State of U.P. vs Veerpal

State of U.P. vs Veerpal - Supreme Court Case 2022 -

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 34 OF 2022

State of U.P. ..Appellant(S)

Versus

Veerpal & Anr. ..Respondent(S)

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 30.05.2020 passed by the

Division Bench of the High Court of Judicature at Allahabad

in Criminal Appeal No. 4658 of 2015 by which the High

Court has allowed the said appeal preferred by the

respondents herein – original accused and has acquitted the

accused for the offences under Section 302 read with

Section 34 of the IPC, the State has preferred the present

appeal.

2. The facts leading to the present appeal in nutshell are as

under:

2.1 That PW1 Bengali Babu gave the First Information Report

which was registered as Crime No.1144/11 initially for the

offences under Section 326 of the IPC to the effect that on

20.12.2011 at about 2:30 pm, he got a call from Radha –

daughter of the deceased that her mother had got burnt. He

immediately reached the hospital and at that time SDM was

taking the deceased’s statement. According to him, the girl

told that her fatherinlaw and motherinlaw demanded the

money and when she refused there was an assault and

thereafter they poured kerosene over her and with a burning

matchstick burnt her. The Investigating Officer started the

investigation. He recorded the statements of the relevant

witnesses and collected the necessary evidence including

the medical evidence. After completion of investigation,

Investigating Officer filed the chargesheet against the

accused for the offences under Section 302 read with

Section 34 of the IPC. The learned Trial Court framed the

charge against the accused for the aforesaid offences. The

accused denied the charge and pleaded not guilty.

Therefore, they claimed to be tried by the Trial Court for the

aforesaid offences.

2.2 To prove the charge against the accused, the prosecution

examined as many as 10 witnesses. PW5 turned hostile.

The prosecution also brought on record documentary

evidences including two dying declarations, one recorded by

the police officer and another, recorded by the

Magistrate/SDM. On appreciation of evidence and

considering two dying declarations, the learned Trial Court

believed the dying declaration recorded by the Magistrate on

22.12.2011 and further observed that the defence put forth

on behalf of the accused that the deceased herself poured

the kerosene on her is not believable considering the

medical evidence on record. Thereafter the learned Trial

Court convicted the accused for the offences under Section

302 read with Section 34 of the IPC and sentenced the

accused to undergo life imprisonment.

3. Feeling aggrieved and dissatisfied with the judgment and

order of conviction and sentence imposed by the Trial Court,

the accused preferred the appeal before the High Court

being Criminal Appeal No.4658/2015. By the impugned

judgment and order, the High Court has acquitted the

accused mainly on the ground that there were two dying

declarations, one recorded on 20.12.2011 and another

recorded on 22.12.2011 and there was a gap of two days

between the two dying declarations. The High Court instead

of relying on the dying declaration recorded by SDM/Deputy

Commissioner of Agra and by disbelieving both the dying

declarations has acquitted the accused by observing that

according to the deceased when she was forced to give the

money and when she refused, the accused tried to assault

and she ran away and under the pressure she might have

poured the kerosene on her.

4. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, acquitting

the accused for the offences under Section 302 read with

Section 34 of the IPC, the State has preferred the present

appeal.

5. Ms. Garima Prashad, learned Senior Advocate appearing on

behalf of the State has vehemently submitted that in the

facts and circumstances of the case, the High Court has

committed a grave error in acquitting the accused for the

serious offences under Section 302 read with Section 34 of

the IPC.

5.1 It is further submitted by the learned Senior Advocate

appearing on behalf of the State that in the present case,

the High Court ought to have relied upon and considered

the dying declaration recorded by the competent magistrate.

5.2 It is submitted that as such cogent reasons were given by

the Trial Court on appreciation of evidence that the

statement before the IO which was considered to be first

dying declaration on 20.12.2011 does not inspire any

confidence. It is submitted that the aforesaid finding

recorded by the learned Trial Court was on appreciation of

available evidence on record more particularly the medical

evidence.

5.3 It is submitted that the High Court ought to have

appreciated that the dying declaration recorded by a

competent Magistrate would stand on a higher footing than

the declaration made to IO under Section 161 of Cr.PC.

Reliance is placed upon the decisions of this Court in the

cases of Ravi Chander & Ors. V. State of Punjab (1998) 9

SCC 303 (para 6); Harjit Kaur V. State of Punjab (1999) 6

SCC 545, (para 6); Koli Chunilal Savji & Anr. V. State of

Gujarat (1999) 9 SCC 562 (para 8); Vikas & Ors. V. State

of Maharashtra (2008) 2 SCC 516 (para 48); Laxman V.

State of Maharashtra (2002) 6 SCC 710 and Jagbir Singh

V. State (NCT of Delhi) (2019) 8 SCC 779 (para 21).

5.4 It is submitted that in the present case as such the High

Court has specifically observed that both the dying

declarations cannot be believed and it is not safe to rely

upon multiple dying declarations of the deceased. It is

submitted that the High Court has observed that it would

not be safe to rely upon multiple dying declarations of the

deceased in the absence of any corroborative evidence. It is

submitted that the aforesaid is contrary to the law laid down

by this Court in the cases of Amol Singh V. State of M.P.,

(2008) 5 SCC 468 (para 13); Kundula Bala

Subrahmanyam & Anr. V. State of Andhra Pradesh

(1993) 2 SCC 684 (para 18); Munnu Raja & Anr. V. State

of M.P., (1976) 3 SCC 104 (para 6). It is submitted that as

held by this Court in the aforesaid decisions there can be

conviction on the basis of a dying declaration of the

deceased without there being any corroborative evidence on

record.

5.5 It is submitted that in the present case, the High Court has

erred in not relying upon the dying declarations more

particularly the dying declaration recorded by the

Magistrate/SDM without any cogent reason. It is submitted

that as such the High Court has not doubted the credibility

and/or has not observed anything with regard to malice on

the part of the executive magistrate who recorded the

statement on 22.12.2011. It is submitted therefore the High

Court ought to have upheld the conviction relying upon the

dying declaration recorded by the Magistrate/SDM on

22.12.2011.

5.6 It is hence submitted that the impugned judgment and

order passed by the High Court is not sustainable and the

impugned judgment and order deserves to be quashed and

set aside and the judgment and order passed by the learned

Trial Court convicting the accused under Section 302 read

with Section 34 of the IPC deserves to be upheld/restored.

6. The present appeal is vehemently opposed by Shri P.S.

Khurana, learned counsel appearing on behalf of the

respondents – original accused. It is vehemently submitted

by learned counsel appearing on behalf of the original

accused that in the facts and circumstances of the case and

in view of multiple dying declarations, the High Court has

rightly acquitted the accused.

6.1 It is submitted that as rightly observed by the High Court

once the dying declaration was recorded by the police officer

on 20.12.2011, thereafter there was no reason to record

another dying declaration on 22.12.2011.

6.2 It is submitted that in the first dying declaration recorded

on 20.12.2011 she stated that out of fear of fatherinlaw,

she committed suicide and the role assigned to respondent

No.1 – fatherinlaw in her first dying declaration dated

20.12.2011 was only of chasing her for beating and not for

burning, and in the second dying declaration recorded by

the Magistrate, there was a somersault and the victim –

deceased implicated all other family members, the High

Court has rightly refused to rely upon the dying declaration

recorded by the Magistrate/SDM on 22.12.2011.

6.3 It is submitted that on appreciation of evidence, the High

Court has observed that the deceased was mentally weak. It

is submitted that therefore in such a state of mind and

because of the fear of her fatherinlaw that she will be

beaten when she refused to give the money, she committed

suicide by pouring kerosene on herself; no case of murder

has been made out and therefore, the High Court has rightly

acquitted the accused for the offences punishable under

Section 302 read with Section 34 of the IPC.

7. Making the above submissions, it is prayed to dismiss the

present appeal.

8. We have heard the learned counsel appearing on behalf of

the respective parties at length.

9. At the outset, it is required to be noted in the present case,

there are two dying declarations, one recorded by the Police

Officer on 20.12.2011 and another recorded by the

Magistrate/SDM recorded on 22.12.2011. Even in the

impugned judgment and order, the High Court has as such

specifically observed that none of the dying declarations

inspire confidence. The High Court has not believed the

dying declaration recorded by the Magistrate/SDM on

22.12.2011 mainly on the ground that when the dying

declaration was already recorded by the Police Officer on

20.12.2011, there was no reason to record the second dying

declaration. However, it is required to be noted that what

was recorded by the Police Officer on 20.12.2011 was the

statement under Section 161 Cr.PC. Therefore, it was

thought fit to record the dying declaration of the deceased

by the Magistrate and that is why SDM was called to record

the dying declaration of deceased on 22.12.2011. At the cost

of repetition, it is observed that even the High Court has

specifically observed that the first statement/dying

declaration recorded by the Police on 20.12.2011 does not

inspire any confidence. In that view of the matter, it is

required to be considered whether the dying declaration

recorded by the Magistrate on 22.12.2011 is to be believed

or not and whether on the basis of such dying declaration

recorded by the Magistrate/SDM, the accused can be

convicted or not.

9.1 While considering the aforesaid question/issue a few

decisions of this Court on the credibility of the dying

declaration recorded by the Magistrate are required to be

referred to.

9.1.1 In the case of Laxman (supra) after referring to and

considering the earlier decisions on the credibility of the

dying declaration recorded by the Magistrate, it was

observed that the Magistrate being a disinterested witness

and a responsible officer and there being no circumstances

or material to suspect that the Magistrate had any animus

against the accused or was in any way interested for

fabricating a dying declaration, question of doubt on the

declaration, recorded by the Magistrate does not arise.

9.1.2 In the case of Jagbir Singh (supra) this Court had an

occasion to consider the law relating to the dying

declaration and the problem of multiple dying declarations

in detail. It was observed and held that merely because

there are two/multiple dying declarations, all the dying

declarations are not to be rejected. It was observed and

held that when there are multiple dying declarations the

case must be decided on the facts of each case and the

court will not be relieved of its duty to carefully examine

the entirety of the material on record as also the

circumstances surrounding the making of the different

dying declarations. Ultimately, in paragraph 32, this Court

concluded as under:

“Our conclusion on multiple dying

declarations

32 We would think that on a conspectus of the

law as laid down by this Court, when there are

more than one dying declaration, and in the

earlier dying declaration, the accused is not

sought to be roped in but in the later dying

declaration, a somersault is made by the

deceased, the case must be decided on the facts

of each case. The court will not be relieved of its

duty to carefully examine the entirety of

materials as also the circumstances

surrounding the making of the different dying

declarations. If the court finds that the

incriminatory dying declaration brings out the

truthful position particularly in conjunction

with the capacity of the deceased to make such

declaration, the voluntariness with which it was

made which involves, no doubt, ruling out

tutoring and prompting and also the other

evidence which support the contents of the

incriminatory dying declaration, it can be acted

upon. Equally, the circumstances which render

the earlier dying declaration, worthy or

unworthy of acceptance, can be considered.”

Similar views have been expressed by this Court in the

case of Ravi Chander & Ors. (supra), Harjit Kaur (supra),

Koli Chunilal Savji & Anr. (supra) and Vikas & Ors.

(supra).

10. Applying the law laid down by this Court in the aforesaid

decisions to the facts of the case on hand, it is required to

be considered whether the dying declaration recorded by the

Magistrate on 22.12.2011 is to be believed or not. Nothing is

on record with regard to any allegation against the

Magistrate/SDM to the effect that he was biased or

interested in recording the dying declaration against the

accused. He was summoned during the course of

investigation and during the course of investigation he

recorded the dying declaration and the statement of

deceased. Even the High Court as such has not doubted the

credibility of the dying declaration recorded by the

Magistrate/SDM on the ground of malice. The reasoning

given by the High Court to not rely upon the dying

declaration recorded by the Magistrate/SDM is not germane

and cannot be accepted. We see no reason to doubt the

dying declaration recorded by the Magistrate on 22.12.2011

in which the deceased specifically stated that at 11:00 am

due to the feud over demanding money, respondents –

accused have burned her after pouring kerosene over her.

Therefore, in the statement of dying declaration recorded by

the Magistrate on 22.12.2011, the respondents – original

accused are specifically named and it is specifically stated

that they poured kerosene on her. At this stage, it is

required to be noted that in so far as the statement recorded

by the IO on 20.12.2011, it was recorded that the fatherinlaw demanded money and started beating her with a stick,

she ran away and she locked the door from inside and out of

anger she poured the kerosene available in the room and set

herself on blaze is concerned, considering the medical

evidence on record the said statement/ dying declaration

recorded by the Police Officer on 20.12.2011 does not

inspire any confidence. Medical evidence does not support

the version stated in the said dying declaration. It is to be

noted that even according to the accused, the fatherinlaw

took her to hospital. If statement of deceased in first dying

declaration that she locked the door from inside and out of

anger she poured kerosene is accepted, in that case it is not

explained by the accused as to how she was taken to the

hospital, as nothing is on record that the door was

broken/opened by the fatherinlaw – accused and

thereafter she was taken to hospital. Even considering the

medical evidence on record and the injuries sustained by

the deceased, it is found that there were no injuries at all on

the chest and injuries were found on the head and on the

backside. As rightly observed by the Trial Court if she had

committed suicide by pouring kerosene there would have

been injuries on the chest as well as injuries would not have

been on the head and on the backside. In our view, such

injuries as found on the body of the deceased could have

been possible only if somebody had poured kerosene on her

from behind her. The aforesaid aspect has not at all been

considered by the High Court.

10.1 Now, on the aspect, whether in absence of any corroborative

evidence, there can be a conviction relying upon the dying

declaration only is concerned, the decision of this Court in

the case of Munnu Raja & Anr. (supra) and the subsequent

decision in the case of Paniben (Smt) V. State of Gujarat,

(1992) 2 SCC 474 are required to be referred to. In the

aforesaid decisions, it is specifically observed and held that

there is neither a rule of law nor of prudence to the effect

that a dying declaration cannot be acted upon without a

corroboration. It is observed and held that if the Court is

satisfied that the dying declaration is true and voluntary it

can base its conviction on it, without corroboration. Similar

view has also been expressed in the cases of State of Uttar

Pradesh V. Ram Sagar Yadav & Ors. (1985) 1 SCC 552

and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211.

Therefore, there can be a conviction solely based upon the

dying declaration without corroboration.

10.2 Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958

SCR 552 is a watershed judgment on the law on the

evidentiary value of dying declarations. This Court laid down

the following principles as to the circumstances under

which a dying declaration may be accepted, without

corroboration:

“16. On a review of the relevant provisions of the

Evidence Act and of the decided cases in the different

High Courts in India and in this Court, we have come

to the conclusion, in agreement with the opinion of the

Full Bench of the Madras High Court, aforesaid, (1)

that it cannot be laid down as an absolute rule of law

that a dying declaration cannot form the sole basis of

conviction unless it is corroborated; (2) that each case

must be determined on its own facts keeping in view

the circumstances in which the dying declaration was

made; (3) that it cannot be laid down as a general

proposition that a dying declaration is a weaker kind

of evidence than other pieces of evidence; (4) that a

dying declaration stands on the same footing as

another piece of evidence and has to be judged in the

light of surrounding circumstances and with reference

to the principles governing the weighing of evidence;

(5) that a dying declaration which has been recorded

by a competent Magistrate in the proper manner, that

is to say, in the form of questions and answers, and,

as far as practicable, in the words of the maker of the

declaration, stands on a much higher footing than a

dying declaration which depends upon oral testimony

which may suffer from all the infirmities of human

memory and human character, and (6) that in order to

test the reliability of a dying declaration, the court has

to keep in view, the circumstances like the opportunity

of the dying man for observation, for example, whether

there was sufficient light if the crime was committed at

night; whether the capacity of the man to remember

the facts stated, had not been impaired at the time he

was making the statement, by circumstances beyond

his control; that the statement has been consistent

throughout if he had several opportunities of making a

dying declaration apart from the official record of it;

and that the statement had been made at the earliest

opportunity and was not the result of tutoring by

interested parties.”

The relevant facts of the said case are that the

deceased therein had given three successive dying

declarations within a span of two hours, which were, to a

certain degree contradictory to each other. However, one of

the aspects that remained common and was narrated by the

deceased in all three dying declarations was that he was

attacked by two persons, namely Kushal Rao and Tukaram

with swords and spears. This Court, relying on the common

thread running through all dying declarations, which was

consistent with medical evidence revealing punctured and

incised wounds on various parts of the body, held that the

said declarations could be relied upon in convicting the

accused who had been named in all three dying

declarations.

Corelating the said facts to the facts of the instant

case, we have noted that although the accused was not

specifically named by the deceased in her statement

recorded under section 161 of the Cr.PC, as the person who

set the deceased on fire, he has been so named in her dying

declaration. Even in the statement recorded under section

161 of the Cr.PC, the deceased has stated that her fatherinlaw had attacked her with a stick with an intention to kill

her and as a result, she locked herself in the room and set

herself ablaze. Therefore, we find that there runs a common

thread in the statements of the deceased, being that she

was attacked by the accusedrespondent herein. Further,

we also find that the statements made by the deceased in

her dying declaration are consistent with medical evidence

which reveals that there were burns on all parts of the body

except chest and sides of the abdomen and back. The burns

are at such parts as could have resulted when a person,

other than the deceased poured kerosene and set fire. As

already noted, if the deceased had set herself on fire, her

chest ought to have been burnt. In light of the aforesaid

discussion and the decision in Kushal Rao (supra), we find

that the medical evidence is consistent with the dying

declaration, thereby allowing this Court to place reliance on

the declarations.

The Trial Court has rightly observed as to the weight

and reliance that must be placed on the dying declaration of

the deceased. There was no reason for the High Court to

disregard the dying declaration of the deceased. It is noted

that the dying declaration was made by the deceased to

SubDivisional Magistrate (SDM) Bal Kishan Agarwal, who

was also examined as a prosecution witness (PW6) before

the Trial Court. His statement reveals that the deceased at

the time of making the statements, was fully conscious and

capable of comprehending the questions put forth by the

officer to whom the declaration was made. The evidentiary

value of the dying declaration is further enhanced by the

fact that it was accompanied by a certificate from the

physician who was treating the deceased prior to her death,

stating that the deceased remained fully conscious while

making the statement. The Trial Court rightly placed

reliance on the dying declaration having due regard to the

statements made by the physician as to the medical

condition of the deceased while making such declaration.

The Trial Court has also rightly noted that the statements of

the SDM and the physician, being independent witnesses in

the trial, has added weight to the prosecution case as the

same could not be motivated by malice.

11. Therefore, considering the dying declaration recorded by the

SDM/Magistrate on 22.12.2011 the accused can be

convicted for which they were tried. Hence in our view, the

High Court has committed a grave error in acquitting the

accused. The impugned judgment and order passed by the

High Court acquitting the accused for the offences

punishable under Section 302 read with Section 34 of the

IPC is unsustainable and the same deserves to be quashed

and set aside.

12. In view of the above and for the reasons stated above, the

present appeal is allowed. The impugned judgment and

order acquitting the accused for the offences punishable

under Section 302 read with Section 34 of the IPC is hereby

quashed and set aside. The judgment and order passed by

the learned Trial Court convicting the accused for the

offences punishable under Section 302 read with Section 34

of the IPC is hereby restored. Respondent Nos. 1 & 2 –

original accused are held guilty for the offences punishable

under Section 302 read with Section 34 of the IPC and

sentenced to undergo imprisonment for life and a fine of

Rs.10,000/ each as awarded by the learned Trial Court.

Accused to surrender before concerned court or jail

authority to undergo life sentence forthwith. The present

appeal is allowed to the aforesaid extent.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(B. V. NAGARATHNA)

New Delhi,

01.02.2022

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