Kiran Raj

The Supreme Court Division Bench of Justice Rajesh Bindal and Justice Vipul M. Pancholi upheld the conviction of a woman for murder, affirming the Gujarat High Court’s finding that the first dying declaration of the victim, recorded by a doctor, was credible and corroborated by other evidence. The case involved allegations that the accused poured kerosene on the victim and set her on fire. The Court held that when multiple dying declarations exist, the first declaration cannot be disregarded if it is consistent and supported by independent proof, and accordingly dismissed the appeal.

The case arose from an incident that occurred during the night of November 29–30, 2004, in which the deceased, a woman, suffered extensive burn injuries while sleeping in her hut with her young son. The prosecution alleged that the accused, a female relative of the deceased, in conspiracy with another person, poured kerosene on the deceased and set her ablaze. The victim sustained 100% burn injuries and later died on December 4, 2004, while her son sustained minor burns of 10–12%.

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A complaint was lodged by the deceased’s sister on December 5, 2004, and an investigation was conducted. Witness statements were recorded, and the investigating officer collected physical evidence, including a kerosene container and soil samples emitting the smell of kerosene. The charge sheet was filed under Sections 302, 307, 436, 34, and 120B of the Indian Penal Code, 1860, and Section 135 of the Bombay Police Act, 1951.

The trial court acquitted the accused, citing inconsistencies in three dying declarations made by the deceased. The State appealed to the Gujarat High Court, which set aside the acquittal and convicted the accused for murder, relying primarily on the first dying declaration recorded by the attending doctor. The High Court found this statement credible and corroborated by medical and physical evidence.

In appeal before the Supreme Court, the accused contended that discrepancies between the multiple dying declarations and contradictions in witness testimonies rendered the evidence unreliable. The prosecution maintained that the first dying declaration made to the doctor was trustworthy and supported by forensic findings, including the smell of kerosene on the deceased’s body and at the scene, confirming intentional burning rather than an accident.

The Court observed that “when the deceased was brought to the hospital, she narrated the incident before the Doctor (PW-3) wherein she specifically stated that ‘my aunt-in-law poured kerosene on me and set ablaze.’” It further recorded that upon further questioning by the doctor, “she disclosed that my aunt-in-law asked me to go with Mania Dabhawala, I refused for the same and, therefore, she burnt me alive.”

The Bench noted that this first statement was supported by medical certificates and corroborative evidence. It stated that “the documentary evidence was duly proved as per the testimony of PW-3. Similarly, the Yadi given by the Doctor to Police Station, Palanpur city, further suggests that the deceased specifically narrated that the appellant/accused, her aunt-in-law, set her ablaze.”

The judgment recorded that “the patient was conscious and she was in a position to speak. Therefore, the said police officer was asked to make arrangements for recording the dying declaration.” The medical certificate further mentioned that “the whole body and clothing having kerosene smelling burns about 100%.”

The Court referred to the panchnama, observing that “one empty container having kerosene smell” and “soil of the surface of the hut (the place of incident) was having smell of kerosene,” which corroborated the deceased’s account. It also recorded the evidence of the doctor that “the son of the deceased, aged about 4 years, sustained 10-12% burn injuries on his lower legs and feet.”

From this, the Court observed that “the dying declaration given by the deceased before the Doctor is supported by other evidence led by the prosecution.” It further stated, “the theory of accidental fire at the place of incident put forward by the appellant/accused cannot be believed.”

On the issue of multiple dying declarations, the Bench recorded that “merely because there are minor discrepancies in the version given by the prosecution witness with regard to the dying declaration and with regard to the manner of occurrence of the incident, the first dying declaration given by the deceased before the independent witness, i.e., PW-3, cannot be ignored.”

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The Court stated that the first declaration was “supported by the independent documentary evidence,” and relied on precedent in Nallam Veera Stayanandam & Ors. v. Public Prosecutor, High Court of A.P. (2004) 10 SCC 769. It recorded that “the High Court has rightly set aside the order of acquittal rendered by the trial court qua the appellant/accused.”

The Court stated, “we are of the view that no interference is required in the impugned judgment passed by the High Court in Criminal Appeal Number 539 of 2006.” It further held, “accordingly, the present appeal stands dismissed.”

Advocates Representing the Parties

For Appellant(s): Mr. S. C. Birla, AOR Mr. Subrat Birla, Adv.

For Respondent(s): Ms. Swati Ghildiyal, AOR Mr. Rishi Yadav, Adv.

Case Title: Jemaben v. State of Gujarat
Neutral Citation: 2025 INSC 1268
Case Number: Criminal Appeal No. 1934 of 2017
Bench: Justice Rajesh Bindal, Justice Vipul M. Pancholi