CIMS,
Bilaspur vide
Ex.P-15A. Dr. Vijay Kumar Verma (PW-19) conducted
autopsy vide Ex.P-15 and noticed anti mortem burn injuries of 90%
covering almost all the body except foot. Internal organs were
congested. According to the doctor, cause of death was shock &
toxemia as a result of extensive burn.
Accused persons were
Page 4 of 23
Cr. App. No.557/09 & 984/11
arrested vide Ex. P-17 to P-31.
Statements of witnesses were
recorded under Section 161 of Cr.P.C.
5. After completion of investigation, charge sheet was filed before the
Court of Judicial Magistrate 1st Class, Mungeli, who, in turn,
committed the case to the Court of Additional Sessions Judge,
Mungeli. In order to prove the guilt of the accused persons, the
prosecution has examined as many as 16 witnesses.
The accused
persons were examined under Section 313 of Cr.P.C. where they
denied the circumstances appearing against them and pleaded
innocence & false implication. The appellants have taken the defence
that it was the case of accident and Sushila got burned as a result of
accident. Present appellant Rajendra, husband of deceased, tried his
level best to save her. Other appellants have also taken a defence
that it was the case of accident. They have been falsely implicated
by the previous husband and maternal relatives of the deceased who
were not happy with the marriage of deceased with appellant-
Rajendra.
6. The trial Court, after providing opportunity of hearing to the
parties, convicted and sentenced the accused persons as mentioned
in paragraph-1 of this judgment.
7. We have heard learned counsel for the parties, perused the
impugned judgment and record of the trial Court.
8. Learned counsel for all the appellants vehemently argued that
conviction is substantially based on two dying declarations, Ex.P-14 &
Ex.P-34.
Initially Ex.P-34 was the statement recorded under
Section 161 of Cr.P.C. but after the death of deceased, it became
dying declaration in terms of Section 32 of the Evidence Act.
She
further submits that as per case of prosecution, one local-made lamp
(fpeuh) has been used for pouring kerosene, which is very small
object for light and hardly contains 100 ml kerosene. Even it was not
possible to hold aforesaid lamp by more than one person or even by
one person by using both the hands.
Therefore, even in case of

pouring kerosene oil over the deceased, only one person had poured
kerosene oil and it was not possible for all accused persons to set
her ablaze by lighting match-stick and this may be the act of only
one person.
Deceased was brought to hospital by her husband
appellant Rajendra which by itself is sufficient to establish the fact
that appellant Rajendra was not having any motive to kill his wife.
She further submits that evidence of prosecution witnesses (without
admitting the case of prosecution) and circumstances indicate that
on seeing her husband in compromising position with his aunt-
Saraswati Bai, the deceased got annoyed, she lost her tamper, she
came back to house, poured kerosene oil on her body and set herself
ablaze. When it was noticed by appellant-Rajendra then he tried to
save her. This is the case of suicide and in a fit of anger she has
stated against the appellants including one Sonu, who was not alive on
the date of incident, which shows the degree of annoyance of the
deceased.
Dying declarations (Ex.P-13 & P-34) are not made
voluntarily by the deceased and it was under annoyance. Except the
evidence of dying declaration, the prosecution has not collected any
other evidence.
Witnesses Geeta Bai (PW-5), Sonic (PW-15),
Chitrarekha (PW-6), Baggal @ Mangal (PW-7) reached the spot have
not stated anything against the appellants. Although the prosecution
had declared Geeta Bai (PW-5) & Chitrarekha (PW-6) hostile but
even in their cross-examination they have not stated anything to
show any involvement of the appellants inter alia they have stated
that the deceased was a quarrelsome lady, she used to quarrel with
others and even once she has attempted suicide in the house of her
former husband, which shows her tendency.
There was difference
between the cup & the lips and may prove & must prove.
Only on
the ground that the deceased was wife of appellant Rajendra and
died as a result of burn injuries received in the house of the
appellants, conviction of the appellants , all relatives of the husband
of the deceased, that too for heinous offence like murder is not

sustainable under the law.
The prosecution has utterly failed to
prove its case against the appellants.
Reliance is placed in the matter of Atbir vs. Government of
NCT
of
Delhi1 in which the Hon’ble Supreme Court while
summarizing the principles laid down in its earlier judgments has held
that in case of ability to make statement, supported by medical
evidence & certificate, and clarity in its contents, contents are safe
to rely as dying declaration inter alia the prosecution is required to
prove that the deceased was in fit state of mind and has clearly
stated the cause of her death relevant under Section 32 (1) of the
Evidence Act, 1882 and if such circumstance is proved then the
dying declaration alone would be sufficient for conviction of the
accused.
Reliance is also placed in the matter of Kashi Vishwanath v.
State of Karnnataka2 in which the Hon’ble Supreme Court has held
that in case of glaring contradictions in all three dying declarations
as to who poured kerosene on her body and put on fire by using
match-stick and in absence of explanation on the part of prosecution
as to why dying declarations were recorded in the language other
than of the deceased, absence of certificate that it was read over
and explained, makes possibility of deceased being influenced by
somebody in making dying declaration. Therefore, dying declaration
of such nature is not safe to rely.
9. On the other hand learned counsel for the State opposed both the
appeals and submitted that the prosecution has proved its case
beyond all shadows of doubt. There are three dying declarations
having consistency made by the deceased relating to burn injuries
which resulted into her death. First dying declaration was made by
her to Dr. G.S. Dau (PW-8), who had first examined her at 10.40 a.m.
and mentioned history of injuries in the medical report (Ex.P-12)
1
2
(2010) 9 SCC 1
2013 Cri.L.J. 3655

stated by the injured at the time of her examination naming all the
appellants as per statement of the deceased who has stated that
they poured kerosene oil on her and set her ablaze. This statement
was recorded within 02 hours 40 minutes of the incident.
Thereafter, the Investigating Officer reached to the hospital. Head
Constable Harish Chandra (PW-16) immediately recorded statement
of Sushila Bai under Section 161 of Cr.P.C. in which she has given
detailed statement showing the part played by the appellants which
has become her dying declaration after her death. He asked the
doctor regarding fitness of the deceased by submitting application
of Ex.P-13, the doctor (PW-8) certified that she is in a position to
give statement.
Thereafter vide Ex.P-32 Head Constable Harish
Chandra (PW-16) requested the Executive Magistrate for recording
dying declaration.
(PW-12),
On the basis of said request, Shri P.R. Nirmal
Tahsildar-cum-Executive
Magistrate,
recorded
dying
declaration vide Ex.P-14 after obtaining certificate from Dr. G.S.
Dau (PW-8).
All the three dying declarations corroborate each other and
they are not inconsistent. These dying declarations are proved by
the persons who have recorded the same i.e. Dr. G.S. Dau (PW-8),
Head Constable Harish Chandra (PW-16) & Shri P.R. Nirmal (PW-12).
The aforesaid witnesses are public authorities and not interested
witnesses. The dying declarations recorded by the public authorities
in discharge of their public duty cannot be doubted only on the
ground that dying declarations contain names of all the appellants.
This is a case of brutal murder by pouring kerosene on the deceased
and setting her ablaze that too by wrongdoer i.e. her husband who
has committed adultery with appellant-Saraswati Bai, who is also
accused, and instead of condemning appellants Rajendra & Saraswati,
other relatives have condemned and killed the deceased.
In the
aforesaid circumstances, the Court below has rightly convicted and

sentenced the appellants on the basis of evidence adduced on behalf
of the prosecution. There is no substance in the appeals.
10. In order to appreciate the arguments advanced on behalf of the
parties, we have examined evidence adduced on behalf of the
prosecution.
11. In the present case, homicidal death of deceased Sushila Bai, as a
result of extensive burn injuries within four days of incident, has not
been disputed substantially on behalf of the appellants.
Even
otherwise, from the evidence of Dr. G.S. Dau (PW-8), injury report
(Ex.P-12), Dr. Vijay Kumar Verma (PW-9) & autopsy report (Ex.P-15),
it is established that death of deceased is the result of extensive
anti mortem burn injuries i.e. complication on account of burn
injuries.
12. As regards the question of complicity of the appellants crime in
question, conviction is substantially based on the dying declarations
of the deceased i.e. Ex.P-12, P-14 & P-34. As per evidence of Dr.
G.S. Dau (PW-8), on 16.10.2006 injured Sushila was brought to the
Community Health Centre, Lormi. He immediately intimated the
police about medico-legal case vide Ex.P-11 at 10.00 a.m.
He
examined her vide Ex.P-12 and found 90% burn injuries on the body
except palm and soul. She informed him that her in-laws have caused
burn injuries to her and told names of all the appellants.
He
referred her to Burn Unit, CIMS, Bilaspur for further treatment.
Document Ex.P-12 reveals history of burn and as per Ex.P-12,
Lachhiman, Saraswati, Pokal Ram Ballu,Puran, Chhenduwa, Khunuwa,
Rakesh, Rajkumar, Rajendra, Kamla, Bhuri, Rajkumari, Sonu, caught
hold her, poured kerosene and set her ablaze.
13. Roznamcha Sanha was recorded vide Ex.P-33. Head Constable Harish
Chandra (PW-16) immediately rushed to the hospital and recorded
statement (Ex.P-34) of injured Sushila under Section 161 of Cr.P.C.
which also revealed that Lachhiman, Khunuwa, Kheduwa said to her
that she is defaming them and thereafter Lachhiman, Saraswati,

Pokalram, Ballu, Puran, Chheduka, Khunuwa, Rakesh, Rajkumar,
Rajendra, Kamla, Bhuri, Ramkumari, Sonu caught hold her, they took
her inside the house, poured kerosene on her body and Lachhiman set
her on fire by using match stick.
14. Third dying declaration of Sushila was recorded by P.R. Nirmal
(PW-12), Tahsildar, vide Ex.P-14. As per his evidence, injured was in
fit state of mind to give statement. He has recorded her statement
in which she has deposed that she had seen her husband committing
intercourse with his aunt i.e. appellant Rajendra was committing
intercourse with appellant Saraswati, and therefore some dispute
took place and thereafter 8-10 persons took her inside the room,
poured kerosene oil on her and set her ablaze. She further told the
names of persons who have caused burn injuries to her that she has
named the persons set her ablaze in her statement given to the
police. None has made any attempt for extinguishing fire and after
breaking open the door, she herself came out and extinguished fire
with the help of sand. This witness has categorically deposed that
facts mentioned in dying declaration of Ex.P-14 are as per version of
the deceased.
Firstly he had obtained fitness certificate from the
doctor and thereafter recorded her statement. Dr. G.S. Dau (PW-8)
has deposed that before recording dying declaration (Ex.P-14), he
has given fitness certificate of Ex.P-13 and thereafter only dying
declaration was recorded.
15. The defence has cross-examined Dr. G.S. Dau (PW-8) at length, in
Para-8 he has specifically deposed that he has treated her and gave
fitness certificate. In Para-7 he has admitted that injured was in a
position to talk but he has denied the suggestion that she has stated
him that on account of annoyance, she set herself ablaze. In Para-9
he has very specifically stated that in case of medico-legal case they
first provide primary treatment and thereafter they examine the
patient. In Para-10 he has further deposed that firstly he provided
primary treatment and also intimated the police vide Ex.P-11.

16. Head Constable Harish Chandra (PW-16) recorded her statement
(Ex.P-34) under Section 161 of Cr.P.C. which became second dying
declaration after the death of Sushila Bai.
This witness in his
detailed evidence has deposed that he has recorded statement of
the injured as per her version. He obtained thumb impression over
the statement of Ex.P-34. He had issued letter of Ex.P-13 relating
to fitness of mind of injured.
He also requested the Tahsildar,
Lormi vide Ex.P-32 for recording of dying declaration. Defence has
cross-examined this witness at length and in Para-12 he has
specifically deposed that within 5-10 minutes he reached to the
hospital. In Para-13 he has further deposed that he took about 10
minutes to record her statement.
In Para-14 he has specifically
admitted that the doctors were providing her preliminary treatment.
In Para-16 he has admitted that injured was in talking condition,
therefore, he has not obtained fitness certificate from the doctor.
In Para-17 he has further submitted that considering the injuries of
injured, he was of the view that recording of her dying declaration is
necessary. In Para-20 he has further deposed that he has obtained
thumb impression of the injured. In Para-21 he has admitted that
there is difference in the ink of writing and thumb impression, but
he has explained that he has written the dying declaration by pen
and taken thumb impression by using stamp-pad which he was
keeping.
In Para-26 he has admitted that at the time of recording
of statement of Ex.P-34 he did not know whether Sonu is alive or
dead.
In Para-34 he has denied the suggestion that injured was
unconscious. In Para-35 he has denied the suggestion that he has
not requested the Tahsildar, Lormi for recording of dying
declaration. He has also denied the suggestion that at the instance
of first husband of the deceased namely Jagdish, he has prepared
Ex.P-34 after showing the same as anti dated.
17. Undisputedly, dying declaration of Ex.P-14 was recorded by P.R.
Nirmal (PW-12), Tahsildar, Lormi on 16.10.2006 at 11.15 a.m. which

clearly revealed that injured has informed the police about the
persons who have caused burn injuries to her.
This fact clearly
reveals that Ex.P-34 has not been recorded after 16.10.2006 and it
has been recorded on 16.10.2006 prior to 11.15 a.m. Three dying
declarations reveal name of one Sonu, who was not alive at the time
of incident and this shows that one part of dying declarations naming
Sonu is not true. All the three witnesses of dying declarations are
public authorities and they have specifically deposed that they have
recorded dying declarations of injured Sushila Bai, as stated by her.
She was in a position to give statement, she was not unconscious, she
has named the appellants and deceased Sonu, who is also close
relative of the appellants.
18. Dying declaration is also a kind of evidence and once it is proved to
be true & voluntary then the same would sufficient for drawing
definite conclusion. Parties are required to adduce evidence that too
of oral evidence as required under Section 60 of the Evidence Act
but dying declaration is an exception to hear-say rule. While dealing
with the question of exception to hear say rule in the matter of
B. Shashikala v. State of A.P. 3 the Supreme Court has held that
dying declaration, an exception to hear-say rule, is admissible in
evidence. In case of more than one dying declarations, the Courts
are required to take proper precaution and scrutinize minutely which
dying declaration is voluntary and true and whether the deceased
was having opportunity to state and whether she was in fit state of
mind.
19. In Atbir’s case (supra) the Supreme Court has summarized the
principles laid down in its earlier cases and observed in Para-22 as
follows:-
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the
court.
3
AIR 2004 SC 1610

(ii) 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.
(iii) Where the court is satisfied that the declaration
is true and voluntary, it can base its conviction
without any further corroboration.
(iv) It cannot be laid down as 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.
(v) Where the dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis
of conviction.
(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is
not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the
dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied
that it is true and 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 the basis of conviction, even
if there is no corroboration.”
20.On the basis of aforesaid touchstone of law, dying declarations in
the present case were examined and it was found that the deceased
was in a fit state of mind as per medical evidence. There was clarity
in its contents and found nothing to make the dying declarations
suspicious.
In the light of aforesaid circumstances and in the
touchstone of principles laid down, the dying declaration in the afore
cited case was found credible & sufficient for conviction of the
accused persons, but in case of Kashi Vishwanath (supra) on the
ground of considerable infirmities, dying declaration has not been
considered as true and voluntary. Statement given by the deceased

as to the cause of death or circumstances of transaction which
resulted in death when the cause of death came into question.
21. While dealing with the question of reliability of dying declaration out
of multiple varying and contradictory dying declarations in the
matter of Shudhakar v. State of Madhya Pradesh 4 the Supreme
Court has held that dying declaration finds corroboration by the
prosecution evidence is safe to rely.
It has been further observed
that dying declaration is the last statement made by a person at a
stage when he is in serious apprehension of his death and expects no
chances of his survival at such time, it is expected that a person will
speak the truth. Para-20 of the said judgment reads thus:-
“20. The “dying declaration” is the last statement made by
a person at a stage when he is in serious apprehension
of his death and expects no chances of his survival. At
such time, it is expected that a person will speak the
truth and only the truth. Normally in such situations
the courts attach the intrinsic value of truthfulness
to such statement. Once such statement has been
made voluntarily, it is reliable and is not an attempt by
the deceased to cover up the truth or falsely
implicate a person, then the courts can safely rely on
such dying declaration and it can form the basis of
conviction. More so, where the version given by the
deceased as dying declaration is supported and
corroborated by other prosecution evidence, there is
no reason for the courts to doubt the truthfulness of
such dying declaration.”
22.While dealing with the same question in case of Puran Chand v.
State of Haryana5 has held that in case of multiple dying
declarations, oral dying declaration is an extremely weak type of
evidence but it is not unnatural for a burnt woman to confide in her
relatives and in case of contradictory multiple dying declarations,
the Courts are required to examine which one is natural and
probable.
While considering reliability of dying declaration, the
Courts are required to give weightage to all the attending
4 (2012) 7 SCC 569
5 (2010) 6 SCC 566

circumstances at the time of dying declaration.
Para-17 of the
aforesaid judgment reads thus;-
“17. Again, it is extremely difficult to reject a dying
declaration merely because there are few factual
errors committed. The court has to weigh all the
attendant circumstances and come to the
independent finding whether the dying declaration
was properly recorded and whether it was voluntary
and truthful. Once the court is convinced that the
dying declaration is so recorded, it may be acted
upon and can be made a basis of conviction. The
courts must bear in mind that each criminal trial is
an individual aspect. It may differ from the other
trials in some or the other respect and, therefore, a
mechanical approach to the law of dying declaration
has to be shunned. We have tested the dying
declaration with all these factors in mind and we are
satisfied that even the trial court and the appellate
court have fully satisfied themselves in respect of
the acceptability of this dying declaration.”
23.In the matter of Bhajju alias Karan Singh v. State of Madhya
Pradesh6 the Supreme Court has held that conviction can base solely
on dying declaration, without requiring any further corroboration, if
such declaration is found truthful and voluntary. The Supreme Court
has also observed the principles relating to dying declaration in Para-
22, 25 & 26 as follows:-
22.The law is very clear that if the dying declaration has
been recorded in accordance with law, is reliable and
gives a cogent and possible explanation of the
occurrence of the events, then the dying declaration
can certainly be relied upon by the court and could
form the sole piece of evidence resulting in the
conviction of the accused. This Court has clearly
stated the principle that Section 32 of the Evidence
Act, 1872 (for short “the Act”) is an exception to the
general rule against the admissibility of hearsay
evidence. Clause (1) of Section 32 makes the
statement of the deceased admissible, which is
generally described as a “dying declaration”.
25.There is a clear distinction between the principles
governing the evaluation of a dying declaration under
the English law and the Indian law. Under the English
6
(2012) 4 SCC 327

law, credence and relevancy of a dying declaration is
only when the person making such a statement is in
hopeless condition and expecting an imminent death.
So under the English law, for its admissibility, the
declaration should have been made when in the actual
danger of death and that the declarant should have
had a full apprehension that his death would ensue.
However, under the Indian law, the dying declaration
is relevant, whether the person who makes it was or
was not under expectation of death at the time of
such declaration. The dying declaration is admissible
not only in the case of homicide but also in civil suits.
The admissibility of a dying declaration rests upon the
principle of nemo moriturus praesumitur mentire (a
man will not meet his Maker with a lie in his mouth).
26.The law is well settled that a dying declaration is
admissible in evidence and the admissibility is founded
on the principle of necessity. A dying declaration, if
found reliable, can form the basis of a conviction. A
court of facts is not excluded from acting upon an
uncorroborated dying declaration for finding
conviction. The dying declaration, as a piece of
evidence, stands on the same footing as any other
piece of evidence. It has to be judged and appreciated
in light of the surrounding circumstances and its
weight determined by reference to the principle
governing the weighing of evidence. If in a given case
a particular dying declaration suffers from any
infirmity, either of its own or as disclosed by the
other evidence adduced in the case or the
circumstances coming to its notice, the court may, as
a rule of prudence, look for corroboration and if the
infirmities are such as would render a dying
declaration so infirm that it pricks the conscience of
the court, the same may be refused to be accepted as
forming basis of the conviction.”
24.In the light of aforesaid preposition of law, we have examined three
dying declarations given by the deceased, which are Ex.P-12, given to
Dr. G.S. Dau (PW-8) at the time of her medical examination, which is
first dying declaration, statement of deceased recorded under
Section 161 of Cr.P.C. by Head Constable Harish Chandra (PW-16)
which became dying declaration after the death of deceased and
Ex.P-14, which is third dying declaration recorded by P.R. Nirmal
(PW-12), Executive Magistrate, which revealed that she has stated

names of the assailants in her statement recorded under Section 161
of Cr.P.C. i.e. Ex.P-34.
There is no different in all the three dying
declarations relating to names of assailants. Third dying declaration
(Ex.P-14) depends upon second dying declaration i.e. Ex.P-34, relating
to name of assailants which reflects that she has stated to said P.R.
Nirmal (PW-12) that she has already stated names of persons who
have poured kerosene oil and set her ablaze.
Ex.P-14 has been
recorded at 11.15 a.m. and as per evidence of Dr. G.S. Dau (PW-8),
since examination of the deceased i.e. on 16.10.2006 from 10.40 a.m.
to 11.15 a.m., she was in fit condition to give her statement. After
four days of incident i.e. on 20.10.2006, she succumbed to the
injuries. Out of three dying declarations although all are consistent
with each other but second dying declaration (Ex.P-34) is a detailed
dying declaration which revealed that she saw the appellant
Rajendra, her husband, committing intercourse with his aunt i.e.
appellant Saraswati, at field. She came back to her house and made
complaint to appellant Lachhiman @ Laxman, Khunuwa & Chheduwa,
then, all the appellants and Sonu, who was admittedly not alive on the
date of incident, took her inside the room, poured kerosene oil and
appellant Lachhiman @ Laxman set her ablaze.
Kerosene was
brought by appellant Lachhiman @ Laxman from the society. She has
specifically deposed that she shouted then Geeta Bai (PW-5), Sonic
(PW-15), Chitrarekha (PW-6), Baggal @ Mangal (PW-7) came, the
appellants were present but they did not make attempt to extinguish
fire which finds in Ex.P-14. Percentage of burn injuries is 95% but
any of the appellant has not complained that during the course of
extinguishing fire they also received burn injuries.
25.As per dying declaration, Geeta Bai (PW-5), Chitrarekha (PW-6),
Baggal @ Mangal (PW-7) & Sonic (PW-15) reached to the spot. As
per their evidence, they have seen her, she was burning.
Geeta Bai
(PW-5), who was declared hostile by the prosecution, has deposed
that appellant Rajendra & Mangal (PW-7) were extinguishing fire and

in her cross-examination she has further admitted that appellant
Laxmi is disabled and is not in a position to walk.
Chitrarekha
(PW-6) has also deposed that she has seen Sushila, she was burning
in her courtyard and appellant Rajendra & Mangal (PW-7) were
extinguishing fire. Mangal (PW-7) has also deposed that Sushila was
burning, he and appellant Rajendra rushed towards her and
extinguished fire. In Para-3 he has further deposed that Sushila
herself was extinguishing fire and during the course of extinguishing
fire, her thumb and other fingers were also burnt. Sonic (PW-15)
has deposed that he reached to the spot and saw the injured body of
Sushila.
26.As per case of the defence, Sushila Bai herself set her ablaze may
be on account that she saw appellant Rajendra committing
intercourse with appellant Saraswati as a result she got annoyed,
poured kerosene on her and set herself ablaze. As per evidence of
aforesaid witnesses, appellant Rajendra & Mangal (PW-7) have tried
to extinguish fire but they have not stated that they have received
any burn injury especially when the burn injuries of the deceased was
95% inter alia Mangal (PW-7) has tried to depose that the deceased
herself was trying to extinguish fire. Evidence of these witnesses
revealed that at the time of extinguishing fire, the deceased has
received injuries in her hands but at the time of extinguishing fire,
Mangal (PW-7) or appellant Rajendra has not received any burn
injuries which show the extent of suppressing the facts. In case of
extinguishment of fire by three persons, either of would not receive
any burn injury or all would receive burn injuries.
27.The appellants have denied their presence on the spot and they have
taken a specific defence that at the time of incident they were not
present in the house and had gone to the field or some of them were
sitting near the bridge.
Incident took place at 8.00 a.m. in the
morning, they are members of same family and in case all had gone to

the field then atleast commission of intercourse by one accused with
another accused i.e. by appellant Rajendra with appellant Saraswati,
in presence of other 13 members of the same family that too in an
open field would have not been possible. Even otherwise, in order to
prove the specific defence of alibi they have not examined any
witness.
In the light of specific three consecutive & consistent
dying declarations made by the deceased such defence in absence of
any other evidence does not appear to be natural and probable or
even for drawing suspicion upon the story of the appellant.
28.The appellants have also taken a defence that the deceased was in
the habit of committing suicide and just before one month of the
incident in the house of her previous husband Jagdish, she has
attempted to commit suicide and also caused lacerated injuries on
the head of her previous husband namely Jagdish. The appellants
were having opportunity to examine aforesaid person Jagdish, who
has received lacerated wound that too over his head, in support of
their defence but reasons best known they have not examined him.
29.The investigating agency has also rushed to the house of the
appellant and had seized the articles found in the house.
As per
Ex.P-1, one local-made chimney containing some quantity of kerosene
oil, match-box, burned match-stick, broken mala and other articles
were seized i.e. the investigating agency had seized one small
container of kerosene oil used as a lamp for lighting the house i.e.
considerable quantity of kerosene, and this container was not found
in the house.
This shows that all the persons were not holding
kerosene container.
30.As per dying declaration (Ex.P-34), appellant Rajendra along with
other appellants had taken the deceased inside the room and after
pouring kerosene on her, appellant Lachhiman @ Laxman set her
ablaze by striking match-stick. The cause for incident was appellant-
Saraswati, wife of Lachhiman @ Laxman, who was also present on the
spot and has taken active participation in the incident. Active

participation of appellant Saraswati, her husband Lachhiman @
Laxman & appellant Rajendra, husband of deceased, is not unnatural.
Virtually, objection of the deceased was direct attack upon the
character of appellant Rajendra, Saraswati & Lachhiman @ Laxman,
husband of Saraswati.
Although the incident has taken place on
sudden provocation but pouring kerosene oil, striking the match-stick
and setting her ablaze are although series of act but are distinct act
and the aforesaid appellants were having opportunity to withdraw
themselves.
31. Each & every word and sentence of the dying declaration cannot be
treated as Gospel’s truth. Still the oral and written dying declaration
is a kind of evidence that too hear-say evidence. The Courts are
required to scrutinize the dying declaration along with other
surrounding & attending circumstance minutely with a view to
dispense
substantial
justice.
Part
of
a
dying
declaration
corroborated by other attending circumstances can be relied upon
and part of a dying declaration insufficient for placing reliance in
absence of other attending circumstances may not be relied upon as
such reliance would not be safe.
32.All the appellants are members of one family and even if is presumed
that all the appellants had gone to different fields for work and in
one field appellant Rajendra was committing intercourse with other
appellant Saraswati, noticing the same by the deceased, her
immediate reaction i.e. shouting, condemnation and complaint to all
the members is not unnatural inter alia it would be natural which
finds corroboration from Ex.P-14 that when the deceased saw
Rajendra committing intercourse with Saraswati, a dispute took
place and thereafter the incident had taken place in the house. In
case of such serious act and dispute that too in the field, all the
members were working in different fields will not work in the field
and their immediate return to house would be very natural reaction.
Page 20 of 23
Cr. App. No.557/09 & 984/11
33.At the time of incident, presence of all the members of one family is
also not unnatural.
Common statement has been made by the
deceased in all the three dying declarations except the specific act
of appellant Rajendra, Saraswati & Lachhiman @ Laxman. Detailed
dying declaration of Ex.P-34 revealed that all the members have
taken the deceased inside the room, thereafter poured kerosene on
her and set her ablaze. This part of dying declaration revealed that
all the members were interested to teach lesson to the deceased to
save themselves and their family members from the defamation &
embarrassment but at the time of teaching her lesson, appellant
Rajendra, Saraswati & Lachhiman @ Laxman, who were having grudge
against the deceased, exceeded their act and poured kerosene oil
and set her ablaze.
This part of dying declaration is clearly
distinguishable from other parts of dying declaration especially
relating to liability of the appellants which also finds support from
seizure of small container from the spot. Dying declaration does not
reflect the fact that other appellants were administering or
instigating to pour kerosene and set her ablaze or to cause other
injuries. They have also not made any attempt to extinguish fire.
These circumstances show their reluctance and passive presence at
the time of incident. The prosecution is always required to prove its
case beyond shadows of doubt and the prosecution is required to
stand on its own legs, it cannot take benefit of weakness of defence.
Main dying declaration (Ex.P-34) supported by dying declarations of
Ex.P-14 & Ex.P-12 requires serious scrutiny and analysis.
34.On close scrutiny and analysis of all the dying declarations, they are
safe to rely to the extent of act attributed to appellants namely
Rajendra, Saraswati & Lachhiman @ Laxman having grudge against
the deceased but are not safe to rely relating to other appellants in
absence of substantive corroboration from other sources.
Mere
passive presence of remaining appellants with their family members
cannot be held them liable for commission of serious offence. After
Page 21 of 23
Cr. App. No.557/09 & 984/11
appreciating the dying declarations, the Court below has convicted all
the appellants under Sections 147, 302/149 of IPC but has not
considered the aforesaid circumstance and insufficiency of evidence
relating to other appellants except appellants Rajendra, Saraswati &
Lachhiman @ Laxman and thereby committed illegality.
35.Dying declarations (Ex.P-34, P-14 & P-12) are safe to rely for drawing
an inference that appellants Rajendra, Saraswati & Lachhiman @
Laxman have caused homicidal death of deceased Sushila Bai in
sharing common intention but aforesaid dying declarations are not
safe for drawing inference that aforesaid appellants along with
other appellants have formed unlawful assembly having its common
object to commit murder of Sushila Bai and in furtherance of
common object of the said unlawful assembly, they poured kerosene
oil on her and set her ablaze. Dying declaration is separable in two
parts, one part is safe to rely but other part is not sufficient for
placing reliance.
36.In the result;
•
Criminal Appeal No.984/2011 filed on behalf of appellants
Rakesh & Bhaga Bai @ Bhuri is allowed. Their conviction &
sentences under Sections 147, 302/149 of IPC are hereby set
aside. Appellant Rakesh is in custody, therefore, he be set at
liberty forthwith if not required in any other case.
•
Criminal Appeal No.557/09 filed on behalf of appellants No.2
to 8 & 10 namely Ram, Yashwant @ Bablu, Shivprasad @
Khunuwa, Rajkumar, Kamlabai, Shivkumari, Smt. Rajkumari @
Kunwar Bai, Chhedilal @ Chheduwa is allowed. Their conviction
and sentences under Sections 147 & 302/149 of IPC are
hereby set aside.
Appellants- Ram, Yashwant @ Bablu,
Shivprasad @ Khunuwa, Rajkumar & Chhedilal @ Chheduwa are
in custody, they be set at liberty forthwith if not required in
any other case.
Page 22 of 23
Cr. App. No.557/09 & 984/11
•
Criminal Appeal No.557/09 filed on behalf of appellants No.1,
9 & 11 namely Rajendra, Saraswati Bai & Lachhiman @ Laxman
is partly allowed. Their conviction and sentence under Section
147 of IPC is hereby set aside. Their conviction under Section
302/149 of IPC is altered into Section 302/34 of IPC and
they are sentenced to undergo rigorous imprisonment for life
and fine of Rs.1,000/- each, in default of payment of fine to
undergo additional R.I. for 03 months.
•
Appellant No.9-Smt. Saraswati Bai is on bail. She shall
immediately surrender before the Court below for serving
remaining jail sentence. The Court shall also take appropriate
steps for securing her attendance for serving remaining jail
sentence
JUDGE
JUDGE
Page 23 of 23
Cr. App. No.557/09 & 984/11
HIGH COURT OF CHHATTISGARH AT BILASPUR
DIVISION BENCH:
Hon’ble Shri T.P. Sharma &
Hon’ble Shri C.B. Bajpai, JJ
Criminal Appeal No.557/2009
APPELLANTS
(In jail)
RESPONDENT
1. Rajendra @ Matauva
2. Ram
3. Yashwant @ Bablu
4. Shivprasad @ Khunuwa
5. Rakumar
6. Kamlabai
7. Shivkumari
8. Smt. Rajkumari @ Kunwar
9. Smt. Saraswati Bai
10. Chhedilal @ Chheduwa
11. Lachhiman @ Laxman
Vs
State of Chhattisgarh
&
Criminal Appeal No.984/2011
APPELLANTS
1. Rakesh
(In jail)
2. Bhaga Bai @ Bhuri
Vs
RESPONDENT
The State of Chhattisgarh
HEAD NOTE
1.
Dying declaration is also a kind of evidence. Courts are required to
scrutinize the dying declaration on the basis of other surrounding
and attending circumstances minutely.
e`R;qdkyhu dFku Hkh ,d izdkj dh lk{; gSA U;k;ky; dks ifjorhZ
vkSj fo|eku ifjfLFkfr;ksa ds vk/kkj ij e`R;qdkyhu dFku dh lw{Ekrk
ls tkWp djuk vko’;d gSA
2.
Part
of
dying
declaration
corroborated
by
other
attending
circumstances can be relied upon and part of dying declaration not
corroborated by attending circumstances is not safe to rely.
e`R;qdkyhu dFku ds ml Hkkx ij Hkjkslk fd;k tk ldrk gS ftldh iqf"V
vU; fo|eku ifjfLFkfr;ksa ls gksrh gS vkSj ml Hkkx ij Hkjkslk djuk
lqjf{kr ugh gS ftldh iqf"V fo|eku ifjfLFkfr;ka ls u gksrh gks A

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