Sec. 498 A . .304 B and 302 I.P.C – ACQUITTED UNDER SEC.498 A, 304 B – No conviction under sec.302 I.P.C. be given on doubting dying declaration – Apex court held that The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. After considering the evidence and the judgments of the Courts below, we are of the considered opinion that the evidence available on record and the dying declaration
does not inspire confidence in the mind of this Court to make it the basis for the conviction of the appellants. Apart from this, the High Court basing on the same dying declaration, ought not to have convicted the appellants under Section 302 IPC, when they were acquitted under Section 304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by
the High Court. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed by the High Court vide its judgment dated 24th September, 2010 in Criminal Appeal No. 495 of 2005, against the appellants for the offence under Section 302 r/w 34 IPC, is set aside. =
certain guidelines while
considering a dying declaration:
1. Dying declaration can be the sole basis of conviction if it inspires
full confidence of the Court.
2. The Court should be satisfied that the deceased was in a fit state of
mind at the time of making the statement and that it was not the
result of tutoring, prompting or imagination.
3. Where the Court is satisfied that the declaration is true and
voluntary, it can base its conviction without any further
corroboration.
4. 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
corroborative. The rule requiring corroboration is merely a rule of
prudence.
5. Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence.
6. A dying declaration which suffers from infirmities, such as the
deceased was unconscious and could never make any statement cannot
form the basis of conviction.
7. Merely because a dying declaration does not contain all the details as
to the occurrence, it is not to be rejected.
8. Even if it is a brief statement, it is not to be discarded.
9. When the eye-witness affirms that the deceased was not in a fit and
conscious state to make the dying declaration, medical opinion cannot
prevail.
10. If after careful scrutiny the Court is satisfied that it is free from
any effort to induce the deceased to make a false statement and if it
is coherent and consistent, there shall be no legal impediment to
make it basis of conviction, even if there is no corroboration.
21. In the light of the above legal position that governs the
consideration of a dying declaration, the factual matrix has to be
scrutinised. As already extracted above, in the dying declaration Ex.P-13,
the deceased stated before the Magistrate that the appellants demanded
dowry and that the appellants set fire to her and she asked her brother-in-
law to rescue her, but he had chosen not to do so, and further on hearing
her cries, the neighbours came and extinguished the fire and admitted her
in the hospital. After she was admitted in the hospital, her parents came
and she informed them about the incident.=
The deceased is said to have stated that when she was pregnant she was
beaten up by the accused and because of which the child died in the womb.
At that time, she had taken treatment in Revival Hospital]. This statement
is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not in Ex.P13
dying declaration.
22. When we look at the dying declaration, it is not inspiring confidence
in the mind of this Court and throws serious doubt that the same is a
product of tutoring by the family members of the deceased for the reason
that, the sister of the deceased who was present when the deceased was
admitted in the hospital had signed in Ex.P-2 wherein it is stated that it
was an accident and nobody has burnt the deceased, but later she turned
around and stated that unless she signed on that, they were told that the
deceased would not be treated, and the High Court has taken this fact into
consideration, whereas in the dying declaration, the deceased has stated
that when her parents came to the hospital on 06.08.2003, she informed to
the parents for the first time and she had not mentioned that she informed
her sister or anybody before that, but according to the sister of the
deceased, on 02.08.2003, she was aware of this, which shows that the
evidence of the witness is not reliable and clouded with doubt.
23. The other circumstances which draw our attention is when the deceased
informed her parents on 06.08.2003, it is quite natural that the parents
will inform the police about the incident, because it is nobody’s case that
they were restrained in any manner from informing the police. Even the
deceased throughout the stay in the hospital for those 11 days had many an
occasion to meet the Doctors and other staff of the hospital, but she had
chosen not to give any complaint nor tried to share her agony with them,
which throws a grave doubt on the genuineness of the dying declaration. We
have gone through the judgment of the High Court, where P.W.7 who has
specifically deposed that they have tutored the deceased to state that she
was burnt by the accused.=
24. The High Court while considering Ex.P-2 has come to a conclusion that
the statement given in that one line is contradictory to one another. In
one line, it says that the injuries sustained by her are by accident.
Nobody has burnt her and she burnt herself. Hence, the High Court
discarded Ex.P-2. But, in our considered opinion, the High Court did not
appreciate the same in its proper perspective and interpreted it in a wrong
way. What Ex.P-2 states is that it is an accident, and nobody has pushed
her and for that accident, only the deceased is responsible.
The burden of proof in criminal law is beyond all reasonable doubt.
The prosecution has to prove the guilt of the accused beyond all reasonable
doubt and it is also rule of justice in criminal law that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other towards his innocence, the view which is
favourable to the accused should be adopted. After considering the
evidence and the judgments of the Courts below, we are of the considered
opinion that the evidence available on record and the dying declaration
does not inspire confidence in the mind of this Court to make it the basis
for the conviction of the appellants. Apart from this, the High Court
basing on the same dying declaration, ought not to have convicted the
appellants under Section 302 IPC, when they were acquitted under Section
304-B and 498-B IPC and Sections 3 and 4 of the Dowry Prohibition Act by
the High Court.
26. Accordingly, this Criminal Appeal is allowed. The conviction and
sentence imposed by the High Court vide its judgment dated 24th September,
2010 in Criminal Appeal No. 495 of 2005, against the appellants for the
offence under Section 302 r/w 34 IPC, is set aside.
advocatemmmohan 
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