2002 Supreme(SC) 811

2002(5) Supreme 466
SUPREME COURT OF INDIA
(From Gujarat High Court)
R.C. Lahoti & Brijesh Kumar, JJ.
Ramilaben Hasmukhbhai Khristi & Anr. etc. -Appellants
versus
State of Gujarat -Respondent
Criminal Appeal No. 245 of 2001
With
Criminal Appeal No. 246 of 2001
With
Criminal Appeal No. 247 of 2001
Decided on 14-8-2002
Counsel for the Parties :
For the Appearing Parties : Ranjit Kumar, Yashank Adhyaru, Sr. Advocates, H.A. Raichura, Maulik Nanavati, Vimal Chandra S. Dave, Ms. Aruna Gupta, Ms. Anu Sawhney, Ms. Hemantika Wahi, Ms. Natasha, Ms. S.H. Raichura, Advocates.

VERY IMPORTANT POINT
The four dying declarations of deceased in this case fail to inspire confidence and conviction cannot be recorded only on their basis. As no other corroboration is coming forth from any source the appeals have to be allowed for acquittal of the appellants.

Headnote:(i) Evidence Act, 1872-Section 32-Dying declaration-Law as to recording and acting upon in criminal trial-Case law discussed.

       Held : Under the law, dying declaration, can form sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But Court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon, without any corroboration. (Para 28)

       (ii) Indian Penal Code, 1860-Sections 302 read with 120B-Offences under-Trial of 11-7 convicted (one dying during trial)-4 acquitted-Conviction based on four dying declarations only-One by Doctor, another by Police Officer, 3rd and 4th by Executive Magistrates-4th dying declaration incomplete-Deceased was having burn injuries of 2nd degree-Conscious but not certified to be in fit condition to make statement-Doctor available-Possibility of accidental or suicidal fire burn due to failure or frustration in affairs with one Pushpa there-Dying declarations alleging burn injuries and beating by Pushpa s father and relative including Pushpa-Role of Pushpa not there in Doctor s version-It is there in Police version-In Magistrate s version it was on investigation of Pushpa s father-Medical evidence not corroborating-Whether convictions can be sustained on such dying declarations alone? (No)-Result-Acquittal-Appeals allowed.

       Held : The four dying declarations recorded by the doctor, the police inspector and the two Magistrates have been discussed in some detail above. None of these dying declarations contains any certificate by the doctor about the mental fitness of Pragnesh Kumar to make a statement although doctor was always available. In two dying declarations it is only indicated that he was conscious. No amount of subsequent statement of the doctor can supplement the endorsement of Certificate while recording the dying declaration. The first two statements have been recorded in quick succession without waiting for the Magistrate to arrive even though steps had been taken for recording of the dying declaration by the Magistrate who actually got the message at about 10.30 a.m. and had contacted the doctor at the hospital at 11.05 a.m. There are deviations from statement to statement consistency is conspicuously missing. The first dying declaration recorded by Dr. Kolte does not say about Pushpaben sprinkling the kerosene oil. Eight or nine persons living in the lane are said to have surrounded him but who sprinkled oil and who lighted the matchstick is not stated. In view of the decisions of this Court referred to above, it may not be possible to base the conviction on the sole basis of dying declarations. There is no eyewitness to the incident. In two dying declarations he had stated about being beaten by accused persons but no such injuries are found in any report. In view of our conclusion regarding dying declarations, we do not think it would at all be necessary for us to dwell into the controversy about the conduct of the investigation by PW-3 Kumpawat according to whom he was informed that the incident occurred at the house of Pragnesh Kumar. Ramilaben denies that she was ever contacted by the police in connection with the investigation of the case or to have shown the place of occurrence though in her statement in the Court as a Court Witness she says that she had seen Pragnesh Kumar burning from the Verandah of the house of Pushpaben and that Pushpaben and her mother were pushing him out. In the last dying declaration Pragnesh Kumar said about presence of his Bhabi at home. Nor do we find it necessary to go into the question about the yadis and vardhis or telephonic message said to be given by Dr. Kolte to the effect that Pragnesh Kumar received injuries while he was warming himself around the fire. It is also not necessary to refer to the reports and statements given by father of Pushpaben to the authorities and the police where it was indicated that on some earlier occasions also on account of his affairs with Pushpaben, he tried to commit suicide. Such statements have been placed on record as Exh. 67 and 69. It may also be noticed that Pushpaben along with a few others have already been acquitted and she had been assigned a specific role of sprinkling kerosene oil on Pragnesh Kumar although it is not be found in the statement given to Dr. Kolte. Looking to all the facts and circumstances of the case as indicated above, we are of the view that it is not a case in which conviction can be recorded only on the basis of dying declarations which fail to inspire confidence. No other corroboration is coming forth from any corner. Even the trial court had held that it was satisfied that A-7 Gersombhai Yakubhai and A-9 Mariyamben Ashabhai are falsely implicated in the case. It is also observed that the dying declarations of Pragnesh Kumar are not acceptable regarding their involvement. In the result the prosecution story as put forward does not inspire confidence on the basis of the material placed on record. All the three appeals are therefore allowed and the conviction and sentence passed against the appellants are set aside. They shall be set free forthwith unless wanted in any other case. (Paras 32, 33, 34 & 35)