STATE OF MADHYA PRADESH versus VISHWESHWAR KOL

Citation: [2011] 1 S.C.R. 790 · Decided: 18-01-2011 · Supreme Court of India · Bench: H.S. BEDI, C.K. PRASAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2011] 1 S.C.R. 790 
-
A 
STATE OF MADHYA PRADESH 
v. 
...\,. 
VISHWESHWAR K-OL 
(Criminal Appeal No. 1,361 of 2006) 
B 
JANUARY 18, 2011 
[HARJIT SINGH BEDI AND CHANDRAMAULI KR. 
PRASAD, JJ.] 
Penal Code, 1860: s. 302 - Brutal murder - Accused 
c bumt his wife and daughters - Dying dealaration of daughter 
recorded- by police ..... The declarant stated that accused ca!"'e 
home late at night in inebriated state and poured kerosene 
oil first on her mother and then on her and her sisters and 
when declarant tried to escape, accused caught hold of her, 
D and in the process he himself received burn injuries -
Conviction by trial court based on dying declaration - High 
T-
Court held that the dying declaration did not inspire 
confidence and ordered acquittal - Held: The fact that the 
accused received burn injuries was corroborated by the 
E medical evidence - Dying declaration was recorded after the 
doctor certified fitness of the declarant to give dying 
declaration - There was no reason to disbelieve the dying 
declaration - High Court erred in passing order of acqui(t_al -
...... 
Order of conviction passed by trial court restored and accused 
F directed ·to u.ndergo sentence of life imprisonment. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 1361 of 2006. 
From the Judgment & Order dated 06.12.2004 of the High 
G Court of Madhya Pradesh at Jabalpur in Criminal Reference 
No. 855 of 2004. 
Aishwar1a Bhati, Rashid Khan, C.D. Singh for the 
Appellant. 
H 
790 
STATE OF MADHYA PRADESH v. VISHWESHWAR , 791 
KOL. 
.. 
,_,f 
Rajesh for the Respondent. 
A 
The following order oi the Court was delivered 
ORDER 
This appeal, at the instance of the State of Madhya 
8 
Pradesh, arises out of the following facts: 
.. 
""" 
The first wife -of the respondent (hereinafter called "the 
accused"), had died of tuberculosis and several years prior to 
the date of occurrence (19th October 2003) he had started c 
living with Leelawati Bai deceased as a second wife. Out of 
this arrangement, 4 daughters, namely, Sandhya about 6 years, 
Lovely 3 years, Madhu 1 year and Jyoti 10 or 11 years had been 
born. As Leelawati Bai· had abandoned her previous husband 
and b,elonged to a community different from that of the 
D 
-y 
accused, she had not been accepted as a member of his family 
and even otherwise there was suspicion that she ~not of 
good character. On the evening of 18th October 003 the 
accused went to see a dance performance at Chandiya. He, 
however, returned home at about .1.00 a.m. i.e. in the early . 
E --
morning hours of 19th October 2003 before the performance 
. had ended and after picking- up a plastic can which contained 
.... _ '+-
kerosene oil, he poured the oil on his wife and four daughters . 
Jyoti who was the eldest, woke up and tried to escape but the 
. accused got hold of her and in that process, he too sustained 
bum injuries on his body. As a consequence of the serious bum 
F 
injuries, Leelawati Bai, Sandhya, Lovely ~nd Madhu died almost 
instanteously and house was completely burnt down. Jyoti, who 
had sustained severe jnjuries, was removed to the Primary 
Health Centre by her uncle and brother of the accused, Nandi 
Kol PW-7 where she was examined by Doctor Ashish Pandey, 
G 
PW-1. The Doctor also informed the police on which Sub-
Inspector S.K.Mishra, PW-10 reached the hospital and after 
ascertaining from Dr. As~ish Pandey as to Jyoti's fitness to 
make a statement, recorded the same between 1.40 and 2.15 
a.m .. In this dying declaration, she gave the story as already H 
,792 
SUPREME COURT REPORTS 
[2011) 1 S.C.R. 
A given above. The accused was accordingly brought to trial for 
an offence punishable under Section 302 of the IPC on the 
_;,.__' 
.·.completion of the investigation. The trial court relying on the 
··dying· declaration and partly on the evidence of Nandi Kol PW-
7 a!ld Jognibai PW-8, the mother of the accused, held that the 
B fact that the accused and Leelawati Bai were living as a man 
' 
~ 
and wife had been proved on record. The court, however, held 
that 1he story as to the motive for the burning of Leelawati Bai 
and particularly her daughters could not be entirely accepted 
,,.... 
... 
as the witnesses aforesaid had resiled from their police 
c statements in an attempt to help the accused who was a very 
close relative and accordingly the primary evidence against the 
accused was the dying declaration made by Jyoti. The court 
observed that this was the main link in th

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