IMPORTANT POINT
Dying declaration should be of such nature as to inspire full confidence of Court in its truthfulness and correctness before conviction could be based on it.

Headnote:Indian Penal Code, 1860-Section 302-Accused betrothed to deceased in August, 1991 was set to get married in Dec., 1991 set her on fire on 28th Sept. 1991 while both were moving on scooter-Conviction based by trial Court on dying declaration recorded by Executive Magistrate in Hospital after doctor declared victim fit and conscious to make statement-Conviction was set aside by High Court entertaining doubt in dying declaration-State appeal-Interference was not warranted unless Court was convinced that decision of High Court was vitiated by perversity, wrong legal approach or non-consideration of material evidence-Dying declaration recorded by Magistrate did not appear to be an accurate or unalloyed version of deceased and did not pass the test of total reliability-Other dying declaration was the entry made by doctor in hospital register as given by victim-Contradictions between two statements of deceased-Whole prosecution story relegated to verge of incredibility-It appeared highly doubtful if PW4, running way side "hotel" near place of incident would have heard victim speaking name of accused who set her on fire-It was also doubtful that victim spoke to her parents at about 9.45 P.M. naming accused who set her on fire when till 10 P.M. doctor had found victim unconscious and not in position to make statement-Acquittal judgment called for no interference.
       Held : We have however a strong doubt whether for 45 minutes, the patient in that serious condition could go on responding to the questions of PW7 to the extent of even giving details regarding the clothes worn by her and the place from which she purchased the petrol which are really inconsequential details. Again, taking an overall perspective of the evidence, there is every reason to think that PW7 could have scribbled the gist of what Veena was speaking out and then prepared the statement in question and answer forms subsequently employing his own language. Thus, Ext.37 does not appear to be an accurate or unalloyed version of the deceased. The possibility of certain embellishments cannot be ruled out. Though, we do not discard Ext.37 as a fabricated and distorted document, it does not pass the test of total reliability. Even then, we shall proceed on the premise that the material part of the statement of Veena in regard to the actual incident that had happened after reaching the road near Lokmat building is correct. As already noted, the accused stood implicated by that statement. What follows next is the question. For finding an answer to this question, we must have regard to the other dying declaration (Ext.39)-first in point of time, in order to see whether these declarations are consistent with each other in material particulars. Ext. 39 is an entry in the hospital register made by Dr. Manohar (PW8) at the time of admitting Veena into the hospital. PW8 stated that on enquiring as to how she got burnt, she gave the reply which was reduced to writing in the register. The contents of Ext.39 are as follows:
       "Since husband was doubting me, today in the evening while we were going on scooter from road behind Lokmat building, he poured petrol on my body and set me on fire with matchstick. Petrol was there in the can in my hand." (Para 10 and 11)
       According to Ext.39, the victim was holding the petrol can in her hand whereas according to Ext.37, petrol can was in the dicky towards the front of the scooter. If what was stated in Ext.39-the 1st statement is correct, is it then possible to believe that the accused took over the petrol can from her while the scooter was in motion, removed its lid, sprinkled the petrol on her and ignited the fire with the matchstick? Such type of operation, even if possible, would have immediately attracted the attention of the deceased and she would have suspected foul-play. She would not have kept quiet and remained on the scooter especially when it slowed down. In fact, she stated in Ext.37 that after she was set on fire she jumped out of the scooter as the scooter was in slow motion. No sensible person placed in such situation would helplessly watch and allow the scooter driver to accomplish his design, that too on a busy road. However, if the petrol can was in the dicky as stated in Ext.37, the possibility of opening the petrol can without attracting her attention and suddenly sprinkling it on her clothes will be greater though even that is not an easy operation. Once the theory of holding the petrol can with her hand is accepted and the further fact that the incident happened when the scooter was in motion is also accepted, the whole prosecution story would be relegated to the verge of incredibility. It will be highly impracticable if not impossible to set her on fire in that manner. We cannot ignore the version in Ext.39 about holding the petrol can on hand while testing the reliability of dying declarations. (Para 15)
       It is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the Court in its truthfulness and correctness (vide the observations of Five Judge Bench in Laxman Vs. State of Maharashtra [(2002) 6 SCC 710]. Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, "great caution must be exercised in considering the weight to be given to this species of evidence". When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record. Adopting such approach, we are unable to place implicit reliance on the dying declarations, especially when the High Court felt it unsafe to act on them. This is apart from the question whether the deceased who became unconscious at the spot (as recorded in Ext. 37) with 95 burns and who was found to be in disoriented condition two hours later, was in a fit condition to talk to the doctor at the time of her admission to the hospital. We refrain from going into this aspect. (Para 17)

JUDGMENT

P. Venkatarama Reddy, J.-This is an appeal filed by the State of Maharashtra against the verdict of acquittal recorded by the Aurangabad Bench of the Bombay High Court. The respondent was convicted under Section 302 IPC and sentenced to life imprisonment by the Additional District and Sessions Judge, Aurangabad on the charge of committing the murder of Veena with whom the accused had a marriage engagement. The marriage was scheduled to take place on 2nd December, 1991. The tragic incident occurred in the night of 28th September, 1991 at about 7.30 p.m. The victim Veena died in the hospital on the next day i.e. 29th September at about 8 p.m. on account of the burn injuries she received on the previous day. The accused also had some burn injuries on his hands in the process of extinguishing the flames on the deceased. The conviction was based on certain dying declarations and the circumstantial evidence brought out by the examination of PW4 who was a vendor having a tea-stall near the spot of burning. The High Court, on an elaborate consideration, felt it unsafe to rely on the dying declarations or to accept the evidence of PW4 and therefore set aside the conviction. We are informed that the respondent had undergone about five years of sentence during and after the trial.

2. We shall advert to the facts alleged by the prosecution and the sequence of events that had happened on the two crucial days i.e. 28th & 29th September, 1991 as emerging from the prosecution evidence.

3. The deceased Veena was a cricket player and the accused was the captain of the cricket team when she was studying in the college. Later, he became a cricket coach. They fell in love with each other and the elders arranged a betrothal function on 18th August, 1991 at which it was decided to celebrate the marriage on 2nd December, 1991. The accused-a graduate, was employed in Census office and the deceased was studying in Law College. The accused and the deceased were closely moving about. Some strained relations developed between them and the accused had some reservations to marry her. On the crucial day of occurrence i.e. 28th September, 1991, Veena had gone to see the accused after informing her mother. At about 7.30 p.m. the accused and Veena were on the way of Veena s house and while they were in the locality behind Lokmath building, Aurangabad, the accused slowed down the scooter and by taking out the petrol can kept in the scooter, sprinkled the petrol on the person of Veena and set her on fire, all of a sudden. All this was done on the moving scooter. On noticing the flames on the body of Veena and hearing her cries, some people gathered and tried to put out the fire. PW4 was one amongst them. He overheard Veena remarking "Pramod, why you have burnt me?" (Sanjay Pramod is the name of the accused). The accused also had some burn injuries when he tried to extinguish the fire. The accused then took her in an auto-rickshaw to the Government Medical College Hospital. Soon after the admission at 8 p.m, PW8 - the Casualty duty Doctor, enquired from the victim Veena as to how she got burnt. On getting the answer from her, PW8 recorded a medico legal case and noted what she said in the register - the extract of which is Ext. 39. He also noted that the patient was brought by the accused Sanjay. She told the Doctor that her `husband , while going on a scooter on the road near Lokmath building, poured petrol and set her on fire and the petrol can was in her hand. He noted the percentage of the burns on various parts of the body, the total percentage being 98. At the same time, a Police Constable on duty (PW1) at the police post of the hospital, made an entry in the relevant register of the substance of what he heard from the victim while narrating the history to the Doctor. That is marked as Ext.P13. He then informed the CIDCO police station as the offence took place within the jurisdiction of that police station. PW15, the Head-Constable noted the message,

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2004 Supreme(SC) 1340

IMPORTANT POINTDying declaration should be of such nature as to inspire full confidence of Court in its truthfulness and correctness before conviction could be based on it.

Cases Referred (1)

IMPORTANT POINT
Dying declaration should be of such nature as to inspire full confidence of Court in its truthfulness and correctness before conviction could be based on it.