Holding

A dying declaration is admissible and can form the basis of conviction even if the declarant dies after a lapse of days, provided it is reliable and not tainted by tutoring.

Summary

The deceased, Maniben, was allegedly burnt by her mother‑in‑law and brother‑in‑law after a domestic dispute. She gave a dying declaration to the police and later to a magistrate, identifying both accused as responsible. Both were convicted on the basis of that declaration, which the High Court upheld. On appeal, the accused contended that the declaration was unreliable due to alleged discrepancies, the 25‑day gap between injury and death, and possible tutoring by the husband. The Supreme Court held that the statements were consistent, that a dying declaration remains admissible even after a lapse of days, and that no tutoring was proved; the conviction could rest on the declaration without further corroboration. Consequently, the appeal was dismissed and the convictions affirmed.

Issues considered

Whether a dying declaration remains admissible when the declarant dies after a considerable period (25 days) following the incident.
Whether inconsistencies in the deceased's statements render the dying declaration unreliable.
Whether the dying declaration was tainted by tutoring or prompting from the husband.
Whether a conviction can be sustained solely on a dying declaration without corroborative evidence.
Whether the defence theory of suicide is tenable in view of the facts.

Legislation cited

Indian Evidence Act, 1872s. 32

Subjects

Dying declarationEvidence Act Section 32Reliability of testimonyCorroborationSuicide defenceBurn injuriesCriminal conviction

Judgment

.....,._
MANIBEN W/O. DANABHAI TIJLSHIBAI MAHERIA A
v.
STATE OF GUJARAT

MAY 11, 2007

(S.B. SINHA AND MARKANDEY KA TJU, JJ.)
B

,,.. I
Evidence Act, 1872-s. 32-Dying Declaration-Reliability-Deceased
-<
burnt by pouring kerosene over her by mother-in-law and brother-in-lmi~
Conviction on basis of dying declarations-Correctness of-Held: There is c
no discrepancy in the dying declarations-There is specific statement
regarding involvement of the accused though actual overt act played by
mother-in-law is not stated-Also dying declaration cannot be discarded
only because death took place 25 days after the incident-Thus, conviction
justified.
D
According to the prosecution, there was dispute between the families •
..,, On the fateful day mother-in-law and brother-in-law of the deceased burnt her
> by pouring kerosene over her body. The deceased tried to extinguish the fire.
In the meanwhile, she suffered extensive burn injuries. Her relatives and some
neighbours came to her help. And took her to the hospital and informed her E
husband. She stated the cause of receiving burn injuries to the doctor. The
Magistrate recorded her dying declaration. FIR was lodged. Trial Court
convicted both the accused. High Court upheld the order. SLP by the brother-
in-law was dismissed. Hence the present 11ppeal by the appellant
F
Dismissing the appeal, the Court

..- ·---r HELD: 1.1. There is no discrepancy in regard to the involvement of the
appellant vis-a-vis he~ son. The only discrepancy which has been pointed out
by appellant was that in some of her statements, she had not stated the actual
overt act played'by appellant herein. In these statements, she merely had G
answered the questions put to her by different persons. When questions are
put differently, answers would also appear to be different. On a first glance,
it may appear that the detailed description of the offence is missing, but the
....,... statement of the deceased must be construed reasonably. The presence of the
appellant at the house at the relevant time is not disputed and also the H

409
410 SUPREME COURT REPORTS (2007) 6 S.C.R.

A involvement of appellant's son. Only because her hu~IJand had rushed to the
hospital upon hearing the news, the same would not mean that the deceased
was tutored by him. A son would not falsely implicate his mother, despite their
bitter relationships. The very fact that the appellant and her son had developed
ill relations with the deceased and her husband, is an indicator to show why
B the incident had taken place. (Para llf (413-F-H; 414-A-BI

1.2. The defence case that the deceased had committed suicide was
disbelieved because she was pregnant and she had a daughter aged about 2
and 1/2 years. Her statement that she had come to answer the call of the nature
on the wash room at the ground floor which was common one and thereafter
C had been going upstairs cannot be disbelieved in view the nature of the injuries.
Even the appellant conceded that she must have fallen on the ground and the
kerosene was poured on the front portion of her body. Furthermore, had the
appellant not participated in the commission of the offence, she should have
been the first person to raise a hue and cry and call her other daughter-in-
D laws and neighbours. Immediately after the occurrence, she was not found at
her house. Both the accused were arrested at a much later stage.
(Paras 12 and 131 (414-B-E)

1.3. Much capital is sought to be made from the fact that the doctor who
took down her statement at the hospital has not been examined. However, the
E doctor who treated her, has been examined and he also supported the
prosecution case in regard to the incident in question. He might not have taken
down her statement but it is natural that he would ask the deceased about the
cause of her sustaining burn injuries. The submission that the 'degree of
burn' was not disclosed by doctor who took down her statement at the hospital
F is immaterial. In view of the admitted fact that kerosene was used for causing
injuries and having regard to the nature of the injuries, the injuries would
be of third degree. [Para 14) [414-E-F)

1.4. A dying declaration need not cease to be one only because death T_
took place 25 days after the incident. All attempts would be made to save a
G precious life of a 25 year old young woman. The doctors must have tried their
best. Dying declaration which is recorded in expectation of death, need not be
discarded only because death took place after a few days. What is necessary
for the said purpose inter alia is that the statement had been made by a person
who cannot be found or who is dead and thus incapable of giving evidence.
H The statements of the deceased must be of relevant facts.
[Para 181 [415-C-Df
MANIBEN W/O. DANABHAI TULSHIBAI MAHERIA' STATE OF GUJARAT rs B SINHA J( 411

. ~ Najjam Faraghi.v. State of W.B .. A.l.R. (1998) SC 682; B Shashikala v. A
State ofAndhra Pradesh, AIR (2004) SC 1610; Uka Ram v. State of Rajasthan,
AIR (2001) SC 1814; Smt. Paniben v. State ofGujarat, AIR (1992) SC 1817;
Mohan Lal and Ors. v. State ofHaryana. (2007) 3 SCALE 283 and Ravikumar
Alias Kutti Raviv. State of TN., f2006J 9 SCC 240, relied on.

'The Order of Things' by Mr. Barbara Ann Kipfei:: Principles and B
Practice of Medical Jurisprudence by Taylor p.250, referred to.

\_ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 618 of
--< 2006.

From the Final Judgment and Order dated 20.04.2005 of the High Court c
of Gujarat at Ahmedabad in Criminal Appeal No. 359 of2004.

H.A. Raichura and Saroj Raichura for the Appellant.

Hemantika Wahi and Pinky Behera for the Respondent.
D
The Judgment of the Court was delivered by
4
T
S.B. SINHA, J. I. Appellant is the mother in law of the deceased. They
~
were living in the same premises. Whereas the deceased and her husband
Dinesh Danabhai were occupying the first floor, appellants were occupying E
the ground floor. There was, however, a common wash room at the ground
floor. The passage to the first floor of the house was also through the ground
floor.

2. There was a dispute between the families in regard to the charges for
consumption of electrical energy. The dispute between the parties led even F
to the appellant lodging a complaint against her son Dinesh resulting in his
~
-r· arrest. At the relevant point of time, the deceased was pregnant. At about
10.15 a.m. on 31.7.2002, when Dinesh was in his office and their daughter
Dolly was asleep, the deceased came to the ground floor for answering the
call of the nature. G
3. As she was about to climb the staircase for going to the first floor,
Girishbhai (Accused No. I) is said to have caught her hair from behind and
forcibly threw her on the floor, poured some kerosene over her body, and
appellant is said to have lighted the match stick. Both the accused thereafter
went outside the house. The deceased tried to extinguish the fire by pouring H
412 SUPREME COURT REPORTS (2007] 6 S.C.R.

A water on her person from a bucket. Jn the meanwhile, she received extensive y.
bum injuries. She cried out for help whereupon the wives of her elder brothers-
in-law, namely Pushpaben and Gitaben, came together with some neighborers.
They took her to a hospital and her husband was informed. She disclosed the
cause of her receiving bum injuries to the doctor. She was reforred to the Civil
B Hospital at Ahmedabad in view of seriousness of her condition. She was
immediately taken to Ahmedabad and was admitted in the V.S. Hospital in the
bums ward.

4. Her statement was recorded by PSI Mr. N.J. Gohil and again she
stated about the incident at some detail. Her dying declaration was also
C recorded by an Executive Magistrate, Metro Area Court at about 8.30 in the
afternoon. She answered all the questions, the relevant part whereof is as
under:-

"10. Facts of the incident -We are staying on upper portion. Out
mother-in-law and brother-in-law deny to stay on upper part. Latrine
D is at the outside. My brother-in-law closed the window which is for
going upper and down house and my brother-in-law named Girish by
pouring Kerosene and my mother-in-law by iighting match-stick have
burnt me." ,..

E 5. She also made similar statements at the time of her admission in the
Bums Ward of the V.S. Hospital, Ahmedabad to the doctors.

6. Both the accused were convicted by the learned Trial Judge and the
appeal preferred by them has been dismissed by reason of the impugned
judgment.
F
7. The Special Leave Petition was filed by both of them. The Special
Leave Petition of Girishbhai was however, dismissed.

8. Mr. H.A. Raichura, learned counsel appearing on behalf of the appellant
,_
in support of this appeal raised the following contentions.
G
(i) There being discrepancies in the statements of the deceased in
her so-called dying declarations, conviction could not have been
based solely thereupon, as in some of the dying declarations she
did not mention the specific role played by the appellant herein.
H (ii) Her dying declaration could not have been relied upon as the
death took place only after 25 days of the First Information
...... MANIBEN W/O. DAN AB HA! TIJLSHIBAl MAHERIA "· STATE OF GUJARAT [S.B. SlNHA. lJ 413

• ~
Report. A
(ii~ As would appear from the record that before the dying
declarations were made, her husband was present and thus, she
must have been tutored.

9. Ms. Hemantika Wahi, learned counsel appearing on behalf of the B
State, on the other hand, would submit that in all her dying declarations, she
has made a specific statement in regard to the involvement of the appellant
together with her son Girish Bhai, and these dying declarations are consistent
I
-:-- in nature and there is, thus, no infirmity in the impugned judgments.
...(_
10. The deceased suffered 85% bum injuries which as per the statement c
of Dr. Vipul are:-

" ... there were 4% bums in the head and neck of Kokilaben. There was
9% bums on the right shoulder upto finger. There was 5% bums from
left shoulder to left hand fingers. There was 6% bum on the front side
of the chest. There was 9% bum at the back side of the chest. There D

- ..
was 15% bums on the right leg. There was 18% bum on the left leg.
..,.. There was I% bum on the private part. In this way there there was
total bum of 85%. The bums had reached upto depth from upper
side ....."
E
11. The burn injuries were caused by kerosene as is also evident from
the Report of the Forensic Science Laboratory (Ext. 73). It may be true that
the deceased gave her statement about the cause of her suffering injuries at
about 12.45 in the morning before Dr. Ashish, but she gave her statement also
before the Magistrate. Admittedly, there is no discrepancy in regard to the
involvement of the appellant vis-a-vis her son Girishbhai. The only discrepancy F
which has been pointed out by Mr. Raichura was that in some of her
_, ._,. statements, she had not stated the actual overt act played by appellant herein.
,.. In these statements, she merely had answered the questions put to her by
different persons. When questions are put differently, answers would also
appear to be different. On a first glance, it may appear that the detailed G
description of the offence is missing, but in our opinion the statement of the
deceased must be construed reasonably. It is in dispute that she had involved
both the accused in all her statements. Only because her husband had rushed
to the hospital upon hearing the news, the same would not mean that the
--y-- deceased was tutored by him. A son would not falsely implicate his mother,
despite their bitter relationships. Furthermore first disclosure in regard to the
H
414 SUPREME COURT REPORTS [2007) 6 S.C.R.

A cause of the incident having been attributed upon her brother-in-law and the
appellant, it is unlikely that the same was tutored by her husband. She was
an educated lady, she had studied upto the second year of graduation. The
very fact that the appellant and her son had developed ill relations with the
deceased and her husband is an indicator to show that why the incident had
B taken place. The presence of the appellant at the house at the relevant time
is not disputed. Also, the involvement of Girishbhai has not been disputed.

12. The defence case was that the deceased had committed suicide. The
defence case to that effect was disbelieved for good reasons as because she
was pregnant an d she had a daughter aged about 2 and Y, years. The .'.'~
C daughter was sleeping on the first floor. Indisputably the wash room was on
the ground floor. It was a common one. Her statement, therefore, that she had
come to answer the call of the nature and thereafter had been going upstairs
cannot be disbelieved keeping in view the nature of the injuries. Even Mr.
Raichura conceded that she must have fallen on the ground and the kerosene
D was poured on the front portion of her body.
13. Immediately, after the incident, she raised a hue and cry. Other
relatives immediately came there. She was taken to the hospital and her
husband was informed. Had the appellant not participated in the commission T ..
of the offence, she should have been the first person to raise a hue and cry
E and call her other daughter-in-laws and neighbours. Immediately after the
occurrence, she was not found at her house. Both the accused were arrested
at a much later stage.

14. Much capital is sought to be made from the fact that Dr. Deepti who
took down her statement at the hospital, Ahmedabad has not been examined.
F However, Dr. Nitin who treated her, has been examined and he also supported
the prosecution case in regard to the incident in question. Dr. Nitin might not
have taken down her statement but it is natural that he would ask the
deceased about the cause of her sustaining burn injuries.

G 15. The submission of Mr. Raichura that the 'degree of burn' was not
disclosed by Dr. Ashish is, in our opinion, immaterial.

16. In 'The Order of Things' by Mr. Barbara Ann Kipfer, classification
in regard to the burn injuries has been made as under:-

H "first degree (affects epidermis; as from sunburn, steam)
MANIBENW/O. DANABHAI TULSHIBAI MAHERIA•·- STATEOFGUJARAT[S.B.SINHA.1 J 4 J5

second degree (affects dennis: from scalding water, holding hot metal) A
third degree (full layer of skin destroyed; fire bum)"

17. In Taylor's Principles and Practice of Medical Jurisprudence at page
250, it is stated that the classification of bums would depend upon the depth
of involvement of the tissues which are measured by the body surface B
affected. In view of the admitted fact that kerosene was used for causing
injuries and having regard to the nature of the injuries, the injuries would be
of third degree as classified by Wilson.

18. A dying declaration need not be cease to be one only because death
took place 25 days after the incident. All attempts would be made to save a C
precious life of a 25 year old young woman. The Doctors must have tried their
best. Dying declaration which is recorded in expectation of death, need not
be discarded only because death took place after a few days. What is necessary
for the said purpose inter alia is that the statement had been made by a person
who cannot be found or who is dead and thus incapable of giving evidence.
The statements of the deceased must be of relevant facts vide Najjam Faraghi D
v State ofWB., A.LR (1998) SC 682, B. Shashikala v State ofAndhra Pradesh,
AIR (2004) SC 16!0, Uka Ram v State ofRajasthan, AIR(2001) SC 1814, Smt.
Paniben v State of Gujarat AIR (1992) SC 1817 and Mohan Lal and Ors. v
State of Haryana, (2007) 3 SCALE 282.
E
19. Strong reliance has been placed by Mr. Raichura on Ravikumar
Alias Kutti Raviv State of T.N. [2006] 9 SCC 240, wherein this Court opined;

"5. Section 32 of the Evidence Act, 1872 is an exception to the general
rule against hearsay. Sub-section (1) of Section 32 makes the statement
of the deceased admissible which is generally described as "dying p
declaration". The dying declaration essentially means statements made
by the person as to the cause of his death or as to the circumstances
of the transaction resulting in his death. The admissibility of the
dying declaration is based upon the principle that the sense of
impending death produces in man's mind the same feeling as that of
a conscientious and virtuous man under oath. The dying declaration G
is admissible upon consideration that the declarant has made it in
extremity, when the maker is at the point of death and when every
hope of this world is gone, when every motive to the falsehood is
silenced and the mind is induced by the most powerful consideration
to speak the truth. Notwithstanding the same, care and caution must H
416 SUPREME COURT REPORTS (2007] 6 S.C.R.

A be exercised in considering the weight to be given to these species
of evidence on account of the existence of many circumstances which
may affect their truth. The court has always to be on guard to see that
the statement of the deceased was not the result of either tutoring or
prompting or a product of imagination. The court has also to see and
ensure that the deceased was in a fit state of mind and had the
B opportunity to observe and identify the assailant. Normally, therefore,
the court in order to satisfy itself that the deceased was in fit mental
condition to make the dying declaration, has to look for the medical
opinion. Once the court is satisfied that the declaration was true and
voluntary, it undoubtedly, can base its conviction on the dying
c declaration without any further corroboration. It cannot be laid down
as an absolute rule of law that the dying declaration cannot form the
sole basis of conviction unless it is corroborated. The rule requiring
corroboration is merely the rule of prudence ....... "

This case satisfies the legal requirements as noticed therein.
D
20. For the reasons aforementioned, there is no merit in this appeal
which is dismissed accordingly.

N.J. Appeal dismissed.