STATE OF U.P. versus VEERPAL & ANR. on 1 February 2022

[2022] 1 S.C.R. 1163

STATE OF U.P.

VEERPAL & ANR.

(Criminal Appeal No. 34 of 2022)

FEBRUARY 01, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Evidence Act, 1872 – s.32 – Dying declaration – Appreciationof – Dying declaration recorded by the Magistrate in whichdeceased specifically stated that due to feud over demand of money,respondents-accused burnt her after pouring kerosene over her –On facts, no reason to doubt the dying declaration recorded by themagistrate – Statements in the dying declaration consistent withmedical evidence inasmuch as there were no injuries on the chestand injuries were found only on the head and backside – Suchinjuries on the head and backside could have been possible only ifsomebody have poured kerosene on the deceased from behind –Evidentiary value of the dying declaration further enhanced bycertificate by physician who treated the deceased prior to her deaththat at the time of making statements she was fully conscious – HighCourt erred in acquitting the accused – Penal Code, 1860 – s.302r/w. s.34.

Evidence – Dying declaration – Evidentiary Value- There canbe conviction solely based upon the dying declaration withoutcorroboration.

Allowing the appeal, the Court

HELD:1. Nothing is on record with regard to any allegationagainst the Magistrate/SDM to the effect that he was biased orinterested in recording the dying declaration against the accused.He was summoned during the course of investigation and duringthe course of investigation he recorded the dying declaration andthe statement of deceased. Even the High Court as such has notdoubted the credibility of the dying declaration recorded by theMagistrate/SDM on the ground of malice. The reasoning givenby the High Court to not rely upon the dying declaration recorded

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Aby the Magistrate/SDM is not germane and cannot be accepted.There is no reason to doubt the dying declaration recorded bythe Magistrate on 22.12.2011 in which the deceased specificallystated that at 11:00 am due to the feud over demanding money,respondents – accused have burned her after pouring keroseneover her. Therefore, in the statement of dying declarationBrecorded by the Magistrate on 22.12.2011, the respondents –original accused are specifically named and it is specifically statedthat they poured kerosene on her. [Para 10][1172-G-H;1173-A-B]

2. Even considering the medical evidence on record andCthe injuries sustained by the deceased, it is found that there wereno injuries at all on the chest and injuries were found on the headand on the backside. As rightly observed by the Trial Court ifshe had committed suicide by pouring kerosene there would havebeen injuries on the chest as well as injuries would not have beenDon the head and on the backside. Such injuries as found on thebody of the deceased could have been possible only if somebodyhad poured kerosene on her from behind her. The aforesaid aspecthas not at all been considered by the High Court. [Para 10][1173-E-F]E3. There can be a conviction solely based upon the dyingdeclaration without corroboration. [Para 10.1][1174-B]

4. Although the accused was not specifically named by thedeceased in her statement recorded under section 161 of theCr.P.C, as the person who set the deceased on fire, he has beenFso named in her dying declaration. Even in the statement recordedunder section 161 of the Cr.PC, the deceased has stated that herfather--in--law had attacked her with a stick with an intention tokill her and as a result, she locked herself in the room and setherself ablaze. Therefore, there runs a common thread in thestatements of the deceased, being that she was attacked by theGaccused -respondent. Further, the statements made by thedeceased in her dying declaration are consistent with medicalevidence which reveals that there were burns on all parts of thebody except chest and sides of the abdomen and back. The burnsare at such parts as could have resulted when a person, other H

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than the deceased poured kerosene and set fire. If the deceasedhad set herself on fire, her chest ought to have been burnt. Medicalevidence is consistent with the dying declaration, thereby allowingthis Court to place reliance on the declarations. [Para 10.2][1175-D-G]

5. The Trial Court has rightly observed as to the weightand reliance that must be placed on the dying declaration of thedeceased. There was no reason for the High Court to disregardthe dying declaration of the deceased. It is noted that the dyingdeclaration was made by the deceased to Sub--DivisionalMagistrate (SDM) . His statement reveals that the deceased atthe time of making the statements, was fully conscious and capableof comprehending the questions put forth by the officer to whomthe declaration was made. The evidentiary value of the dyingdeclaration is further enhanced by the fact that it was accompaniedby a certificate from the physician who was treating the deceasedprior to her death, stating that the deceased remained fullyconscious while making the statement. The Trial Court rightlyplaced reliance on the dying declaration having due regard to thestatements made by the physician as to the medical condition ofthe deceased while making such declaration. The Trial Court hasalso rightly noted that the statements of the SDM and thephysician, being independent witnesses in the trial, has addedweight to the prosecution case as the same could not be motivatedby malice. [Para 10.2][1175-G-H; 1176-A-C]

6. Considering the dying declaration recorded by the SDM/Magistrate on 22.12.2011 the accused can be convicted for whichthey were tried. Hence, the High Court has committed a graveerror in acquitting the accused. The impugned judgment and orderpassed by the High Court acquitting the accused for the offencespunishable under Section 302 read with Section 34 of the IPC isunsustainable and the same deserves to be quashed and set aside.[Para 11][1176-D-E]

Munnu Raja & Anr. v. State of M.P. (1976) 3 SCC 104: [1976] 2 SCR 764 ; Paniben (Smt) v. State of Gujarat,(1992) 2 SCC 474 : [1992] 2 SCR 197; State of Uttar A

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1166SUPREME COURT REPORTS

APradesh v. Ram Sagar Yadav & Ors. (1985) 1 SCC 552: [1985] 2 SCR 621; Ramawati Devi v. State of Bihar,(1983) 1 SCC 211 and Kushal Rao v. State of Bombay,AIR 1958 SC 22 : [1958] SCR 552 – relied on.

Ravi Chander & Ors. v. State of Punjab (1998) 9 SCCB303; Harjit Kaur v. State of Punjab (1999) 6 SCC 545;Koli Chunilal Savji & Anr. v. State of Gujarat (1999) 9SCC 562 : [1999] 3 Suppl. SCR 284; Vikas&Ors.v.State of Maharashtra (2008) 2 SCC 516 : [2008]1 SCR 933; Laxman v. State of Maharashtra (2002) 6SCC 710; Jagbir Singh v. State (NCT of Delhi) (2019)C8 SCC 779 : [2019] 11 SCR 1137; Amol Singh v. Stateof M.P., (2008) 5 SCC 468 : [2008] 8 SCR 956;Kundula Bala Subrahmanyam & Anr. v. State of AndhraPradesh (1993)2SCC684 : [1993] 2 SCR 666 – referredto.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.34 of 2022.

From the Judgment and Order dated 30.05.2020 of the High Courtof Judicature at Allahabad in Criminal Appeal No.4658 of 2015.

Ms. Garima Prashad, AAG, Vishnu Shankar Jain, Advs. for theAppellant.

P. S. Khurana, Vibhuti Sushant Gupta, Narender Kumar Verma,Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 30.05.2020 passed by the Division Bench of the HighCourt of Judicature at Allahabad in Criminal Appeal No. 4658 of 2015by which the High Court has allowed the said appeal preferred by therespondents herein – original accused and has acquitted the accused forthe offences under Section 302 read with Section 34 of the IPC, theState has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:-

2. The facts leading to the present appeal in nutshell are as under:- 2.1 That PW-1 Bengali Babu gave the First Information Reportwhich was registered as Crime No.1144/11 initially for the offencesunder Section 326 of the IPC to the effect that on 20.12.2011 at about2:30 pm, he got a call from Radha – daughter of the deceased that hermother had got burnt. He immediately reached the hospital and at thattime SDM was taking the deceased’s statement. According to him,the girl told that her father-in-law and mother-in-law demanded themoney and when she refused there was an assault and thereafter theypoured kerosene over her and with a burning matchstick burnt her.The Investigating Officer started the investigation. He recorded thestatements of the relevant witnesses and collected the necessaryevidence including the medical evidence. After completion ofinvestigation, Investigating Officer filed the charge-sheet against theaccused for the offences under Section 302 read with Section 34 ofthe IPC. The learned Trial Court framed the charge against the accusedfor the aforesaid offences. The accused denied the charge and pleadednot guilty. Therefore, they claimed to be tried by the Trial Court for theaforesaid offences.

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A2.2 To prove the charge against the accused, the prosecutionexamined as many as 10 witnesses. PW-5 turned hostile. The prosecutionalso brought on record documentary evidences including two dyingdeclarations, one recorded by the police officer and another, recorded bythe Magistrate/SDM. On appreciation of evidence and considering twodying declarations, the learned Trial Court believed the dying declarationBrecorded by the Magistrate on 22.12.2011 and further observed that thedefence put forth on behalf of the accused that the deceased herself pouredthe kerosene on her is not believable considering the medical evidence onrecord. Thereafter the learned Trial Court convicted the accused for theoffences under Section 302 read with Section 34 of the IPC and sentencedCthe accused to undergo life imprisonment.

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3. Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence imposed by the Trial Court, the accusedpreferred the appeal before the High Court being Criminal AppealNo.4658/2015. By the impugned judgment and order, the High CourtDhas acquitted the accused mainly on the ground that there were twodying declarations, one recorded on 20.12.2011 and another recorded on22.12.2011 and there was a gap of two days between the two dyingdeclarations. The High Court instead of relying on the dying declarationrecorded by SDM/Deputy Commissioner of Agra and by disbelievingboth the dying declarations has acquitted the accused by observing thatEaccording to the deceased when she was forced to give the money andwhen she refused, the accused tried to assault and she ran away andunder the pressure she might have poured the kerosene on her.

4. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, acquitting the accused for theFoffences under Section 302 read with Section 34 of the IPC, the Statehas preferred the present appeal.

5. Ms. Garima Prashad, learned Senior Advocate appearing onbehalf of the State has vehemently submitted that in the facts andcircumstances of the case, the High Court has committed a grave errorGin acquitting the accused for the serious offences under Section 302read with Section 34 of the IPC.

5.1 It is further submitted by the learned Senior Advocate appearingon behalf of the State that in the present case, the High Court ought tohave relied upon and considered the dying declaration recorded by theHcompetent magistrate.

5.2 It is submitted that as such cogent reasons were given by theTrial Court on appreciation of evidence that the statement before the IOwhich was considered to be first dying declaration on 20.12.2011 doesnot inspire any confidence. It is submitted that the aforesaid findingrecorded by the learned Trial Court was on appreciation of availableevidence on record more particularly the medical evidence.

5.3 It is submitted that the High Court ought to have appreciatedthat the dying declaration recorded by a competent Magistrate wouldstand on a higher footing than the declaration made to IO under Section161 of Cr.PC. Reliance is placed upon the decisions of this Court in thecases of Ravi Chander & Ors. V. State of Punjab (1998) 9 SCC303 (para 6); Harjit Kaur V. State of Punjab (1999) 6 SCC 545,(para 6); Koli Chunilal Savji & Anr. V. State of Gujarat (1999) 9SCC 562 (para 8); Vikas & Ors. V. State of Maharashtra (2008) 2SCC 516 (para 48); Laxman V. State of Maharashtra (2002) 6SCC 710 and Jagbir Singh V. State (NCT of Delhi) (2019) 8 SCC779 (para 21).

5.4 It is submitted that in the present case as such the High Courthas specifically observed that both the dying declarations cannot bebelieved and it is not safe to rely upon multiple dying declarations of thedeceased. It is submitted that the High Court has observed that it wouldnot be safe to rely upon multiple dying declarations of the deceased inthe absence of any corroborative evidence. It is submitted that theaforesaid is contrary to the law laid down by this Court in the cases ofAmol Singh V. State of M.P., (2008) 5 SCC 468 (para 13); KundulaBala Subrahmanyam & Anr. V. State of Andhra Pradesh (1993) 2SCC 684 (para 18); Munnu Raja & Anr. V. State of M.P., (1976) 3SCC 104 (para 6). It is submitted that as held by this Court in theaforesaid decisions there can be conviction on the basis of a dyingdeclaration of the deceased without there being any corroborativeevidence on record.

5.5 It is submitted that in the present case, the High Court haserred in not relying upon the dying declarations more particularly thedying declaration recorded by the Magistrate/SDM without any cogentreason. It is submitted that as such the High Court has not doubted thecredibility and/or has not observed anything with regard to malice on thepart of the executive magistrate who recorded the statement on22.12.2011. It is submitted therefore the High Court ought to have upheld A

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Athe conviction relying upon the dying declaration recorded by theMagistrate/SDM on 22.12.2011.

5.6 It is hence submitted that the impugned judgment and orderpassed by the High Court is not sustainable and the impugned judgmentand order deserves to be quashed and set aside and the judgment andBorder passed by the learned Trial Court convicting the accused underSection 302 read with Section 34 of the IPC deserves to be upheld/restored.

6. The present appeal is vehemently opposed by Shri P.S. Khurana,learned counsel appearing on behalf of the respondents – original accused.CIt is vehemently submitted by learned counsel appearing on behalf of theoriginal accused that in the facts and circumstances of the case and inview of multiple dying declarations, the High Court has rightly acquittedthe accused.

6.1 It is submitted that as rightly observed by the High Court onceDthe dying declaration was recorded by the police officer on 20.12.2011,thereafter there was no reason to record another dying declaration on22.12.2011.

6.2 It is submitted that in the first dying declaration recorded on20.12.2011 she stated that out of fear of father-in-law, she committedEsuicide and the role assigned to respondent No.1 – father-in-law in herfirst dying declaration dated 20.12.2011 was only of chasing her forbeating and not for burning, and in the second dying declaration recordedby the Magistrate, there was a somersault and the victim – deceasedimplicated all other family members, the High Court has rightly refusedto rely upon the dying declaration recorded by the Magistrate/SDM onF22.12.2011.

6.3 It is submitted that on appreciation of evidence, the High Courthas observed that the deceased was mentally weak. It is submitted thattherefore in such a state of mind and because of the fear of herfather-in-law that she will be beaten when she refused to give the money,Gshe committed suicide by pouring kerosene on herself; no case of murderhas been made out and therefore, the High Court has rightly acquittedthe accused for the offences punishable under Section 302 read withSection 34 of the IPC.

7. Making the above submissions, it is prayed to dismiss the presentHappeal.

8. We have heard the learned counsel appearing on behalf of therespective parties at length.

9. At the outset, it is required to be noted in the present case,there are two dying declarations, one recorded by the Police Officer on20.12.2011 and another recorded by the Magistrate/SDM recorded on22.12.2011. Even in the impugned judgment and order, the High Courthas as such specifically observed that none of the dying declarationsinspire confidence. The High Court has not believed the dying declarationrecorded by the Magistrate/SDM on 22.12.2011 mainly on the groundthat when the dying declaration was already recorded by the PoliceOfficer on 20.12.2011, there was no reason to record the second dyingdeclaration. However, it is required to be noted that what was recordedby the Police Officer on 20.12.2011 was the statement under Section161 Cr.PC. Therefore, it was thought fit to record the dying declarationof the deceased by the Magistrate and that is why SDM was called torecord the dying declaration of deceased on 22.12.2011. At the cost ofrepetition, it is observed that even the High Court has specifically observedthat the first statement/dying declaration recorded by the Police on20.12.2011 does not inspire any confidence. In that view of the matter, itis required to be considered whether the dying declaration recorded bythe Magistrate on 22.12.2011 is to be believed or not and whether on thebasis of such dying declaration recorded by the Magistrate/SDM, theaccused can be convicted or not.

9.1 While considering the aforesaid question/issue a few decisionsof this Court on the credibility of the dying declaration recorded by theMagistrate are required to be referred to.

9.1.1 In the case of Laxman (supra) after referring to andconsidering the earlier decisions on the credibility of the dying declarationrecorded by the Magistrate, it was observed that the Magistrate being adisinterested witness and a responsible officer and there being nocircumstances or material to suspect that the Magistrate had any animusagainst the accused or was in any way interested for fabricating a dyingdeclaration, question of doubt on the declaration, recorded by theMagistrate does not arise.

9.1.2 In the case of Jagbir Singh (supra) this Court had anoccasion to consider the law relating to the dying declaration and theproblem of multiple dying declarations in detail. It was observed andheld that merely because there are two/multiple dying declarations, all A

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Athe dying declarations are not to be rejected. It was observed and heldthat when there are multiple dying declarations the case must be decidedon the facts of each case and the court will not be relieved of its duty tocarefully examine the entirety of the material on record as also thecircumstances surrounding the making of the different dying declarations.Ultimately, in paragraph 32, this Court concluded as under: -B

“Our conclusion on multiple dying declarations 32 We would think that on a conspectus of the law as laid downby this Court, when there are more than one dying declaration,and in the earlier dying declaration, the accused is not sought toCbe roped in but in the later dying declaration, a somersault is madeby the deceased, the case must be decided on the facts of eachcase. The court will not be relieved of its duty to carefully examinethe entirety of materials as also the circumstances surroundingthe making of the different dying declarations. If the court findsthat the incriminatory dying declaration brings out the truthfulDposition particularly in conjunction with the capacity of thedeceased to make such declaration, the voluntariness with whichit was made which involves, no doubt, ruling out tutoring andprompting and also the other evidence which support the contentsof the incriminatory dying declaration, it can be acted upon. Equally,Ethe circumstances which render the earlier dying declaration,worthy or unworthy of acceptance, can be considered.”

Similar views have been expressed by this Court in the case ofRavi Chander & Ors. (supra), Harjit Kaur (supra), Koli ChunilalSavji & Anr. (supra) and Vikas & Ors. (supra).F

10. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, it is required to be consideredwhether the dying declaration recorded by the Magistrate on 22.12.2011is to be believed or not. Nothing is on record with regard to any allegationagainst the Magistrate/SDM to the effect that he was biased or interestedGin recording the dying declaration against the accused. He wassummoned during the course of investigation and during the course ofinvestigation he recorded the dying declaration and the statement ofdeceased. Even the High Court as such has not doubted the credibilityof the dying declaration recorded by the Magistrate/SDM on the groundof malice. The reasoning given by the High Court to not rely upon theHdying declaration recorded by the Magistrate/SDM is not germane and

cannot be accepted. We see no reason to doubt the dying declarationrecorded by the Magistrate on 22.12.2011 in which the deceasedspecifically stated that at 11:00 am due to the feud over demanding money,respondents – accused have burned her after pouring kerosene overher. Therefore, in the statement of dying declaration recorded by theMagistrate on 22.12.2011, the respondents – original accused arespecifically named and it is specifically stated that they poured keroseneon her. At this stage, it is required to be noted that in so far as thestatement recorded by the IO on 20.12.2011, it was recorded that thefather-in- law demanded money and started beating her with a stick, sheran away and she locked the door from inside and out of anger shepoured the kerosene available in the room and set herself on blaze isconcerned, considering the medical evidence on record the said statement/dying declaration recorded by the Police Officer on 20.12.2011 does notinspire any confidence. Medical evidence does not support the versionstated in the said dying declaration. It is to be noted that even accordingto the accused, the father-in-law took her to hospital. If statement ofdeceased in first dying declaration that she locked the door from insideand out of anger she poured kerosene is accepted, in that case it is notexplained by the accused as to how she was taken to the hospital, asnothing is on record that the door was broken/opened by the father-in-law– accused and thereafter she was taken to hospital. Even consideringthe medical evidence on record and the injuries sustained by the deceased,it is found that there were no injuries at all on the chest and injuries werefound on the head and on the backside. As rightly observed by the TrialCourt if she had committed suicide by pouring kerosene there wouldhave been injuries on the chest as well as injuries would not have beenon the head and on the backside. In our view, such injuries as found onthe body of the deceased could have been possible only if somebody hadpoured kerosene on her from behind her. The aforesaid aspect has notat all been considered by the High Court.

10.1 Now, on the aspect, whether in absence of any corroborativeevidence, there can be a conviction relying upon the dying declarationonly is concerned, the decision of this Court in the case of Munnu Raja& Anr. (supra) and the subsequent decision in the case of Paniben(Smt) V. State of Gujarat, (1992) 2 SCC 474 are required to be referredto. In the aforesaid decisions, it is specifically observed and held thatthere is neither a rule of law nor of prudence to the effect that a dyingdeclaration cannot be acted upon without a corroboration. It is observed A

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Aand held that if the Court is satisfied that the dying declaration is trueand voluntary it can base its conviction on it, without corroboration. Similarview has also been expressed in the cases of State of Uttar PradeshV. Ram Sagar Yadav & Ors. (1985) 1 SCC 552 and Ramawati DeviV. State of Bihar, (1983) 1 SCC 211. Therefore, there can be aconviction solely based upon the dying declaration without corroboration.B

10.2 Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958SCR 552 is a watershed judgment on the law on the evidentiary valueof dying declarations. This Court laid down the following principles as tothe circumstances under which a dying declaration may be accepted,without corroboration: -C“

“16. On a review of the relevant provisions of the Evidence Actand of the decided cases in the different High Courts in India andin this Court, we have come to the conclusion, in agreement withthe opinion of the Full Bench of the Madras High Court, aforesaid,(1) that it cannot be laid down as an absolute rule of law that aDdying declaration cannot form the sole basis of conviction unlessit is corroborated; (2) that each case must be determined on itsown facts keeping in view the circumstances in which the dyingdeclaration was made; (3) that it cannot be laid down as a generalproposition that a dying declaration is a weaker kind of evidencethan other pieces of evidence; (4) that a dying declaration standsEon the same footing as another piece of evidence and has to bejudged in the light of surrounding circumstances and with referenceto the principles governing the weighing of evidence; (5) that adying declaration which has been recorded by a competentMagistrate in the proper manner, that is to say, in the form ofFquestions and answers, and, as far as practicable, in the words ofthe maker of the declaration, stands on a much higher footingthan a dying declaration which depends upon oral testimony whichmay suffer from all the infirmities of human memory and humancharacter, and (6) that in order to test the reliability of a dyingdeclaration, the court has to keep in view, the circumstances likeGthe opportunity of the dying man for observation, for example,whether there was sufficient light if the crime was committed atnight; whether the capacity of the man to remember the factsstated, had not been impaired at the time he was making thestatement, by circumstances beyond his control; that the statementHhas been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it;and that the statement had been made at the earliest opportunityand was not the result of tutoring by interested parties.”

The relevant facts of the said case are that the deceased thereinhad given three successive dying declarations within a span of two hours,which were, to a certain degree contradictory to each other. However,one of the aspects that remained common and was narrated by thedeceased in all three dying declarations was that he was attacked bytwo persons, namely Kushal Rao and Tukaram with swords and spears.This Court, relying on the common thread running through all dyingdeclarations, which was consistent with medical evidence revealingpunctured and incised wounds on various parts of the body, held that thesaid declarations could be relied upon in convicting the accused who hadbeen named in all three dying declarations.

Co-relating the said facts to the facts of the instant case, we havenoted that although the accused was not specifically named by thedeceased in her statement recorded under section 161 of the Cr.PC, asthe person who set the deceased on fire, he has been so named in herdying declaration. Even in the statement recorded under section 161 ofthe Cr.PC, the deceased has stated that her father- in-law had attackedher with a stick with an intention to kill her and as a result, she lockedherself in the room and set herself ablaze. Therefore, we find that thereruns a common thread in the statements of the deceased, being that shewas attacked by the accused-respondent herein. Further, we also findthat the statements made by the deceased in her dying declaration areconsistent with medical evidence which reveals that there were burnson all parts of the body except chest and sides of the abdomen and back.The burns are at such parts as could have resulted when a person, otherthan the deceased poured kerosene and set fire. As already noted, if thedeceased had set herself on fire, her chest ought to have been burnt. Inlight of the aforesaid discussion and the decision in Kushal Rao (supra),we find that the medical evidence is consistent with the dying declaration,thereby allowing this Court to place reliance on the declarations.

The Trial Court has rightly observed as to the weight and reliancethat must be placed on the dying declaration of the deceased. Therewas no reason for the High Court to disregard the dying declaration ofthe deceased. It is noted that the dying declaration was made by thedeceased to Sub-Divisional Magistrate (SDM) Bal Kishan Agarwal, who AB

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Awas also examined as a prosecution witness (PW-6) before the TrialCourt. His statement reveals that the deceased at the time of makingthe statements, was fully conscious and capable of comprehending thequestions put forth by the officer to whom the declaration was made.The evidentiary value of the dying declaration is further enhanced bythe fact that it was accompanied by a certificate from the physician whoBwas treating the deceased prior to her death, stating that the deceasedremained fully conscious while making the statement. The Trial Courtrightly placed reliance on the dying declaration having due regard to thestatements made by the physician as to the medical condition of thedeceased while making such declaration. The Trial Court has also rightlyCnoted that the statements of the SDM and the physician, being independentwitnesses in the trial, has added weight to the prosecution case as thesame could not be motivated by malice.

11. Therefore, considering the dying declaration recorded by theSDM/Magistrate on 22.12.2011 the accused can be convicted for whichDthey were tried. Hence in our view, the High Court has committed agrave error in acquitting the accused. The impugned judgment and orderpassed by the High Court acquitting the accused for the offencespunishable under Section 302 read with Section 34 of the IPC isunsustainable and the same deserves to be quashed and set aside.

E12. In view of the above and for the reasons stated above, thepresent appeal is allowed. The impugned judgment and order acquittingthe accused for the offences punishable under Section 302 read withSection 34 of the IPC is hereby quashed and set aside. The judgmentand order passed by the learned Trial Court convicting the accused forthe offences punishable under Section 302 read with Section 34 of theFIPC is hereby restored. Respondent Nos. 1 & 2 – original accused areheld guilty for the offences punishable under Section 302 read with Section34 of the IPC and sentenced to undergo imprisonment for life and a fineof Rs.10,000/- each as awarded by the learned Trial Court. Accused tosurrender before concerned court or jail authority to undergo life sentenceGforthwith. The present appeal is allowed to the aforesaid extent.

Bibhuti Bhushan Bose(Assisted by : Shubhanshu Das, LCRA)

Appeal allowed.

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