IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 903 OF 2018
POONAM BAI … APPELLANT
THE STATE OF CHHATTISGARH … RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
- 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/.
- 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.
- 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.
- 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
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.
- Per contra, Mr. Sumeer Sodhi, learned counsel for the
respondentState vehemently argued in support of the judgment
of the High Court.
- We have heard the rival submissions of the learned
counsel for the parties and carefully perused the record.
- 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.
- 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.
- 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.
- 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
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.
- 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
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
the Naib TehsildarcumExecutive Magistrate (P.W. 1) as to why
the original dying declaration was not produced before the Trial
- 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
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.
- 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
the facts and circumstances of the case.
- 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
- Since the evidence relating to the dying declarations has
not been proved beyond reasonable doubt by the prosecution, in
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.
- 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.
- The appeal is allowed accordingly.
(MOHAN M. SHANTANAGOUDAR)
(S. ABDUL NAZEER)
APRIL 30, 2019.