Amol Singh vs State Of M.P

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 evidence.

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.

..................................J. (Dr. ARIJIT PASAYAT)

......

............................J. (P. SATHASIVAM)

8 New Delhi, May 15, 2008

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