(Arising out of S.L.P. (Crl.) No.7721 of 2007)
Arijit Pasayat, J.-
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
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 2
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 3 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 4 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 5 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
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 6 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 7 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.
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