Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1012 of 2008, Judgment Date: Jun 29, 2016

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.1012 OF 2008


 RAJU DEVADE                                                ... APPELLANT

                                        VERSUS

STATE OF MAHARASHTRA                                       ... RESPONDNET


                               J U D G M E N T

ASHOK BHUSHAN, J.


      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 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  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  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 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 seeing 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.

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  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  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 IPC. Accused 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  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  the  defence  that
death took place on account of chimney (kerosene 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,  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  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.

10.    It is submitted that when there  is  inconsistency  between  the  two
dying declarations as a rule of caution the court  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 further submitted that the oral evidence  of  PW  4  Dilawarsha
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  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 one of the accidental death.

12.    PW 5 S. K. Manwar did not support the panchnama of the 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 supported the  judgment  of
the High Court as well as of the  Sessions  Judge.   It  is  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.

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 made by the victim. It  has  come
in the statement of the PW 4 that when he returned from the movie  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
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 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 Magistrate Giri.

17.    Sometime after recording the dying declaration, the Baby was  shifted
to district hospital, Buldhana.  On 05.03.1989 another Executive  Magistrate
DW 1  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  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 on her body as  a  result  of  which
she caught fire.  She shouted and her  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  judgment.
It is to the following effect:

“The  circumstances  brought  on  record  also  do  not  indicate  statement
recorded by Shri Tandale might be true.  I have  already  pointed  out  that
Dilawarsha and Rani had gone to cinema show. Mother of Baby had gone to  her
mother, while father of Baby was not at home. The time was  only  9  pm.  It
was not time for had especially when other family members were not at  home.
 Them why Baby should go to bed so early and how the  accident  should  take
place.  Furthermore, the evidence brought on record indicates that Baby  was
outside her house near the bushes.  The statement recorded by  Shri  Tandale
indicates that she was inside the house when her brother put off  the  fire.
This  circumstance  also  indicates  that  Shri  Tandale  has  recorded  the
statement as per his own whims and not as per the statement  made  by  Baby.
No reliance can be placed on evidence of Shri Tandale and Ex. 59  cannot  be
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 Bhupan versus State of Madhya Pradesh, 2002  (2) SCC 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  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  for
not placing reliance on the dying declaration.

“If, as a matter of fact, the deceased  knew        the  appellant  then  he
would not have    committed the mistake of mentioning  the      wrong  caste
which throws an  element  of       doubt  about  his  knowledge  as  to  the
possibility of the deceased having           identified  the  appellant.  In
this regard,      learned counsel for the appellant  placed     reliance  on
the judgment of this Court in         the case of Bholaprasad  v.  State  of
     Maharashtra1 wherein in a similar case of identification  by  a  region
from where the accused came, this Court held that the    difference  pointed
out as to the description       of the assailant was a  material  difference
casting doubt on the identification of the assailant. Therefore, we  are  of
the        considered opinion that it is not safe to          rely  on  this
dying declaration to base  a  conviction,  if  this  piece  of  evidence  is
eschewed  from  consideration,  then  the             mere   fact   of   the
prosecution  having         recovered  a  sword  at  the  instance  of   the
appellant, on facts  and  circumstances  of          this  case,  would  not
permit us to base a conviction under Section 302 IPC in  the  background  of
the  fact  that  almost  all           other  evidences  produced   by   the
 prosecution are disbelieved by the courts below.”


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 State of  Punjab  versus  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 10 following was observed:

“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. The  two  dying  declarations,  however,  in  the
instant case stand by themselves and there is no other reliable evidence  on
record by reference to which their truthfulness can be tested.”

24.    An elaborate consideration of whole  issue  in  context  of  multiple
dying declarations was examined by this court in Sudhakar  versus  State  of
Madhya Pradesh, 2012 (7) SCC 569. In para  1  of  the  judgment  this  court
noted the issue. Following was observed in para 1:

“An important question  of  criminal  jurisprudence  as  to  in  a  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 unexceptionally result in prejudice to the  case  of  the
prosecution, arises in the 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 came to the house, seeing  the
smoke and finding Ratanmala in burning condition took her to the hospital.

26.     The Naib Tehsildar DW 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  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:

“21.  Having referred to the law relating to dying declaration, now  we  may
examine the issue that in cases involving multiple dying  declarations  made
by the deceased, which of the various dying declarations should be  believed
by the court and what are the principles governing such determination.  This
becomes  important  where  the  multiple  dying  declarations  made  by  the
deceased are either contradictory or are at variance with each  other  to  a
large extent. The test of common prudence would be to  first  examine  which
of the dying declarations is corroborated  by  other  prosecution  evidence.
Further, the attendant circumstances, the condition of the deceased  at  the
relevant time, the medical evidence, the voluntariness  and  genuineness  of
the statement made by the deceased,  physical  and  mental  fitness  of  the
deceased and possibility of the deceased  being  tutored  are  some  of  the
factors which would guide the exercise of judicial discretion by  the  court
in such matters.”

“22.  In Lakhan this Court provided clarity, not only to the  law  of  dying
declarations,  but  also  to  the  question  as  to  which  of   the   dying
declarations has to be preferably relied upon by the court in  deciding  the
question of guilt of  the  accused  under  the  offence  with  which  he  is
charged. The facts of that case were quite similar, if not identical to  the
facts of the present case. In that case also,  the  deceased  was  burnt  by
pouring kerosene oil and was brought to the hospital by the accused  therein
and  his  family  members.  The  deceased  had  made  two  different   dying
declarations, which were mutually at variance.  The  Court  held  as  under:
(SCC pp. 518-19 & 522-24, paras 9-10, 23-24, 26 & 30)

“9. The doctrine of dying declaration is enshrined in the legal  maxim  nemo
moriturus praesumitur mentire, which means ‘a man will not  meet  his  Maker
with a lie in his mouth’. The doctrine of dying declaration is enshrined  in
Section 32 of the Evidence Act, 1872 (hereinafter called  as  ‘the  Evidence
Act’) as an exception to the general rule contained in  Section  60  of  the
Evidence Act, which provides that oral evidence in all cases must be  direct
i.e. it must be the evidence of a witness, who says he  saw  it.  The  dying
declaration is, in fact, the statement of a person, who cannot be called  as
witness  and,  therefore,  cannot   be   cross-examined.   Such   statements
themselves are relevant facts in certain cases.

10. This Court has considered time and again the  relevance/probative  value
of dying declarations recorded under different situations and also in  cases
where more than one dying declaration has been recorded. The law is that  if
the court  is  satisfied  that  the  dying  declaration  is  true  and  made
voluntarily by the deceased, conviction can be based solely on  it,  without
any further corroboration. It is neither a rule of law nor of prudence  that
a dying declaration cannot be relied  upon  without  corroboration.  When  a
dying declaration is suspicious,  it  should  not  be  relied  upon  without
having corroborative  evidence.  The  court  has  to  scrutinise  the  dying
declaration carefully and must  ensure  that  the  declaration  is  not  the
result of tutoring, prompting or imagination. The deceased must be in a  fit
state of mind to make the declaration  and  must  identify  the  assailants.
Merely because a dying declaration does  not  contain  the  details  of  the
occurrence, it cannot be rejected and  in  case  there  is  merely  a  brief
statement, it is more reliable for the reason  that  the  shortness  of  the
statement is itself a guarantee of its veracity. If  the  dying  declaration
suffers from some infirmity, it cannot alone form the basis  of  conviction.
Where the prosecution version differs from the version given  in  the  dying
declaration, the said declaration cannot be acted upon.”

 “The second dying declaration was recorded by Shri Damodar  Prasad  Mahure,
Assistant  Sub-Inspector  of  Police  (PW  19).  He  was  directed  by   the
Superintendent of Police  on  telephone  to  record  the  statement  of  the
deceased, who had been admitted in the hospital. In that statement, she  had
stated as under:

‘On Sunday, in the morning, at about 5.30 a.m.,  my  husband  Lakhan  poured
the kerosene oil from a container on my head as a result of  which  kerosene
oil spread over my entire body and that he (Lakhan) put my sari  afire  with
the help of a chimney, due to which I got burnt.’
She had  also  deposed  that  she  had  written  a  letter  to  her  parents
requesting them to fetch her from the matrimonial home as  her  husband  and
in-laws were harassing her. The said dying declaration  was  recorded  after
getting a certificate from  the  doctor  stating  that  she  was  in  a  fit
physical and mental condition to give the statement.”

“As per the injury report and the medical evidence it remains  fully  proved
that the deceased had the injuries on  the  upper  part  of  her  body.  The
doctor, who had examined her at the time of admission in  hospital,  deposed
that she had burn injuries on her head, face, chest,  neck,  back,  abdomen,
left arm, hand, right arm, part of  buttocks  and  some  part  of  both  the
thighs. The deceased was 65% burnt. At the time of admission, the  smell  of
kerosene was coming from her body.”
*     *     *
 “Undoubtedly,  the  first  dying  declaration  had  been  recorded  by  the
Executive Magistrate, Smt Madhu Nahar (DW 1),  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 father-in-law and  mother-in-law
and the medical report does not support her  first  dying  declaration,  the
trial court and the High Court have rightly discarded the same.”
*     *     *
“Thus, in view of the above, we reach the following inescapable  conclusions
on the questions of fact:
*     *     *
(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 suspicious circumstances. More so, it  stands  corroborated
by the oral declaration made by the deceased to  her  parents,  Phool  Singh
(PW 1), father and Sushila (PW 3), mother.”

“23. In Nallam Veera Stayanandam v.  Public  Prosecutor  this  Court,  while
declining to accept the findings of the trial court,  held  that  the  trial
court had erred because in the case of  multiple  dying  declarations,  each
dying declaration has to be considered independently on its own merit so  as
to appreciate its evidentiary value and one cannot be  rejected  because  of
the contents of the other. In cases where  there  is  more  than  one  dying
declaration, it is the duty of the court to consider each  one  of  them  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  its
evidentiary value and one cannot be rejected because of the contents of  the
other. In 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.

28.      It is also relevant to refer to judgment of this  court  in  Ranjit
Singh and others versus State of Punjab, 2006  (13)  SCC  130  wherein  this
court has clearly laid down that the conviction  can  be  recorded  on   the
basis of the dying declaration alone if the 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  the  first  dying  declaration.  Following  was
observed in para 13:

“It is now well settled that conviction can be recorded on the  basis  of  a
dying declaration alone, if the same is wholly reliable, but  in  the  event
there exists any suspicion as regards correctness or otherwise of  the  said
dying declaration, the courts in arriving  at  the  judgment  of  conviction
shall look for some corroborating evidence. It is also well known that in  a
case where inconsistencies in the dying declarations,  in  relation  to  the
active role played by one or the other accused  persons,  exist,  the  court
shall lean more towards the first dying declaration than the second one.”

29.     Learned counsel for the 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  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.

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  accepting  the
third dying declaration as has been extracted above.

31.      From the evidence on record, it is clear  that  all  the  witnesses
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.

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 10/10.30  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 motive  of  the
accused.

33.    It 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.  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  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).

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  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  Court  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.

37.   Thus submission of learned counsel for the 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  Shri  Giri  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 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
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  having
proved the prosecution case both Sessions Judge  and  the  High  Court  have
rightly convicted the accused of offence under Section 302 IPC.  We  do  not
see any merit in the appeal.  The appeal is dismissed.

                                ..........................................J.
                                             (ABHAY MANOHAR SAPRE)


                                ..........................................J.
                                                 (ASHOK BHUSHAN)
NEW DELHI;
 JUNE 29,  2016.