Andhra Pradesh High Court - Amravati

Pilla Rama Rao, Vizianagaram Dt. 2 ... vs State Of A.P., Rep. By P.P., Hyd on 2 May, 2023

         THE HON'BLE SRI JUSTICE A.V.SESHA SAI
                               AND
     THE HON'BLE SRI DUPPALA VENKATA RAMANA


             CRIMINAL APPEAL No.665 OF 2014

JUDGMENT: (per Hon'ble Sri Justice A.V.Sesha Sai)

      Accused Nos.1, 2 and 4 in S.C.No.70 of 2012 on the

file of the Court of the learned I Additional Sessions Judge,

Vizianagaram are the appellants in the present Criminal

Appeal, preferred under Section 374 (2) of the Code of

Criminal Procedure.


2.    By way of the judgment, dated 03.06.2014, the

learned Additional Sessions Judge convicted A1, A2 and

A4-appellants herein for the offence punishable under

Section 302 r/w 34 IPC and sentenced them to suffer

imprisonment for life. This appeal calls in question the said

judgment, dated 03.06.2014.


3.    Briefly stated the case of the prosecution, as per the

charge sheet, is as follows:

            The marriage between the deceased-

         Smt.Lalitha and the accused took place
                     2
                                                AVSS,J & DVR,J
                                            Crl.A.No.665 of 2014




nine years prior to the date of offence

and they begot a daughter and a son

out of their wedlock. At the time of

marriage, P.Ws.1 and 2 gave cash of

Rs.60,000/-   and   3   Tulas   of   Gold

ornaments to A1 towards dowry. A1 is

a man of suspicious nature and he

used to torture the deceased to bring

money from her parents. A1 sent the

deceased and two children to the

house of P.Ws.1 and 2 about eight

months prior to the death when his

demands    remained     unfulfilled.   A

panchayat was held on 30.06.2011 at

the house of P.W.5 (L.W.10) to which

L.Ws.11 to 16 also attended. During

the said panchayat, A1 gave a written

undertaking that he would look after

the wife and children properly and

P.Ws.1 and 2 also agreed to get the

land transferred, which was in the
                            3
                                                      AVSS,J & DVR,J
                                                  Crl.A.No.665 of 2014




name of the deceased, in favour of the

children      of   the    deceased   and   the

accused. A1 took his wife and children

to his house and there was no change

in    his    attitude    and    he   continued

harassment and sold away gold and

also appropriated the dowry amount

given at the time of marriage.

     On 03.01.2012, at about 6.00 p.m.,

the deceased came back from fields to

the house and A1, who was also in the

house, asked her for towel and when

the deceased told him to do for himself,

the accused got offended and set her

ablaze by pouring kerosene and A2 to

A4     also instigated him and they also

caught      hold    of   the   hands of the

deceased and she raised cries and

L.W.3       (son   of    the   deceased)   also

suffered      burns.      On    hearing,   the

neighbours gathered and put off the
                            4
                                                           AVSS,J & DVR,J
                                                       Crl.A.No.665 of 2014




flames and the deceased suffered 72%

burns at that time. On receipt of

information, at about 7.00 p.m., P.W.1

reached    the        Government          hospital,

Vizianagaram immediately. On receipt

of   medical        intimation-Ex.P20,           on

03.01.2012

, the Head Constable

(P.W.7) at the District Head Quarters

hospital Outpost Police Station

recorded the statement of the

deceased-Ex.P21 and P.W.14 (L.W.34),

on that basis, registered Cr.No.1 of

2012 under Sections 307 and 498-A

r/w 34 IPC on the file of the Gurazala

Police Station and, on 03.01.2012, the

learned Additional Judicial First Class

Magistrate, Vizianagaram-P.W.13

(L.W13) recorded Ex.P19-Dying

Declaration in the District Head

Quarters hospital in the presence of

P.W.16 (L.W.29), The then Sub-

AVSS,J & DVR,J Crl.A.No.665 of 2014

Inspector of Police-P.W.14 (L.W.34)

also examined the deceased under

Section 161 Cr.P.C., and recorded the

statement of the deceased on

03.01.2012 and it is also a Dying

Declaration under Section 32 of the

Indian Evidence Act, 1872. Thereafter,

the Section of law was altered on

11.02.2012 as Section 302 IPC. After

expiry of the deceased, P.W.18 (L.W.35)

took up investigation and held inquest

on the dead body of the deceased in

the presence of L.Ws.24 to 26.

Thereafter, the Doctor conducted

postmortem vide Ex.P17-report which

opined that the death was due to

burns. A1 was arrested on 08.01.2012

and A2 to A4 were arrested on

18.01.2012 and, after investigation,

police filed charge sheet and,

eventually, the learned Additional

AVSS,J & DVR,J Crl.A.No.665 of 2014

Sessions Judge found A1, A2 and A4,

who are the appellants herein, guilty of

the offence punishable under Section

302 IPC and sentenced them to

undergo life imprisonment.

4. In order to substantiate its case, the prosecution

examined P.Ws.1 to 18 and got marked Exs.P1 to P28

apart from M.Os.1 to 5. On behalf of the defence, Exs.D1

and D2 were marked.

5. Heard Smt.C.Vasundhara Reddy, learned counsel for

the appellants, and Sri S.Dushyanth Reddy, learned

Additional Public Prosecutor for the State, apart from

perusing the entire material available on record.

6. It is contended by the learned counsel for the

appellants that the judgment rendered by the learned

Sessions Judge is highly erroneous, contrary to law, weight

of evidence and probabilities of the case; that the learned

Sessions Judge ought to have held that the prosecution

failed to establish the guilt of the accused-appellants

AVSS,J & DVR,J Crl.A.No.665 of 2014

herein for the offence punishable under Section 302 r/w 34

IPC beyond reasonable doubt; that having held the

accused-appellants not guilty of the offences punishable

under Sections 304-B and 498-A IPC, the learned Judge

grossly erred in convicting the accused for the offence

under Section 302 IPC; that the learned Sessions Judge

grossly erred in convicting the accused-appellants herein,

solely on the basis of the Dying Declarations, though the

material witnesses turned hostile; that there is any amount

of variation between Exs.P19 to P21-statements; that when

the fact remains that the deceased sustained burns of

72%, by any stretch of imagination, that cannot be said to

be in a conscious state of mind, as such, the Dying

Declarations cannot be the basis for convicting the

accused. It is also the submission of the learned counsel

for the appellants that the non-examination of the children

is fatal to the case of the prosecution. The non-filing of the

statement of the deceased before P.W.14 is also fatal to the

case of the prosecution.

AVSS,J & DVR,J Crl.A.No.665 of 2014

7. In support of her submissions and contentions, the

learned counsel for the appellants takes the support of the

following judgments:

1) 2011 (2) ALT (Crl) 396 A.P.

2) AIR 2008 SC 19.

3) 2006 SCC 1319.

4) 2022 (2) ALD (Crl) 940.

5) AIR 29014 SC 2943.

6) 2019 (9) SCC 738.

7) 2004 (13) SCC 314.

8. On the contrary, strongly supporting the impugned

judgment and the findings recorded therein, it is contended

by the learned Additional Public Prosecutor that Exs.P19

and P21-Dying Declarations, in clear and vivid terms,

demonstrate the guilt of the accused. It is further

submitted by the learned Additional Public Prosecutor that

the evidence of P.Ws.13 and 17 coupled with Exs.P19 and

21 and the evidence of P.Ws.5 and 6 would prove the guilt

of the accused beyond reasonable doubt. Learned

Additional Public Prosecutor also submits that, having

regard to the questions posed and recorded in Ex.P19, it

AVSS,J & DVR,J Crl.A.No.665 of 2014

cannot be said that Rule 33 of the Criminal Rules of

Practice (for brevity, 'the Rules') was not adhered to.

9. To bolster his submissions and contentions, the

learned Additional Public Prosecutor takes the support of

the following judgments:

1) (2012) 7 SCC 646.

2) (2002) 6 SCC 710.

3) (2022) 4 SCC 741.

10. In the above background, now the points that emerge

for consideration of this Court in the present case are:

1) Whether the prosecution could establish the guilt of the accused-

               appellants    beyond      reasonable
               doubt?

2) Whether the judgment rendered by the learned Additional Sessions Judge warrants any interference of this Court under section 374 (2) Cr.P.C.?

11. P.Ws.1 and 2, who are the father and mother of the

deceased, turned hostile and they deposed that their

deceased daughter used to live with the accused happily

AVSS,J & DVR,J Crl.A.No.665 of 2014

and that she never complained about the accused. P.W.3,

who is the paternal uncle of the deceased, also turned

hostile, so also, P.W.4, who is a neighbour. P.W.5 is the

elder of the village and he deposed that, one year prior to

the death of the deceased, there was a dispute between the

parents of the deceased and her in-laws and they pacified

and settled the matter and Smt.Lalitha-deceased joined

the conjugal society of A1. During the course of cross-

examination, P.W.5 also stated that, at the time of land

dispute, the deceased did not complain anything against

A1 and she voluntarily joined the conjugal society of A1.

P.W.5 also stated that, by the time he reached the hospital,

the relatives of the deceased and a retired Sub-Inspector of

Police, by name Sri Kannam Naidu, were present and that

the said Kannam Naidu is a native of Tekkali and is a

distant relative of P.W.1 and that the elders and the said

Kannam Naidu are looking after the procedural aspect of

giving report to the police. P.W.5 further stated that he did

not state before the police that P.W.1 informed that A1,

with the assistance of A2 to 4, burnt the deceased and that

he did not state before the police as in Exs.D1 or D2

AVSS,J & DVR,J Crl.A.No.665 of 2014

(marked portions of the statement of P.W.5 recorded under

Section 161 Cr.P.C.). P.W.6 denies the participation of

P.W.5 in the said panchayat and also stated that, except

the dispute about the landed property, no other issue was

discussed in the panchayat and he also stated that he has

no personal knowledge about the dispute between the

deceased and A1. P.W.7, who is a relative of P.W.1, turned

hostile, so also, P.W.8-Photographer, who denied taking the

photographs of the dead body. P.W.9, who is a Village

Revenue Officer of Kalavacherla Village, turned hostile and

he stated that the police did not seize any Material Objects

in his presence. P.W.12 is the Doctor, who conducted

autopsy and issued Ex.P17-Postmortem Report, and he

stated that the cause of death was due to burns and he

observed 72% burns. P.W.13 is the learned Additional

Judicial First Class Magistrate, Vizianagaram, who

recorded Ex.P19-Dying Declaration.

12. According to P.W.14-Sub-Inspector of Police, at the

relevant point of time, he visited the Government hospital,

Vizianagaram on receipt of information from the hospital,

AVSS,J & DVR,J Crl.A.No.665 of 2014

after registration of F.I.R. and he stated that he examined

and recorded the statement of the deceased-Lalitha.

13. P.W.16 is the Civil Assistant Surgeon in the District

Head Quarters Hospital, Vizianagaram who certified on

Ex.P21-statement of the deceased recorded by P.W.17 that

the patient was conscious and coherent to give statement

and he sent Ex.P18-requisition.

14. A perusal of the material available on record, makes

it apparent that the case of the prosecution rests on

Exs.P19 and 21-Dying Declarations recorded by P.W.13-

learned Additional Judicial First Class Magistrate and

P.W.17-Head Constable in the General hospital Police

Outpost. Dying Declarations are the final version of the

dying persons and, unless there are strong circumstances

to show that they are the result of pressure and influence

of third parties, the Dying Declarations can neither be

discarded nor can be disregarded.

15. The contention of the learned counsel for the

appellants, while referring to the said Dying Declarations is

AVSS,J & DVR,J Crl.A.No.665 of 2014

that the same are the consequence of such pressure and

influence of third parties.

16. In this context, it may be appropriate and apposite to

refer to Rule 33 of the Rules, which reads as follows:

"Dying declaration:- (1)While recording a Dying Declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death. 11 (2)Before taking down the declaration, the Magistrate shall disclose his identify and also ask the declarant whether he is mentally capable of making a declaration. He should also put simple questions to elicit answer from the declarant with a view to knowing his state of mind and should record the questions and answers signs and gestures together with his own conclusion in the matter. He should also obtain whenever possible a certificate from the Medical Officer as to the mental condition of the declarant. (3)The declaration should be taken down in the words of the declarant as for as possible. The Magistrate should try to obtain from the declarant particulars necessary for

AVSS,J & DVR,J Crl.A.No.665 of 2014

identification of the accused. Every question put to the declarant and every answer or sign or gesture made by him in reply shall be recorded. (4)After the statement is recorded, it shall be read over to the declarant and his signature obtained thereon, if possible, and then the Magistrate shall sign the statement".

17. It is very much lucid from a reading of the above

provision of law that it is obligatory on the part of the

learned Magistrate to disclose his identity and to ask the

declarant whether he/she is mentally capable of making a

declaration. It is also required to be noted that the

statement of the dying person should be voluntary and be

completely free of any external influence and the mental

condition of the dying person should be coherent and

conscious.

18. A perusal of Ex.P21-Dying Declaration, said to have

been recorded by P.W.17-Head Constable, shows the

presence of P.W.1 and one Smt.Chandramma, maternal

aunt of the deceased. Another peculiarity, which this Court

notices from a perusal of Ex.P21, is that P.W.l and the said

AVSS,J & DVR,J Crl.A.No.665 of 2014

Smt.Chandramma acted as witnesses for Ex.P21 and the

said fact clearly demonstrates their presence at the time of

recording Ex.P21-Dying Declaration. It is also significant to

note that, according to P.W.17-Head Constable and P.W.5-

elder, one Mr.Kannam Naidu, a retired Sub-Inspector of

Police was also present at the time of recording Ex.P21-

Dying Declaration and P.W.5 also stated that the said

Kannam Naidu was looking after the procedural aspect

pertaining to recording of F.I.R. Ex.P19-Dying Declaration,

recorded by the learned Magistrate-P.W.13, shows that,

admittedly, there are contradictions in Exs.P.19 and 21

with regard to the presence of the relatives.

19. According to Ex.P21-Dying Declaration, recorded by

P.W.17, only A1, A2 and A4 were present at the scene of

offence, but, Ex.P19-Dying Declaration, recorded by the

learned Magistrate-P.W.13, shows the presence of another

sister-in-law of the deceased-Smt.Adilakshmi. Another

crucial aspect, which needs mention, is that the learned

Magistrate-P.W.13 did not specifically ask the deceased

AVSS,J & DVR,J Crl.A.No.665 of 2014

about her condition as mandated under Rule 33 of the

Rules referred to supra.

20. As per P.W.16-Doctor, who conducted Postmortem on

the dead body, the deceased sustained 72% burns. With

that much of burns, normalcy of the dying person cannot

be expected. Even as per the prosecution, both the children

were present in the house and the son of the deceased

(L.W8) caught hold of the deceased and sustained burn

injuries at the back side as per the statement given by the

deceased, but on the front side. The fact remains that the

children were not examined for the reasons best known

though the police showed the son of the deceased as L.W.3.

21. According to P.W.14-Sub-Inspector of Police, on

receipt of information from the hospital and after

registering F.I.R., he went to the hospital and recorded the

statement of the deceased, but, curiously, the said

statement was not marked and, in the considered opinion

of this Court, the same is highly fatal to the case of the

prosecution.

AVSS,J & DVR,J Crl.A.No.665 of 2014

22. In this context, it may be appropriate to refer to the

judgments cited by both the learned counsel for the

appellants and the learned Additional Public Prosecutor.

23. In the judgment cited by the learned counsel for the

appellants in Maharashtra v Sanjay, S/o

DigambarraoRajhans, [(2004)13 SCC 314],the Hon'ble

Supreme Court, at paragraph No.17, held as follows:

17. "Thus, the version of homicide set up by the prosecution as well as the version of suicide set up by the accused appear to be highly improbable and do not inspire confidence in the mind of the Court to believe either version. In this state of things, when two incredible versions confront the Court, the Court has to give benefit of doubt to the accused and it is not safe to sustain the conviction. The contradictions in the two dying declarations coupled with the high degree of improbability of the manner of occurrence as depicted by the prosecution case leaves the Court with no option but to attach little weight to these dying declarations. It is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It

AVSS,J & DVR,J Crl.A.No.665 of 2014

has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the Court in its truthfulness and correctness (vide the observations of Five Judge Bench in Laxman Vs. State of Maharashtra [(2002) 6 SCC 710]. Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, "great caution must be exercised in considering the weight to be given to this species of evidence". When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record. Adopting such approach, we are unable to place implicit reliance on the dying declarations, especially when the High Court felt it unsafe to act on them.

This is apart from the question whether the deceased who became unconscious at the spot (as recorded in Ext.37) with 95% burns and who was found to be in disoriented condition two hours later, was in a fit condition to talk to the doctor at the time of her admission to the hospital. We refrain from going into this aspect."

AVSS,J & DVR,J Crl.A.No.665 of 2014

24. In Umakant v. State of Chhattisgarh, [AIR 2014

SC 2943], the Hon'ble Supreme Court, at paragraph No.22,

held as follows:

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 Ext. 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 6-8-2003, 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 2-8-2003, she was aware of this, which shows that the evidence of the witness is not reliable and clouded with doubt.

AVSS,J & DVR,J Crl.A.No.665 of 2014

25. In Gargi v. State of Haryana,[(2019) 9 SCC 738],

the Hon'ble Supreme Court, at paragraph No.21, held as

follows:

21. In this case, it is also interesting to notice that though the prosecution had cited the other relations of the deceased as witnesses, including his mother and brother-in-law (husband of PW 8, who had otherwise signed the inquest report) but did not examine them before the Court. Withholding of relevant witnesses could only lead to further adverse inference that if examined, they would not have supported the prosecution case. This is apart from the fact that the investigating agency avoided to include any independent witness in the investigation and did not carry out necessary enquires from the persons other than in-laws of the appellant.

26. In Makhan Singh V. State of Haryana [2022 (2)

ALD (Crl) 940], at paragraph No.8, it is held as follows:

8.The law with regard to dying declaration has been summarized by this Court in the case of Lakhan (supra), 1 (1999) 6 SCC 545 2 (2007) 12 SCC 562 3 (2008) 4 SCC 265 4 (2010) 5 SCC 451 5

AVSS,J & DVR,J Crl.A.No.665 of 2014

(2010) 8 SCC 514 6 (2012) 7 SCC 569 7 (2016) 11 SCC 673 8 (2020) 11 SCC 343 9 (2022) 4 SCC 741 wherein the Court considered various oral judgments on the issue and observed thus: "21. In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully

AVSS,J & DVR,J Crl.A.No.665 of 2014

and take a decision as to which of the declarations is worth reliance."

27. In P. Mani v. State of Tamil Nadu[AIR 2006 SC

1319], the Hon'ble Supreme Court, at paragraph No.14,

held as follows:

14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on record clearly point out that what might have been stated in the

AVSS,J & DVR,J Crl.A.No.665 of 2014

dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of the Penal Code, the presumption in terms of Section 113-A of the Evidence Act is not available. In the absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.

28. In Nallapati Sivaiah v. Sub Divisional Officer,

Guntur, A.P.[AIR 2008 SC 19], the Hon'ble Supreme

Court, at paragraph Nos.18 and 22, held as follows:

18. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect

AVSS,J & DVR,J Crl.A.No.665 of 2014

the truth. This Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.

22. In K.RamachandraReddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] the Court having noticed the evidence of PW 20 therein who conducted the post-mortem that there were as many as 48 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries, came to the conclusion that in view of those serious injuries it was difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. It was also a case where the Magistrate did not put a direct question to the injured whether he was capable mentally to make any

AVSS,J & DVR,J Crl.A.No.665 of 2014

statement. In the circumstances this Court came to the conclusion that the Magistrate committed a serious irregularity in "not putting a direct question to the injured whether he was capable mentally to make any statement". It has been observed that even though the deceased might have been conscious in the strict sense of the term, "there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence".

The certificate issued by the doctor that the deceased was in a fit state of mind to make statement by itself would not be sufficient to dispel the doubts created by the circumstances and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured.

29. Coming to the judgments cited by the learned

Additional Public Prosecutor in the State of Uttar

Pradesh v. Veerpal& another [(2022) 4 SCC 741], the

Hon'ble Supreme Court, at paragraph No.10, held as

follows:

AVSS,J & DVR,J Crl.A.No.665 of 2014

10. 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.

10.1. In Laxman [Laxman v. State of Maharashtra, (2002) 6 SCC 710 : 2002 SCC (Cri) 1491] 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.

10.2. In Jagbir Singh [Jagbir Singh v. State (NCT of Delhi), (2019) 8 SCC 779 : (2019) 3 SCC (Cri) 657] 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,

AVSS,J & DVR,J Crl.A.No.665 of 2014

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 para 32, this Court concluded as under : (SCC p. 800) "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

AVSS,J & DVR,J Crl.A.No.665 of 2014

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 Ravi Chander [Ravi Chander v. State of Punjab, (1998) 9 SCC 303:1998 SCC (Cri) 1004] Harjit Kaur [Harjit Kaur v. State of Punjab, (1999) 6 SCC 545 :1999 SCC (Cri) 1130], KoliChunilalSavji [KoliChunilalSavji v. State of Gujarat, (1999) 9 SCC 562 :

2000 SCC (Cri) 432] and Vikas [Vikas v. State of Maharashtra, (2008) 2 SCC 516 : (2008) 1 SCC (Cri) 486].

30. In Shyamal Ghosh v. State of West Bengal [(2012)

7 SCC 646], the Hon'ble Supreme Court, at paragraph

No.45.3, held as follows:

45.3.Thirdly, even the version given by PW 13 and PW 23 partially supports the case of the prosecution, though in bits and pieces. For example, PW 23 has stated that the driver of the Maruti van was Manik Das

AVSS,J & DVR,J Crl.A.No.665 of 2014

and also that he had taken out the vehicle from the parking lot at about 9.30 p.m. on the day of the incident and had brought it back after midnight. He also stated that this car was being driven by Manik Das. Similarly, PW 13 also admitted that other rickshaws were standing at the stand. This was the place where PW 9 and PW 11 had seen the loading of the gunny bags into the Maruti van. In other words, even the statements of witnesses PW 13 and PW 23, who had turned hostile, have partially supported the case of the prosecution. It is a settled principle of law that statement of a hostile witness can also be relied upon by the court to the extent it supports the case of the prosecution. Reference in this regard can be made to Govindaraju v. State [(2012) 4 SCC 722 : (2012) 2 SCC (Cri) 533] .

31. In Laxman v. State of Maharashtra, [(2002) 6 SCC

710], the Hon'ble Supreme Court, at paragraph No.2, held

as follows :

2. At the outset we make it clear that we are only resolving the so-called conflict between the aforesaid three-Judge Bench

AVSS,J & DVR,J Crl.A.No.665 of 2014

decision of this Court, whereafter the criminal appeal will be placed before the Bench presided over by Justice M.B. Shah who had referred the matter to the Constitution Bench. We are, therefore, refraining from examining the evidence on record to come to a conclusion one way or the other and we are restricting our considerations to the correctness of the two decisions referred to supra.

32. In the considered opinion of this Court, the

judgments cited by the learned counsel for the appellants

are squarely applicable to the case on hand and the

judgments cited by the learned Additional Public

Prosecutor, in the definite opinion of this Court, would not

render any assistance to the case of the prosecution.

33. Having regard to the above discussion, oral and

documentary evidence available on record, and in view of

the contradictions in Exs.P.19 and 21-Dying Declarations,

which are the sole basis for the case of the prosecution,

and having regard to the principles laid down in the above

referred judgments cited by the learned counsel for the