oral dying declaration = The trial court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the so­called dying declaration (Exh.P­2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial court for coming to such a conclusion. Per contra, the High Court while setting aside the said finding has not adverted to any of the reasons assigned by the trial court relating to the authenticity or reliability of the dying declaration. The view taken by the trial court, in our considered opinion, is the only possible view under 9 the facts and circumstances of the case. 14. As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (P.W. 2), Pilaram Sahu (P.W. 3), Parvati Bai (P.W. 4), and others. Though P.Ws. 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial court in its detailed judgment. Thus, the evidence of P.Ws. 2, 3 and 4 relating to the oral dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law. 15. Since the evidence relating to the dying declarations has not been proved beyond reasonable doubt by the prosecution, in 10 our considered opinion, the High Court was not justified in convicting the appellant, inasmuch as there is no other material against the appellant to implicate her. The motive for the offence, as alleged by the prosecution, has also not been proved. 16. Having regard to the totality of the facts and circumstances of the case, we conclude that the judgment of the High Court is liable to be set aside, and the same is accordingly set aside and that of the trial court is restored. As the appellant is acquitted of the charges levelled against her and she is in custody, we direct that the appellant be released forthwith, if not required in connection with any other case.

1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 903 OF 2018
POONAM BAI … APPELLANT
Versus
THE STATE OF CHHATTISGARH … RESPONDENT

J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.

  1. This appeal calls into question the judgment dated
    06.04.2018 passed by the High Court of Chhattisgarh at Bilaspur
    in ACQA No.205 of 2010, by which the judgment of the trial court
    was set aside and the appellant was convicted under Section 302
    of the Indian Penal Code (in short, “the IPC”) for committing the
    murder of the deceased Vimla Bai and sentenced to undergo
    rigorous imprisonment for life and to a fine of Rs.500/­.
    2
  2. The case of the prosecution in brief is as follows:
    The deceased Vimla Bai was the wife of Pilaram Sahu (P.W.
    3). The appellant Poonam Bai is the daughter of Balaram, P.W.
    3’s brother, and thus the niece of the deceased. On the date of
    the incident, i.e. 01.11.2001, around noon, the appellant Poonam
    Bai came to the house of the deceased when she was alone,
    quarreled with her, poured kerosene on her body and lit a fire
    with a match­stick. Vimla Bai sustained burn injuries and
    succumbed thereto in the hospital. The matter was reported to
    Police Station Gurur on the same day by Lalita Sahu (P.W. 2, the
    daughter of the deceased) at about 12.05 p.m.
  3. The trial court, on evaluation of the material on record,
    acquitted the appellant of the charges levelled against her.
    Feeling dissatisfied with the order of the trial court, the State
    preferred an appeal before the High Court, which vide the
    impugned judgment, as mentioned above, convicted the appellant
    under Section 302 of the IPC.
  4. Mr. Siddhartha Dave, learned senior counsel appearing
    on behalf of the appellant, has taken us through the entire
    material on record. He submitted that the prosecution has not
    proved its case beyond reasonable doubt, there are no eye
    3
    witnesses to the incident in question and the case of the
    prosecution mainly rests on two dying declarations. According to
    the learned senior counsel, the motive for the offence has not
    been proved, and the High Court was not justified in reversing the
    judgment of acquittal passed by the trial court, particularly when
    the judgment of the trial court cannot be said to be perverse.
    According to him, the trial court was fully justified in acquitting
    the accused since the sole circumstance of the dying declarations
    relied upon by the prosecution has not been proved.
  5. Per contra, Mr. Sumeer Sodhi, learned counsel for the
    respondent­State vehemently argued in support of the judgment
    of the High Court.
  6. We have heard the rival submissions of the learned
    counsel for the parties and carefully perused the record.
  7. The prosecution mainly relies upon the dying declaration
    (Exhibit P­2), which is stated to have been recorded by the Naib
    Tehsildar­cum­Executive Magistrate (P.W.1) in the hospital. The
    oral dying declaration made by the deceased before Lalita Sahu
    (P.W. 2), Pilaram Sahu (P.W. 3) and Parvati Bai (P.W. 4) has also
    been relied on.
    4
  8. Undisputedly, and as is clear from the evidence of Dr.
    J.S. Khalsa (P.W. 11), who conducted the post­mortem
    examination, the deceased had sustained 100% burn injuries all
    over the body. He also deposed that due to her severe burn
    injuries, the deceased was in a state of shock.
  9. As mentioned supra, as compared to the oral dying
    declaration, more emphasis was laid on the dying declaration
    (Exh.P­2) stated to have been recorded by the Naib Tehsildarcum­Executive Magistrate in the hospital and the panchnama
    (Ex.P­1) prepared by him regarding the recording of this dying
    declaration. As a matter of fact, the case of the prosecution
    mainly depends on the same.
  10. There cannot be any dispute that a dying declaration can
    be the sole basis for convicting the accused. However, such a
    dying declaration should be trustworthy, voluntary, blemishless
    and reliable. In case the person recording the dying declaration is
    satisfied that the declarant is in a fit medical condition to make
    the statement and if there are no suspicious circumstances, the
    dying declaration may not be invalid solely on the ground that it
    was not certified by the doctor. Insistence for certification by the
    doctor is only a rule of prudence, to be applied based on the facts
    5
    and circumstances of the case. The real test is as to whether the
    dying declaration is truthful and voluntary. It is often said that
    man will not meet his maker with a lie in his mouth. However,
    since the declarant who makes a dying declaration cannot be
    subjected to cross­examination, in order for the dying declaration
    to be the sole basis for conviction, it should be of such a nature
    that it inspires the full confidence of the court. In the matter on
    hand, since Exh. P2, the dying declaration is the only
    circumstance relied upon by the prosecution, in order to satisfy
    our conscience, we have considered the material on record
    keeping in mind the well­established principles regarding the
    acceptability of dying declarations.
  11. The Naib Tehsildar­cum­Executive Magistrate (P.W.1) has
    deposed that the police had sent a requisition to the Tehsildar (as
    per Exh. P­3), who in turn requested P.W.1 to go to the spot and
    record the statement of the injured. P.W.1 has also deposed that
    he received such requisition at 12.15 p.m. on the date of the
    incident, and immediately thereafter, he went to the hospital and
    recorded the statement of the victim (Exh.P­1). He has also
    deposed that he drew the panchnama regarding the recording of
    the dying declaration in the presence of three persons. It is to be
    6
    noted that the dying declaration (Exh.P­2) as produced before the
    Trial Court is only a photocopy, which is not admissible in
    evidence. The original copy of the dying declaration has not been
    produced before the Trial Court. Also, though it has been stated
    by the Naib Tehsildar­cum­Executive Magistrate (P.W.1) that he
    had taken the signature of three witnesses, the photocopy of the
    dying declaration does not contain the signature of any witness.
    It is the case of the prosecution that P.W. 1 recorded the
    dying declaration in the hospital. But he has admitted in his
    cross­examination that none of the doctors were present on that
    day, and that the hospital was closed since it was a Sunday. He
    has also admitted in his cross­examination that he did not put
    any question to the victim to find out whether she was in a
    position to make a statement or not. He also did not try to verify
    whether the victim had the power to recollect the incident in
    question. Hence, it is clear that P.W. 1 did not satisfy himself
    about the fitness of the victim to make a statement. No
    verification or certification of the doctor regarding the fitness of
    the victim to make a statement can be found on the dying
    declaration either. In addition, absolutely no reasons are
    forthcoming either from the Investigating Officer (P.W. 12) or from
    7
    the Naib Tehsildar­cum­Executive Magistrate (P.W. 1) as to why
    the original dying declaration was not produced before the Trial
    Court.
  12. Moreover, the records do not reveal a clear picture of
    what happened at the time of occurrence or subsequently. The
    Investigating Officer (P.W. 12) has admitted that he went to the
    spot of the offence at about 12.15 p.m., immediately after getting
    news of the incident at about 12 o’ clock. When he arrived, the
    victim was unconscious, and her skin was peeling off. He was the
    first person to reach the scene of offence, and shifted her to the
    hospital while she was still unconscious. If it is so, it is quite
    unbelievable as to how the victim could have made such a
    lengthy statement as found in Exh.P­2 at about 12.15 to 12.30
    p.m., that too in an unconscious condition, before P.W.1. To add
    to this, there is not even a whisper in the deposition of the
    Investigating Officer about the presence of the Naib Tehsildarcum­Executive Magistrate (P.W.1) or about him recording the
    dying declaration at about 12:15 p.m. The Investigating Officer
    has spoken neither about the requisition sent by him as per
    Exh.P­3 nor about the alleged dying declaration (Exh.P­2) which
    is stated to have been recorded by P.W.1. Notably, the Naib
    8
    Tehsildar has deposed that when he went to the hospital, the
    police were already there. If it was so, and if he had really
    recorded the dying declaration as per Exh.P­2, the Investigating
    Officer would have deposed about the same before the Trial
    Court. But such records are not forthcoming. In such
    circumstances, the role of the Naib Tehsildar­cum­Executive
    Magistrate (P.W. 1) appears to be highly suspicious.
    It is also curious to note that the Investigating Officer has
    deposed that he went to the spot immediately after getting the
    oral information about the incident, whereas the crime came to be
    registered based on the FIR of Lalita Sahu (P.W.2) at about 15:30
    hours, i.e. 3.30 p.m.
  13. The trial court has taken pains to evaluate the entire
    material on record and has rightly come to the conclusion that
    the so­called dying declaration (Exh.P­2) is unbelievable and not
    trustworthy. Valid reasons have also been assigned by the trial
    court for coming to such a conclusion. Per contra, the High Court
    while setting aside the said finding has not adverted to any of the
    reasons assigned by the trial court relating to the authenticity or
    reliability of the dying declaration. The view taken by the trial
    court, in our considered opinion, is the only possible view under
    9
    the facts and circumstances of the case.
  14. As far as the oral dying declaration is concerned, the
    evidence on record is very shaky, apart from the fact that
    evidence relating to oral dying declaration is a weak type of
    evidence in and of itself. As per the case of the prosecution, the
    deceased had made an oral dying declaration before Lalita Sahu
    (P.W. 2), Pilaram Sahu (P.W. 3), Parvati Bai (P.W. 4), and others.
    Though P.Ws. 2, 3 and 4 have deposed that the deceased did
    make an oral dying declaration before them implicating the
    appellant, this version is clearly only an afterthought, inasmuch
    as the same was brought up before the trial court for the first
    time. In their statements recorded by the police under Section
    161 of the Code of Criminal Procedure, these witnesses had not
    made any statement relating to the alleged oral dying declaration
    of the deceased. These factors have been noted by the trial court
    in its detailed judgment. Thus, the evidence of P.Ws. 2, 3 and 4
    relating to the oral dying declaration is clearly an improved
    version, and this has been proved by the defence in accordance
    with law.
  15. Since the evidence relating to the dying declarations has
    not been proved beyond reasonable doubt by the prosecution, in
    10
    our considered opinion, the High Court was not justified in
    convicting the appellant, inasmuch as there is no other material
    against the appellant to implicate her. The motive for the offence,
    as alleged by the prosecution, has also not been proved.
  16. Having regard to the totality of the facts and
    circumstances of the case, we conclude that the judgment of the
    High Court is liable to be set aside, and the same is accordingly
    set aside and that of the trial court is restored. As the appellant is
    acquitted of the charges levelled against her and she is in
    custody, we direct that the appellant be released forthwith, if not
    required in connection with any other case.
  17. The appeal is allowed accordingly.
    ………………………………………….J.
    (N.V. RAMANA)
    ….………………………………………J.
    (MOHAN M. SHANTANAGOUDAR)
    …….……………………………………J.
    (S. ABDUL NAZEER)
    NEW DELHI;
    APRIL 30, 2019.