State of Rajasthan vs Girdhari Lal

Manoj Kumar Garg, J

Instant criminal appeal has been filed by the State against the judgment and order dated 21.07.2001, passed by learned Additional Sessions Judge (Fast Track), Pali in Sessions Case No. 31/2001, whereby the learned trial court acquitted the accused-respondents from the offences punishable under Sections 302 & 307 IPC.

Brief facts necessary to be noted for deciding the controversy are that on 12.05.1995 at about 04:00 AM, injured- Anadi provided a statement to Head Constable- Roop Singh of Police Station- Sojat City. The statement was recorded in the presence of Dr. K.R. Chouhan at the Government Hospital, Sojat City. She stated that during the night she was sleeping at home alongside her husband and children. At around 03:00 AM, an unknown assailant, with the intent to kill her, poured a burning substance on her body, resulting in severe burn injuries over a substantial portion of her body. The same substance also spilled upon her husband, who was lying beside her, causing him to sustain burn injuries as well. Both immediately awoke and observed an individual fleeing through the courtyard (chowk) of the house. However, due to the darkness at the time, Anadi was unable to identify the perpetrator.

On the said statement, Police registered the FIR for offence under Sections 324, 307 IPC and started investigation. During the course of investigation, on 13.05.1995, injured- Anadi gave statement to the Police under Section 161 Cr.P.C. reiterating the aforesaid facts and further stated that the incident was caused by the accused-respondents due to an old animosity between them in respect of a property.

During her treatment, on 12.07.1995, injured- Anadi gave statement under Section 164 Cr.P.C. before the concerned Magistrate alleging that the accused-respondents had poured burning substance upon her, due to which she sustained multiple grievous burn injuries.

The accused-respondents were arrested by the Police on 20.07.1995 and challan was filed against them before the concerned court on 03.08.1995.

On 06.08.1995, Anadi succumbed to the burn injuries. Thus, Police filed challan against the accused respondents for offence under Section 302 IPC.

Thereafter, learned Trial Court framed, read over and explained the charges for the offence under Sections 302, 307 IPC to the accused respondents. They denied the charge and sought trial.

During the course of trial, the prosecution examined as many as fourteen witnesses and also got exhibited relevant documents in support of its case.

The accused-respondents were examined under Section 313 Cr.P.C. In defence, no witness was examined.

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 21.07.2001 acquitted the accused-respondents from offence under Sections 302, 307 IPC. Hence this appeal preferred by the State against the acquittal of the accused-respondents.

Learned Public Prosecutor, Mr. Vikram Singh Rajpurohit, vehemently contended that the learned Trial Court committed a grave error in law by failing to properly appreciate the evidence on record, thereby erroneously acquitting the accused-respondents of the charges under Sections 302 and 307 of IPC. It was submitted that the deceased- Anadi, in her statements recorded under Sections 161 and 164 of the Cr.P.C., had specifically named both the accused-respondents as the perpetrators of the offence. The said act was allegedly committed due to an existing dispute over a plot of land, which clearly established the motive behind the crime. The prosecution has, in the present case, successfully proved the charges beyond reasonable doubt by adducing cogent and credible oral as well as documentary evidence. However, despite the strength of the prosecution's case, including the explicit statements of the deceased and corroborative materials on record, the learned Trial Court erroneously disregarded the same. It is further argued that the Trial Court failed to exercise its judicial discretion properly and did not evaluate the evidence in a judicious manner, which has resulted in a miscarriage of justice and caused the failure of substantial justice. Accordingly, it is submitted that the impugned judgment is manifestly illegal, perverse, and unsustainable in the eyes of law, and therefore, deserves to be quashed and set aside.

Per contra, Mr. Suresh Kumbhat, learned counsel appearing on behalf of the accused-respondents, submits that in the very first statement given by the deceased- Anadi to the police at Government Hospital, Sojat City, she specifically stated that she saw an individual fleeing from the scene; however, due to the darkness, she was unable to identify the said person. Learned counsel further contends that in the subsequent statement recorded under Section 161 Cr.P.C. on the following morning, the deceased expressed only a suspicion that the accused-respondents might have committed the offence. However, the investigating officer allegedly tampered with the statement by striking out the words "हो सकता है" (might have) and replacing them with "ही हैं" (are the ones), thereby altering the tenor and implication of the statement. It is also pointed out that the statement of the deceased recorded under Section 164 Cr.P.C. was made nearly two months after the incident, on 12.07.1995. In these circumstances, it is submitted that the possibility of tutoring or influence by the deceased’s family members, including her husband or parents, cannot be ruled out. Hence, the reliability and evidentiary value of the deceased’s statements under Sections 161 and 164 Cr.P.C. are highly questionable. Learned counsel asserts that the accused-respondents have been falsely implicated in the present case and that the prosecution has failed to establish its case beyond reasonable doubt. It is emphasized that the learned Trial Court conducted a meticulous and comprehensive analysis of the evidence on record and arrived at a well-reasoned and legally sustainable judgment of acquittal, which does not warrant any interference by this Hon’ble Court.

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.

It is an undisputed fact that immediately after the incident, the deceased- Anadi was taken to the Government Hospital, Sojat City, where she gave her initial statement to the police in the presence of Dr. K.R. Chouhan. In that statement, she clearly stated that during the night, while she was sleeping alongside her husband and children, an unknown individual poured a burning substance on her. Her husband, who was sleeping next to her, also sustained burn injuries due to the same act. Upon awakening, they observed an individual fleeing from the courtyard (chowk) of the house; however, due to the darkness, she was unable to identify the assailant. On the following morning, the deceased made a second statement to the police under Section 161 Cr.P.C., wherein she expressed only a suspicion that the accused-respondents might have committed the offence. However, it has been alleged that the Investigating Officer tampered with this version by striking out the words “हो सकता है” (might have) and replacing them with “ही हैं”(are the ones), thereby materially altering the nature and legal impact of the statement. Subsequently, a third dying declaration was recorded under Section 164 Cr.P.C. by a Magistrate on 12.07.1995, nearly two months after the incident. In this statement, the deceased unequivocally named both accused-respondents as the perpetrators. However, given the significant delay in recording this statement, its evidentiary value is subject to scrutiny. The possibility of external influence or tutoring cannot be ruled out, especially when weighed against the initial consistent version where she had expressed her inability to identify the accused. Subsequently, deceased- Anadi passed away on 06.08.1995 i.e. after two and half months of the incident.

Before delving into the merits of the matter, it is essential to examine the legal principles governing cases involving multiple dying declarations.

Under the framework of criminal jurisprudence, a dying declaration is considered an exception to the rule against hearsay, founded upon the maxim ‘nemo moriturus praesumitur mentire’ which means “a man will not meet his Maker with a lie on his lips.” This principle is codified under Section 32 of the Indian Evidence Act, 1872. However, as the dying declarations suffer from inherent weaknesses, such as the same being not made on oath nor in the presence of the accused nor it could be tested by the cross-examination, the law has been laid down that while scrutinizing the dying declarations meticulous circumspection is called for.

While dealing with this aspect, in the case of Dandu Lakshmi Reddy vs. State of A.P. reported in AIR 1999 SC 3255, the Supreme Court observed that a dying declaration must be sieved through the judicial cullender and if it passes through gauzes it can be made the basis of a conviction, otherwise not. In that case the Supreme Court has adopted two tests in order to satisfy the judicial conscience that the dying declaration contains nothing but truth;  first  test  is  to scrutinise  whether  there  are  inherent improbabilities in the version and the next test is whether there are any inherent contradictions therein. While, dealing with the multiple dying declarations, the Supreme Court in the case of Sandeep vs State of Haryana reported in AIR 2015 SC (Cri.) 152, observed that incompatibility or inconsistency between two dying declarations can be said to arise if the assertions in one dying declaration are so diametrically opposed to statements in the other version, both cannot stand together.

The Hon’ble Supreme Court in the case of Kamla v. State of Punjab reported in (1993) 1 SCC 1 (2-Judge Bench) has held:

“5. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao v. State of Bombay [AIR 1958 SC 22 : 1958 SCR 552 : 1958 Cri LJ 106] ). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration, they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.”

In the case of Amol Singh v. State of M.P. reported in (2008) 5 SCC 468 (2-Judge Bench), has observed that:

“13. … However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.”

In the case of Ashabai v. State of Maharashtra reported in (2013) 2 SCC 224, the court observed:-

“15. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other.”

In the case of Uttam v. State of Maharashtra reported in (2022) 8 SCC 576, this court observed:

“15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion.”

In the case of Abhishek Sharma vs. State (Govt. of NCT of Delhi) in  Criminal  Appeal  No.  1473  of  2011  decided  on 18.10.2023, after consider the various pronouncements of their court, the following principles emerge, for a Court to consider when dealing with a case involving multiple dying declarations:

“9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;

9.2 All dying declarations should be consistent. In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken;

9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations.

9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances. 9.5 Each declaration must be scrutinized on its own merits. The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.

9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.

9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc.”

It is a settled principle of law that a conviction can be sustained solely on the basis of a dying declaration, provided that it is found to be truthful, voluntary, free from tutoring or coercion, and recorded when the deceased was in a fit mental and physical condition. However, in cases involving multiple dying declarations, courts must carefully examine any inconsistencies among them. As a general rule, where there are contradictions, preference is usually given to the dying declaration recorded by a Magistrate, being considered more reliable. Nevertheless, this is not an inflexible principle and must be applied in the facts and circumstances of each case. The court must examine whether the final dying declaration is corroborated by other independent and reliable evidence on record. In the present case, the first statement made by the deceased immediately after the incident, in the presence of a medical officer in which she clearly states that she could not identify the assailant. The second statement under

Section 161 Cr.P.C., recorded the following day, expresses only a suspicion, which was allegedly altered by the Investigating Officer. The third and final statement, recorded under Section 164 Cr.P.C. after a substantial delay of nearly two months, naming the accused-respondents, appears to be inconsistent with the earlier versions and, in the absence of corroboration, raises serious doubts about its credibility. The time lapse also opens the door to possible external influence, thus diminishing the reliability of this dying declaration.

Moreover, the deceased ultimately succumbed to her injuries on 06.08.1995, over two and a half months after the incident. Irrespective of the statement of PW/5- Dr. K.R. Chouhan and ExP. 26- injury report prepared by Dr. V.R. Patil (PW/14), this significant time gap between the incident and the death raises a critical question regarding the causal nexus between the injuries allegedly inflicted by the accused-respondents and the actual cause of death. As regards ocular testimony, the only supposed eyewitness, Rekha (PW-7), daughter of the deceased, turned hostile during trial. The testimony of Bhanaram (PW-11), husband of the deceased, reveals that although deceased- Anadi told him that the accused-respondents had poured burning substance on her, he himself admitted that he could not identify the assailant due to darkness. The testimonies of other witnesses also suffer from significant improvements and contradictions, thereby undermining the overall reliability of the prosecution’s case.

In light of the above circumstances, it is evident that there is a conspicuous absence of substantive and connecting evidence against the accused-respondents. The prosecution has not been able to establish, beyond reasonable doubt, the involvement of the accused-respondents in the alleged act of pouring a burning

substance on the deceased, resulting in her death. The case rests primarily on a dying declaration recorded after considerable delay, which is contradicted by earlier versions and not corroborated by any reliable independent evidence. The chain of circumstances is incomplete and fraught with material contradictions, unreliable witness testimonies, absence of medical corroboration, and serious procedural lapses.

In such a scenario, where the prosecution has failed to discharge its burden of proof, any conviction would be wholly unsustainable in law and would amount to a miscarriage of justice. Consequently, the findings of the learned Trial Court acquitting the accused-respondents appear to be based on a proper appreciation of evidence and do not warrant interference.

The Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Phoolchand Rathore reported in 2023 CriLR 724, while observing that courts are generally reluctant to interfere with an order of acquittal, recognized that such interference is warranted when it becomes evident that the acquittal was based on an entirely flawed reasoning process, legally erroneous, and involved a perverse approach to the facts of the case. In such circumstances, where the order of acquittal has led to a grave and substantial miscarriage of justice, the Court may reverse the acquittal and convert it into a conviction. In support of this principle, the Court relied upon its prior judgments, emphasizing the exceptional nature of such interference to rectify substantial errors in the acquittal order. these are:-

In State of M.P. & Others v. Paltan Mallah & Others, (2005) 3 SCC 169, reiterating the same view it was observed:

“8. … This being an appeal against acquittal, this Court would be slow in interfering with the findings of the High Court, unless there is perverse appreciation of the evidence which resulted in serious miscarriage of justice and if the High Court has taken a plausible view this Court would not be justified in interfering with the acquittal passed in favour of the accused and if two views are possible and the High Court had chosen one view which is just and reasonable, then also this Court would be reluctant to interfere with the judgment of the High Court.”

In a recent decision rendered by this Court in Basheera Begam v. Mohd. Ibrahim & Others, (2020) 11 SCC 174, it was observed:

“190. … Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have upon analysis of the evidence on record found the accused to be “not guilty”. …”

Similarly in the case of State of State of Uttrakhand Vs. Sanjay Ram Tamta,  reported  in  (2025) 2 SCC (Cri) 159,'  the  Hon'ble Supreme Court has observed as under:--

“6. Trite is the principle that the appellate courts would be slow in reversing an order of acquittal, especially since the presumption of innocence that is always available to the accused; as a basic principle of criminal jurisprudence, stands reinforced and reaffirmed by the acquittal and unless there are very substantive and compelling reasons to do so, there cannot be a reversal of an order of acquittal. Unless it is found that the findings are perverse and the only conclusion possible from the compelling evidence is of guilt; appellate courts will be slow to reverse an order of acquittal.

Recently, in Surender Singh Vs. State of Uttrakhand, one of us (B.R. Gavai, J.) referring to various binding precedents of this Court succinctly laid down the principle in the following manner in SCC para 24:

24 It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

In view of the discussion made hereinabove, we are of the opinion that the prosecution has completely failed to prove its case against the accused-respondents for offence under Sections 302, 307 IPC beyond all reasonable doubt. The appellant/State has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. The judgment passed by the learned trial court is detailed, reasoned and perfectly justified. Therefore, the same does not suffer from any infirmity and illegality warranting any interference from this Court.

With these observations, the present criminal appeal has no substance and the same is hereby dismissed. Record of the trial court be sent back forthwith.