Kinds of Dying Declarations

Patel Hiralal Joitaram vs. State of Gujarat (18.10.2026 - SC) : MANU/SC/0669/2001

Case Note:
Indian Penal Code, 1860 - Sections 302, 299 and 300-Evidence Act, 1872-Section 32-Murder by burning-Acquittal by trial court-Conviction and sentence by High Court-Validity-High Court when to interfere with acquittal-Appellant having illicit relations with sister of deceased and resented to by deceased-Appellant meeting deceased on public road-Questioning her for canard of spreading illicit relationship-Taking out can and dousing combustible liquid contained therein on deceased-Then after lighting lighter hurling its flame on her-No doubt about identity of appellant as assailant from her statement recorded by Executive Magistrate-Name of appellant’s father given in F.I.R. by deceased wrongly-Corrected by her in her statement to Investigating Officer-Whether statement regarding correction of name of appellant’s father given by deceased to Investigating Officer admissible in evidence and not hit by Section 162, Cr. P.C.?-Held, “yes”-Statement not given in context of resolving any dispute concerning paternity of accused or to establish his parentage-Clarificatory statement given by deceased to Investigating Officer-Inextricably inter-twined with episode in which deceased was burnt-And eventually died of such burns-Said statement undoubtedly falling within ambit of Section 32 (1) of Evidence Act-Hence, no doubt that it was appellant whom deceased referred to as assailant-Whether because death of deceased occurred after 14 days of burns offence would be culpable homicide not amounting to murder?-Held, “no”-Inconceivable that appellant would not have known that setting deceased ablaze would cause her death-No merit in appeal.

Though the Code of Criminal Procedure, 1973 does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate court has to beer in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate court also. Thus, the appellate court in appeal against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed.1996 (10) SCC 79, relied on.

Two categories of statements made by a person before his death are made admissible in evidence under Section 32 (1) of the Evidence Act, 1872, and further made as substantive evidence. They are : (1) His statement as to the cause of his death ; (2) His statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelope a far wider amplitude than the first category. The words “statement as to any of the circumstances” are by themselves capable of expanding the width and contours of the scope of admissibility. When the word “circumstances” is linked to “transaction which resulted in his death”, the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all, the endeavour should be how to include the statement of a dead person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted, the Court has to consider how far it is reliable. Once that test of reliability is found positive, the Court has to consider the utility of that statement in the particular case.

When the deceased made the statement to the Investigating Officer correcting the parcentage of the appellant as given by her in the F.I.R., one cannot overlook the fact that the context in which she made such statements was not for resolving any dispute concerning the paternity of a person called Hiralal or even to establish his parentage. It was in the context of clarifying her earlier statement that she was set ablaze by a man called Hiralal whose second name happened to be mentioned by her as Lalchand. When subsequently she was confronted by the Investigating Officer with the said description to confirm whether it was Hiralal son of Lalchand who set her to fire, she made the correction by saying that she made a mistake inadvertently and that it was Hiralal Joitaram who did it and not Hiralal Lalchand. Thus, Exhibit 67 is inextricably intertwined with the episode in which she was burnt and eventually died of such burns. Looking at Exhibit 67 from the above perspective, there is no doubt that the said statement would fall within the ambit of Section 32 (1) of the Evidence Act, 1872. Thus, from the statements made by the deceased, there is no doubt that it was the appellant whom Asha Ben referred to as the assailant who doused combustible liquid on her and ignited her with the flame of the lighter. There is no reason even remotely suggesting that the deceased would have had only a scanty acquaintance with the appellant so as to commit a mistake in identifying him. Therefore, prosecution succeeded in proving beyond reasonable doubt that appellant was the assailant who set Asha Ben ablaze.

The appellant did not even make an effort to bring the case within any of the four exceptions enumerated in Section 300. Hence, the only question to be answered is whether he did the act with the intention of causing such bodily injury as he knew “to be likely to cause death of the deceased”. It is inconceivable that appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of burns resulting therefrom would at least be “likely” to cause her death (if not they are sufficient in the ordinary course of nature to cause her death). The fact that she died only after a fortnight of sustaining those burn injuries, cannot evacuate the act out of the contours of the “2ndly” clause of Section 300, I.P.C. There was a little abatement of the ferocity of the flames which engulfed her as she, in the instinctive human thirst of getting extricated from the gobbling tentacles of the fire, succeeded in tracing out a water-flow. Such a reflex action performed by her had mitigated the conflagration of the flames but did not save her from the fatality of the calamity. Hence, the interval of fourteen days between the attack and her death is not a cause for mitigation of the offence perpetuated by the offender.