RAJU DEVADEversusSTATE OF MAHARASHTRA

                              [2016] 3 S.C.R. 818


A                               RAJU DEVADE
                                       v.
                        STATE OF MAHARASHTRA
                      (Criminal Appeal No. I 012 of2008)
B                               JUNE29,2016
     [ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.]
           Penal Code, 1860 - s. 302 - Murder - Conviction on basis of
    dying declaration - Death of 18 year old girl on sustaining burn
    injuries - Oral statement 111ade by the victi111 recorded by the Police
c sub-inspector      - Thereafte1~ Magistrate recorded dying declaration
    in question answer form and answers were recorded in own
    language of the victim - Both declarations had thumb impression
  · of the victim and victim had implicated the accused - Thereafter,
    victi111 shifted to another hospital ll'herein an Executive Magistrate
D recorded the dying declaration that it was a case of accidental death
    caused by falling of the chimney - Declaration not in yuestion
    answer form and did not bear thu111b impression of the victim -
    Conviction by courts below relying on the oral state111ent and the
    first dying declarations made by the victim - On appeal, held:
    Conviction rightly recorded relying on the dying declaration of the
E
    deceased recorded by the Magistrate - Courts below rightly rejected
    the theory put up by the defence that it was accide11tal death - lt is
    proved on record that death was caused by burn injuries -
    Prosecution by cogent evidences proved the prosecution case - Thus.
    accused rightly convicted for offence u/s. 302 - Evidence Act. 1872
F - s.32.
         Evidence Act. 1872 - s.32 - More than one c(ving declaration
   - Reliance upon - Duty of the court - Held: Each dying declaration
   is to be considered independently 011 its 011•11 merit and cannot be
   rejected because of the contents of the other - It is the duty of the
G court to consider each one of the111 in its correct perspective and
  -satisfy itself that which one of theui reflects the true state of affairs.
          Dismissing the appeal, the Court
          HELD: 1. Each dying declaration has to be considered

H
                                       818
        RAJU DEVADE v. STATE OF MAHARASHTRA                            819



independently on its own merit so as to appreciate its evidentiary     A
value and one cannot be rejected because of the contents of the
other. Jn cases where there is more than one dying declaration,
it is the duty of the court to consider the each one of them in its
correct perspective and satisfy itself that which one of them
reflects the true state of affairs. [Para 27) [830-H; 831-A)
                                                                        B
      2.1 _In the instant case, the third dying declaration recorded
by Executive Magistrate DWl, was not in question answer form.
It is true that this court has laid down that merely because dying
declaration was not in question answer form sanctity attached to
dying declaration cannot be brushed aside nor its reliability can
be doubted. The Sessions Judge rejected the third dying
                                                                        c
declaration not merely on the ground that it was not recorded in
the question answer form but the Sessions Judge gave other valid
reasons for not accepting the third dying declaration. [Paras 29,
30] (831-F-H]
     2.2 Within an hour of incident on 04.03.1989 that is as soon       D
as the victim arrived at the Hospital at about 10/10.30 pm police
inspector came and took her oral statement in which she clearly
stated that it was the accused who poured kerosene oil on her
body and ignited the match-stick. The victim in her oral statement
as well as in her dying declaration recorded by Magistrate also         E
stated the motive of the accused. [Para 32] [832-B-C]
     2.3 It has come on the evidence of PW 4 that the victfm, her
sister was having a love affair with the accused. She was pregnant
and she asked the accused to marry her. On the day of the incident,
she met the accused and repeated her request to him to marry            F
her. The accused who was carrying a tin of kerosene then poured
kerosene on the victim to finish he1~ since he never wanted to
live with the accused and wanted to keep her out from his life.
1Para_33] 83~-Dl
      2.4 The dying declaration recorded by Executive Magistrate        G
was witnessed by two employees of the hospital, who were present
at tlie relevant time. There being no certificate of the doctor on
04.03.1989 is of no consequences since it has come in the
evidence that doctor was not present at the time when victim
was taken to the hospital and there were only two employees i.e.
                                                                        H
820           SUPREME COURT REPORTS                     [2016) 3 S.C.R.


A     a waterman and a maid-servant who were present in the Rural
      Hospital and attended the victim. The High Court expressed its
      anguish regarding working of the Rural Hospital. The High Court
      was fully justified in expressing its anguish over the working of
      the Rural Hospital, where no trained Para-medical Staff/Medical
      Staff was available to attend the patient. Thus, submission of the
B
      appellant that in view of the third dying declaration in which
      accused was exonerated no reliance could have been placed on
      dying declaration recorded by the Executive Magistrate, is not
      acceptable. The court below observed that there was no occasion
      of implicating the accused by the Police Inspector since there is
c     nothing to indicate that he had any grudge against the accused or
      even the accused was known to the police inspector. (Paras 36,
      371 [832-G-H; 833-A-BJ
           2.5 From the evidence on record, it is clear that all the
      witnesses including PW 1 doctor who carried the autopsy of the
D     dead body supported that deceased died of burns. The doctor in
      her statement has recorded about 72 per cent burns. The theory
      of burn being caused by chimney (burning lamp) was rightly been
      rejected by courts below by giving cogent reasons. There is no
      inclination to take any different view to one which was taken by
      the courts below rejecting the case of the defence that it was a
E     case of accidental death caused by falling of the chimney (burning
      lamp). [Paras 31, 34, 35] (831-11; 832-A, E-F]
           2.6 The oral statement of victim was recorded by the police
      on 04.03.1989 which followed by recording of dying declaration
      by the Executive Magistrate in which same statement was made
 F    by victim implicating the accused of the crime. In the facts and
      circumstances of the case the conviction was rightly recorded
      relying on the dying declaration of the deceased recorded by
      Executive Magistrate. The death has been caused by burn
      injuries, which is proved on record. The p_rosecution by cogent
G     evidences having proved the prosecution case both Sessions
      Judge and the High Court have rightly convicted the accused of
      offence under Section 302.IPC. [Paras 38, 39] [833-C-D]
            Bhupa11 v. State of Madhya Pradesh 2002 (2) SCC 556;
            State of Punjab v. Parveen Kumar 2005 (9) SCC 769;
H           Sudhakar v. State of Madhya Pradesh 2012 (7) SCR
         RAJU DEVADE v. STATE OF MAHARASHTRA                                 821


      128 : 2012 (7) sec 569; Ranjit Singh and others V.                      A
      State of Punjab 2006 (8) Suppl. SCR 802 : 2006 (13)
      SCC 130; Prem Kumar Gulati v. State of Haryana and
      another 2014 (14) sec 646 - referred to.
                        Case Law Reference
  2002 (2) sec 556                 referred to             Para 19            B

  2005 (9) sec 769                  referred to            Para 23
  2012 (7) SCR 128                  referred to            Para 24
   2006 (8) Suppl. SCR 802          referred to            Para 28
                                                                              c
   2014 (14) sec 646                referred to            Para 29
     CRIMINAL APPELLATE JURISDICTiON: Criminal Appeal No.
I 012 of2008.
     From the Judgment and Order dated 13.04.2007 in Criminal Appeal
No. 226 of 1991 passed by the High Court of Judicature at Bombay              D
Nagpur Bench Nagpur.
     Kumar Parimal, Ms. Praveena Gautam, Advs. for the Appellant.
     Nishant Ramakantrao Katneshwarkar, Adv. for the Respondents.
     The Judgment of the Court was delivered by                               E
     ASHOK BHUSHAN, J. I. This appeal has been filed by the
appellant against the judgment of the High Court of Bombay dated
13.04.2007, dismissing the appeal filed by the appellant against the
judgment of the Sessions Judge. The Sessions Judge had convicted the
appellant for an offence under Section 302 IPC and sentenced him to           F
undergo life imprisonment.
      2. The prosecution case in nutshell is, Baby a girl of 18 years was
residing at Mehkar with her parents, sister and brother. On 04.03.1989
in late evening, she was alone at house. Her parents had gone out and
her brother and sister had gone to watch· an evening movie. At about          G
9.30 pm when her brother Dilawarsha returned to the house from movie,
he saw Baby in flames in bushes near the house. Dilawarsha used a
quilt to put off the fire and thereafter on a push-cart took Baby to Rural
Hospital, Mehkar. There being no doctor available, waterman Narayan
Mahure and maid-servant Smt. Magar took the Baby in the hospital and
                                                                              1-1
822            SUPREME COURT REPORTS                         [2016] 3 S.C .R.



A     cleaned her wounds and administered I. V. saline.
           3. Police Sub-Inspector Meghrajani immediately came to the
      hospital and met the Baby. Baby gave a statement before the police
      Sub-Inspector that she was having a love affair with one Raju who was
      residing nearby. She was pregnant, she had pregnancy of two months
B     but the same was aborted. She asked Raju to marry her. At 9.00 pm she
      saw Raju in the bye-lane by side of her house. On seei-ng him she again
      asked him to marry her. Raju poured kerosene on her person and then
      set her on fire with a burning match-stick. Police Sub-Inspector recorded
      the oral statement on which left thumb impression of Baby was also put.

c          4. On the basis of the above oral statement, a case No. 63/89 was
      registered for an offence punishable under Section 307 IPC. On a
      requisition sent by Police Sub-Inspector one Ramesh Giri the Executive
      Magistrate, Mehkar came to the Rural Hospital and in the presence of
      two employees of the Rural Hospital Narayan Mahure and Smt. Magar
      recorded the dying declaration of the Baby. Baby had also put her
D     thumb impression on the dying declaration.
             5. The Executive Magistrate sealed the dying declaration and sent
      it to the police. After recording the dying declaration Baby was shifted
      to the District Hospital, Buldhana. On 05.03.1989 one another Executive
      Magistrate, namely, Narayan Tandale came to hospital and recorded a
E     dying declaration in his own words. In the statement it was noted that
      due to burns thumb impression could not be put by Baby.
           6. On 9.03.1989 Baby died in the hospital. On the same day one
      doctor, Ashok Surushe, Medical Officer conducted autopsy on the dead
      body. The criminal case was converted under Section 302 !PC. Accused
 F    was put on trial before the Sessions Judge. Prosecution produced seven
      witnesses and certain documentary evidences. On behalf of the defence
      only one witness, Shri Narayan Tandale Naib Tehsildar/Executive
      Magistrate was produced.
           7. Learned Sessions Judge after hearing the parties and considering
 G    the entire evidence on record found that it was accused who had put the
      deceased on fire. The statement of Baby recorded by the Police Sub-
      Inspector was treated as dying declaration. Dying declaration recorded
      by Mr. Ramesh Giri Naib Tehsildar/Executive Magistrate on 04.03.1989
      was found acceptable. Sessions Judge rejected the dying declaration
      recorded on 05.03.1989 by Shri Narayan Tandale. The case put up by
 H
         RAJU DEVADE v. STATE OF MAHARASHTRA                                 823
                 [ASJ-IOK Bl-IUSHAN, J.]

the defence that death took place on account of chimney (kerosene            A
lamp) falling on the Baby while she was sleeping and death was by
accident, was not accepted.
      8. An appeal was filed by the accused before the High Court. After
elaborately considering the submission and the grounds raised in appeal,
the High Court maintained the conviction. Aggrieved by the judgment,          B
this appeal has been filed.
      9. We have heard the learned counsel for the parties and perused
the record. Learned counsel for the appellant in support of the appeal
contends that there being three dying declarations on the record, it was
unsafe for courts below to rely on the first two dying declaration. The . C
third dying declaration which was recorded by the Executive Magistrate
which also had certificate of doctor ought to have been relied by the
courts below wherein the victim had exonerated the accused from any
role and it was stated by the victim that she caught fire from chimney
(burning lamp) which was hanging against the wall.
                                                                              D
     I 0. It is submitted that when there is inconsistency between the
two dying declarations as a rule of caution the comt has to take the
dying declaration with caution and in view of the third dying declaration
recorded on 05.03.1989 the prosecution theory falls on the ground.
      11. It is fmther submitted that the oral evidence of PW 4 Dilawarsha    E
was relied, which contained the contradictions and omissions. The
Dilawarsha being brother of the victim was terribly interested witness.
The victim Baby was not able to give the surname of the accused. Neither
in the statement of the Dilawarsha nor in the dying declaration of the
deceased anywhere accused has been named. Also there is no
independent witness to show that accused had any connection with the          F
said Baby. The truth is that deceased Baby was sleeping in her house, a
chimney (kerosene lamp) hanging against wall fell on the Baby as a
result of which she caught fire, thus the case was oi1e of the accidental
death.
      12. PW 5 S. K. Manwar did not support the panchnama of the              G
spot. As per the dying declaration of Baby, she was married to the
accused four/five months before whereas PW 4 Dilawarsha has stated
that accused was not married with Baby.
    13. Learned counsel appearing for the State has suppo1ted the
judgment of the High Court as well as of the Sessions Judge. It is            H
824            SUPREME COURT REPORTS                           [2016) 3 S.C.R.



A     submitted that courts have not committed any error in relying on the
      dying declaration. For relying on the first two dying declarations of
      deceased cogent reasons have been given by the learned Sessions Judge
      and the High Court. There were valid reasons for not accepting the third
      dying declaration recorded on 05.03.1989.
B         14. Learned counsel for the parties has also placed reliance on the
      judgments of this court which shall be referred to hereinafter.
            15. The present is the case where both the Sessions Judge and the
      High Court have relied on the dying declaration r,nade by the victim. It
      has come in the statement of the PW 4 that when he returned from the
c     rnovie alongwith his younger sister at about 9.30 pm, he heard the cries
      of his sister, he put off the fire by using the quilt which was lying there
      for drying. He on a push-cart took Baby to the Rural Hospital.
            16. The Police Sub-Inspector Meghrajani arrived at the hospital
      immediately and met the victim and took her oral statement. In the oral
D     statement which was duly signed by victim, she clearly stated that it was
      Raju .the accused who poured kerosene on her and set her on fire with a
      burning match-stick. Police Inspector had already sent a requisition to
      the Executive Magistrate before going to the Rural Hospital and an
      Executive Magistrate Ramesh Giri on same day at about 11.30 pm
      recorded the dying declaration. Dying declaration is in question answer
 E    form and answers were recorded in own language of Baby. The doctor
      being unavailable, both the employees of the Rural Hospital were present
      and in their presence the dying declaration was recorded by the Executive
      M~istrate Giri.

            17. Sometime after recording the dying declaration, the Baby was
 F    shifted to district hospital, Buldhana. On 05.03.1989 another Executive
      Magistrate OW I came and recorded the dying declaration. The dying
      declaration recorded by Shri N. P. Tandale as is clear from his statement
      made before the court that dying declaration was recorded in his own
      words by Shri Tandale and was not in question answer form. The dying
      declaration recorded by Shri Tandale also does not bear the thumb
 G
      impression of the deceased. It was mentioned in the dying declaration
      that thumb is sustaining burns and hence thumb impression cannot be
      obtained. In the dying declaration which was given to Shri Tandale,
      deceased is claimed to have said that when she was sleeping in the
      house chimney (kerosene lamp) which was hanging against the wall fell
 H
         RAJU DEVADE v. STATE OF MAHARASHTRA                                    825
                 [ASHOK BHUSHAN, .I.]

on her body as a result of which she caught fire. She shouted and her           A
brother came and extinguished the fire.
     18. After examining the entire evidence on record, the cogent
reasons were given by learned Sessions Judge for not accepting the
dying declaration recorded by Shri Tandale. It is useful to refer the
observations made by the learned Sessions Judge at para 28 of the                8
judgment. It is to the following effect:
      "The circumstances brought 011 record also· do 11ot i11dicate
      statement recorded by Sltri Taudale might be true. I have ·
      already poillted out that Dilawars//(/ mu/ Rani !tad go11e to
      cinema show. Mother of Baby fwd gone to her mother, while c
      father of Baby was not at home. The time was 011/y 9 pm. It
      was not time for had especially when other family members
      were 11ot at home. Them why Baby slwultf go to bed so ear~v
      and how the accident should take place. Furthermore, the
      evidence brought 011 record i11dicutes that Baby was outside
      her house near the bushes. The statement recorded by Sltri D-
      Timdale i11dicates that site was iuside the house wlte11 lier
      brother put off the fire. This circumstance also indicates that
      Slzri Ta11dale has recorded the statement as per his own whims
      mu/ not as per the statement nuule by Baby. No reliance cmt
      be placed 011 evidence of Sltri Tam/ale and Ex. 59 cannot be E
      treated as dying declaration of Baby. It has to be discarded."
     19. Before we proceed further it is relevant to refer to principles
enunciated by this court with regard to a case where there is more than
one dying declaration. Learned counsel for the appellant has relied on
judgment of this court in Bl111pa11 versus State of Madhya Pmcleslt,             F
2002 (2) sec 556.
    . 20. In the above case, there was only one dying declaration in
which name of the appellant was mentioned with wrong caste. The·
court convicted the accused rejecting of almost all evidences produced
by prosecution, however, reliance was placed on the said dying                   G
declaration only against the appellant exonerating all other accused. The
court held that the dying declaration as it was, there being difference as
to the description of assailant which creates doubt on the identification
of the assailant hence it was not safe to rely on the said dying declaration.
     21. In the above case following reasons were given by the court
                                                                                 H
826            SUPREME COURT REPORTS.                              [2016] 3 S.C.R.



A     for not placing reliance on the dying declaration.
            "If, (IS " 111(/fter of/"ct, tile dece"sed knew tile appe/l(lllt then
            he would not h"ve committed tlte mistake of mentioning the
            wrong C(ISte which throws "" element of doubt "bout his
            knowledge (IS to the possibility of the dece(lsed lwving
B           idelltifietl tlte appellant. In tltis regard, /e(lr11etl counsel for
            tlte "ppellant placed reliance 011 tlte judgment of this Court
            in tlte case of Blw/apm.wul v. State of Malwrttshtr"l. wherein
            in a simil"r c"se of ide111ificatio11 by a region from where the
            accused came, tltis Court held that the difference pointed out
            as to the description of the assailant was a material difference
c           casting doubt 011 the ide11tificatio11 of theassaila11t. Therefore,
            we are of the co11sidered opi11ion tit at it is not safe to rely 011
            tltis tlyi11g declamtio11 to base a co11victio11, if this piece of
            evidence is escltewed from co11sideratio11, then the mere fact
            of the prosecution ltaving recovered a sword at tlte i11sta11ce.
D           of tlte appellant, 011 facts am/ circumstances of tltis case,
             would not permit us to base a co11victio11 under Section 302
            /PC in tlte background of tlte fact tltat "lmost all otlter
            evidences produced by tlte prosecution are disbelieved by tlte
            courts below."

 E         22. In the facts of the above case, the court has observed that it is
      not safe to rely on the dying declaration which caused doubts on the
      identity of the accused. Thus above case, in no manner, helps the
      appellant.
          23. Another case which is relevant is St"te of Pu11jab versus
 F    Parveen Kumar, 2005 (9) SCC 769. The test for relying on a dying
      declaration in a case where there is more than one dying declaration has
      clearly been laid down by this court in para I 0 following was observed:
             "Tlte court must be satisfied tltat tlte t/yiug declaration is
             trutl~ful.    If there are two t()'iug declaratio11s gfring two
 G           tliffereut 1•er.\·io11s, a serious doubt is created "bout the
             tr11ll({u/11e.B· t~{ the dying dec/(lrttfions. It may be t/t(lf if tit ere
             was (lllY otlter reliable evidence 011 record, this Court could
             have considered suclt corroborative e1•itfe11ce to test tlte
             truthfulness of the dying declarations. The two dying
             declarations, ltowever, in tlte instant case stand by tltemsefres
 H           and tltere is 110 otlter reliable evidence 011 record by reference
         RAJU DEVADE v. STATE OF MAHARASHTRA                                  827
                 [ASHOK BHUSHAN, J.]

      to which their truthfulness can be tested."                              A
       24. An elaborate consideration of whole issue in context of multiple
dying declarations was examined by this court in Sudlwkar versus State
of Madhya Pradesh, 2012 (7) SCC 569. In para I of the judgment
th is court noted the issue. Foil owing was observed in para I:
      "An important question of criminal jurisprudence as to in a
                                                                               B
      case of multiple variable dying declarations, which of the
      dying declarations would be taken into consideration by the
      court, what principles shall guide the judicial discretion of
      the court or whether such contradictory dying declarations
      would 1111exceptio11al/y result in prejudice to the case of the          c
      prosecution, arises in tlte present case."
     25. In the above case the accused was married to deceased
Ratanmala. Prosecution case was that on 25.7.1995 there was heated
arguments between husband and wife and the accused poured kerosene
on her and put her ablaze by lighting match-stick. People living nearby        D
came to the house, seeing the smoke and finding Ratanmala in burning
condition took her to the hospital.
     26. The Naib Tehsildar OW 1 recorded the first dying declaration
at 04.35 pm on same day. In the first dying declaration, she did not
implicate her husband but in second and third dying declaration, which         E
were also recorded on the same day she clearly stated that accused
poured kerosene on her and sat her on fire. The accused was convicted
under Section 302 Cr. P.C., he in his statement under Section 313 Cr.
P.C. stated that his wife Ratanmala died in a fire accident. In the above
context, this court proceeded to examine the test in case of multiple
dying declarations. It is useful to refer to para 21, 22 & 23:                 F
       "21. /laving referred to the law relating to dying declaration,
       11ow we may examine the issue that i11 cases i11vo/vi11g multiple
       tlyi11g declarations /11(/de by the deceased, which ofthe various
       dying dec/(lrations slumld be believed by the court (llld what
       are the principles goveming such determit1{ltio11. Tit is becomes       G
       import(lllt wltere tlte multiple dying declarations made by tile
       dece(lsed are either co11tradictory or (Ire at variance witlt eaclt
       other to a large extent. The test of common prudence would
       be to first examine wlticlt of the dying declarations is
       corroborated by other prosecution evidence. Further, the
                                                                               H
828      SUPREME COURT REPORTS                           [2016] 3 S.C.R.



.A    attendant circumstances, the co11ditio11 of tlte dece{lsed at tlte
      relev(lnt time, tlte medical evidence, tlte vo/unt(lri11ess and
      ge11uinelless of tlte statement made by tlte deceased, pltysical
      alld mental flt11ess of the dece(lsed a11d possibility of tlte
      deceased being tutored are some of lite factors wlticlt would
      guide the exercise of judicial discretioll by tlte court ill such
 B
      matters."
      "22. Ill Laklta11 tltis Court provided clarity, not ollly to tlte
      law of dyillg declarations, but {I/so to lite questio11 llS to which
      of the dying declllrations ltlls to be preferably relied upoll by
      tlte court in deciding the questio.11 ofguilt oflite llccused under
 c    lite offence witlt wlticlt lie is charged. Tlte f(lc/s of tlt(I/ case
      were quite similar, if 1101 identical to lite facts of the present
      case. 111 tltat case also, tlte deceased W([S bumt by pourillg
      kerosene oil mu/ was brought to tlte lwlpital by tlte ([Cc11sed
      therein mu/ !tis family members. Tlte deceased had made
 D    two different <(ving declarations, wlticlt were mutually at
      variance. The Co11rt held llS 11uder: (SCC pp. 518-19 & 522-
      24, jJllraS 9-10, 23-24, J6 & 30)
      "9. The doctrine of dying decillration is enshrined in the leglll
      maxim nenw moriturus praesumitur meutire, which means
 E    'll man will not meet !tis Mllker witlt ll lie in !tis moutlt '. Tlte
      doctrine of c(ving declaration is emltrined in Section 32 of
      the Evidence Act, 1872 (hereinafter called as 'tlte Evidence
      Act') as an exception to tlte general rule contained in Section
      60 of lite Evidence Act, wltich provides tltlll oral evidence ill
      all cases 11111st be direct i.e. it must be the evidence of a witness,
 F    who sllys he smv it. Tlte t{Villg declar(ltioll is, in fact, the
      statement of a person, who cannot be clllled llS witness m1d,
      therefore, cannot be cross-examilled. Such statemellts
      themsefres are relevant facts in certain cases.
      W. 111is Co11rt has considered time am/ again tlte relevance/
 G    probative value of c(vi11g decl(/ratio11s recorded Ullder different
      situations mu/ {I/so in cases where more titan one dying
      declaration ltas been recorded. The lmv is that if the court is
      satisfied that tlte crying declaration is true mu/ made voluntarily
      by tlte deceased, collviction ca11 be based sole(V Oil it, without
 H
      any further corroboration. It is 11eitlter a rule of lllw nor of
   RAJU DEVADE v. STATE OF MAHARASHTRA                                       829
           [ASHOK BHUSHAN, J.]

flrttdence tltllt ll dyin1: declllrlltion cannot he relied upon              A
without corroboration. 1Vhen a dying declaration is suspicious,
it sltould not be relied upon wit/tout lwvi11g corroborative
evidence. The court has to scrutinise tlte dying declaration
carefu/Jy and mmt ensure tltat the declaration is not tlte result
of tutoring, pro111pting or imagination. Tlte deceased must be
                                                                              B
ill a fit slllte of 111i11d to make the declaration am/ must identify
tlte ltssailants. Merely because a dying declaration does not
contain tlte details of the occurrence, it cannot be rejected
lllUI in case there is 111erely a brief statement, it is more reliable
for tlte reason tltat the shortness of tlte statement is itself a
guarantee of its veraci(I'· If the dying declaration suffers from             c
some infirmity, it cannot alone form tlte basis of conviction.
Where tlte prosecution version differs fro111 the version given
i11 tile dying declaration, tile said declaration cannot be acted
upon."
"The second dying declaration was recorded by Sllri Damodar                   D
Prasad Malrnre, Assistant Suh-Inspector of Police (PW 19).
He was directed by tlte Superintendent of Police 011 telephone
to record tlte statement ofthe deceased, who had been ad111itted
in the ltospital. Jn that state111e11t, she fwd stated as under:
'On Sunday, ill lite morning, at about 5.30 a.111., my husband                E
lakltan poured tlte kerosene oil from a contailler 011 my Item/
as a result of wlticlt kerosene oil spread over my entire body
and tltat lte (Lakhan) put my sari afire with tlte help of a
chimney, due to wlticlt I 1:01 bum/.'
Site fwd also deposed tltat site /tad written a letter to lter                F
parents requesting /Item to fetclt lter from lite matrimonial
!tome as lter ltusbaml mu[ in-laws were lwrassi11g her. Tlte
said dying declar.'ltio11 was recorded after getting a certificate
from lite doctor stating tit at site was in ll fit pltysical llluf me11tal
condition to give tlte swtement."
                                                                              G
"As per lite injury report and tlte medical evidence it renutim
fully proved tltat lite deceased /tad the injuries on lite upper
part of her bo<{P. Tlte doctor, wlto fwd examined lter at tlte
time of admission in ltospital, deposed tltat site !tad bum
injuries on lter ltead, face, cltest, neck, back, abdomen, left
arm, /tam/, rigltt arm, part of buttocks 1111<1 some part of botlt            H
830            SUPREME COURT REPORTS                          [2016) 3 S.C.R.



A           the thighs. The deceased was 65% burnt. At the time of
            admission, tlte smell of kerosene was coming from her body."
                       *                *                *
             "Undoubtedly, tlte first dying declaration fwd been recorded
            by the Executive Magistrate, Smt Mad/zu Nalwr (DW 1),
B           immediately after admission of the deceased Savita in the
            hospital and the doctor had certified that she was in a fit
            condition of health to make the declaration. However, as she
            had been brought to the hospital by her fatlter-in-law mu/
            motlter-in-law and the medical report does not support her
c           first dying. declaration, the trill/ court and the High Court
            ltave rightly discarded the same."
                       *                *                *
            "Titus, in view of the above, we reach the following ·
            inescapable conclusions on the questions of/act:
D
                       *                *                *
            (c) The second dying declaration was recorded by a police
            officer on the instruction of the Superintendent of Police after
            getting a certificate of fitness from the doctor, which is
            corroborated by the medical evidence and is free from any
E
            suspicious circumstances. More so, it stands corroborated by
            the oral declaration made by the deceased to her parents,
            Pkoo/ Singh (PW l),father and Sushi/a (PW 3), mother."
            "23. In Na/lam Veera Staymwndam v. Public Prosecutor this
            Court, while declining to accept thefimlings <>[the trial court,
 F
            held that the trial court had erred because in tlte case of
            multiple dying declarations, each <lying declaration has to be
            considered independelllly on its own merit so as to appreciate
            its evidentiary value and one cannot be rejected because of
            the contents <>/ tlte other. Jn cases where there is more titan
G           one <{ving declaration, it is the duty of the court to consider
            eaclt one of tltem in its correct perspective and satisfy itself
          - which one of them reflects the true state of affairs."
            27. This court had clearly laid down that the each dying declaration
      has to be considered independently on its own merit so as to appreciate
H     its evidentiaiy value and one cannot be rejected because of the contents
         RAJU DEVADE v. STATE OF MAHARASHTRA                                   831
                 [ASHOK BHUSHAN, J.]

of the other. In cases where there is more than one dying declaratio1~, it      A
is the duty of the court to consider the each one of them in its correct
perspective and satisfy itself that which one of them reflects the true
state of affairs.
      28. It is also relevant to refer to judgment of this court in Ranjit
Singh and others versus State ofPunjab, 2006 (13) SCC 130 wherein               8
this court has clearly laid down that the conviction can be recorded on
the basis of the dying declaration alone ifthe same is wholly reliable. In
the event, if there are suspicions as regards to the said dying declaration,
the court should look for some corroborating·evidences. Court has further
observed. that in the event of inconsistencies in the dying declarations
the court should lean towards th~ first dying declaration. Following was
                                                                                c
observed in para 13: ·
       "It is now well ~·ett/ed that conviction can be recorded on the
       basis of a dying declaration alone, if the same is wholly
       reliable, b_ut in the event there exists any suspicion as regards
       correctness or otherwise of the said t/ying declaration, tlte            D
       courts in arriving at the judgment of conl'iction sit al/ look for
       Sf!flle corroborating evidence. lt"is also well known that in a
       case where inconsistencies in the dying declarations, in
       relation to the actil'e role played by one ,or tlte otlter accused
       persons, exist, the court shal/ /ean more towanjs thejirst dying         E
       declaration than the second one.''.
      29. Learned counsel forthe appellant has also referred to Prem
Kumar Gulati versus State of Haryana and another, 2014 (14) SCC ·
646, to buttress his submission that even if, dying declaration 'is not in a
question answer form same cannot be rejected, In the present case, it is F
 relevant to note that the third dying declaration recorded by Shri Tandale
was not in question answer form. It is true that this court in the above
 case has laid down that merely because dying declaration was not in
 question answer form sanctity attached to dying declaration cannot be
 brushed aside nor its reliability can be doubted.
                                                                             G
      30. The Sessions Judge has rejected the third dying declaration not
 merely on the ground that it was not recorded_ in the question answer
 form but the Sessions Judge has given other valid reasons for not
·aepepting the third dying declaration as has been extracted above.
      31. From the evidence on record, it is clear that all the witnesses
                                                                                'H
832            SUPREME COURT REPORTS                          [2016] 3 S.C.R.



A     including PW 1 doctor Ashok Surushe who carried the autopsy of the
      dead body supported that deceased died of burns. The case which was
      put up by the defence was that the death was on account of the accidental
      fire which was caught by falling of chimney (burning lamp) on the body
      of the Baby while she was sleeping in the house.
B          32. As noted above, within an hour of incident on 04.03.1989 that is
      as soon as the Baby arrived at the Rural Hospital at about I 0/10.30 pm
      police inspector came and took her oral statement in which she clearly
      stated that it was Raju who poured kerosene oil on her body and ignited
      the match-stick. Baby the deceased in her oral statement as well as in
      her dying declaration recorded by Shri Ramesh Giri has also stated the
c     motive of the accused.
            33. ft has come on the evidence of PW 4 Dilawarsha that the
      Baby, her sister was having a love affair with Raju the accused. She
      was pregnant and she asked Raju to marry her. On the day of the
      incident, she met Raju and repeated her request to him to marry her.
D     Raju who was carrying a tin of kerosene then poured kerosene on Baby
      to finish her since he never wanted to live with Baby and wanted to
      keep her out from his life.
            34. The doctor in her statement has recorded about 72 per cent
      burns. The theory of burn being caused by chimney (burning lamp) has
 E    rightly been rejected by courts below by giving cogent reasons.
            35. We are not inclined to take any different view to one which has
      been taken by both Sessions Judge and the High Court rejecting the
      case of the defence that it was a case of accidental death caused by
      falling of the chimney (burning lamp).
 F
           36. The dying declaration recorded by Executive Magistrate was
      witnessed by two employees of the hospital, who were present at the
      relevant time. There being no certificate of the doctor on 04.03 .1989 is
      of no consequences since it has come in the evidence that doctor was
      not present at the time when victim was taken to the hospital and there
 G    were only two employees i.e. a waterman and a maid-servant who were
      present in the Rural Hospital and attended the victim. The High Court
      has expressed its anguish regarding working of the Rural Hospital,
      Mehkar. High Cowi was fully justified in expressing its anguish over the
      working of the Rural Hospital, Mehkar where no trained Para-medical
      Staff/Medical Staff was available to attend the patient.
 H
             RAJU DEVADE v. STATE OF MAHARASHTRA                              833
                     [ASHOK BHUSHAN, J.]

       37. Thus submission of learned counsel for the appellant that in       A
view of the third dying declaration in which accused was exonerated no
reliance could have been placed on dying declaration recorded by Shri
G iri the Executive Magistrate, is not acceptable for the reasons as noted
above. The court below observed that there was no occasion of
implicating the accused by the Police Inspector since there is nothing to
                                                                               B
indicate that he had any grudge against the accused or even the accused
was known to the police inspector.
     38. Oral statement of victim was recorded by the police on 04.03.1989
which followed by recording of dying declaration by the Executive
Magistrate in which same statement was made by victim implicating the
accused of the crime. In the facts and circumstances of the case the
                                                                               c
conviction has rightly been recorded relying on the dying declaration of
the deceased recorded by Executive Magistrate Giri.
     39. The death has been caused by burn injuries, which is proved on
record. The theory put up by the defence that it was accidental death
having been rightly rejected and the prosecution by cogent evidences           D
having proved the prosecution case both Sessions Judge and the High
Court have rightly convicted the accused of offence under Section 302
!PC. We do not see any merit in the appeal.
      The appeal is dismissed.
                                                                               E
Nidhi Jain                                                App~al dismissed.