Smt.Manasa Alias Jwala vs The State Of Telangana And Another
2021 Latest Caselaw 1991 Tel

    IN THE HIGH COURT FOR THE STATE OF TELANGANA
                                 AT: HYDERABAD
                           CORAM:
               * THE HON'BLE SRI JUSTICE K. LAKSHMAN


               + CRIMINAL PETITION No.2246 OF 2021

% Delivered on: 05-07-2021
Between:
# Mrs. Manasa alias Jwala                                                        .. Petitioner
                                               Vs.
$ The State of Telangana, rep.by Public Prosecutor
  High Court of Telangana, Hyderabad through
  P.S. Bhuvangiri & another                                             .. Respondents


! For Petitioner                           : Mr. Brahmadandi Ramesh,


^ For Respondent No.1                      : Learned Public Prosecutor

 For Respondent No.2                       :     ---

< Gist                                     :

> Head Note                                :

? Cases Referred                           :
   1.     2014 Crl.L.J. 4078 (SC)
   2.     2014 Crl.L.J. 1875 (SC)
   3.     AIR 1962 SC 439
   4.     (1981) 3 SCC 635
   5.     2012 Crl.L.J. 3877 (SC)
   6.     2012 Crl.L.J. 3877 (SC)
   7.     2011 Crl.L.J. 2172 (SC)
   8.     2015 Crl.L.J. 2041 (SC)
   9.     2011 Crl.L.J. 2673 (SC)
   10.    2014 Crl.L.J. 3697 (SC)
   11.    (1976) 3 SCC 618
   12.    1958 AIR 22
   13.    M.Cr.C. No.30972/2019, decided on 29.07.2019
   14.    (1990) 3 SCC 45
   15.    (2010) 14 SCC 444
   16.    (2012) 4 SCC 722
   17.    (2006) 3 SCC 161
   18.    Crl.Appeal No.1230 of 2001, decided on 22.11.2002
   19.    (1999) 7 SCC 695
   20.    Crl.Appeal No.266 of 2007, decided on 17.01.2008
   21.    AIR 1990 SC 1266)
   22.    Crl.A. Nos.643, 638, 845 & 596 of 2003 and 123 of 2004, decided on 08.01.2010
   23.    (1988) 1 SCC 692
   24.    1992 Supp. (1) SCC 335
   25.    AIR 2019 SC 847
   26.    AIR 2021 SC 931
   27.    AIR 2021 SC 1918
                                                                         KL,J
                                                      Crl.P. No.2246 of 2021
                                   2




            HON'BLE SRI JUSTICE K. LAKSHMAN

            CRIMINAL PETITION No.2246 OF 2021
ORDER:

The present Criminal Petition is filed to quash the proceedings

in Crime No.231 of 2019 of Bhongir Town Police Station, Rachkonda

Commissionerate. The petitioner herein is sole accused in the said

Crime. The offence alleged against her is under Section 302 of IPC.

2. Heard Mr. Brahmadandi Ramesh, learned counsel for the

petitioner and learned Public Prosecutor appearing on behalf of

respondent No.1 -State. Despite service of notice, none appears on

behalf of respondent No.2 - de facto complainant.

3. On the complaint lodged by respondent No.2, the police of

Bhongir Town, have registered a case in Crime No.231 of 2019,

initially under Section - 174 of Cr.P.C. A perusal of the record would

reveal that deceased - Bandaru Shiva Kumar got married to Mrs. Uma

Maheshwari on 16.03.2015, and out of their wedlock, they have

blessed with a male child, named Bandaru Koushik. Thereafter,

matrimonial disputes arose between them and the first wife of the

deceased left his company stating in written that she is not interested

to lead matrimonial life with the deceased. Then, the deceased had

decided to marry the petitioner, for which, the parents of petitioner

asked him to give an undertaking with certain terms and conditions.

Accordingly, the deceased had given a written undertaking on KL,J Crl.P. No.2246 of 2021

05.05.2017. Pursuant to the said undertaking, their marriage was

performed on 07.05.2017. Thereafter, matrimonial disputes even

arose between the petitioner and the deceased and the petitioner left

the company of the deceased.

4. As per the complaint, dated 15.09.2019 given by respondent

No.2, sister of the deceased, on 13.09.2019 at about 11.00 a.m., the

deceased went to the house of parents of the petitioner to take her to

his house so as to lead matrimonial life, but the deceased poured

kerosene himself and lit fire. He was shifted to Government Hospital,

Bhongir and thereafter to Gandhi Hospital, Secunderabad for better

treatment, but he died on 15.09.2019. On 14.09.2019 his dying

declaration was recorded.

5. On the complaint lodged by respondent No.2, the police,

Bhongir Town have registered a case in Crime No.231 of 2019

initially under Section - 174 of Cr.P.C. on 15.09.2019. The incident

took place on 13.09.2019. The dying declaration was recorded on

14.09.2019 at Gandhi Hospital. Statements of witnesses under

Section - 161 of Cr.P.C. were recorded on 15.09.2019, 16.09.2019,

17.09.2019 and 18.09.2019 itself. The alteration memo was filed on

06.03.2021 altering the section of law from Section - 174 of Cr.P.C. to

Section - 302 of IPC. Since there is abnormal delay of 1½ year in

filing the alteration memo, this Court vide order dated 22.03.2021

directed the learned Public Prosecutor to get specific instructions in

the matter. On 23.03.2021, the learned Public Prosecutor, on KL,J Crl.P. No.2246 of 2021

instructions, has submitted that the Investigating Officer in Crime

No.231 of 2019 has obtained certified copy of dying declaration on

15.11.2019 from Gandhi Hospital. There is a delay of 2 months in

obtaining dying declaration. On 28.01.2020, the Investigating Officer

has addressed a letter to the learned Public Prosecutor seeking his

opinion. Thus, there is a delay of about 2½ months from obtaining the

certified copy of dying declaration. The learned Public Prosecutor did

not furnish his opinion. He has not permitted either the Investigating

Officer or any police to his office due to COVID-19 pandemic.

Thereafter, the Investigating Officer, who has conducted investigation

at the initial stage, retired and in his place, new Investigating Officer

took place and he has addressed another letter dated 30.08.2020 to the

learned Public Prosecutor seeking his opinion. Due to rains, the entire

file got damaged in the Public Prosecutor's office. The same was re-

constructed on 18.02.2021. Thereafter, the Investigating Officer has

filed alteration memo on 06.03.2021. Thus, there is delay at every

stage and there is abnormal delay in filing the alteration memo.

Therefore, this Court vide order dated 23.03.2021, directed the

Commissioner of Police, Rachakonda Commissionerate to cause an

enquiry in the matter, more particularly, with regard to delay caused in

filing the alteration memo and the manner in which the investigation

was conducted by the Investigating Officer and file a report before

this Court. Accordingly, an enquiry was caused and a report was

filed. As per the said report, the Commissioner of Police, Rachakonda

Commissionerate, has initiated disciplinary action against erring KL,J Crl.P. No.2246 of 2021

officials who are responsible for the said entire delay in altering the

section of law.

6. The petitioner herein sought to quash the proceedings in

Crime No.231 of 2019 on the following grounds:

(i) Statements of witnesses viz., LW.1, respondent No.2 and

sister of the deceased, LW.2, brother-in-law of the

deceased, LW.3, nephew of deceased, cousin of

respondent No.2 as LW.4, neighbours of petitioner as

LW.5 and 8, sister of petitioner as LW.6 and cousin of

the deceased as LW.7 do not speak about pouring of

kerosene on the deceased by the sister and mother of the

petitioner and that the petitioner lit the fire.

(ii) In the statements of witnesses, there is no allegation,

much less specific allegation against the petitioner

herein;

(iii) Even in the counter filed by the Station House Officer

and Inspector of Police, Bhongir Town Police Station,

Rachakonda Commissionerate, the deceased poured

kerosene himself on him and lit fire;

(iv) It is also specifically mentioned in paragraph No.8 of the

counter that the statement of kith and kin, eye-witnesses KL,J Crl.P. No.2246 of 2021

and scene of offence go to show that the deceased

himself set fire; and

(v) Except the dying declaration, there is no other evidence

against the petitioner herein;

7. Mr. Brahmadandi Ramesh, learned counsel for the

petitioner, would submit that dying declaration is not conclusive

evidence and it is not direct evidence and, therefore, it cannot be relied

upon to lay charge sheet against the petitioner. Investigating Officer

is having power to go through the statements of all witnesses and also

the documentary evidence collected by him. Though the incident took

place on 13.09.2019, dying declaration was recorded on 14.09.2019,

the deceased died on 15.09.2019, statements of witnesses were

recorded in September, 2019 itself, Investigating Officer has filed the

alteration memo almost after one and half year i.e., on 06.03.2021.

Thus, there is abnormal delay in filing the alteration memo. Even in

the alteration memo, it is specifically referred to the statements of

LWs.1 to 4, LWs.5 and 8, neighbours. As per the said statements, the

deceased himself poured kerosene and lit fire, and there is no

allegation against the petitioner. Only basing on the dying declaration,

the police altered the section of law from Section - 174 of Cr.P.C. to

Section - 302 of IPC.

i) The learned counsel for the petitioner, referring to the

contents of the statements, complaint and the alteration memo, would KL,J Crl.P. No.2246 of 2021

submit that the Investigating Officer cannot lay charge sheet only

basing on the dying declaration. He has to consider the statements of

other witnesses including the de facto complainant, kith and kin of the

deceased and also eye witnesses. None of them spoke about the role

played by the petitioner in commission of offence, more over, all of

them have categorically stated that the deceased himself poured

kerosene on him and lit fire. He has also placed reliance on the

judgments of the Hon'ble Supreme Court and this Court and would

contend that relying on the dying declaration, conviction cannot be

recorded. According to him, this Court is having power under Section

- 482 of Cr.P.C. to quash the proceedings to prevent abuse of process

of law.

8. On the other hand, the learned Public Prosecutor would

submit that dying declaration is an important piece of evidence and it

is admissible in evidence. It is a crucial piece of evidence. Veracity

of the dying declaration has to be considered during trial by the trial

Court, but not by the Investigating Officer. The reliability, or

otherwise of the dying declaration will be considered by the trial

Court. If the trial Court, on consideration of other evidence, comes to

a conclusion, then, the trial Court can discard it by giving specific

reasons. He would further submit that burden of proving dying

declaration lies on the prosecution. Opportunity of cross-examination

would be given to the accused to disprove the dying declaration. The

petitioner has to avail the said opportunity before the trial Court.

KL,J Crl.P. No.2246 of 2021

Instead of doing so, she has filed the present petition to quash the

proceedings in the aforesaid crime. With the said contentions, he

sought to dismiss the present criminal petition.

9. Section - 32 of the Indian Evidence Act deals with 'cases in

which statement of relevant fact by person who is dead or cannot be

found, etc., is relevant, and sub-section (1) deals with such statements

relating to cause of death, and as per which, 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.

i) The statement made by the deceased person will be treated as

an evidence and admissible in a Court of law. The reason behind the

same can be followed by a latin maxim Nemo Mariturus Presumuntur

Mentri which means that 'man will not meet his maker with lying on

his mouth'. "Statement written or verbal of relevant facts made by a

person, who is dead". "It is a statement of a person died explaining

the circumstances of his death". "It is the fact that dying man can

never lie or truth sits on the lips of dying man". Thus," a man about to

die, does not lie". Therefore, the dying declaration is admissible and

considered as evidence in Court and it is a crucial piece of evidence.

KL,J Crl.P. No.2246 of 2021

ii) The procedure to record dying declaration etc., are

specifically mentioned in Section - 32 of the Indian Evidence Act.

The burden to prove dying declaration lies on the prosecution.

Prosecution is put to strict proof of dying declaration. If the Court is

satisfied that the dying declaration is true and voluntary, it can basis

conviction on it without corroboration. Court can reject suspicious

dying declaration in criminal cases. In one of the judgments, the

Hon'ble Supreme Court categorically held that it is not proper for trial

Courts to look for loopholes in dying declarations. An incomplete

dying declaration is also admissible. A dying person does not lie.

Although there is neither a rule of law, nor of prudence that the dying

declaration cannot be acted upon without corroboration, the Court

must satisfy itself that the said dying declaration is true and voluntary

and only then could it be the sole basis for conviction without

corroboration.

iii) In Umakant v. State of Chhattisgarh1, the Apex Court

held that though a dying declaration is not recorded in the Court in the

presence of accused nor it is put to strict proof of cross-examination

by the accused, still it is admitted in evidence against the general rule

that hearsay evidence is not admissible in evidence. The dying

declaration does not even require any corroboration as long as it

inspires confidence in the mind of the Court and that it is free from

any form of tutoring. At the same time, dying declaration has to be

. 2014 Crl.L.J. 4078 (SC) KL,J Crl.P. No.2246 of 2021

judged and appreciated in the light of surrounding circumstances. The

whole point in giving lot of credence and importance to the piece of

dying declaration, deviating from the rule of evidence is that such

declaration is made by the victim when he/she is on the verge of

death.

iv) In Bhagwan Tukaram Dange v. State of Maharashtra2,

the Apex Court held that dying declaration is a statement made by a

dying person as to the injuries culminated in his death or the

circumstances under which the injuries were inflicted.

v) In Harbans Singh v. State of Punjab3, the Apex Court held

that it is neither a rule of law nor of prudence that a dying declaration

requires to be corroborated by other evidence before a conviction can

be based thereon.

vi) In State of Uttar Pradesh v. Suresh alias Chhavan4, the

Apex Court held that minor incoherence in the statement with regard

to the facts and circumstances would not be sufficient ground for not

relying upon statement which was otherwise found to be genuine.

Hence, as a rule of prudence, there is no requirement as to

corroboration of dying declaration before it is acted upon.

. 2014 Crl.L.J. 1875 (SC)

. AIR 1962 SC 439

. (1981) 3 SCC 635 KL,J Crl.P. No.2246 of 2021

vii) In M. Sarvana alias K.D. Saravana v. State of

Karnataka5, the Apex Court held that the dying declaration is the last

statement made by a person at a stage when he in serious

apprehension of his death and expects no chances of his survival. At

such time, it is expected that a person will speak the truth and only the

truth. Normally in such situations the courts attach the intrinsic value

of truthfulness to such statement. Once such statement has been made

voluntarily, it is reliable and is not an attempt by the deceased to cover

up the truth or falsely implicate a person, then the courts can safely

rely on such dying declaration and it can form the basis of conviction.

More so, where the version given by the deceased as dying declaration

is supported and corroborated by other prosecution evidence, there is

no reason for the courts to doubt the truthfulness of such dying

declaration.

viii) In Bhajju alias Karan Singh v. State of M.P.6, the Apex

Court held that declaration is admissible in evidence and the

admissibility is founded on the principle of necessity. A dying

declaration, if found reliable, can form the basis of a conviction.

ix) In State of M.P. v. Vishweshwar Kol7, the Apex Court

held that a dying declaration cannot be analyzed as if it were a statute

and it was only if the Court was to find that the injured was not in a fit

condition to make a statement or the possibility that it was tutored or

. 2012 Crl.L.J. 3877 (SC)

. 2012 Crl.L.J. 3877 (SC)

. 2011 Crl.L.J. 2172 (SC) KL,J Crl.P. No.2246 of 2021

motivated or the story given was completely unacceptable could be

some of the reasons for discarding it.

x) In Vijay Pal v. State (GNCT) of Delhi8, the Apex Court

held that if the dying declaration is absolutely credible and nothing is

brought on record that the deceased was in such a condition, he or she

could not have made a dying declaration to a witness, there is no

justification to discard the same.

xi) In Waikhom Yaima Singh v. State of Manipur9, the Apex

Court held that there can be no dispute that dying declaration can be

the sole basis for conviction, however, such a dying declaration has to

be proved to be wholly reliable, voluntary, and truthful and further

that the maker thereof must be in a fit medical condition to make it.

The oral dying declaration is a weak kind of evidence, where the exact

words uttered by the deceased are not available, particularly because

of the failure of memory of the witnesses who are said to have heard

it.

xii) In Balbir v. Vazir10, the Apex Court held that an oral

dying declaration can form basis of conviction if the deponent is in a

fit condition to make the declaration and if it is found to be truthful.

The courts as a matter of prudence look for corroboration to oral dying

declaration.

. 2015 Crl.L.J. 2041 (SC)

. 2011 Crl.L.J. 2673 (SC)

. 2014 Crl.L.J. 3697 (SC) KL,J Crl.P. No.2246 of 2021

xiii) In K. Ramachandra Reddy v. Public Prosecutor11, the

Apex Court held that the evidentiary value of dying declaration made

by the deceased:

"There is no doubt that the dying declaration is admissible in court under section 32(1) of the Indian Evidence Act, and there is no compulsion while making of dying declaration to take an oath, but the truth of the statement can be determined by the cross-examination. The court has to ascertain necessary measures to check the sanctity of the statement made by the deceased. As in India law, it was presumed that the man who is going to die, not meet his maker with a lie on his lips this is because, when the person is at his bed end all the desire and greed of person come to an end so probably there is no motive to lie. After that, the court must be satisfied with the condition that the deceased must be in a fit state of mind while making the statement. After all the measures assured by the court and satisfied that the statement is made voluntarily and true then it will be sufficient to accept the statement to finding conviction even without the corroboration."

xiv) In Khushal Rao v. State of Bombay12, the Apex Court

laid down the following principles relating to dying declaration:

"(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.

. (1976) 3 SCC 618

. 1958 AIR 22 KL,J Crl.P. No.2246 of 2021

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other pieces of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.

(v) 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, &, 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 & human character."

xv) There are many circumstances in which the statement made

by the dying person is not admissible in a court of law. The said

conditions are:

(i) If there is no question for consideration about the cause

of death of the deceased. For example, if a person in his

declaration state anything which is not remote or having

a connection with the cause of death than the statement

is not relevant and hence not be admissible;

KL,J Crl.P. No.2246 of 2021

(ii) the declarant must be competent to give a dying

declaration, if the declaration is made by the child then

the statement will not be admissible in court as it was

observed by the High Court of Madhya Pradesh in

Amar Singh v. State of M.P.13 that without the proof of

mental fitness and physical fitness the statement would

not be considered reliable;

(iii) the statement which is inconsistent has no value and can

not be considered as evidentiary in nature;

(iv) the statement made by the deceased should be free from

any influential pressure and should be made

spontaneous;

(v) It is perfectly allowed to the court if they reject any

untrue statement which contradicting in nature;

(vi) if the statement is incomplete in the sense which means it

can not answer the relevant questions which are

necessary to found guilty, and on the counterpart,

statement deliver nothing so it will not be deemed to

consider;

(vii) doctor's opinion and the medical certificate should with

the statement and support that the deceased is capable of

understanding what statement he makes; and

. M.Cr.C. No.30972/2019, decided on 29.07.2019 KL,J Crl.P. No.2246 of 2021

(viii) If the statement is not according to the prosecution. In

this regard, the following points should be taken into

consideration by the apex court;

xvi) Further, while making the statement deceased must be in

fit mind of the state. Should be recorded by the magistrate or by a

police officer and person in a case when deceased was so precarious.

A dying declaration should be recorded in question-answer form and

written in words of the persons exactly who gives the statement.

Dying declaration due to compulsion or pressure not be relied upon

whereas dying declaration free from any biased relied upon. As it was

held in the case of Krishna Lal v. Jagun Nath14 that the wife was

burnt by the husbands-in-law and in her dying declaration she held

that she was not burnt by her husband's-in-law and she was believed.

xvii) In Chirra Shivraj v. State of A.P15, the Apex Court held

that a mechanical approach in relying upon a dying declaration just

because it is there is extremely dangerous. The court has to examine a

dying declaration scrupulously with a microscopic eye to find out

whether the dying declaration is voluntary, truthful, made in a

conscious state of mind and without being influenced by other persons

and where these ingredients are satisfied, the Court expressed the view

that it cannot be said that on the sole basis of a dying declaration, the

order of conviction could not be passed.

. (1990) 3 SCC 45,

. (2010) 14 SCC 444 KL,J Crl.P. No.2246 of 2021

xviii) In Govindaraju @ Govinda v. State of Sriramapuram

P.S.16, the Apex Court held as under:

"23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eye-witness). It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:-

a. Wholly reliable;

b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable.

12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence."

xix) The above mentioned authoritative principle of law laid

down by the Apex Court, dying declaration is admissible in evidence.

It is a crucial piece of evidence. It is an exception to hear-say

evidence. Oral dying declaration is also admissible in evidence. If the

dying declaration is absolutely credible and nothing is brought on

. (2012) 4 SCC 722 KL,J Crl.P. No.2246 of 2021

record that the deceased was in such a condition, he or she could not

have made a dying declaration to a witness there is no justification to

discard the same. Thus, the genuineness, reliability, credibility or

otherwise has to be decided by the trial Court. As stated above,

burden of proof and relevancy of the dying declaration always lies on

the prosecution. It is put to strict proof. It is for the trial Court to

discard or disbelieve the dying declaration on the analysis of the entire

evidence available on record including oral and documentary. The

trial Court will analyze the reliability of dying declaration and its

admissibility basing on the depositions of witnesses. Therefore,

according to this Court, Investigating Officer is not having power to

come to a conclusion that dying declaration is not reliable or genuine.

The Investigating Officer is not having power to suspect the dying

declaration and he cannot analyze the statements of witnesses and

come to a conclusion that it was recorded in suspicious manner and on

tutoring by others.

10. Now, coming to the case on hand, as already stated above,

the incident in the present case took place on 13.09.2019. The dying

declaration was recorded on 14.09.2019 at Gandhi Hospital.

Statements of witnesses under Section - 161 of Cr.P.C. were recorded

on 15.09.2019, 16.09.2019, 17.09.2019 and 18.09.2019 respectively.

The alteration memo was filed on 06.03.2021 altering the section of

law from Section - 174 of Cr.P.C. to Section - 302 of IPC. In the

dying declaration, the deceased stated that the petitioner poured KL,J Crl.P. No.2246 of 2021

kerosene on the deceased and lit fire. The relevant portion of dying

declaration is extracted below:

"Q1: How you received these burn injuries, when and where?

Ans: My wife Manasa went to her parent-home two months back. Despite my asking, she has not been returning. Everyday I have been visiting her house, and asked her to come back. My wife Manasa, her mother and others live at Shrutinagar, Bhongir. Yester morning at 9-00 hours I went to my in-laws' house. I asked my wife to return, and she refused. Again I asked her to start. She asked me to gi (sic. go) and said that she will come later. At that time, after pouring kerosene my wife lit it. My younger sister-in-law Anusha came and poured water. I rang up to my elder brother-in- law. My brother-in-law took me to Government Hospital at Bhongir and they asked us to go to Gandhi Hospital.

Q2: What is the name of your mother-in-law? Who else were present at that time in the house of your in-laws?

Ans: My mother-in-law Laxmi. At the time of my wife pouring kerosene, my mother-in-law, my wife, her elder sister Radha, and my younger sister-in-law Anusha were present. My younger sister-in-law poured water, and called an ambulance. After that I phoned to my elder brother-in-law and asked him to come."

11. Learned counsel for the petitioner in support of his

contentions, relied upon the following decisions:

KL,J Crl.P. No.2246 of 2021

i) In P. Mani v. State of Tamil Nadu17, the Apex Court had an

occasion to deal with conviction recorded against the accused therein

solely on the dying declaration and held that conviction cannot be

recorded solely relying on the dying declaration. Referring to the

facts of the said case, where son and daughter of the deceased

categorically stated that she had been suffering from depression and

she had made an attempt to commit suicide a week prior to the date of

occurrence, the Apex Court held that that recording conviction solely

relying on the dying declaration is not proper. It further held that in a

case where suspicion can be raised as regard 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 records

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.

ii) In Chacko v. State of Kerala18, the Apex Court examining

the conviction judgment recorded by the trial Court confirmed by the

High Court solely relying on the dying declaration, held that the

Courts below i.e., trial Courts have solely relied on the dying

. (2006) 3 SCC 161

. Crl.Appeal No.1230 of 2001, decided on 22.11.2002 KL,J Crl.P. No.2246 of 2021

declaration without noticing the doubtful circumstances noted by it

and there being no other evidence in support of the prosecution case, it

is unsafe to place reliance on the evidence adduced by the prosecution

to base a conviction.

iii) In Paparambaka Rosamma v. State of Andhra

Pradesh19, a Three-Judge Bench of the Apex Court considering that

there were infirmities in the dying declaration held that recording

conviction basing only on the dying declaration is not safe.

iv) In Smt. Bhagwati Devi v. State of Uttarakhand20, a

Division Bench of Uttarakhand High Court, on consideration of the

facts of the said case, held that if the dying declaration is natural, true

and trustworthy, the conviction can be based on such dying

declaration without further corroboration of the same. If the dying

declaration appears to be tutored or exaggerated or suspicious one, the

same requires to be, corroborated from the other evidence on record,

before the conviction is based on such statement before death made by

the deceased in this regard. To examine whether the dying declaration

is true or not, contents of the dying declaration and other

circumstances have to be considered. In the said case, on the face of

it, the Division Bench held that there appears reasonable doubt as to

the truthfulness of the story narrated by the deceased and there is

. (1999) 7 SCC 695

. Crl.Appeal No.266 of 2007, decided on 17.01.2008 KL,J Crl.P. No.2246 of 2021

strong possibility of false implication of accused due to the uncordial

relations of the deceased with her.

v) In State of Andhra Pradesh v. P.V. Pavithran21 , the Apex

Court had an occasion to deal with the inordinate delay in initiating

criminal proceedings and completion of investigation under the

provisions of P.C. Act, held that there is no denying the fact that a

lethargic and lackadaisical manner of investigation over a prolonged

period makes an accused in a criminal proceeding to live every

moment under extreme emotional and mental stress and strain and to

remain always under a fear psychosis. Therefore, it is imperative that

if investigation of a criminal proceeding staggers on with tardy pace

due to the indolence or inefficiency of the investigating agency

causing unreasonable and substantial delay resulting in grave

prejudice or disadvantage to the accused, the Court as the protector of

the right and personal liberty of the citizen will step in and resort to

the drastic remedy of quashing further proceedings in such

investigation. In the present case, the delay is on the part of

Investigating Officer as stated above. Therefore, the said principle is

not applicable to the facts of the present case.

vi) In Gurcharan v. State22, a Division Bench of Delhi High

Court held that dying declaration which inspires confidence is

sufficient, on proof of same being made, to sustain a conviction. But,

. AIR 1990 SC 1266)

. Crl.A. Nos.643, 638, 845 & 596 of 2003 and 123 of 2004, decided on 08.01.2010 KL,J Crl.P. No.2246 of 2021

where a doubt arises in the mind of the Court with respect to the

contents of a dying declaration or where the dying declaration does

not inspire confidence and especially where there is evidence of a

motive to falsely implicate the accused persons, it would be unsafe to

return a finding of guilt on the basis of such dying declarations, and in

such cases, it would be the duty of the Court to look to some

corroborative evidence and if none is found, to give benefit of doubt

to the accused.

vii) In Madhavrao Jiwaji Rao Scindia v. Sambhajirao

Chandrojirao Angre23, the Apex Court held that when a prosecution

at the initial stage is asked to be quashed, the test to be applied by the

court is as to whether the uncontroverted allegations as made prima

facie establish the offence. It is also for the court to take into

consideration any special features which appear in a particular case to

consider whether it is expedient and in the interest of justice to permit

a prosecution to continue. This is so on the basis that the court cannot

be utilized for any oblique purpose and where in the opinion of the

court chances of an ultimate conviction is bleak and, therefore, no

useful purpose is likely to be served by allowing a criminal

prosecution to continue, the court may while taking into consideration

the special facts of a case also quash the proceeding even though it

may be at a preliminary stage.

. (1988) 1 SCC 692 KL,J Crl.P. No.2246 of 2021

12. As stated above, the aforesaid judgments rendered by the

Hon'ble Supreme Court and various other High Courts relied upon by

the learned counsel for the petitioner are while examining recording of

conviction by the trial Court or High Court solely basing on dying

declaration, whereas, in the present case, the matter is at crime stage.

The learned Magistrate has recorded the dying declaration of the

deceased on 14.09.2019. A perusal of the dying declaration would

reveal that the mother of petitioner and the petitioner poured kerosene

on the deceased and the petitioner lit fire. The petitioner's younger

sister poured water on the deceased. Thus, the deceased categorically

stated the role played by the petitioner, her mother in commission of

offence. In the said declaration, it is also mentioned by the doctor that

the patient was conscious, coherent and in fit state of mind through

out his making statement.

13. As stated above, genuineness, reliability or otherwise of the

dying declaration will be tested by the trial Court on consideration of

entire evidence, both oral and documentary. The Investigating Officer

is not having power to discard the said dying declaration during the

course of investigation. As stated above, the matter is at crime stage.

The Investigating Officer has to file charge sheet. Alteration memo

was filed altering section of law from Section - 174 of Cr.P.C. to

Section - 302 of IPC. As stated above, the Investigating Officer has

already recorded statements of witnesses in September, 2019. He has

obtained certified copy of dying declaration on 15.11.2019 itself and KL,J Crl.P. No.2246 of 2021

inquest report etc. are available with him. He has to file charge sheet.

In view of the same, it is not proper for this Court to interdict the

investigation at this stage, more particularly, where dying declaration

of the deceased was recorded which is a crucial piece of evidence.

14. The Apex Court has laid down certain parameters in State

of Haryana v. Bhajan Lal24, which are as follows:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a

1992 Supp. (1) SCC 335 KL,J Crl.P. No.2246 of 2021

Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

15. The Apex Court in Kamal Shivaji Pokarnekar v. The

State of Maharashtra25 has categorically held that quashing criminal

proceedings was called for only in a case where complaint did not

disclose any offence, or was frivolous, vexatious, or oppressive. If

allegations set out in complaint did not constitute offence of which

cognizance had been taken by Magistrate, it was open to High Court

. AIR 2019 SC 847 KL,J Crl.P. No.2246 of 2021

to quash same. It was not necessary that, a meticulous analysis of case

should be done before trial to find out whether case would end in

conviction or acquittal. If it appeared on a reading of complaint and

consideration of allegations therein, in light of the statement made on

oath that the ingredients of the offence are disclosed, there would be

no justification for High Court to interfere. The defences that might be

available, or facts/aspects which when established during trial, might

lead to acquittal, were not grounds for quashing complaint at

threshold. At that stage, only question relevant was whether

averments in complaint spell out ingredients of a criminal offence or

not. The Court has to consider whether complaint discloses that prima

facie, offences that were alleged against Respondents. Correctness or

otherwise of said allegations had to be decided only in trial. At initial

stage of issuance of process, it was not open to Courts to stifle

proceedings by entering into merits of the contentions made on behalf

of Accused. Criminal complaints could not be quashed only on

ground that, allegations made therein appear to be of a civil nature. If

ingredients of offence alleged against Accused were prima facie made

out in complaint, criminal proceeding shall not be interdicted.

16. In Skoda Auto Volkswagen India Private Limited v. The

State of Uttar Pradesh26, the Apex Court referring to the earlier

judgments rendered by it has categorically held that the High Courts

in exercise of its inherent powers under Section - 482 of Cr.P.C has to

. AIR 2021 SC 931 KL,J Crl.P. No.2246 of 2021

quash the proceedings in criminal cases in rarest of rare cases with

extreme caution.

17. In M/s. Neeharika Infrastructure Private Limited v.

State of Maharashtra27, a Three-judge Bench of the Apex Court laid

certain conclusions, for the purpose of exercising powers by High

Courts under Section - 482 of Cr.P.C and also Article - 226 of the

Constitution of India, which are as under:

"....

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities.

     . AIR 2021 SC 1918
                                                                          KL,J
                                                       Crl.P. No.2246 of 2021




The       inherent    power        of      the    court      is,

however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the KL,J Crl.P. No.2246 of 2021

court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."

18. In view of the above authoritative pronouncement of law,

according to this Court, the petitioner failed to make out any ground to

quash the proceedings in Crime No.231 of 2019 and, therefore, the

criminal petition is liable to be dismissed.

19. The present Criminal Petition is accordingly dismissed.

As a sequel, miscellaneous petitions, if any, pending in the

Criminal Petition shall stand closed.

_________________ K. LAKSHMAN, J 05th July, 2021 Note:

L.R. Copy to be marked (B/O.) Mgr