The State Of Rajasthan vs Ganwara

alleged that her mother-in-law—Ganwara (respondent

herein) had cruel intention against her for not satisfying her

with undue demands of dowry. For this reason, with an evil

intention to get rid of her, Ganwara had burnt her alive on

pouring kerosene and lighting a match stick. On raising

screams, the neighbouring people rushed to the spot,

extinguished the flames and admitted her in the hospital.

Having recorded her statement, PW14 has registered the

criminal case under Section 307, IPC against the respondent

and visited the place of occurrence, prepared spot

panchnama (Ext. P26) and site map (Ext. P2). Pieces of

burnt clothes (Ext. P5) and a lantern were recovered from

the spot (Ext.P3). Meanwhile, learned Magistrate has

recorded dying declaration (Ext. P11) of the injured. As the

victim has succumbed to the burnt injuries on 7 th 3

September, 1982, charge under Section 302, IPC was also

added to the case and the case was committed to the

sessions. The accused pleaded not guilty and claimed to be

tried.

3. In its effort to prove the case against the accused,

prosecution has examined as many as 16 witnesses,

whereas the accused—respondent produced three witnesses

in her defence. The learned trial Judge in the end formed the

opinion that the accused was guilty of intentionally

murdering the victim. Accordingly, she was convicted for the

offence punishable under Section 302, IPC for which a

sentence of life imprisonment with payment of fine of Rs.50,

was awarded by the trial Court.

4. The aggrieved accused Ganwara carried the matter

in appeal before the High Court. On reappreciation of

evidence on record, the High Court disbelieved the

prosecution story and came to the conclusion that under the

circumstances of the case, it would be unsafe to confirm the

guilt against the accused basing on the dying declaration. 4

The High Court, accordingly, allowed the appeal and

acquitted the accused of the charge. The State of Rajasthan

is, therefore, before this Court in appeal challenging the

judgment of the High Court.

5. It is vehemently assailed by the learned State

counsel that the High Court judgment is arbitrary and

against the settled principles of law. The deceased in her

dying declaration categorically mentioned the way in which

the accused indulged in the criminal act and burnt her alive

with a clear intention to kill, owing to her undue demands of

dowry. The statement of the deceased was duly corroborated

with the testimonies of mother, brother and sister of the

deceased. The learned trial Court has passed a reasoned

judgment convicting the accused for the offence, but the

High Court in an arbitrary manner set aside the order of

conviction and sentence passed by the trial Court and

prayed for interference by this Court.

6. Having given our anxious consideration to the facts

and circumstances of the case in the light of material on 5

record, we find that multiple statements (dying declarations)

were given by the deceased at different times under varying

circumstances. When the Investigating Officer, PW14—

Jagdish Lal visited the deceased at the hospital and recorded

her statement (Ext. P24) at 1.45 p.m. on 5.9.1982, she told

the I.O. that she was burnt by her mother in law

(respondent) for not meeting her demands of dowry. It was

the neighbouring public who upon hearing her hue and cry,

took her to the hospital. The said statement was given by the

deceased in the presence of one advocate namely Mr.

Purushottam Vyas, her sisters and other relatives in the

hospital. PW14 has also recorded the statement of the

deceased under Section 161, Cr.P.C. (Ext. P29). It is

admitted by PW14—I.O. in the cross examination that before

recording the statements of the deceased (Ext. P24 and P29),

he had not verified from the Doctor, the fitness or otherwise

of the deceased to make statement.

7. However, the record clearly shows that after two

hours of recording Ext. P24 by PW14, learned Magistrate

has also recorded a dying declaration of the deceased, duly 6

obtaining fitness certificate from the Doctor. Whereas, in

that statement given to the learned Magistrate (Ext. P11) at

3.40 p.m. on the date of incident, the deceased did not

mention about the demand of dowry by her mother in law

but specifically told that it was her mother-in-law who

admitted her in the hospital.

8. It is well settled and needs no reiteration at our

hands that dying declaration can form the sole basis for

conviction. At the same time, it is not the plurality of the

dying declarations that adds weight to the prosecution case,

but their qualitative worth is what matters. The settled legal

principle is that dying declaration should be free from

slightest of doubt and shall be of such nature as to inspire

full confidence of the Court in its truthfulness and

correctness. The Court must exercise great caution while

considering the weight to be given to a dying declaration,

particularly when there are more than one dying declaration.

9. The accused—respondent in her statement under

Section 313, Cr.P.C. deposed that at the time of incident, 7

she was not present at the home as she has gone to Gopalji

temple as per her daily routine and while returning from

temple, somebody informed her about the incident.

Immediately, she rushed to home, called her brother

Lalchand for help and took her daughter-in-law to hospital

in a tempo and admitted her in the hospital. When she was

sitting aside the victim in the hospital, the family members

of the deceased along with advocate Mr. Purushottam

arrived there and asked her to go and sit in verandah. While

she was outside the room of the deceased, the advocate and

family members instigated and tutored the deceased to

depose against the accused.

10. The intrinsic worth and reliability of dying

declaration can generally be judged from its tenor and

contents themselves. Here in the case on hand, the so called

dying declarations recorded at the behest of the deceased

create huge doubt on their veracity inasmuch as there was

contradictory variance as to the facts of presence of the

accused at the scene of offence at the time of incident,

bringing the victim to the hospital and impact of the 8

presence and provocation of relatives and advocate at the

time of recording of statement of the deceased. It is also

evident from the record that when PW14 made enquiries in

the vicinity, no one supported the case of prosecution that

the accused had put the deceased on fire. The I.O. (PW14)

categorically deposed that during his enquiry, he found that

at the time of incident, the accused was away from home as

she went to Gopalji temple and it was the accused who first

of all took the deceased to the hospital. It was also made

clear by PW14, that he came to know from the

neighbourhood that the deceased did not want to live at her

matrimonial home and always wanted to live at her parental

home. According to him, the deceased Shanti was well built

woman with strong physique and the accused Ganwara was

weak in comparison to the body structure of deceased

Shanti. Most of the other prosecution witnesses are either

relatives of the deceased or hearsay witnesses and

investigating witnesses and none of them was present at the

time of offence. In the light of foregoing, it can be said that

the allegations levelled against the respondent in the dying 9

declarations have not been corroborated by the material

witnesses.

11. Taking stock of the facts and circumstances of

the case, in our view, the High Court has rightly felt that the

dying declaration in the case on hand did not inspire

confidence so as to award conviction to the accused. In this

state of things, the Court has to give benefit of doubt to the

accused as it is not safe to sustain the conviction as implicit

reliance cannot be placed on the dying declaration under the

peculiar circumstances of the case.

12. For all the aforesaid reasons, we uphold the

impugned order passed by the High Court. The appeal is

accordingly dismissed being devoid of merit.

................................................J. (N.V. RAMANA)

................................................J. (MOHAN M. SHANTANAGOUDAR) New Delhi, August 28, 2018.