Rajasthan High Court - Jodhpur
Himmat Singh And Ors vs State on 20 August, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:35680-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 355/2016
1. Himmat Singh S/o Bhanwar Singh,
2. Yashpal Singh S/o Himmat Singh,
3. Smt. Padam Kanwar W/o Himmat Singh,
All by caste Ravna Rajput, R/o Falna Station, District Pali.
(At present confined in Central Jail, Jodhpur)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Ms. Khushboo Palasiya, Amicus Curiae
For Respondent(s) : Mr. Vikram Singh Rajpurohit, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
Judgment
Reserved on: 11/08/2025
Date of pronouncement: 20/08/2025
REPORTABLE
BY THE COURT : (Per Hon'ble Mr. Manoj Kumar Garg, J.)
Instant criminal appeal has been filed by the appellants
against the judgment dated 19.03.2016 passed by learned Addl.
Session Judge, Bali, District Pali, in Sessions Case No.44/2012 by
which the learned Trial Court convicted and sentenced the
appellants as under:
S.No. Offence U/s Sentence Fine Sentence in
default of fine
1. 302/34 IPC Life Rs.2,000/- 6 months' S.I.
imprisonment
2. 341 IPC 1 month S.I. --- ----
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Both the sentences were ordered to run concurrently.
Brief facts necessary to be noted for deciding the
controversy are that on 24.08.2012, complainant Devi Singh gave
a statement while admitted in Burn Ward of Mahatma Gandhi
Hospital, Jodhpur to the effect that on 18.08.2012 he traveled
from Bangalore and reached Ahmedabad on 20.08.2012, he
proceeded to Falna where his wife Suman Kanwar had run away
to, after leaving her six month old child. Thereafter complainant
contacted his father-in-law, Himmat Singh and the complainant
was asked to bring the child to Falna. Upon which, he reached
Falna on 20.08.2012 at about 5:00 P.M. and went to his in-laws'
house, where he had tea. As he was about to leave, his mother-in-
law Padam Kanwar and brother-in-law Yashpal caught hold his
hands and his father-in-law was standing behind him. At that
moment, someone poured petrol on him and lit fire with the
intention to cause his death. Upon which, the neighbours
intervened to rescue him and took him to the hospital.
On the said report, Police registered the FIR No.113/2012
against the accused appellants and started investigation. During
the course of investigation, Police arrested the accused-appellants
and on completion of investigation, police filed challan against
them.
Thereafter, learned Trial Court framed the charges for the
offence under Sections 302/34 and 341 IPC to the accused
appellants. They denied the charges and sought trial.
[2025:RJ-JD:35680-DB] (3 of 17) [CRLA-355/2016]
During the course of trial, the prosecution examined as many
as twenty-three witnesses and also got exhibited relevant
documents in support of its case.
The accused-appellants were examined under Section 313
Cr.P.C. and in defence, no witness was produced.
Learned trial Court, after hearing the arguments from both
the sides, taking into consideration and appreciating the
documentary evidence and the statements of witnesses, vide
judgment dated 19.03.2016 convicted and sentenced the accused-
appellants for the offences as aforesaid. Hence, this criminal
appeal.
Counsel for the appellants vehemently submits that the
deceased and Suman Kanwar had entered into a court marriage
and following which they resided happily at Bangalore and one
child was also born of their wedlock. Suman Kanwar came to her
parental house to meet her parents for the first time. Upon
examining the dying declaration, it is evident that the thumb
impression of the deceased was not present on the dying
declaration. Additionally, the Doctor did not specify whether the
deceased was mentally and physically fit to give the statement.
Earlier on 20.08.2012 Doctor explicitly stated that the patient was
unfit to make any statement. The dying declaration was recorded
only on 24.08.2012, after obtaining second medical opinion. The
deceased ultimately succumbed on 28.08.2012 i.e. after about
eight days of the incident. Counsel further submits that all the
present appellants were also got burn injury in this incident, which
shows that the appellants tried to save the deceased, therefore,
they also received burn injuries. It is further argued that when the
[2025:RJ-JD:35680-DB] (4 of 17) [CRLA-355/2016]
deceased reached at his in-laws' house, he was in drunken
condition and he himself poured petrol and lit fire. It is further
stated that the deceased only mentioned that two persons caught
hold his hand but he has not mentioned the name of person, who
poured petrol on him and who lit fire. This shows that a false
dying declaration has been recorded by the Police. Learned Amicus
Curiae further submits that no motive in this case has come out
and the dying declaration was also not recorded in the presence of
Magistrate so the veracity of the dying declaration is very much
doubtful. Therefore, the impugned judgment of conviction being
per se illegal and perverse deserves to be quashed and set aside.
To buttress his contentions, counsel has cited the judgments of
the Hon'ble Supreme Court in the cases of Uttam Vs. State of
Maharashtra [Criminal Appeal No.485 of 2012] & Dipak
Bhai Jagdishchandra Patel Vs. State of Gujarat & Anr.
[Criminal Appeal No.714 of 2019).
Per-contra, the learned Public Prosecutor vehemently
submitted that the occurrence took place in the house of the
present appellants and initially the Doctor opined that the
deceased is not fit for giving the statement but subsequently on
24.08.2012, the doctor opined that the deceased was fit for giving
the statement, then the statement was recorded. Learned Public
Prosecutor further argued that it might be possible that the
deceased was in drunken condition but the incident took place at
the house of the appellants, therefore, they are very much liable
for the said incident. He also submits that the motive is also
established because deceased and Suman Kanwar solemnized love
marriage due to which the appellants were annoyed. It is further
[2025:RJ-JD:35680-DB] (5 of 17) [CRLA-355/2016]
argued that after marriage, Suman Kanwar filed an FIR under
Section 498-A IPC against the deceased and his family members.
It is submitted that the learned trial court after meticulous
examination of the evidence, oral as well as documentary, has
rightly convicted and sentenced the accused-appellants for the
offence under Sections 302/34 and 341 IPC. They thus crave
dismissal of the appeal.
We have considered the submissions of the counsel for the
parties made at bar and perused the impugned judgment as well
as record of the case.
As per prosecution, the deceased got his statement recorded
by the police, during his treatment in which he stated that his
mother-in-law Padam Kanwar and brother-in-law Yashpal caught
hold of him and either his father-in-law Himmat Singh or Yashpal
poured kerosene and lit fire.
At this stage, it would be appropriate to refer to Section 32
(1) of the Evidence Act which states as under: -
"32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is
relevant.--Statements, written or verbal, of relevant
facts made by a person who is dead, or who cannot be
found, or who has become incapable of giving
evidence, or whose attendance cannot be procured
without an amount of delay or expense which, under
the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the
following cases:--
(1) when it relates to cause of death.--
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When the statement is made by a person as to the
cause of his death, or as to any of the circumstances
of the transaction which resulted in his death, in cases
in which the cause of that person's death comes into
question. Such statements are relevant whether the
person who made them was or was not, at the time
when they were made, under expectation of death,
and whatever may be the nature of the proceeding in
which the cause of his death comes into question."
Section 32 (1) of the Indian Evidence Act is a vital exception
to the hearsay rule that admits statement made by a person who
is dead and when such statements relate to the cause of death or
the circumstances leading to it. Its scope is broad, covering both
homicide and suicide cases, but the admissibility hinges on the
proximity, relevance, and trustworthiness of the statement. Courts
scrutinize the circumstances under which such statements are
made to ensure they are reliable and closely connected to the
actual event, making Section 32 a powerful but carefully applied
provision in criminal evidence. The Hon'ble Supreme Court has
considered the scope and ambit of Section 32 of the Evidence Act,
particularly, Section 32(1) on various occasions including in the
matter of Sharad Birdhichand Sarda v. State of Maharashtra
reported in (1984) 4 SCC 116, in which their Lordships have
summarised the principles enumerated in Section 32(1) of the
Evidence Act, including relating to "circumstances of the
transaction":
"21. Thus, from a review of the authorities mentioned
above and the clear language of Section 32(1) of the
Evidence Act, the following propositions emerge:-
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(1) Section 32 is an exception to the rule of hearsay
and makes admissible the statement of a person who
dies, whether the death is a homicide or a suicide,
provided the statement relates to the cause of death,
or exhibits circumstances leading to the death. In this
respect, as indicated above, the Indian Evidence Act,
in view of the peculiar conditions of our society and
the diverse nature and character of our people, has
thought it necessary to widen the sphere of
Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally
construed and practically reduced to a cut- and-dried
formula of universal application so as to be confined in
a straitjacket. Distance of time would depend or vary
with the circumstances of each case. For instance,
where death is a logical culmination of a continuous
drama long in process and is, as it were, a finale of
the story, the statement regarding each step directly
connected with the end of the drama would be
admissible because the entire statement would have
to be read as an organic whole and not torn from the
context. Sometimes statements relevant to or
furnishing an immediate motive may also be
admissible as being a part of the transaction of death.
It is manifest that all these statements come to light
only after the death of the deceased who speaks from
death. For instance, where the death takes place
within a very short time of the marriage or the
distance of time is not spread over more than 3-4
months the statement may be admissible under
Section 32.
(3) The second part of clause (1) of Section 32 is yet
another exception to the rule that in criminal law the
evidence of a person who was not being subjected to
or given an opportunity of being cross-examined by
the accused, would be valueless because the place of
[2025:RJ-JD:35680-DB] (8 of 17) [CRLA-355/2016]
cross-examination is taken by the solemnity and
sanctity of oath for the simple reason that a person on
the verge of death is not likely to make a false
statement unless there is strong evidence to show
that the statement was secured either by prompting
or tutoring.
(4) It may be important to note that Section 32 does
not speak of homicide alone but includes suicide also,
hence all the circumstances which may be relevant to
prove a case of homicide would be equally relevant to
prove a case of suicide.
(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
connected with or related to her death and which
reveal a tell-tale story, the said statement would
clearly fall within the four corners of Section 32 and,
therefore, admissible. The distance of time alone in
such cases would not make the statement irrelevant."
In the case of Sham Shankar Kankaria vs. State of
Maharashtra reported in (2006) 13 SCC 165, Hon'ble Supreme
Court held as under:
"10. This is a case where the basis of conviction of the
accused is the dying declaration. The situation in
which a person is on deathbed is so solemn and
serene when he is dying that the grave position in
which he is placed, is the reason in law to accept
veracity of his statement. It is for this reason the
requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration
be excluded it will result in miscarriage of justice
because the victim being generally the only
eyewitness in a serious crime, the exclusion of the
statement would leave the court without a scrap of
evidence.
[2025:RJ-JD:35680-DB] (9 of 17) [CRLA-355/2016]
11. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has
no power of cross-examination. Such a power is
essential for eliciting the truth as an obligation of oath
could be. This is the reason the court also insists that
the dying declaration should be of such a nature as to
inspire full confidence of the court in its correctness.
The court has to be on guard that the statement of
deceased was not as a result of either tutoring or
prompting or a product of imagination. The court
must be further satisfied that the deceased was in a
fit state of mind after a clear opportunity to observe
and identify the assailant. Once the court is satisfied
that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any
further corroboration. 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
corroborated. The rule requiring corroboration is
merely a rule of prudence. This Court has laid down in
several judgments the principles governing dying
declaration, which c ould be summed up as under as
indicated in Pa niben v. S tate of Gujarat (1992) 2
SCC 474 (SCC pp.480 -8 1, para 18) (Emphasis
supplied)
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. (See Munnu Raja v. State of M.P.,
(1976) 3 SCC 104)
(ii) If the Court is satisfied that the dying declaration
is true and voluntary it can base conviction on it,
without corroboration. (See State of U.P. v. Ram
Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v.
State of Bihar,(1983) 1 SCC 211)
(iii) The Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not
[2025:RJ-JD:35680-DB] (10 of 17) [CRLA-355/2016]
the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify
the assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy v. Public
Prosecutor,(1976) 3 SCC 618)
(iv) Where dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
(See Rasheed Beg v. State of M.P.,(1974) 4 SCC 264 )
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected. (See Kake Singh v. State
of M.P., 1981 Supp SCC 25)
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (See Ram
Manorath v. State of U.P.,(1981) 2 SCC 654)
(vii) Merely because a dying declaration does contain
the details as to the occurrence, it is not to be
rejected. (See State of Maharashtra v. Krishnamurti
Laxmipati Naidu,1980 Supp SCC 455)
(viii) Equally, merely because it is a brief statement, it
is not to be discarded. On the contrary, the shortness
of the statement itself guarantees truth. (See
Surajdeo Ojha v. State of Bihar,1980 Supp SCC 769.)
(ix) Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But
where the eyewitness has said that the deceased was
in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. (See
Nanhau Ram v. State of M.P.,1988 Supp SCC 152)
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. (See State of U.P.
v. Madan Mohan, (1989) 3 SCC 390)
(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time
[2025:RJ-JD:35680-DB] (11 of 17) [CRLA-355/2016]
must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and
reliable, it has to be accepted. (See Mohanlal
Gangaram Gehani v. State of Maharashtra,(1982) 1
SCC 700)"
In the case of Sampat Babso Kale and Anr. Vs State of
Maharashtra reported in (2019) 4 SCC 739, the Hon'ble Apex
Court has observed that:-
14. No doubt, a dying declaration is an extremely
important piece of evidence and where the Court is
satisfied that the dying declaration is truthful,
voluntary and not a result of any extraneous
influence, the Court can convict the accused only on
the basis of a dying declaration. We need not refer to
the entire law but it would be apposite to refer to the
judgment of this Court in the case of Sham Shankar
Kankaria v. State of Maharashtra2 held as follows:
"11. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has
no power of cross−examination. Such a power is
essential for eliciting the truth as an obligation of oath
could be. This is the reason the court also insists that
the dying declaration should be of such a nature as to
inspire full confidence of the court in its correctness.
The court has to be on guard that the statement of
deceased was not as a result of either tutoring or
prompting or a product of imagination. The court
must be further satisfied that the deceased was in a
fit state of mind after a clear opportunity to observe
and identify the assailant. Once the court is satisfied
that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any
further corroboration. It cannot be laid down as an
[2025:RJ-JD:35680-DB] (12 of 17) [CRLA-355/2016]
absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is
merely a rule of prudence........."
In the case of Purshottam Chopra and another v. State
(Government of NCT of Delhi) reported in (2020) 11 SCC
489, the Hon'ble Apex Court has observed that principles relating
to recording of dying declaration and its admissibility and
reliability as under: -
21. For what has been noticed hereinabove, some of
the principles relating to recording of dying
declaration and its admissibility and reliability could
be usefully summed up as under:-
i) A dying declaration could be the sole basis of
conviction even without corroboration, if it inspires
confidence of the Court.
ii) The Court should be satisfied that the declarant was
in a fit state of mind at the time of making the
statement; and that it was a voluntary statement,
which was not the result of tutoring, prompting or
imagination.
iii) Where a dying declaration is suspicious or is
suffering from any infirmity such as want of fit state of
mind of the declarant or of like nature, it should not
be acted upon without corroborative evidence.
iv) When the eye-witnesses affirm that the deceased
was not in a fit and conscious state to make the
statement, the medical opinion cannot prevail.
v) The law does not provide as to who could record
dying declaration nor there is any prescribed format or
procedure for the same but the person recording
dying declaration must be satisfied that the maker is
[2025:RJ-JD:35680-DB] (13 of 17) [CRLA-355/2016]
in a fit state of mind and is capable of making the
statement
vi) Although presence of a Magistrate is not absolutely
necessary for recording of a dying declaration but to
ensure authenticity and credibility, it is expected that
a Magistrate be requested to record such dying
declaration and/or attestation be obtained from other
persons present at the time of recording the dying
declaration.
vii) As regards a burns case, the percentage and
degree of burns would not, by itself, be decisive of the
credibility of dying declaration; and the decisive factor
would be the quality of evidence about the fit and
conscious state of the declarant to make the
statement.
viii) If after careful scrutiny, the Court finds the
statement placed as dying declaration to be voluntary
and also finds it coherent and consistent, there is no
legal impediment in recording conviction on its basis
even without corroboration.
Now the question for consideration is, whether the
statement of the deceased recorded by the police during
the course of treatment is relevant under Section 32 (1) of
the Evidence Act or not?
Admittedly, On 20.08.2012, after reaching Falna at about
5:00 P.M., the deceased contacted his father-in-law and requested
him to bring his wife Suman Kanwar to the railway station.
However, he did not arrive. When he made a follow-up call at
approximately 8:30 P.M., his father-in-law, Himmat Singh, advised
him to come to his residence.
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No doubt, the doctor had stated that he was in a fit state of
mind but he himself had, in his evidence, admitted that in the
case of a deceased with 80% burns, the shock may lead to
delusion. Applying the relevant principles to the facts of the
present case, the appellants cannot be convicted solely on the
basis of the statements of the deceased Devi Singh, as recorded
by police in presence of PW-14 Dr. Anuj Singh. Therefore, there is
a need to look for corroborative evidence in the present case.
The testimonies of PW-5 Babu Singh, the father of the
deceased; PW-6 Jagdish Singh, the uncle of the deceased; and
PW-7 Smt. Kaku Devi, the mother of the deceased, do not
establish any motive or intent on the part of the accused
appellants to set the deceased ablaze. Notably, these witnesses'
statements lack any indication of a prior altercation between the
deceased and his wife. Furthermore, the independent witnesses,
PW-1 Om Parkash, PW-3 Om Puri, PW-4 Madan Singh, PW-12
Bhopal Singh, and PW-21 Vikram Singh, have all turned hostile,
failing to corroborate the version of events presented by the
deceased. Additionally, it has been established that the deceased
was under the influence of alcohol at the time of the incident, as
confirmed by PW-15 Dr. Sanjay Bedi, who stated that the
deceased was intoxicated. Given the deceased's intoxicated state,
his testimony cannot be deemed entirely reliable, and, in the
absence of corroborative evidence, it would be inappropriate to
rely solely on his statements to establish guilt. Moreover, it is
pertinent to note that the police were informed by the accused,
Himmat Singh, who then arranged for the deceased to be taken to
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the hospital. This indicates that the police action was initiated
upon the report of accused Himmat Singh, and not solely based on
the deceased's account.
There is another important aspect of this case. The accused
Himmat Singh, Yashpal Singh and Padam Kanwar, all of them have
sustained burn injuries in the incident. Himmat Singh and Yashpal
Singh have sustained 9% burn injuries and Padam Kanwar has
sustained 18% burn injuries. As per dying declaration of Devi
Singh, Padam Kanwar and Yashpal had caught hold of him and
Himmat Singh was standing behind. There is no explanation
offered by the prosecution that if only two accused had caught
hold of deceased, how all the accused had sustained burn injuries.
In the case of Aejaz Ahmad Sheikh v. State of Uttar
Pradesh and ors. reported in 2025 (2) ACR 804, the Hon'ble
Apex Court has observed as under :-
"24. There are two other important aspects of the
case. Co-accused Aslam, a cousin of the accused, also
suffered burn injuries in the incident. He died on 2nd
January 2009 with septicaemia. He suffered 40%
burn injuries. The prosecution also suppressed the
fact that the accused also suffered superficial to deep
burn injuries on the face and both forearms to the
extent of 20%. This fact was brought to the record by
the accused by examining Dr. K.C. Rai as a defence
witness.
25. According to the prosecution's case, after pouring
kerosene oil on the victims, the accused and Aslam
were standing outside the room and were not
allowing anybody to enter the room. Co-accused
Aslam is himself a victim of the fire. There is no
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explanation offered by the prosecution of how the
accused and Aslam suffered burn injuries. The burn
injuries to Aslam proved to be fatal. This also raises
suspicion about the prosecution's case.
26. We are dealing with an appeal against acquittal.
After reappreciation of evidence, we find that the view
taken by the High Court that the guilt of the accused
was not proved beyond a reasonable doubt is a
possible view which could have been taken on the
basis of the evidence on record. Even assuming that
another view is possible, that is no ground to overturn
the order of acquittal.
27. It is true that the incident is very shocking in
which a woman and her three daughters were burnt,
and one of them died on the spot, the other three
died after a few days. However, in the absence of
legal evidence on record to prove the guilt of the
accused beyond a reasonable doubt, we cannot
interfere with the impugned judgment of the High
Court."
Considering the totality of the evidence or the lack thereof, it
is evident that the prosecution has failed to prove the guilt of the
accused beyond a reasonable doubt and substantiate the charge
of murder under Section 302/34 and 341 of IPC. The absence of
motive, the hostile and uncorroborated testimonies, and the
deceased's intoxicated condition collectively cast serious doubt on
the prosecution's case. Therefore, in the interest of justice and
based on the principles of reasonable doubt, we are of the
considered opinion that the accused appellants are entitled to be
acquitted of the offence under Section 302/34 and 341 of IPC .
[2025:RJ-JD:35680-DB] (17 of 17) [CRLA-355/2016]
Resultantly, the present criminal appeal is allowed.
Accordingly, the conviction of the appellants as recorded vide
judgment dated 19.03.2016 passed by learned Addl. Session
Judge, Bali, District Pali, in Sessions Case No.44/2012 is quashed
and set aside. The appellants are acquitted of offence under
Sections 302/34 and 341 IPC. Record of the learned court below
be sent back forthwith. The Appellant No. 1- Himmat Singh and
Appellant No. 3- Smt. Padam Kanwar are on bail, they need not be
surrender. Their bail bonds stands cancelled. The Appellant No. 2-
Yashpal Singh is in jail and be released forthwith, if not required in
any other case.
Keeping in view, however, the provisions of Section 437-A
Cr.P.C. the accused appellants are directed to forthwith furnish
personal bond in the sum of Rs.50,000/- and a surety bond in the
like amount before the learned trial court within a period of one
month, which shall be effective for a period of six months to the
effect that in the event of filing of Special Leave Petition against
the judgment or for grant of leave, the appellant, on receipt of
notice thereof, shall appear before Hon'ble Supreme Court.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
55-Ishan/-
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