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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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. 

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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

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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).

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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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Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले