# CASE DETAILS ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)

- **Citation:** 2023 INSC 924
- **Court:** Supreme Court of India
- **Decided:** 2023-10-18
- **Case number:** Criminal Appeal No. 1473 of 2011
- **Bench:** Abhay S. Oka, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-abhishek-sharma-v-state-govt-of-nct-of-delhi-36795
- **Pages:** 24

## Headnote

Issue for consideration: The victim-deceased gave four dying
declarations. High Court confi rmed the appellant's conviction and sentence
of life imprisonment u/s. 302 IPC as awarded by the trial Court.
Penal Code, 1860 - s. 302 - Evidence Act, 1872 - Multiple dying
declarations - Prosecution case that appellant and victim had a quarrel,
as the victim had aff ection for their boss and not for appellant -
Appellant took victim to an open site near a school and in the midst of
an argument, set her on fi re - Victim died - Victim had given four dying
declarations - Appellant convicted by the Courts below - Propriety:
Held: The DD-I shows that it was recorded in the third person, as
PW-16-ASI had reported incident - The statement before the court is that
the operator came into 'DO room' and reported that PW-16 had found a
girl burning, and it is to him that she stated that appellant, had done this to
her - Had the statement of the deceased, as told to PW-16, been before the
court as it is, the same could have been considered a dying declaration within
the meaning of s.32 IEA - DD-II is, in fact, an entry in the Medico-Legal
Inquiry Register made by PW-8-doctor - It is true that a dying declaration
is not to be discarded on account of brevity, but it is equally true that it
must contain the proximate cause of the deceased's condition and the reason
therefor - Here, it states the presence of burn injuries and says that the
same was caused by appellant, which, arguably, is insuffi cient - There is
no particular identifi cation of the convict-appellant, nor is there a mention
of the means through which the injuries were infl icted (petrol) - DD-III
891
was made to PW-17-SI - Despite this being the third statement given, no
attempt was made to have the same made before a doctor or magistrate,
which, as a rule of prudence, lends support to the prosecution - It refl ects
from the record that at the time when the third statement was recorded, the
deceased had been administered treatment for her injuries - However, it
has not come forth as to the nature of treatment and what kind of medicines
were given to her - In the absence of a positive statement by the medical
team responsible for her treatment, it cannot be stated, with certainty, that
the medicines administered had no eff ect of impairing the mental fi tness
of the deceased - Therefore, doubts surrounds DD-III - DD- IV is the
statement of the deceased to her mother - When making the declaration,
there is nothing on record to indicate a) further deterioration in condition
and b) non-availability of a third party, such as a doctor before whom such
a statement could be recorded - The lack of independent corroboration,
particularly when the person making the statement is the mother of the
deceased, the court cannot rule out, to a positive degree, the role played by
a sense of loss and possibly even anger, to rely on such statement - Besides
the alleged dying declarations, there is no evidence to point to the guilt of
the convict-appellant - On perusal of the records, there are inconsistencies
throughout - There are gaps unexplained in the prosecution case. [Paras
15, 16, 17, 19, 26]
Dying Declaration - Multiple dying declarations - The Court to
consider the following principles, when dealing with a case involving
multiple dying declarations:
Held: 1. The primary requirement for all dying declarations is that
they should be voluntary and reliable and that such statements should be in
a fi t state of mind; 2. All dying declarations should be consistent - In other
words, inconsistencies between such statements should be 'material' for its
credibility to be shaken; 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; 4.
The statement treated as a dying declaration must be interpreted in light of
surrounding facts and circumstances; 5. Each declarati

## Text

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[2023] 14 S.C.R. 890 : 2023 INSC 924
890
CASE DETAILS
ABHISHEK SHARMA
v.
STATE (GOVT. OF NCT OF DELHI)
(Criminal Appeal No. 1473 of 2011)
OCTOBER 18, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: The victim-deceased gave four dying
declarations. High Court confi rmed the appellant's conviction and sentence
of life imprisonment u/s. 302 IPC as awarded by the trial Court.
Penal Code, 1860 - s. 302 - Evidence Act, 1872 - Multiple dying
declarations - Prosecution case that appellant and victim had a quarrel,
as the victim had aff ection for their boss and not for appellant -
Appellant took victim to an open site near a school and in the midst of
an argument, set her on fi re - Victim died - Victim had given four dying
declarations - Appellant convicted by the Courts below - Propriety:
Held: The DD-I shows that it was recorded in the third person, as
PW-16-ASI had reported incident - The statement before the court is that
the operator came into 'DO room' and reported that PW-16 had found a
girl burning, and it is to him that she stated that appellant, had done this to
her - Had the statement of the deceased, as told to PW-16, been before the
court as it is, the same could have been considered a dying declaration within
the meaning of s.32 IEA - DD-II is, in fact, an entry in the Medico-Legal
Inquiry Register made by PW-8-doctor - It is true that a dying declaration
is not to be discarded on account of brevity, but it is equally true that it
must contain the proximate cause of the deceased's condition and the reason
therefor - Here, it states the presence of burn injuries and says that the
same was caused by appellant, which, arguably, is insuffi cient - There is
no particular identifi cation of the convict-appellant, nor is there a mention
of the means through which the injuries were infl icted (petrol) - DD-III
891
was made to PW-17-SI - Despite this being the third statement given, no
attempt was made to have the same made before a doctor or magistrate,
which, as a rule of prudence, lends support to the prosecution - It refl ects
from the record that at the time when the third statement was recorded, the
deceased had been administered treatment for her injuries - However, it
has not come forth as to the nature of treatment and what kind of medicines
were given to her - In the absence of a positive statement by the medical
team responsible for her treatment, it cannot be stated, with certainty, that
the medicines administered had no eff ect of impairing the mental fi tness
of the deceased - Therefore, doubts surrounds DD-III - DD- IV is the
statement of the deceased to her mother - When making the declaration,
there is nothing on record to indicate a) further deterioration in condition
and b) non-availability of a third party, such as a doctor before whom such
a statement could be recorded - The lack of independent corroboration,
particularly when the person making the statement is the mother of the
deceased, the court cannot rule out, to a positive degree, the role played by
a sense of loss and possibly even anger, to rely on such statement - Besides
the alleged dying declarations, there is no evidence to point to the guilt of
the convict-appellant - On perusal of the records, there are inconsistencies
throughout - There are gaps unexplained in the prosecution case. [Paras
15, 16, 17, 19, 26]
Dying Declaration - Multiple dying declarations - The Court to
consider the following principles, when dealing with a case involving
multiple dying declarations:
Held: 1. The primary requirement for all dying declarations is that
they should be voluntary and reliable and that such statements should be in
a fi t state of mind; 2. All dying declarations should be consistent - In other
words, inconsistencies between such statements should be 'material' for its
credibility to be shaken; 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; 4.
The statement treated as a dying declaration must be interpreted in light of
surrounding facts and circumstances; 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; 6. When there
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
892
SUPREME COURT REPORTS
[2023] 14 S.C.R.
are inconsistencies, the statement that has been recorded by a Magistrate or
like higher offi cer can be relied on, subject to the indispensable qualities of
truthfulness and being free of suspicion; 7. In the presence of inconsistencies,
the medical fi tness 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. [Para 9]
LIST OF CITATIONS AND OTHER REFERENCES
Kamla v. State of Punjab (1993) 1 SCC 1; State of Punjab v. Parveen
Kumar (2005) 9 SCC 769: [2005] 9 SCC 769; Amol Singh v. State of M.P.
(2008) 5 SCC 468: [2008] 8 SCR 956; Lakhan v. State of M.P (2010) 8
SCC 514: [2010] 9 SCR 705; Makhan Singh v. State of Haryana (2022)
SCC OnLine SC 1019; Ashabai v. State of Maharashtra (2013) 2 SCC
224: [2013] 1 SCR 115; Jagbir Singh v. State (NCT of Delhi) (2019) 8
SCC 779: [2019] 11 SCR 1137; Uttam v. State of Maharashtra (2022) 8
SCC 576 - relied on.
Sher Singh v. State of Punjab (2008) 4 SCC 265: [2008] 2 SCR 959;
Chacko v. State of Kerala (2003) 1 SCC 112; P.V. Radhakrishna v. State of
Karnataka (2003) 6 SCC 443: [2003] 1 Suppl. SCR 745; Surinder Kumar
v. State of Haryana (2011) 10 SCC 173: [2011] 12 SCR 1205; Khushal Rao
v. State of Bombay AIR 1958 SC 22: [1958] SCR 552; Hari Obula Reddy
and others v. The State of Andhra Pradesh (1981) 3 SCC 675; Pulicherla
Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC
444: [2006] 4 Suppl. SCR 633 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1473 of 2011
From the Judgment and Order dated 31.05.2010 of the High Court of
Delhi at New Delhi in CRLA No.431 of 2009
Appearances:
Ms. Kamini Jaiswal, Anish Dhingra, Ms. Rani Mishra, Advs. for the
Appellant.
893
Ms. Aishwarya Bhati, A.S.G., Ms. Kiran Suri, Ms. Sonia Mathur, Sr.
Advs., Ms. Snidha Mehra, Ms. Rukhmini Bobde, Sanjay Kr. Tyagi, Adit
Khorana, Shubranshu Padhi, Udai Khanna, Arun Kumar Yadav, Shreekant
Neelappa Terdal, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJAY KAROL J.
1. This appeal impugns a judgment and order of conviction passed
by the High Court of Delhi in Criminal Appeal No. 431 of 2009 dated 31
May 2010, confi rming the Appellant- Abhishek Sharma's sentence of life
imprisonment under Section 302 of the Indian Penal Code, 18601, as awarded
by Additional Sessions Judge, Delhi, vide judgment dated 30 April 2009.
FACTS
2. The facts, as refl ected in the judgments of the courts below, are: -
2.1
Abhishek Sharma2 and Mandeep Kaur3 were colleagues at M/s
Sai Telecom at Saraswati Vihar, Delhi where the former was a
customer care executive and the latter the team leader/operation
manager. On the intervening night of 20th-21st September 2007,
the deceased was found engulfed in fl ames near the Queen
Mary School, Model Town, Delhi. Despite eff orts to save her
at two diff erent hospitals, namely LNJP Hospital and Maharaja
Agrasen Hospital, she passed away on 03 October 2007.
2.2
It is recorded that a friendship had developed between these two
persons, and the convict-appellant would often drive her home
after work, which would end at around midnight. Allegedly,
due to a quarrel in regards to her aff ections being not for him
but instead for their boss, he took her to an open site near a
school and, in the midst of an argument, set her on fi re.
1
For Short, IPC
2
Hereinafter referred to as "convict-appellant"
3
Hereinafter referred to as the "Deceased"
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
894
SUPREME COURT REPORTS
[2023] 14 S.C.R.
2.3
On the way to the hospital, the deceased told Anoop Singh
(PW-16) that the convict-appellant had set her ablaze. SI
Balwant Singh (PW-17), along with Constable Paramjit Singh,
recorded her statement, based on which an FIR under Section
307 IPC, was registered. The convict-appellant was arrested
on 21 September 2007. Upon completing the investigation, a
challan was presented to the Trial Court for proceeding against
him under Section 302 IPC on 06 February 2008.
FINDINGS OF THE TRIAL COURT
3. In support of its case, the prosecution examined a total of 25
witnesses. Following is a tabular representation thereof:-
Sr.
No.
FORMAL
WITNESSES
MATERIAL
WITNESSES
MEDICAL
WITNESSES
1.
PW1- HC Rajiv
Kumar
a duty offi cer
PW16- ASI Anoop
Singh
In charge PCR Van
Commander 63
PW7- Dr. Lata Sr.
Resident
prepared the death
summary of the
deceased
2.
PW2- Ct. Dalbir
Singh
photographer
PW15- Ct. Subodh
Kumar
has accompanied PW16
in the PCR Van
PW8- Dr. S.N. Basna
working as CMO in
LNJP Hospital
3.
PW4- SI Manohar La
draftsman
PW17- SI Balwant
Singh
he obtained the MLC of
the injured
PW12- Dr. K. Goyal
conducted the
postmortem of the
deceased
4.
PW9- Ct. Mukesh
took sealed parcels
to deposit the same
at CFSI
PW13- Ct. Paramjit
Singh
did the investigation,
along with SI Balwant
Singh
PW18- Dr. Raj
examined the deceased
895
5.
PW10- HC Pramod
Kumar
posted at MHC(M)
PW5- Smt. Jasmer
Kaur
mother of the deceased
PW19- Dr. Sanjay S.R.
Surgery
examined the accused,
Abhishek Sharma
6.
PW11- HC Naresh
Kumar
accompanied SI
Balwant Singh to
Maharaja Agarsen
Hospital
PW6- Sh. Yashin
Nagpal
partner of M/S Sai
Telecom, where the
deceased and accused
were working
PW20- Dr. Geeta
Ramakrisan
Micro Biologist who
examined the blood
sample of the deceased
7.
PW14- ASI Suresh
Chand
he went to the spot
for an inspection
PW3- Hemant Aneja
brother-in-law of the
deceased
PW22- Dr. Ashish
Sharma
proved the MLC
8.
PW21- Sh. K.K.
Sharma
record clerk from
Maharaja Agarsen
Hospital
PW24- Shri Pradeep
Kumar Misra
Junior Scientifi c
Offi cer, CFSL,
Calcutta, examined
the blood and hair
samples.
9.
PW23- Inspector
Harish Chander
got the site plan
prepared by SI;
recorded the
statement of
MHC(M);
PW25- Shri Bijayantra
Mukhopadhyay
Junior Scientifi c
Offi cer, CFSL,
Calcutta, examined
the plastic bottle with
burnt material.
4. Testimonies of PW18, PW8, and PW12 (Doctors) have established
that the deceased died due to burn injuries, ante mortem in nature which
facts further stand corroborated by PW16, PW17, PW5, and PW6.
4.1
The deceased gave four dying declarations. The First4 was
given to a police offi cer PW16 i.e., the person who, in the
4
 For ease, DD-I
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
896
SUPREME COURT REPORTS
[2023] 14 S.C.R.
PCR van, reached the spot of the crime and took the deceased
to the LNJP Hospital. Even though the defense on the ground
questioned the veracity of this declaration that PW15, who
was with PW16 while the deceased was taken to the hospital,
had not heard the statement being made, the Trial Court found
the same to have been established since there was nothing to
show that she had been tutored to state thus or that there was
no possibility of her having made such a statement.
4.2
The second5 was given to Dr. Raj (PW-18), who had examined
the deceased and prepared the MLC. She deposed that the
deceased was fi t to give a statement and that "by Abhishek"
was not written subsequently. PW8 corroborated her statement.
The doctors' testimonies remained unchallenged, and therefore,
the defense's attempts to term the testimonies as unreliable
were not found to be correct by the Trial Court.
4.3
The third6 dying declaration was given to PW17, based on
which the FIR was registered. The defense questioned this
declaration on the ground that the police had obtained the
signatures of the deceased on a blank paper, and the same was
manipulated into an FIR. The argument of the defense that a
doctor did not attest the same did not fi nd favor with the court,
which stated that as per "Sher Singh Vs State of Punjab"7,
the endorsement of the doctor is only a matter of prudence.
The court held that the deceased had clearly shown the motive
and intention of the convict-appellant to kill her.
4.4
The fourth8 dying declaration was given to PW 5 (mother of
the deceased). In her deposition, examination-in-chief and
cross-examination, it is clearly shown that the deceased was
in a fi t state of mind to give a statement. It has come forth that
this statement was made on 22 September 2007, which was
5
 For ease, DD-II
6
 For ease, DD-III
7
 (2008) 4 SCC 265
8
 For ease, DD-IV
897
much prior to the deterioration of her condition, because of
which she was put on ventilator support six days before her
death on 03 October 2007.
4.5
Consequent to the above discussion, the Trial Court found
all four dying declarations to be consistent, voluntarily
made, and in a fi t mental condition. Further, concerning the
testimonies of PW6, namely Yasin Nagpal, it is established
that the deceased was last seen in the convict-appellant's
company when they left the offi ce at around 12:30 AM. The
convict-appellant's statement under Section 313 of the Code of
Criminal Procedure,1973 stated that he left the offi ce at 12:00
AM and the deceased was still in offi ce.
4.6
The Court found that the statement of the convict-appellant
was not credible, and the statement of PW6 was unblemished
and unchallenged.
4.7
In view thereof, the convict-appellant was found guilty and
convicted under Section 302, IPC.
FINDINGS OF THE HIGH COURT
5. It was observed that the homicidal nature of the death is undisputed.
In respect of each of the dying declarations, the High Court agreed with the
conclusions arrived at by the Trial Court and observed that the appeal was
devoid of merits. The High Court's reasoning per each such declaration is
referred to below:-
5.1
DD-I given to PW16 was sought to be challenged on the ground
that PW15 had not heard the statement being made. The court
noted that in his cross-examination, PW15 had stated that the
deceased "might have told the fact that convict-appellant was
responsible for the incident". It was further observed that the
driver of such a vehicle, when is focused on taking a patient
with serious injuries to the hospital with the siren blaring, it
is no surprise that he did not hear what the deceased stated to
PW16.
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
898
SUPREME COURT REPORTS
[2023] 14 S.C.R.
5.2
DD-II was made to PW18, which, it has been observed, was
entirely in tune with DD-I made to PW16. The concerned
doctor has also deposed regarding the deceased's fi tness when
making such a statement. The addition of "by Abhishek" was
not found credible by the High Court as PW18 has denied the
same, and no reason was found to disbelieve doctors.
5.3
DD-III was made at 3.30 AM to PW17. This statement also
names the convict-appellant. It was observed that between
1.40 AM and 3.30 AM, three consecutive statements were
given by the deceased, and the time from when she was found
in a burnt condition to the registration of an FIR is barely two
hours.
5.4
DD-IV was sought to be discredited on the ground that PW5
was an interested witness. This argument has been termed
"hardly any argument," and therefore, in view of the High
Court, DD-IV also stood proven.
6. An additional ground taken before the High Court was that a person
with 25 % burn injuries could not have given detailed statements. This was
disregarded by the court, considering that a doctor had specifi cally deposed
to her fi t mental condition. Additionally, the submission in respect of Chapter
13 of Punjab and Haryana High Court Rules, which prescribe the procedure
for recording of dying declarations, was held not to be of any aid to the
convict-appellant as it was observed that simply because the rules were not
complied with, the dying declarations could not be discarded if they had
withstood strict scrutiny after applying all cautions.
7. For the aforesaid reasons, the judgment of the Additional Sessions
Judge, Tis Hazari, West Delhi, was affi rmed.
OUR VIEW
8. Before proceeding to the merits of this matter, it would be appropriate
to appreciate the various principles of law laid down by this court in regard
to cases involving multiple dying declarations.
899
8.1
This Court in Kamla v. State of Punjab9 has held:
"5. It is well settled that dying declaration can form the sole
basis of conviction provided that it is free from infi rmities
and satisfi es 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 fi t 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."
8.2. In State of Punjab v. Parveen Kumar10, this court further
observed:
"10. .... The court must be satisfied that the dying
declaration is truthful. If there are two dying declarations
giving two diff erent versions, a serious doubt is created
about the truthfulness of the dying declarations. It may be
that if there was any other reliable evidence on record, this
court could have considered such corroborative evidence to
test the truthfulness of the dying declarations..."
9
 (1993) 1 SCC 1(2-Judge Bench)
10 (2005) 9 SCC 769 (2-Judge Bench)
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
900
SUPREME COURT REPORTS
[2023] 14 S.C.R.
8.3.
In Amol Singh v. State of M.P.11,
"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."
8.4.
Faced with multiple dying declarations, this Court in Lakhan
v. State of M.P12 observed-
"21. ... In case there are multiple dying declarations and
there are inconsistencies between them, generally, the dying
declaration recorded by the higher offi cer like a Magistrate
can be relied upon, provided that there is no circumstance
giving rise to any suspicion about its truthfulness. In case
there are circumstances wherein the declaration had been
made, not voluntarily and even otherwise, it is not supported
by the other evidence, the court has to scrutinise the facts
of an individual case very carefully and take a decision as
to which of the declarations is worth reliance."
This judgment was also referred to by this court recently in
Makhan Singh v. State of Haryana13.
8.5.
In Ashabai v. State of Maharashtra,14 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."
11 (2008) 5 SCC 468 ( 2-Judge Bench)
12 (2010) 8 SCC 514 (2-Judge Bench)
13 (2022) SCC OnLine SC 1019 (2-Judge Bench)
14 (2013) 2 SCC 224 (2-Judge Bench)
901
8.6.
In Jagbir Singh v. State (NCT of Delhi),15 the following
principles were observed:
31. A survey of the decisions would show that the principles
of declarations can be culled out as follows:
....
31.6. However, there may be cases where there are more
than one dying declaration. If there are more than one
dying declaration, the dying declarations may entirely
agree with one another. There may be dying declarations
where inconsistencies between the declarations emerge.
The extent of the inconsistencies would then have to be
considered by the court. The inconsistencies may turn out
to be reconcilable.
31.7. In such cases, where the inconsistencies go to some
matter of detail or description but is incriminatory in nature
as far as the Accused is concerned, the court would look
to the material on record to conclude as to which dying
declaration is to be relied on unless it be shown that they
are unreliable;
31.8. The third category of cases is that where there are more
than one dying declaration and inconsistencies between the
declarations are absolute and the dying declarations are
irreconcilable being repugnant to one another. In a dying
declaration, the Accused may not be blamed at all and
the cause of death may be placed at the doorstep of an
unfortunate accident. This may be followed up by another
dying declaration which is diametrically opposed to the
fi rst dying declaration. In fact, in that scenario, it may not
be a question of an inconsistent dying declaration buta
dying declaration which is completely opposed to the
dying declaration which is given earlier. There may be
more than two."
15 (2019) 8 SCC 779 (2-Judge Bench)
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
902
SUPREME COURT REPORTS
[2023] 14 S.C.R.
8.7.
In Uttam v. State of Maharashtra,16 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 fi nd out as to which of
the dying declarations can be corroborated by other material
evidence produced by the prosecution. Of equal signifi cance
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 fi tness of the deceased,
the scope of the close relatives/family members having
infl uenced/tutored the deceased and all the other attendant
circumstances that would help the court in exercise of its
discretion."
9. Having considered various pronouncements of this 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 fi t 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.
16 (2022) 8 SCC 576 (2-Judge Bench)
903
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 offi cer 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 fi tness 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.
10. We must also notice certain judgments of this court where the
extent of burn injuries sustained by the deceased was considered.
10.1
In Chacko v. State of Kerala17 this court declined to accept
a dying declaration made by a person, 70 years of age, having
sustained 80% burns. Therein, the declaration was recorded
8-9 hours after burns, giving minute details as to motive
and manner. It was opined that the condition of the patient
described as "conscious, talking" in the wound certifi cate
would in and of itself not testify to the condition of the patient
making such declaration, nor would the oral evidence of the
doctor or Investigating Offi cer.
10.2
In P.V. Radhakrishna v. State of Karnataka 18 it was
observed that there cannot be any hard and fast rule, lending
itself to uniform application on the question whether the
percentage of burns suff ered is a determinative factor to
aff ect the credibility of the dying declaration. The same
17 (2003) 1 SCC 112(2-Judge Bench)
18 (2003) 6 SCC 443(2-Judge Bench)
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
904
SUPREME COURT REPORTS
[2023] 14 S.C.R.
would depend on the nature of the burns, the body parts
aff ected, and the eff ect thereof on mental faculties, as well
as other factors.
10.3
In Surinder Kumar v. State of Haryana19 the dying
declaration made by a person having 95-97% burn injuries was
not accepted given that at the time of making the declaration,
the deceased was under the infl uence of Fortwin and Pethidine
injections, because of which she could not have had normal
alertness.
11. This Court in Uttam(supra) followed the principle as held in
Khushal Rao v. State of Bombay20 that in order to test the reliability of a
dying declaration, the court has to keep in view, the circumstances like the
opportunity of the dying man for observation, for example, whether there
was suffi cient light if the crime was committed at night; whether the capacity
of the man to remember the fact stated, had not been impaired at the time
he was making the statement, by circumstances beyond his control; that the
statement has been consistent throughout if he had several opportunities of
making a dying declaration apart from the offi cial record of it; and that the
statement had been made at the earliest opportunity and was not the result
of tutoring by interested parties.
12. Having meditated on the above-extracted principles, we now
proceed to examine them in the instant facts.
13. DD-I reads as under:
"DD No. 8A dt 21/09/07 PS Model Town Delhi
Information from PCR and despatch.
Received in the night at 1:55. 058 Operator came in the DO
room and reported that ASI Anoop Singh No. 5331/PCR has
reported that on girl was burning behind Queen Mary School,
Model Town Quarter. Her name is Mandeep D/o Late Harender
Singh r/o AJ-55C, Shalimar Bagh, Age 22 years. Works at Call
19 (2011) 10 SCC 173 (2-Judge Bench)
20 AIR 1958 SC 22 (3-Judge Bench)
905
Center. She told that my friend Abhishek Sharma has done this.
On reaching LNJP, Burari a PCR call information was recorded
in Roznamacha and a copy of the report was sent to SI Balwant
Singh through Ct. Rameshwar, 5053/DHG.
Sd/-
HC/DO
//True Translated Copy//"
14. A perusal of the dying declaration as above shows it to have
been recorded in the third person, that is to say, that ASI Anoop Singh had
reported on the incident of the victim being burned and that she had told
him that her friend Abhishek Sharma had done so. Undoubtedly, Section
32 IEA is an exception to the rule of hearsay, however, the same would not
be applicable in the present case.
15. The statement before the court is that the operator came into 'DO
room' and reported that ASI Anoop Singh (PW16) had found a girl burning,
and it is to him that she stated that Abhishek Sharma, convict-appellant,
had done this to her. So, as is evident, this statement is three degrees
removed from the deceased and thereby unprotected by this exception as the
statements far removed from the original maker of the statement cannot be
exempted more so when reliance on the same results in a penal consequence.
Had the statement of the deceased, as told to PW16, been before the court
as it is, the same could have been considered a dying declaration within the
meaning of this section.
16. DD-II is, in fact, an entry in the Medico-Legal Inquiry Register
made by Dr. Raj (PW8) at 2:15 AM dt. 21.09.2007, which records "alleged
h/o burn at ...in front of Queen Mary School, North Campus, Model
Town, Delhi at around 1:40 AM dated 21/09/07 as told by the patient"
then considerable gap exists in this record and below this is recorded "by
Abhishek."
17. It is true that a dying declaration is not to be discarded on account
of brevity, but it is equally true that it must contain the proximate cause of
the deceased's condition and the reason therefor. Here, it states the presence
of burn injuries and says that the same was caused by Abhishek, which,
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
906
SUPREME COURT REPORTS
[2023] 14 S.C.R.
arguably, is insuffi cient. There is no particular identifi cation of the convictappellant, nor is there a mention of the means through which the injuries
were infl icted (petrol).
18. DD-III was made at 3:30 AM to PW-17, and the same is extracted
below:
"Statement of Mandeep Kaur D/o Sardar Harinder Singh R/o AJ-55C,
Shalimar Bagh, Delhi aged 22 years, Mobile No. 9811448556.
I am residing with my brother Inderjeet Singh on the abovementioned
address and working as offi ce manager in call centre of said telecom at
Saraswati Vihar. Today I got free from my duty at 1 AM, I was coming
back from duty with my friend Abhishek Sharma who is residing at
Model Town. Abhishek Sharma was threatening me from so many
day to kill and today he forcibly took me to Queen Mary School
Model Town III inspite of dropping me at my residence in Shalimar
Bagh and after stopping the car at Queen Mary School Model Town
III, he got down from his car also got me down from the car poured
the bottle of oil on me which he had kept in his car and told me that
you don't love me and you only love to the company's boss. At this
point we got into heated argument and quarrelled between us and
Abhishek put me on fi re with matchstick to the poured oil. I got
injured from back portion of my body with burning of Kameej and
salwar and in the meantime PCR van came at the site and Abhishek
absconded from the place of occurrence and PCR van got me admitted
at JPN Hospital. Abhishek has attempted to kill me after pouring
the oil. Legal action may kindly be taken against Abhishek Sharma.
Statement heard right. Sd/English Mandeep Kaur attested Balwant
Singh SIPS Model Town Delhi 21.09.07 Duty Offi cer PS Model
Delhi it is submitted that today after receiving DD No.8A, I went to
JPN Hospital with Ct. Paramjeet Singh No. 2678/NW, found patient
Mandeep Kaur fi t for statement vide MLC No. 105892 and Kumari
Mandeep Kaur gave her statement, her statement was read by me in
front of her. She got her statement right and signed in English. I got
it verifi ed, from the statement, conditions and MLC the occurrence of
crime U/s 307 IPC is made out. Thus, rukka is sent with Ct Paramjeet
907
No. 2673/NW to register the FIR and to inform IO with FIR No and
crime team be directed to the place of occurrence. Date & Time of
occurrence 1.40 AM dated 21.09.07, Place of occurrence in front
of Queen Marry School, Model Town, Delhi, Date & Departure of
Rukka: 2.50 AM dated 21.09.07 SI Balwant Singh D-800 PS Model
Town Delhi PIS No. 29680224. After registering the FIR the original
rukka with FIR copy was sent to SI who was busy in investigation
at the place of occurrence. The information of the FIR will be sent
to senior offi cer by post."
19. Despite this being the third statement given, no attempt was made
to have the same made before a doctor or magistrate, which, as a rule of
prudence, lends support to the prosecution. It refl ects from the record that
at the time when the third statement was recorded, the deceased had been
administered treatment for her injuries. However, it has not come forth as
to the nature of treatment and what kind of medicines were given to her. In
the absence of a positive statement by the medical team responsible for her
treatment, it cannot be stated, with certainty, that the medicines administered
had no eff ect of impairing the mental fi tness of the deceased. There is no
medical opinion placed on record in this behalf. Therefore, with the cloud
of doubt surrounding DD-III, it is but natural that the court looks to other
circumstances and evidence to satisfy the requirement of the statement
made as being true and voluntary. The other circumstances present shall be
discussed at a later stage.
20. The credibility of DD-IV has been assailed on the ground that it
is, in fact, the statement of the deceased to the mother and that the latter
would be an interested witness. The statement of the mother given to the
police is reproduced below:
"TRUE TRANSLATED COPY OF STATEMENT OF SMT
JASMAIR KAUR
FIR/DD NO. 615/07 DATE: 21.09.2007 U/s 307,302 Indian Penal
Code, Police Station : Model Town, Delhi.
Statement of Jasmair Kaur W/o Late Sardar Harvinder Singh, age
61 years, R/o House No. 17-F, Ward No.15, Govind Nagar, Roped,
Punjab
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
908
SUPREME COURT REPORTS
[2023] 14 S.C.R.
STATEMENT
Made the statement that I use to stay in the above address with my
family and I am housewife. There was set in fi re by pouring petrol
on my daughter on 21.09.2007 by Abhishek Sharma, who was
admitted in LNJP Hospital by police, on the same day, I along with
family members made the arrangements to admit her in Maharaja
Agersain Hospital with the intention to give her good treatment.
During the treatment, my daughter namely Km. Mandeep Kaur died
in the hospital today as on 03.10.2007 at about 3.35 am at Maharaja
Agarsain Hospital, I identifi ed her dead body at BJRM Hospital.
This is the dead body of my daughter namely Km. Mandeep Kaur,
who died due to set in fi re.
Heard the statement and found correct.
Sd/-
Jasmair Kaur
Attested by
Sd/-
SI,
Balwant Singh
Police Station: Model Town, Delhi
Date: 03.10.2007
Sd/-
SI, Balwant Singh
Police Station: Model Town, Delhi
Date: 03.10.2007"
21. We notice that in her cross-examination, this witness denies ever
having made any statement to the police on 03 October 2007. Be that as it
may, assuming that she actually made such a statement, we are of the view
that still, such a statement, in no manner can be said inculpatory towards the
accused, for it is lacking in particulars with regard to the person mentioned
therein, i.e., Abhishek Sharma and having no linkage for the same which
could lead to the accused person.
909
22. It is evident from the above that the dying declaration does not
exist in any written or other verifi able form. Here, only we may refer to
the examination-in-chief of PW-5 (mother of the deceased) post, which,
taking both the statement and the testimony together, the evidentiary value
of DD-IV shall be examined.
23. The relevant portion of her testimony (examination-in-chief)
allegedly implicating the accused is extracted as follows:-
"Mandeep had told me that Abhishek had taken her in car from her
offi ce. He did not leave her at her resident but had taken her to a place
in Model Town. She was made to come out of the car. Since she did
not come out, she was beaten up by Abhishek. As soon as she came
out from the car, Abhishek poured petrol on her and set her on fi re".
24. It is important to appreciate the law on interested witnesses as
enunciated by this court. In Hari Obula Reddy and others v. The State of
Andhra Pradesh21, a three-judge Bench has held that evidence of interested
witnesses is not necessarily unreliable evidence. Even partisanship by
itself is not a valid ground for discrediting or rejecting sworn testimony. It
cannot be laid down as an invariable rule that interested evidence can only
form the basis of conviction if corroborated to a material extent in material
particulars by independent evidence. All that is necessary is that the evidence
of interested witnesses should be subjected to careful scrutiny and accepted
with caution. Suppose on such scrutiny, the interested testimony is found
to be intrinsically reliable or inherently probable. In that case, it may, by
itself, be suffi cient, in the circumstances of the particular case, to base a
conviction thereon.
25. Further, in Pulicherla Nagaraju alias Nagaraja Reddy v.
State of Andhra Pradesh22, while dealing with the liability of interested
witnesses who are relatives, a two-judge Bench observed that it is well
settled that evidence of a witness cannot be discarded merely on the ground
that he is either partisan or interested or close relative to the deceased if
it is otherwise found to be trustworthy and credible. The said evidence
21 (1981)3 SCC 675(3-Judge Bench)
22 (2006) 11 SCC 444 (2-Judge Bench)
ABHISHEK SHARMA v. STATE (GOVT. OF NCT OF DELHI)
[SANJAY KAROL, J.]
910
SUPREME COURT REPORTS
[2023] 14 S.C.R.
only requires scrutiny with more care and caution so that neither the
guilty escapes nor the innocent is wrongly convicted. If, on such careful
scrutiny, the evidence is found to be reliable and probable, then it can be
acted upon. If it is found to be improbable or suspicious, it ought to be
rejected. Where the witness has a motive to falsely implicate the convictappellant, his testimony should have corroboration regarding material
particulars before it is accepted.
26. DD-IV is the statement of the mother (who is not a resident of
Delhi and would have only reached Delhi upon being informed of such
an incident) wherein the deceased had disclosed specifi c facts about the
occurrence to her mother. When making the declaration, there is nothing
on record to indicate a) further deterioration in condition and b) nonavailability of a third party, such as a doctor before whom such a statement
could be recorded. The Convict-appellant has assailed the statement's
veracity on the ground that, being the mother of the deceased, PW5 is an
interested witness. The general rule for appreciation of evidence rendered
by an interested witness is that the same should be corroborated by other
independent evidence. Considering the nature of the statement made by
the deceased to the mother, independent corroboration is diffi cult. Keeping
in view the two factors enumerated above and the lack of independent
corroboration, particularly when the person making the statement is the
mother of the deceased, the court cannot rule out, to a positive degree,
the role played by a sense of loss and possibly even anger, to rely on such
statement. Had there been some sort of corroboration with other persons
being present, the same could have been relied on. However, in the absence
thereof, reliance on the same would prejudice the convict-appellant, and
therefore, the same cannot be justifi ed.
27. Such unreliability of this statement is enhanced by the fact that
there is a material diff erence between the statement of the mother treated
as DD-IV and her deposition in which she claims the convict-appellant
to have physically assaulted the deceased before setting her on fi re. In
contrast, none of the other statements made to the police offi cials or the
doctor refl ect such an occurrence. Also, the MLC does not record any
physical injury apart from the 30% burns sustained.