Supreme Court of India
ABHISHEK SHARMAversusSTATE (GOVT. OF NCT OF DELHI)
- Citation
- 2023 INSC 924
- Decided
- 18 October 2023
- Disposal
- Appeal(s) allowed
- Bench
- ABHAY S OKA
Holding
The Court held that the multiple dying declarations were unreliable and inadmissible as sole evidence, and without corroborative proof the conviction under Section 302 IPC could not be sustained.
Summary
Abhishek Sharma was convicted of murder under Section 302 IPC for allegedly setting his colleague Mandeep Kaur on fire after a quarrel. The prosecution's case rested on four dying declarations made by the victim to various police officers, a doctor, and her mother. The Supreme Court examined the admissibility and reliability of each declaration, noting that the first was a third‑person report, the second lacked specific identification, the third was not recorded before a magistrate or doctor, and the fourth was an interested witness statement without independent corroboration. The Court applied principles governing multiple dying declarations, emphasizing the need for consistency, voluntariness, and medical fitness, and found material inconsistencies and gaps that undermined the declarations' credibility. In the absence of any other substantive evidence linking the accused to the crime, the Court held that the conviction could not be sustained and allowed the appeal, restoring the appellant's bail.
Issues considered
- The admissibility of multiple dying declarations under Section 32 of the Indian Evidence Act.
- Whether inconsistencies among the dying declarations affect their reliability and can be corroborated by other evidence.
- The impact of the statements being recorded by police officers or a doctor rather than a magistrate on their status as dying declarations.
- The evidentiary value of an interested witness (the victim's mother) without independent corroboration.
- Whether a conviction for murder can be upheld solely on the basis of the dying declarations in the absence of other corroborative evidence.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 32
- Indian Penal Code, 1860s. 302, s. 307
Subjects
Dying declarationMultiple dying declarationsAdmissibilityReliabilityIndian Evidence ActSection 32Indian Penal CodeMurder convictionInterested witnessCorroborationCriminal appeal
Judgment
[2023] 14 S.C.R. 890 : 2023 INSC 924
CASE DETAILS
ABHISHEK SHARMA
v.
STATE (GOVT. OF NCT OF DELHI)
(Criminal Appeal No. 1473 of 2011)
OCTOBER 18, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: The victim-deceased gave four dying
declarations. High Court confirmed the appellant’s conviction and sentence
of life imprisonment u/s. 302 IPC as awarded by the trial Court.
Penal Code, 1860 – s. 302 – Evidence Act, 1872 – Multiple dying
declarations – Prosecution case that appellant and victim had a quarrel,
as the victim had affection for their boss and not for appellant –
Appellant took victim to an open site near a school and in the midst of
an argument, set her on fire – Victim died – Victim had given four dying
declarations – Appellant convicted by the Courts below – Propriety:
Held: The DD-I shows that it was recorded in the third person, as
PW-16-ASI had reported incident – The statement before the court is that
the operator came into ‘DO room’ and reported that PW-16 had found a
girl burning, and it is to him that she stated that appellant, had done this to
her – Had the statement of the deceased, as told to PW-16, been before the
court as it is, the same could have been considered a dying declaration within
the meaning of s.32 IEA – DD-II is, in fact, an entry in the Medico-Legal
Inquiry Register made by PW-8-doctor – It is true that a dying declaration
is not to be discarded on account of brevity, but it is equally true that it
must contain the proximate cause of the deceased’s condition and the reason
therefor – Here, it states the presence of burn injuries and says that the
same was caused by appellant, which, arguably, is insufficient – There is
no particular identification of the convict-appellant, nor is there a mention
of the means through which the injuries were inflicted (petrol) – DD-III
890
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 891
was made to PW-17-SI – Despite this being the third statement given, no
attempt was made to have the same made before a doctor or magistrate,
which, as a rule of prudence, lends support to the prosecution – It reflects
from the record that at the time when the third statement was recorded, the
deceased had been administered treatment for her injuries – However, it
has not come forth as to the nature of treatment and what kind of medicines
were given to her – In the absence of a positive statement by the medical
team responsible for her treatment, it cannot be stated, with certainty, that
the medicines administered had no effect of impairing the mental fitness
of the deceased – Therefore, doubts surrounds DD-III – DD- IV is the
statement of the deceased to her mother – When making the declaration,
there is nothing on record to indicate a) further deterioration in condition
and b) non-availability of a third party, such as a doctor before whom such
a statement could be recorded – The lack of independent corroboration,
particularly when the person making the statement is the mother of the
deceased, the court cannot rule out, to a positive degree, the role played by
a sense of loss and possibly even anger, to rely on such statement – Besides
the alleged dying declarations, there is no evidence to point to the guilt of
the convict-appellant – On perusal of the records, there are inconsistencies
throughout – There are gaps unexplained in the prosecution case. [Paras
15, 16, 17, 19, 26]
Dying Declaration – Multiple dying declarations – The Court to
consider the following principles, when dealing with a case involving
multiple dying declarations:
Held: 1. The primary requirement for all dying declarations is that
they should be voluntary and reliable and that such statements should be in
a fit state of mind; 2. All dying declarations should be consistent – In other
words, inconsistencies between such statements should be ‘material’ for its
credibility to be shaken; 3. When inconsistencies are found between various
dying declarations, other evidence available on record may be considered
for the purposes of corroboration of the contents of dying declarations; 4.
The statement treated as a dying declaration must be interpreted in light of
surrounding facts and circumstances; 5. Each declaration must be scrutinized
on its own merits – The court has to examine upon which of the statements
reliance can be placed in order for the case to proceed further; 6. When there
892 SUPREME COURT REPORTS [2023] 14 S.C.R.
are inconsistencies, the statement that has been recorded by a Magistrate or
like higher officer can be relied on, subject to the indispensable qualities of
truthfulness and being free of suspicion; 7. In the presence of inconsistencies,
the medical fitness of the person making such declaration, at the relevant
time, assumes importance along with other factors such as the possibility
of tutoring by relatives, etc. [Para 9]
LIST OF CITATIONS AND OTHER REFERENCES
Kamla v. State of Punjab (1993) 1 SCC 1; State of Punjab v. Parveen
Kumar (2005) 9 SCC 769: [2005] 9 SCC 769; Amol Singh v. State of M.P.
(2008) 5 SCC 468: [2008] 8 SCR 956; Lakhan v. State of M.P (2010) 8
SCC 514: [2010] 9 SCR 705; Makhan Singh v. State of Haryana (2022)
SCC OnLine SC 1019; Ashabai v. State of Maharashtra (2013) 2 SCC
224: [2013] 1 SCR 115; Jagbir Singh v. State (NCT of Delhi) (2019) 8
SCC 779: [2019] 11 SCR 1137; Uttam v. State of Maharashtra (2022) 8
SCC 576 – relied on.
Sher Singh v. State of Punjab (2008) 4 SCC 265: [2008] 2 SCR 959;
Chacko v. State of Kerala (2003) 1 SCC 112; P.V. Radhakrishna v. State of
Karnataka (2003) 6 SCC 443: [2003] 1 Suppl. SCR 745; Surinder Kumar
v. State of Haryana (2011) 10 SCC 173: [2011] 12 SCR 1205; Khushal Rao
v. State of Bombay AIR 1958 SC 22: [1958] SCR 552; Hari Obula Reddy
and others v. The State of Andhra Pradesh (1981) 3 SCC 675; Pulicherla
Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC
444: [2006] 4 Suppl. SCR 633 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1473 of 2011
From the Judgment and Order dated 31.05.2010 of the High Court of
Delhi at New Delhi in CRLA No.431 of 2009
Appearances:
Ms. Kamini Jaiswal, Anish Dhingra, Ms. Rani Mishra, Advs. for the
Appellant.
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 893
Ms. Aishwarya Bhati, A.S.G., Ms. Kiran Suri, Ms. Sonia Mathur, Sr.
Advs., Ms. Snidha Mehra, Ms. Rukhmini Bobde, Sanjay Kr. Tyagi, Adit
Khorana, Shubranshu Padhi, Udai Khanna, Arun Kumar Yadav, Shreekant
Neelappa Terdal, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJAY KAROL J.
1. This appeal impugns a judgment and order of conviction passed
by the High Court of Delhi in Criminal Appeal No. 431 of 2009 dated 31
May 2010, confirming the Appellant- Abhishek Sharma’s sentence of life
imprisonment under Section 302 of the Indian Penal Code, 18601, as awarded
by Additional Sessions Judge, Delhi, vide judgment dated 30 April 2009.
FACTS
2. The facts, as reflected in the judgments of the courts below, are: -
2.1 Abhishek Sharma2 and Mandeep Kaur3 were colleagues at M/s
Sai Telecom at Saraswati Vihar, Delhi where the former was a
customer care executive and the latter the team leader/operation
manager. On the intervening night of 20th-21st September 2007,
the deceased was found engulfed in flames near the Queen
Mary School, Model Town, Delhi. Despite efforts to save her
at two different hospitals, namely LNJP Hospital and Maharaja
Agrasen Hospital, she passed away on 03 October 2007.
2.2 It is recorded that a friendship had developed between these two
persons, and the convict-appellant would often drive her home
after work, which would end at around midnight. Allegedly,
due to a quarrel in regards to her affections being not for him
but instead for their boss, he took her to an open site near a
school and, in the midst of an argument, set her on fire.
1 For Short, IPC
2 Hereinafter referred to as “convict-appellant”
3 Hereinafter referred to as the “Deceased”
894 SUPREME COURT REPORTS [2023] 14 S.C.R.
2.3 On the way to the hospital, the deceased told Anoop Singh
(PW-16) that the convict-appellant had set her ablaze. SI
Balwant Singh (PW-17), along with Constable Paramjit Singh,
recorded her statement, based on which an FIR under Section
307 IPC, was registered. The convict-appellant was arrested
on 21 September 2007. Upon completing the investigation, a
challan was presented to the Trial Court for proceeding against
him under Section 302 IPC on 06 February 2008.
FINDINGS OF THE TRIAL COURT
3. In support of its case, the prosecution examined a total of 25
witnesses. Following is a tabular representation thereof:-
Sr. FORMAL MATERIAL MEDICAL
No. WITNESSES WITNESSES WITNESSES
1. PW1- HC Rajiv PW16- ASI Anoop PW7- Dr. Lata Sr.
Kumar Singh Resident
a duty officer In charge PCR Van prepared the death
Commander 63 summary of the
deceased
2. PW2- Ct. Dalbir PW15- Ct. Subodh PW8- Dr. S.N. Basna
Singh Kumar
working as CMO in
photographer has accompanied PW16 LNJP Hospital
in the PCR Van
3. PW4- SI Manohar La PW17- SI Balwant PW12- Dr. K. Goyal
Singh
draftsman conducted the
he obtained the MLC of postmortem of the
the injured deceased
4. PW9- Ct. Mukesh PW13- Ct. Paramjit PW18- Dr. Raj
Singh
took sealed parcels examined the deceased
to deposit the same did the investigation,
at CFSI along with SI Balwant
Singh
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 895
[SANJAY KAROL, J.]
5. PW10- HC Pramod PW5- Smt. Jasmer PW19- Dr. Sanjay S.R.
Kumar Kaur Surgery
posted at MHC(M) mother of the deceased examined the accused,
Abhishek Sharma
6. PW11- HC Naresh PW6- Sh. Yashin PW20- Dr. Geeta
Kumar Nagpal Ramakrisan
accompanied SI partner of M/S Sai Micro Biologist who
Balwant Singh to Telecom, where the examined the blood
Maharaja Agarsen deceased and accused sample of the deceased
Hospital were working
7. PW14- ASI Suresh PW3- Hemant Aneja PW22- Dr. Ashish
Chand Sharma
brother-in-law of the
he went to the spot deceased proved the MLC
for an inspection
8. PW21- Sh. K.K. PW24- Shri Pradeep
Sharma Kumar Misra
record clerk from Junior Scientific
Maharaja Agarsen Officer, CFSL,
Hospital Calcutta, examined
the blood and hair
samples.
9. PW23- Inspector PW25- Shri Bijayantra
Harish Chander Mukhopadhyay
got the site plan Junior Scientific
prepared by SI; Officer, CFSL,
recorded the Calcutta, examined
statement of the plastic bottle with
MHC(M); burnt material.
4. Testimonies of PW18, PW8, and PW12 (Doctors) have established
that the deceased died due to burn injuries, ante mortem in nature which
facts further stand corroborated by PW16, PW17, PW5, and PW6.
4.1 The deceased gave four dying declarations. The First4 was
given to a police officer PW16 i.e., the person who, in the
4 For ease, DD-I
896 SUPREME COURT REPORTS [2023] 14 S.C.R.
PCR van, reached the spot of the crime and took the deceased
to the LNJP Hospital. Even though the defense on the ground
questioned the veracity of this declaration that PW15, who
was with PW16 while the deceased was taken to the hospital,
had not heard the statement being made, the Trial Court found
the same to have been established since there was nothing to
show that she had been tutored to state thus or that there was
no possibility of her having made such a statement.
4.2 The second5 was given to Dr. Raj (PW-18), who had examined
the deceased and prepared the MLC. She deposed that the
deceased was fit to give a statement and that “by Abhishek”
was not written subsequently. PW8 corroborated her statement.
The doctors’ testimonies remained unchallenged, and therefore,
the defense’s attempts to term the testimonies as unreliable
were not found to be correct by the Trial Court.
4.3 The third6 dying declaration was given to PW17, based on
which the FIR was registered. The defense questioned this
declaration on the ground that the police had obtained the
signatures of the deceased on a blank paper, and the same was
manipulated into an FIR. The argument of the defense that a
doctor did not attest the same did not find favor with the court,
which stated that as per “Sher Singh Vs State of Punjab”7,
the endorsement of the doctor is only a matter of prudence.
The court held that the deceased had clearly shown the motive
and intention of the convict-appellant to kill her.
4.4 The fourth8 dying declaration was given to PW 5 (mother of
the deceased). In her deposition, examination-in-chief and
cross-examination, it is clearly shown that the deceased was
in a fit state of mind to give a statement. It has come forth that
this statement was made on 22 September 2007, which was
5 For ease, DD-II
6 For ease, DD-III
7 (2008) 4 SCC 265
8 For ease, DD-IV
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 897
[SANJAY KAROL, J.]
much prior to the deterioration of her condition, because of
which she was put on ventilator support six days before her
death on 03 October 2007.
4.5 Consequent to the above discussion, the Trial Court found
all four dying declarations to be consistent, voluntarily
made, and in a fit mental condition. Further, concerning the
testimonies of PW6, namely Yasin Nagpal, it is established
that the deceased was last seen in the convict-appellant’s
company when they left the office at around 12:30 AM. The
convict-appellant’s statement under Section 313 of the Code of
Criminal Procedure,1973 stated that he left the office at 12:00
AM and the deceased was still in office.
4.6 The Court found that the statement of the convict-appellant
was not credible, and the statement of PW6 was unblemished
and unchallenged.
4.7 In view thereof, the convict-appellant was found guilty and
convicted under Section 302, IPC.
FINDINGS OF THE HIGH COURT
5. It was observed that the homicidal nature of the death is undisputed.
In respect of each of the dying declarations, the High Court agreed with the
conclusions arrived at by the Trial Court and observed that the appeal was
devoid of merits. The High Court’s reasoning per each such declaration is
referred to below:-
5.1 DD-I given to PW16 was sought to be challenged on the ground
that PW15 had not heard the statement being made. The court
noted that in his cross-examination, PW15 had stated that the
deceased “might have told the fact that convict-appellant was
responsible for the incident”. It was further observed that the
driver of such a vehicle, when is focused on taking a patient
with serious injuries to the hospital with the siren blaring, it
is no surprise that he did not hear what the deceased stated to
PW16.
898 SUPREME COURT REPORTS [2023] 14 S.C.R.
5.2 DD-II was made to PW18, which, it has been observed, was
entirely in tune with DD-I made to PW16. The concerned
doctor has also deposed regarding the deceased’s fitness when
making such a statement. The addition of “by Abhishek” was
not found credible by the High Court as PW18 has denied the
same, and no reason was found to disbelieve doctors.
5.3 DD-III was made at 3.30 AM to PW17. This statement also
names the convict-appellant. It was observed that between
1.40 AM and 3.30 AM, three consecutive statements were
given by the deceased, and the time from when she was found
in a burnt condition to the registration of an FIR is barely two
hours.
5.4 DD-IV was sought to be discredited on the ground that PW5
was an interested witness. This argument has been termed
“hardly any argument,” and therefore, in view of the High
Court, DD-IV also stood proven.
6. An additional ground taken before the High Court was that a person
with 25 % burn injuries could not have given detailed statements. This was
disregarded by the court, considering that a doctor had specifically deposed
to her fit mental condition. Additionally, the submission in respect of Chapter
13 of Punjab and Haryana High Court Rules, which prescribe the procedure
for recording of dying declarations, was held not to be of any aid to the
convict-appellant as it was observed that simply because the rules were not
complied with, the dying declarations could not be discarded if they had
withstood strict scrutiny after applying all cautions.
7. For the aforesaid reasons, the judgment of the Additional Sessions
Judge, Tis Hazari, West Delhi, was affirmed.
OUR VIEW
8. Before proceeding to the merits of this matter, it would be appropriate
to appreciate the various principles of law laid down by this court in regard
to cases involving multiple dying declarations.
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 899
[SANJAY KAROL, J.]
8.1 This Court in Kamla v. State of Punjab9 has held:
“5. It is well settled that dying declaration can form the sole
basis of conviction provided that it is free from infirmities
and satisfies various tests (vide Khushal Rao v. State of
Bombay [AIR 1958 SC 22 : 1958 SCR 552 : 1958 Cri LJ
106] ). The ratio laid down in this case has been referred
to in a number of subsequent cases with approval. It is
also settled in all those cases that 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. If a dying declaration is found to be
voluntary, reliable and made in fit mental condition, it can
be relied upon without even any corroboration. In a case
where there are more than one dying declaration if some
inconsistencies are noticed between one and the other,
the court has to examine the nature of the inconsistencies
namely whether they are material or not. In scrutinising the
contents of various dying declarations, in such a situation,
the court has to examine the same in the light of the various
surrounding facts and circumstances.”
8.2. In State of Punjab v. Parveen Kumar10, this court further
observed:
“10. …. The court must be satisfied that the dying
declaration is truthful. If there are two dying declarations
giving two different versions, a serious doubt is created
about the truthfulness of the dying declarations. It may be
that if there was any other reliable evidence on record, this
court could have considered such corroborative evidence to
test the truthfulness of the dying declarations...”
9 (1993) 1 SCC 1(2-Judge Bench)
10 (2005) 9 SCC 769 (2-Judge Bench)
900 SUPREME COURT REPORTS [2023] 14 S.C.R.
8.3. In Amol Singh v. State of M.P.11,
“13. … 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 scrutinising the contents of
various dying declarations, in such a situation, the court has
to examine the same in the light of the various surrounding
facts and circumstances.”
8.4. Faced with multiple dying declarations, this Court in Lakhan
v. State of M.P12 observed-
“21. … In case there are multiple dying declarations and
there are inconsistencies between them, generally, the dying
declaration recorded by the higher officer like a Magistrate
can be relied upon, provided that there is no circumstance
giving rise to any suspicion about its truthfulness. In case
there are circumstances wherein the declaration had been
made, not voluntarily and even otherwise, it is not supported
by the other evidence, the court has to scrutinise the facts
of an individual case very carefully and take a decision as
to which of the declarations is worth reliance.”
This judgment was also referred to by this court recently in
Makhan Singh v. State of Haryana13.
8.5. In Ashabai v. State of Maharashtra,14 the court observed:-
“15. When there are multiple dying declarations, each dying
declaration has to be separately assessed and evaluated
and assessed independently on its own merit as to its
evidentiary value and one cannot be rejected because of
certain variations in the other.”
11 (2008) 5 SCC 468 ( 2-Judge Bench)
12 (2010) 8 SCC 514 (2-Judge Bench)
13 (2022) SCC OnLine SC 1019 (2-Judge Bench)
14 (2013) 2 SCC 224 (2-Judge Bench)
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 901
[SANJAY KAROL, J.]
8.6. In Jagbir Singh v. State (NCT of Delhi),15 the following
principles were observed:
31. A survey of the decisions would show that the principles
of declarations can be culled out as follows:
….
31.6. However, there may be cases where there are more
than one dying declaration. If there are more than one
dying declaration, the dying declarations may entirely
agree with one another. There may be dying declarations
where inconsistencies between the declarations emerge.
The extent of the inconsistencies would then have to be
considered by the court. The inconsistencies may turn out
to be reconcilable.
31.7. In such cases, where the inconsistencies go to some
matter of detail or description but is incriminatory in nature
as far as the Accused is concerned, the court would look
to the material on record to conclude as to which dying
declaration is to be relied on unless it be shown that they
are unreliable;
31.8. The third category of cases is that where there are more
than one dying declaration and inconsistencies between the
declarations are absolute and the dying declarations are
irreconcilable being repugnant to one another. In a dying
declaration, the Accused may not be blamed at all and
the cause of death may be placed at the doorstep of an
unfortunate accident. This may be followed up by another
dying declaration which is diametrically opposed to the
first dying declaration. In fact, in that scenario, it may not
be a question of an inconsistent dying declaration buta
dying declaration which is completely opposed to the
dying declaration which is given earlier. There may be
more than two.”
15 (2019) 8 SCC 779 (2-Judge Bench)
902 SUPREME COURT REPORTS [2023] 14 S.C.R.
8.7. In Uttam v. State of Maharashtra,16 this court observed:
“15. In cases involving multiple dying declarations made
by the deceased, the question that arises for consideration
is as to which of the said dying declarations ought to be
believed by the court and what would be the guiding factors
for arriving at a just and lawful conclusion. The problem
becomes all the more knotty when the dying declarations
made by the deceased are found to be contradictory. Faced
with such a situation, the court would be expected to
carefully scrutinise the evidence to find out as to which of
the dying declarations can be corroborated by other material
evidence produced by the prosecution. Of equal significance
is the condition of the deceased at the relevant point in
time, the medical evidence brought on record that would
indicate the physical and mental fitness of the deceased,
the scope of the close relatives/family members having
influenced/tutored the deceased and all the other attendant
circumstances that would help the court in exercise of its
discretion.”
9. Having considered various pronouncements of this court, the
following principles emerge, for a Court to consider when dealing with a
case involving multiple dying declarations:
9.1 The primary requirement for all dying declarations is that
they should be voluntary and reliable and that such statements
should be in a fit state of mind;
9.2 All dying declarations should be consistent. In other words,
inconsistencies between such statements should be ‘material’
for its credibility to be shaken;
9.3 When inconsistencies are found between various dying
declarations, other evidence available on record may be
considered for the purposes of corroboration of the contents
of dying declarations.
16 (2022) 8 SCC 576 (2-Judge Bench)
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 903
[SANJAY KAROL, J.]
9.4 The statement treated as a dying declaration must be interpreted
in light of surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits. The
court has to examine upon which of the statements reliance
can be placed in order for the case to proceed further.
9.6 When there are inconsistencies, the statement that has been
recorded by a Magistrate or like higher officer can be relied
on, subject to the indispensable qualities of truthfulness and
being free of suspicion.
9.7 In the presence of inconsistencies, the medical fitness of the
person making such declaration, at the relevant time, assumes
importance along with other factors such as the possibility of
tutoring by relatives, etc.
10. We must also notice certain judgments of this court where the
extent of burn injuries sustained by the deceased was considered.
10.1 In Chacko v. State of Kerala17 this court declined to accept
a dying declaration made by a person, 70 years of age, having
sustained 80% burns. Therein, the declaration was recorded
8-9 hours after burns, giving minute details as to motive
and manner. It was opined that the condition of the patient
described as “conscious, talking” in the wound certificate
would in and of itself not testify to the condition of the patient
making such declaration, nor would the oral evidence of the
doctor or Investigating Officer.
10.2 In P.V. Radhakrishna v. State of Karnataka 18 it was
observed that there cannot be any hard and fast rule, lending
itself to uniform application on the question whether the
percentage of burns suffered is a determinative factor to
affect the credibility of the dying declaration. The same
17 (2003) 1 SCC 112(2-Judge Bench)
18 (2003) 6 SCC 443(2-Judge Bench)
904 SUPREME COURT REPORTS [2023] 14 S.C.R.
would depend on the nature of the burns, the body parts
affected, and the effect thereof on mental faculties, as well
as other factors.
10.3 In Surinder Kumar v. State of Haryana 19 the dying
declaration made by a person having 95-97% burn injuries was
not accepted given that at the time of making the declaration,
the deceased was under the influence of Fortwin and Pethidine
injections, because of which she could not have had normal
alertness.
11. This Court in Uttam(supra) followed the principle as held in
Khushal Rao v. State of Bombay20 that in order to test the reliability of a
dying declaration, the court has to keep in view, the circumstances like the
opportunity of the dying man for observation, for example, whether there
was sufficient light if the crime was committed at night; whether the capacity
of the man to remember the fact stated, had not been impaired at the time
he was making the statement, by circumstances beyond his control; that the
statement has been consistent throughout if he had several opportunities of
making a dying declaration apart from the official record of it; and that the
statement had been made at the earliest opportunity and was not the result
of tutoring by interested parties.
12. Having meditated on the above-extracted principles, we now
proceed to examine them in the instant facts.
13. DD-I reads as under:
“DD No. 8A dt 21/09/07 PS Model Town Delhi
Information from PCR and despatch.
Received in the night at 1:55. 058 Operator came in the DO
room and reported that ASI Anoop Singh No. 5331/PCR has
reported that on girl was burning behind Queen Mary School,
Model Town Quarter. Her name is Mandeep D/o Late Harender
Singh r/o AJ-55C, Shalimar Bagh, Age 22 years. Works at Call
19 (2011) 10 SCC 173 (2-Judge Bench)
20 AIR 1958 SC 22 (3-Judge Bench)
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 905
[SANJAY KAROL, J.]
Center. She told that my friend Abhishek Sharma has done this.
On reaching LNJP, Burari a PCR call information was recorded
in Roznamacha and a copy of the report was sent to SI Balwant
Singh through Ct. Rameshwar, 5053/DHG.
Sd/-
HC/DO
//True Translated Copy//”
14. A perusal of the dying declaration as above shows it to have
been recorded in the third person, that is to say, that ASI Anoop Singh had
reported on the incident of the victim being burned and that she had told
him that her friend Abhishek Sharma had done so. Undoubtedly, Section
32 IEA is an exception to the rule of hearsay, however, the same would not
be applicable in the present case.
15. The statement before the court is that the operator came into ‘DO
room’ and reported that ASI Anoop Singh (PW16) had found a girl burning,
and it is to him that she stated that Abhishek Sharma, convict-appellant,
had done this to her. So, as is evident, this statement is three degrees
removed from the deceased and thereby unprotected by this exception as the
statements far removed from the original maker of the statement cannot be
exempted more so when reliance on the same results in a penal consequence.
Had the statement of the deceased, as told to PW16, been before the court
as it is, the same could have been considered a dying declaration within the
meaning of this section.
16. DD-II is, in fact, an entry in the Medico-Legal Inquiry Register
made by Dr. Raj (PW8) at 2:15 AM dt. 21.09.2007, which records “alleged
h/o burn at …in front of Queen Mary School, North Campus, Model
Town, Delhi at around 1:40 AM dated 21/09/07 as told by the patient”
then considerable gap exists in this record and below this is recorded “by
Abhishek.”
17. It is true that a dying declaration is not to be discarded on account
of brevity, but it is equally true that it must contain the proximate cause of
the deceased’s condition and the reason therefor. Here, it states the presence
of burn injuries and says that the same was caused by Abhishek, which,
906 SUPREME COURT REPORTS [2023] 14 S.C.R.
arguably, is insufficient. There is no particular identification of the convict-
appellant, nor is there a mention of the means through which the injuries
were inflicted (petrol).
18. DD-III was made at 3:30 AM to PW-17, and the same is extracted
below:
“Statement of Mandeep Kaur D/o Sardar Harinder Singh R/o AJ-55C,
Shalimar Bagh, Delhi aged 22 years, Mobile No. 9811448556.
I am residing with my brother Inderjeet Singh on the abovementioned
address and working as office manager in call centre of said telecom at
Saraswati Vihar. Today I got free from my duty at 1 AM, I was coming
back from duty with my friend Abhishek Sharma who is residing at
Model Town. Abhishek Sharma was threatening me from so many
day to kill and today he forcibly took me to Queen Mary School
Model Town III inspite of dropping me at my residence in Shalimar
Bagh and after stopping the car at Queen Mary School Model Town
III, he got down from his car also got me down from the car poured
the bottle of oil on me which he had kept in his car and told me that
you don’t love me and you only love to the company’s boss. At this
point we got into heated argument and quarrelled between us and
Abhishek put me on fire with matchstick to the poured oil. I got
injured from back portion of my body with burning of Kameej and
salwar and in the meantime PCR van came at the site and Abhishek
absconded from the place of occurrence and PCR van got me admitted
at JPN Hospital. Abhishek has attempted to kill me after pouring
the oil. Legal action may kindly be taken against Abhishek Sharma.
Statement heard right. Sd/English Mandeep Kaur attested Balwant
Singh SIPS Model Town Delhi 21.09.07 Duty Officer PS Model
Delhi it is submitted that today after receiving DD No.8A, I went to
JPN Hospital with Ct. Paramjeet Singh No. 2678/NW, found patient
Mandeep Kaur fit for statement vide MLC No. 105892 and Kumari
Mandeep Kaur gave her statement, her statement was read by me in
front of her. She got her statement right and signed in English. I got
it verified, from the statement, conditions and MLC the occurrence of
crime U/s 307 IPC is made out. Thus, rukka is sent with Ct Paramjeet
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 907
[SANJAY KAROL, J.]
No. 2673/NW to register the FIR and to inform IO with FIR No and
crime team be directed to the place of occurrence. Date & Time of
occurrence 1.40 AM dated 21.09.07, Place of occurrence in front
of Queen Marry School, Model Town, Delhi, Date & Departure of
Rukka: 2.50 AM dated 21.09.07 SI Balwant Singh D-800 PS Model
Town Delhi PIS No. 29680224. After registering the FIR the original
rukka with FIR copy was sent to SI who was busy in investigation
at the place of occurrence. The information of the FIR will be sent
to senior officer by post.”
19. Despite this being the third statement given, no attempt was made
to have the same made before a doctor or magistrate, which, as a rule of
prudence, lends support to the prosecution. It reflects from the record that
at the time when the third statement was recorded, the deceased had been
administered treatment for her injuries. However, it has not come forth as
to the nature of treatment and what kind of medicines were given to her. In
the absence of a positive statement by the medical team responsible for her
treatment, it cannot be stated, with certainty, that the medicines administered
had no effect of impairing the mental fitness of the deceased. There is no
medical opinion placed on record in this behalf. Therefore, with the cloud
of doubt surrounding DD-III, it is but natural that the court looks to other
circumstances and evidence to satisfy the requirement of the statement
made as being true and voluntary. The other circumstances present shall be
discussed at a later stage.
20. The credibility of DD-IV has been assailed on the ground that it
is, in fact, the statement of the deceased to the mother and that the latter
would be an interested witness. The statement of the mother given to the
police is reproduced below:
“TRUE TRANSLATED COPY OF STATEMENT OF SMT
JASMAIR KAUR
FIR/DD NO. 615/07 DATE: 21.09.2007 U/s 307,302 Indian Penal
Code, Police Station : Model Town, Delhi.
Statement of Jasmair Kaur W/o Late Sardar Harvinder Singh, age
61 years, R/o House No. 17-F, Ward No.15, Govind Nagar, Roped,
Punjab
908 SUPREME COURT REPORTS [2023] 14 S.C.R.
STATEMENT
Made the statement that I use to stay in the above address with my
family and I am housewife. There was set in fire by pouring petrol
on my daughter on 21.09.2007 by Abhishek Sharma, who was
admitted in LNJP Hospital by police, on the same day, I along with
family members made the arrangements to admit her in Maharaja
Agersain Hospital with the intention to give her good treatment.
During the treatment, my daughter namely Km. Mandeep Kaur died
in the hospital today as on 03.10.2007 at about 3.35 am at Maharaja
Agarsain Hospital, I identified her dead body at BJRM Hospital.
This is the dead body of my daughter namely Km. Mandeep Kaur,
who died due to set in fire.
Heard the statement and found correct.
Sd/-
Jasmair Kaur
Attested by
Sd/-
SI,
Balwant Singh
Police Station: Model Town, Delhi
Date: 03.10.2007
Sd/-
SI, Balwant Singh
Police Station: Model Town, Delhi
Date: 03.10.2007”
21. We notice that in her cross-examination, this witness denies ever
having made any statement to the police on 03 October 2007. Be that as it
may, assuming that she actually made such a statement, we are of the view
that still, such a statement, in no manner can be said inculpatory towards the
accused, for it is lacking in particulars with regard to the person mentioned
therein, i.e., Abhishek Sharma and having no linkage for the same which
could lead to the accused person.
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 909
[SANJAY KAROL, J.]
22. It is evident from the above that the dying declaration does not
exist in any written or other verifiable form. Here, only we may refer to
the examination-in-chief of PW-5 (mother of the deceased) post, which,
taking both the statement and the testimony together, the evidentiary value
of DD-IV shall be examined.
23. The relevant portion of her testimony (examination-in-chief)
allegedly implicating the accused is extracted as follows:-
“Mandeep had told me that Abhishek had taken her in car from her
office. He did not leave her at her resident but had taken her to a place
in Model Town. She was made to come out of the car. Since she did
not come out, she was beaten up by Abhishek. As soon as she came
out from the car, Abhishek poured petrol on her and set her on fire”.
24. It is important to appreciate the law on interested witnesses as
enunciated by this court. In Hari Obula Reddy and others v. The State of
Andhra Pradesh21, a three-judge Bench has held that evidence of interested
witnesses is not necessarily unreliable evidence. Even partisanship by
itself is not a valid ground for discrediting or rejecting sworn testimony. It
cannot be laid down as an invariable rule that interested evidence can only
form the basis of conviction if corroborated to a material extent in material
particulars by independent evidence. All that is necessary is that the evidence
of interested witnesses should be subjected to careful scrutiny and accepted
with caution. Suppose on such scrutiny, the interested testimony is found
to be intrinsically reliable or inherently probable. In that case, it may, by
itself, be sufficient, in the circumstances of the particular case, to base a
conviction thereon.
25. Further, in Pulicherla Nagaraju alias Nagaraja Reddy v.
State of Andhra Pradesh22, while dealing with the liability of interested
witnesses who are relatives, a two-judge Bench observed that it is well
settled that evidence of a witness cannot be discarded merely on the ground
that he is either partisan or interested or close relative to the deceased if
it is otherwise found to be trustworthy and credible. The said evidence
21 (1981)3 SCC 675(3-Judge Bench)
22 (2006) 11 SCC 444 (2-Judge Bench)
910 SUPREME COURT REPORTS [2023] 14 S.C.R.
only requires scrutiny with more care and caution so that neither the
guilty escapes nor the innocent is wrongly convicted. If, on such careful
scrutiny, the evidence is found to be reliable and probable, then it can be
acted upon. If it is found to be improbable or suspicious, it ought to be
rejected. Where the witness has a motive to falsely implicate the convict-
appellant, his testimony should have corroboration regarding material
particulars before it is accepted.
26. DD-IV is the statement of the mother (who is not a resident of
Delhi and would have only reached Delhi upon being informed of such
an incident) wherein the deceased had disclosed specific facts about the
occurrence to her mother. When making the declaration, there is nothing
on record to indicate a) further deterioration in condition and b) non-
availability of a third party, such as a doctor before whom such a statement
could be recorded. The Convict-appellant has assailed the statement’s
veracity on the ground that, being the mother of the deceased, PW5 is an
interested witness. The general rule for appreciation of evidence rendered
by an interested witness is that the same should be corroborated by other
independent evidence. Considering the nature of the statement made by
the deceased to the mother, independent corroboration is difficult. Keeping
in view the two factors enumerated above and the lack of independent
corroboration, particularly when the person making the statement is the
mother of the deceased, the court cannot rule out, to a positive degree,
the role played by a sense of loss and possibly even anger, to rely on such
statement. Had there been some sort of corroboration with other persons
being present, the same could have been relied on. However, in the absence
thereof, reliance on the same would prejudice the convict-appellant, and
therefore, the same cannot be justified.
27. Such unreliability of this statement is enhanced by the fact that
there is a material difference between the statement of the mother treated
as DD-IV and her deposition in which she claims the convict-appellant
to have physically assaulted the deceased before setting her on fire. In
contrast, none of the other statements made to the police officials or the
doctor reflect such an occurrence. Also, the MLC does not record any
physical injury apart from the 30% burns sustained. This can be said to be
an improvement/exaggeration that originates in a desire to see the convict-
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 911
[SANJAY KAROL, J.]
appellant punished for a crime he has allegedly committed. Another crucial
difference between the statement and the testimony is that in the statement
made to the police, the fact that “Abhishek poured petrol on her and set her
on fire” is conspicuously absent from there.
28. DD-I raises only questions and provides no context or answers to
the incident. It is a statement that only mentions that one person, i.e., the
convict-appellant, was the person responsible for the injured condition of the
deceased. Keeping this in view and then taking note of subsequent conduct
of the hospital as well as the investigating authorities forces us to ask certain
questions- a) Given that the declaration only mentioned the name Abhishek
Sharma and not any other particulars which may be relevant and helpful in
the process of identification such as telephone, address details, description
of convict-appellant, place of work, etc., how is it that the investigating
authorities got in touch with the employer? b) If such a call was made, why
is there no record of the same? c) The statement was recorded at 1:55 AM,
and the manager of the call centre where both the convict–appellant and
the deceased were employees was contacted at 2:00 AM as is evident from
his uncontroverted testimony- in view of the above, how was this possible?
The record does not reflect as to how the police zeroed in on him.
29. Another question that may be asked is that when DD-I was reported,
and a doctor took DD-II, why was it only after the recording of DD-III that
an FIR was lodged? We must also consider that, as per DD-II, the burns
received by the deceased were on the back, arm, shoulder, and hair, resulting
in superficial and deep burns amounting to 30%. In such a situation, can
it be said that there was a reasonable apprehension of death, making the
statements admissible as dying declarations?
30. The convict-appellant was not seen at the spot of the crime, nor
has the last seen theory been invoked by the prosecution to establish that the
deceased and he were together at the time and place of the incident. There
is no evidence on record to show what transpired in the investigation of
the police from the time of DD-I when, allegedly, the police came to know
of the convict-appellant having committed this crime against the deceased
and when he was finally arrested at 8 PM.
31. From the aforesaid discussion, it is clear that DD-I and DD-IV
must entirely be ruled out on the grounds of a degree of hearsay and that
912 SUPREME COURT REPORTS [2023] 14 S.C.R.
of an interested witness with no corroboration. Regarding DD-II, the
suspicion of interpolation and subsequent insertion of the first name of the
convict-appellant has not been sufficiently dispelled, for no satisfactory
explanation stands accorded for the prominent gap. Regarding DD-III, it
is found that the mental state in which it is made cannot be ascertained
as there is no discussion on the treatment given to the deceased. In the
absence of such clarification, such a statement cannot be relied on without
corroboration.
32. Further, on perusal of the record, we find inconsistencies to be
dotted throughout. For instance, PW13 states that he, along with PW17,
had left the police station at about 1:55 AM to go to the hospital where the
deceased had been admitted. Upon reaching there, it is PW13’s case that
the brother of the deceased was present there. However, on the contrary,
PW17 states that while he was in the hospital, “no relation of the injured
had arrived in the emergency.” It is unclear how and when the authorities
obtained contact details of the brother and got him to come to the hospital.
Further confusion arises from the statement of PW5, who stated that she
did not live in Delhi and came here in the company of her son and visited
the hospital the next day, i.e. on 22 September 2007. Intriguingly, the
prosecution did not find it fit to examine the brother, which could have
thrown light upon the deceased’s relationship with the convict-appellant,
among other essential facts.
33. It is undisputed that the deceased was in a position to speak up
until six days prior to her death when she was put on life support. Yet the
non-recording of the deceased’s statement in the presence of the Magistrate
or actual ascertainment of her fitness to make statements by doctors remains
unexplained.
34. Additionally, we may note that apart from the alleged dying
declarations of the deceased, there is no evidence on record to point to
the guilt of the convict-appellant. It is an established principle that a
dying declaration, if it is free of tutoring, prompting, etc. can form the
sole basis of conviction. However, having perused the record minutely,
we do not find even a scintilla of evidence by which we may uphold the
judgments of the courts below. For instance, nothing on record indicates-
the ownership of a vehicle by the convict-appellant; any disagreement
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI) 913
[SANJAY KAROL, J.]
or animosity between the convict-appellant and the deceased, that is of
such an extreme nature as to set her on fire; any connection between the
convict-appellant and the inflammable substance used to kill the victim
such as the record of purchase or statement of any person to show such
substance to be in possession of the convict-appellant, etc. These factors
and the fact that the crime in question occurred at an open public access
place cast doubt on the prosecution case.
35. Considering the aforementioned factors, placing the gauntlet of
guilt upon the convict-appellant based on dying declarations when no other
material particulars, apart from his name, could be elicited therefrom would
be unjustified. Furthermore, when considering other circumstances that may
or may not point to the guilt of the convict-appellant, as discussed above, we
find gaps unexplained in the prosecution case, which cast sufficient doubt
as to leave the case short of the threshold of beyond reasonable doubt.
36. Consequently, the Appeal is allowed. The bail granted to the
convict-appellant vide order dated 21.10.2013 is confirmed, and the bail
bonds stand discharged.
37. Interlocutory Applications, if any, stand disposed of.
Headnotes prepared by: Appeal allowed.
Ankit Gyan
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