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Dying declaration = when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers. 14) Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co- 19

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REPORTABLE

               IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO. 328  OF 2004

Surinder Kumar                                            .... Appellant(s)

            Versus

State of Haryana                                            .... Respondent(s)

                            J U D G M E N T 

P. Sathasivam, J.

1)    This   appeal   is   directed   against   the   final   judgment   and 

order   dated   19.12.2003   passed   by   the   High Court of Punjab  

and Haryana at Chandigarh in Criminal Appeal No. 241-DBA 

of 1993 whereby the High Court while reversing the judgment 

dated   17.12.1992   passed   by   the   Sessions   Judge,   Ambala 

allowed   the   appeal   filed   by   the   State   and   convicted   the 

appellant herein under Section 302 of the Indian Penal Code,  

                                                                               1

1860   (in   short   `IPC')   and   sentenced   him   to   undergo   rigorous 

imprisonment for life and to pay a fine of Rs.25,000/- and in 

default   of   payment   of   fine,   to   further   undergo   rigorous 

imprisonment for one year.

2)  Brief facts:

(a)    According to the prosecution, the accusation against the 

appellant-accused   was   that   he   was   on   visiting   terms   to   the 

house   of   Inder   Pal   (PW-7),   husband   of   Kamlesh   Rani   (since 

deceased), who was working at Mullana and keeping his family 

at Naraingarh, Dist. Ambala, Haryana.  The appellant-accused 

had   been   visiting   Inder   Pal's   house   and   developed   illicit 

relationship   with   his   wife-Kamlesh   Rani.     Inder   Pal   (PW-7) 

suspected the same between them and stopped his wife from 

meeting   the   appellant-accused.     When   the   appellant-accused 

was   stopped   to   visit   their   house,   he   had   started   threatening 

and harassing Kamlesh Rani for which she made a complaint 

to her husband.   Inder Pal (PW-7) also visited the shop of the  

appellant-accused   and   told   him   not   to   visit   his   house   and 

harass his wife.  

                                                                            2

(b)    On   the   intervening   night   of   25/26.06.1991,   when   Inder 

Pal   (PW-7)   was   away   from   his   house,   the   appellant-accused 

went to his house and taunted his wife that she had become a 

woman   of   immoral   character   and   called   upon   her   to   burn 

herself to death if she had any sense of shame.  Thereafter, the  

appellant-accused  picked  up   a  kerosene   can   lying  in   the   one 

room apartment and after pouring the same on the deceased, 

set   her   on   fire.     When   the   fire   developed,   the   appellant-

accused  ran   away  from   the  room   after   placing   a  quilt   on   the 

deceased.  The neighbours of the deceased took her to the Civil 

Hospital, Naraingarh where she was examined by Dr. Ashwani 

Kumar Kashyap, Medical Officer (PW-1).  He immediately sent 

intimation to In-charge Police Station, Naraingarh to the effect 

that the deceased had been brought to the hospital with 100%  

burns, and as the condition of the patient was critical she had 

been referred to P.G.I., Chandigarh.  At P.G.I. Chandigarh, she 

was admitted in the Emergency Ward and Dr.Vipul Sood (PW-

9) examined her and reported a case of 95% burn injuries.  

(c)     On   receiving   the   information,   Dalip   Rattan   (PW-3),   Sub-

Inspector, P.S. West, Chandigarh applied to the Sub-Divisional 

                                                                           3

Magistrate,   Chandigarh   for   appointment   of   an   Executive 

Magistrate   to   record   the   statement   of   Kamlesh   Rani. 

Consequently,   Shri   P.K.   Sharma,   Tehsildar-cum-Executive 

Magistrate   (PW-2)   was   deputed   to   record   her   statement.     On 

26.06.1991,   PW-2   recorded   her   statement   and   a   First 

Information   Report   was   registered  being   No.   86/1991   at   P.S. 

Naraingarh   at   5.30   p.m.   under   Section   307   IPC.     On   the  

intervening night of 28/29.06.1991, Kamlesh Rani succumbed 

to   the   injuries   and   the   case   was   converted   into   Section   302 

IPC.     Thereafter,   Ram   Niwas   (PW-13),   Sub   Inspector,   P.S. 

Ambala,   arrived   at   P.G.I.,   Chandigarh   and   prepared   the 

inquest   report.     Post   mortem   was   conducted   at   General 

Hospital,   Sector   16,   Chandigarh   by   Dr.   V.K.   Chopra   and   Dr. 

Ajay Verma (PW-12) on 29.06.1991 at 4.45 p.m.  On the same  

day, the accused was arrested and the case was committed to 

the Court of Sessions.  

(d)      The   Sessions   Judge,   Ambala,   after   analyzing   the 

evidence  and   after   giving   the  benefit   of   doubt,   vide   judgment 

dated 17.12.1992 acquitted the appellant-accused.   

                                                                            4

(e)    Challenging the said judgment, the State of Haryana filed 

an   appeal   bearing   Criminal   Appeal   No.   241-DBA   of   1993 

before the Division Bench of the High Court.  The High Court,  

vide judgment dated 19.12.2003, reversed the judgment of the 

Sessions Judge, Ambala and sentenced the appellant-accused 

to   rigorous   imprisonment   for   life   and   imposed   a   fine   of 

Rs.25,000/-   and   in   default   of   payment   of   fine,   to   further 

undergo rigorous imprisonment for one year.  

(f)    Aggrieved   by   the   said   judgment,   the   appellant-accused 

has filed this appeal before this Court.

3)     Heard   Mr.   Sushil   Kumar,   learned   senior   counsel   for   the  

appellant-accused   and   Mr.   Manjit   Singh,   learned   Additional 

Advocate General for the respondent-State.  

4)     The   trial   Court   based   on   the   dying   declaration   Ex.   PD 

alleged   to   have   been   made   by   the   deceased-Kamlesh   Rani 

before   Shri   P.K.   Sharma   (PW-2),   Executive   Magistrate, 

Chandigarh   and   after   finding   that   it   does   not   inspire 

confidence   in   the   mind   of   the   Court   and   being   the   only  

evidence   appearing   against   the   accused,   after   giving   the 

benefit   of   doubt   in   his   favour,   acquitted   from   the   charges 

                                                                            5

levelled   against   him.     On   the   other   hand,   the   High   Court 

relying   on   the   dying   declaration   holding   that   it   is   extremely 

difficult   to   reject  the   dying  declaration   altogether   and   finding 

that in the said dying declaration the deceased had positively 

stated that she had been immolated by the accused/appellant, 

set aside the order of acquittal passed by the trial Court and 

found   him   guilty   under   Section   302   IPC   and   sentenced   to 

undergo rigorous imprisonment for life.   In view of the same,  

the   only   question   for   consideration   in   this   appeal   is   whether 

the   dying   declaration   Ex.   PD   of   Kamlesh   Rani   is   reliable, 

acceptable and based on which conviction is sustainable.  

5)    We   have   already   referred   to   the   accusation   against   the 

accused   that   he   was   on   visiting   terms   to   the   house   of   Inder 

Pal-husband   of   the   deceased   who   was   keeping   his   family   at  

Naraingarh,   however,   working   at   Mullana.     The   accused 

Surinder Kumar had been visiting the house of the deceased-

Kamlesh   Rani   during   the   absence   of   her   husband   Inder   Pal. 

Inder   Pal   suspected   illicit   relationship   between   Surinder 

Kumar and his wife Kamlesh Rani.   It is further seen that on 

the date of occurrence, that is, on 26.06.1991, Kamlesh Rani  

                                                                              6

went  to  the  cinema  in  the  company  of  four  other   ladies.     On 

the   same   evening,   Surinder   Kumar   confronted   her   of   having 

loose   character   and   called   upon   her   to   immolate   herself   to 

death   if   she   had   any   sense   of   shame.     Thereafter,   Surinder  

Kumar   picked   up   a   kerosene   can   lying   in   the   one-room 

apartment   and   after   pouring   the   same   on   Kamlesh   Rani   set 

her   on   fire.     When   the   fire   developed,   he   ran   away   from   the 

room after placing a quilt on her person.  On hearing her cries, 

neighbours   reached   at   the   spot   and   carried   her   to   the   Civil  

Hospital,   Naraingarh   and   then   she   had   been   shifted   to   PGI 

Hospital,   Chandigarh   where   she   made   a   dying   declaration 

statement   before   P.K.   Sharma,   (PW-2),   Executive   Magistrate 

and   thereafter   on   28/29.06.1991,   she   succumbed   to   her 

injuries.  

6)     Before   considering   the   acceptability   of   dying   declaration 

(Ex.PD), it would be useful to refer the legal position.

(i)    In       Sham   Shankar   Kankaria   vs.   State   of  

Maharashtra, (2006) 13 SCC 165, this Court held as under:

       "10.   This   is   a   case   where   the   basis   of   conviction   of   the  

       accused   is   the   dying   declaration.   The   situation   in   which   a  

       person   is  on  deathbed   is  so   solemn   and   serene  when  he  is 

       dying   that   the   grave   position   in   which   he   is   placed,   is   the 

       reason in law to accept veracity of his statement. It is for this 

                                                                                             7

reason  the  requirements  of  oath  and  cross-examination  are 

dispensed   with.   Besides,   should   the   dying   declaration   be 

excluded   it   will   result   in   miscarriage   of   justice   because   the 

victim being generally the only eyewitness in a serious crime, 

the exclusion of the statement would leave the court without 

a scrap of evidence.

        11.  Though   a   dying   declaration   is   entitled   to   great 

weight,   it   is   worthwhile   to   note   that   the   accused   has   no  

power   of   cross-examination.   Such   a   power   is   essential   for  

eliciting the truth as an obligation of oath could be. This  is 

the   reason   the   court   also   insists   that   the   dying   declaration 

should   be   of   such   a   nature   as   to   inspire   full   confidence   of  

the   court   in   its   correctness.   The   court   has   to   be   on   guard  

that the statement of deceased was not as a result of either  

tutoring or prompting or a product of imagination. The court 

must be further satisfied that the deceased was in a fit state  

of mind after a clear opportunity to observe and identify the  

assailant.   Once   the   court   is   satisfied   that   the   declaration  

was   true   and   voluntary,   undoubtedly,   it   can   base   its 

conviction   without   any   further   corroboration.  It   cannot   be 

laid   down   as   an   absolute   rule   of   law   that   the   dying 

declaration cannot form the sole basis of conviction unless it 

is corroborated. The rule requiring corroboration is merely a 

rule   of   prudence.   This   Court   has   laid   down   in   several 

judgments the principles governing dying declaration, which 

c
  ould   be   summed   up   as   under   as   indicated   in   Pa
                                                                          niben
                                                                                  v.  

S
  tate of Gujarat (1992) 2 SCC 474 (SCC pp.480 -8
                                                                   1, para 18) 

                                                      (Emphasis supplied)

          (i)   There   is   neither   rule   of   law   nor   of   prudence   that 

dying   declaration   cannot   be   acted   upon   without 

corroboration. (See Munnu Raja v. State of M.P.,(1976) 3 SCC  

104)

        (ii) If the Court is satisfied that the dying declaration is  

true   and   voluntary   it   can   base   conviction   on   it,   without 

corroboration. (See  State  of U.P. v.  Ram Sagar Yadav, (1985)  

1 SCC 552 and Ramawati Devi v. State of Bihar,(1983) 1 SCC  

211)

        (iii)   The   Court   has   to  scrutinise   the   dying   declaration 

carefully   and   must   ensure   that   the   declaration   is   not   the 

result   of   tutoring,   prompting   or   imagination.   The   deceased 

had   an   opportunity   to   observe   and   identify   the   assailants 

and   was   in   a   fit   state   to   make   the   declaration.   (See  K.  

Ramachandra Reddy v. Public Prosecutor,(1976) 3 SCC 618)

        (iv)   Where   dying   declaration   is   suspicious,   it   should 

not   be   acted   upon   without   corroborative   evidence.   (See 

Rasheed Beg v. State of M.P.,(1974) 4 SCC 264 )

                                                                                          8

                 (v)   Where   the   deceased   was   unconscious   and   could 

         never   make   any   dying   declaration   the   evidence   with   regard 

         to it is to be rejected. (See  Kake Singh  v.  State  of M.P., 1981  

         Supp SCC 25)

                 (vi)   A   dying   declaration   which   suffers   from   infirmity 

         cannot   form   the   basis   of   conviction.   (See  Ram   Manorath  v. 

         State of U.P.,(1981) 2 SCC 654)

                 (vii)   Merely   because   a   dying   declaration   does   contain 

         the details as to the occurrence, it is not to be rejected. (See 

         State   of   Maharashtra  v.  Krishnamurti   Laxmipati   Naidu,1980  

         Supp SCC 455)

                 (viii) Equally, merely because it is a brief statement, it  

         is not to be discarded. On the contrary, the shortness of the  

         statement   itself   guarantees   truth.   (See  Surajdeo   Ojha  v. 

         State of Bihar,1980 Supp SCC 769.)

                 (ix) Normally the court in order to satisfy whether the 

         deceased   was   in   a   fit   mental   condition   to   make   the   dying  

         declaration   look   up   to   the   medical   opinion.   But   where   the 

         eyewitness   has   said   that   the   deceased   was   in   a   fit   and 

         conscious   state   to   make   the   dying   declaration,   the   medical 

         opinion   cannot   prevail.   (See  Nanhau   Ram  v.  State   of  

         M.P.,1988 Supp SCC 152)

                 (x)   Where   the   prosecution   version   differs   from   the 

         version   as   given   in   the   dying   declaration,   the   said 

         declaration   cannot   be   acted   upon.   (See  State   of   U.P.  v. 

         Madan Mohan, (1989) 3 SCC 390)

                 (xi)   Where   there   are   more   than   one   statement   in   the 

         nature of dying declaration, one first in point of time must be  

         preferred.   Of   course,   if   the   plurality   of   dying   declaration 

         could   be   held   to   be   trustworthy   and   reliable,   it   has   to   be 

         accepted.   (See  Mohanlal   Gangaram   Gehani  v.  State   of  

         Maharashtra,(1982) 1 SCC 700)"

(ii)     In  Puran   Chand   vs.   State   of   Haryana,   (2010)   6   SCC 

566,   this   Court   once   again   reiterated   the   abovementioned 

principles.  

(iii)    In  Panneerselvam vs. State of Tamil Nadu, (2008) 17 

SCC   190,   a   Bench   of   three   Judges   of   this   Court   reiterating 

various principles mentioned above held that it cannot be laid 

                                                                                              9

down   as   an   absolute   rule   of   law   that   the   dying   declaration 

cannot   form   the   sole   basis   of   the   conviction   unless   it   is  

corroborated and the rule requiring corroboration is merely a 

rule of prudence.

7)    In   the   light   of   the   above   principles,   the   acceptability   of 

the   alleged   dying   declaration   in   the   instant   case   has   to   be 

considered.     If,   after   careful   scrutiny,   the   Court   is   satisfied 

that it is free from any effort to induce the deceased to make a 

false statement and if it is coherent and consistent, there shall 

be no legal impediment to make a basis of conviction, even if 

there   is   no   corroboration.     With   these   principles,   let   us 

consider the statement of Kamlesh Rani and its acceptability.

8)    Kamlesh   Rani   was   initially   taken   to   the   Civil   Hospital, 

Naraingarh at 2.20 a.m. on 26.06.1991 where she was initially 

examined   by   Dr.   Ashwani   Kumar   Kashyap   (PW-1).   The   said 

Medical   Officer   immediately   sent   intimation   to   In-charge   P.S. 

Naraingarh to the effect that Kamlesh Rani had been brought 

to the hospital with 100% burns, the patient was critical and 

had   been   referred   to   PGI,   Chandigarh.     Thereafter,   at   P.G.I., 

she was admitted in the Emergency ward and Dr. Vipul Sood  

                                                                               10

(PW-9) examined her at 04:35 a.m. and reported a case of 95% 

burns.   It is further  seen that  on  receiving information,  Sub-

inspector   Dalip   Rattan   (PW-3)   applied   to   the   Sub-Divisional 

Magistrate,   Chandigarh   for   appointment   of   Executive 

Magistrate to record Kamlesh Rani's statement.  Based on the 

same,  Shri  P.K.  Sharma,  Tahsildar-cum-Executive   Magistrate 

(PW-2) was deputed to  record her statement.   The Magistrate 

who   reached   PGI   applied   to   the   Doctor   In-charge   to   certify   if 

Kamlesh   Rani   was   mentally   and   physically   fit   to   make   a 

statement or not.   The doctor certified at 07.25 a.m. that she  

was   fit   to   make   a   statement.     Thereafter,   Kamlesh   Rani's 

statement   was   recorded   which   is   marked   as   Ex.   PD.     It   was  

marked   with   thumb   impression   of   Kamlesh   Rani   and   signed 

by the Magistrate at 7.45 a.m.   It is relevant to note the said 

dying declaration which reads thus:

      "Yesterday,   at   about   10:00   o'clock   four   ladies   came   to   my 

      house and asked me to accompany them to see a movie and 

      we all had gone to see the movie. One boy Subhash was also 

      seeing   movie.   He   was   sitting   there   on   the   back   seat.   After 

      seeing the movie, I came back to my house. Surinder Kumar 

      Garg   who   is   a   so-called   brother   (dharma   Bhai)   of   my 

      husband came in the evening and asked me that I had gone  

      to see picture and stated that I had become a bad character. 

      My  husband is doing  service  at Mullana and lives there. At 

      that   time,   he   was   at   Mullana.   Then   Surinder   said   if   I   had 

      any   sense   of   shame,   I   should  die   by   burning   myself.   Then, 

      he   took   kerosene   from   a   container   (small   peepi)   and 

                                                                                          11

      sprinkled it over me and set me on fire with a match stick.  

      When I was in flame, he put a quilt upon me and ran away. 

      My neighbour removed me to Naraingarh hospital and from 

      there   I  was  referred  to  P.G.I.,   Chandigarh.   I   have   made   my 

      statement in full senses and without any pressure."

As   observed   earlier,   initially,   the   trial   Court   acquitted   the 

accused and the High Court convicted him solely on the basis 

of the above declaration.   In the light of the same, we have to  

find  out   whether  the  dying  declaration  made  and  recorded is 

acceptable   and   whether   it   satisfied   the   required 

norms/procedure   as   held   by   this   Court.     In   other   words,   we 

have   to   see   whether   the   dying   declaration   inspire   the 

confidence of the court.   It is not in dispute that  if the dying 

declaration is by a person who is conscious and the same was 

made   and   recorded   after   due   certification   by   the   doctor,   it 

cannot be ignored.  In the first sentence of Ex. PD, it has been 

mentioned that on the date of occurrence, she had gone for a  

movie   at   10.00   O'  clock   with  four   other  ladies.    According   to 

her, these ladies came to her house and on their request she 

also   went   to   see   the   movie   and   returned   back   to   her   home. 

Though   I.O.   has   examined   some   persons,   there   is   no 

information   about   the   "four   ladies"   who   accompanied   the 

                                                                                     12

deceased to the cinema house.   The I.O. did not care to verify 

those four ladies who accompanied the deceased to the cinema 

house.     In   the   same   declaration,   she   also   stated   that   apart 

from   the   four   ladies   one   boy   Subhash   was   also   seeing   the 

movie along with them.  According to her, he was sitting there  

on the back seat.  The said Subhash was also not examined by  

the I.O.  Non-examination of four ladies, who accompanied the 

deceased   to   the   cinema   house   and   no   information   about 

Subhash   gave   an   impression   that   the   I.O.   had   not   properly 

conducted   the   investigation.     If   at   least   one   of   the   ladies   or 

Subhash   was   examined,   it   would   strengthen   the   prosecution 

case.     However,   the   I.O.   purposely   omitted   to   examine   the 

ladies who went for cinema and in the same manner no effort  

was   made   to   trace   Subhash   whom   the   deceased   saw   at   the 

movie.  None of the so-called neighbours were produced at the 

trial.     The   landlord   of   the   deceased-Ram   Rattan   was   not 

examined at the trial.   It was Ram Rattan who had driven the 

van   to   take   Kamlesh   Rani   from   Civil   Hospital,   Naraingarh   to 

PGI, Chandigarh.  It is to be noted that Kamlesh Rani's sister's 

husband   Surinder   Pal   informed   Inder   Pal-husband   of   the 

                                                                                13

deceased about the incident.   Inder Pal and Surinder Pal had  

together gone to Chandigarh and later met Kamlesh Rani.  For  

the reasons best known to the I.O., the said Surinder Pal was  

not examined on the side of the prosecution.   In other words, 

non-examination   of   any   one   of   the   ladies   who   accompanied 

the deceased to cinema in the morning, presence of Subhash 

and   the   landlord   of   the   deceased,   namely,   Ram   Rattan, 

another tenant Jeet Singh were all vital to the prosecution.  All 

these were important omissions on the part of the I.O.   When 

Hira   Lal   (PW-11),   Assistant   Sub-Inspector   was   examined,   he 

fairly admitted that he had not obtained opinion of the Doctor  

at that time about her fitness to make a statement.   Another 

doctor-PW-12,   who   conducted   post   mortem,   had   opined   that 

the   cause   of   death   is   septicemia   due   to   extensive   burns 

(approx.   97%)   which   is   sufficient   to   cause   death   in   ordinary 

course of nature. 

9)    Ram Niwas (PW-13), Sub-inspector also admitted that he 

did   not   make   any   effort   to   ascertain   the   women   who   had 

accompanied   Kamlesh   Rani   to   see   the   movie.     He   also 

admitted   that   he   had   not   associated   Subhash   referred   to   in 

                                                                            14

the dying declaration during investigation.   He fairly admitted 

that he had no knowledge about any person by name Surinder 

Pal who happened to be sister's husband of Kamlesh Rani who  

was   employed   in   Civil   Hospital,   Naraingarh.     All   the   above 

infirmities/defects   have   not   been   properly   explained   by   the 

prosecution.  

10)    Now   coming   to   her   state   of   mind,   all   the   doctors   have  

mentioned   that   she   was   admitted   with   burn   injuries   to   the 

extent   of   100%   and   after   sometime   she   succumbed   to   the 

injuries.     It   is   true   that   P.K.   Sharma   (PW-2),   Tahsildar-cum-

Executive Magistrate recorded her statement.  In his evidence, 

PW-2 has stated that on the orders of Shri Jagjit Puri, SDM, 

Union Territory of Chandigarh, by his order Ex. PB/1 deputed 

him to record the statement of Kamlesh Rani.  Pursuant to the 

said direction, he went to the PGI and moved an application to 

seek the opinion of the doctor whether Kamlesh Rani was fit to 

make   a   statement   or   not.     He   further   deposed   that   when   he  

had   contacted   Kamlesh   Rani   she   was   present   in   the   general 

ward and some persons were also standing there, they left the 

room   on   his   direction.     About   the   absence   of   the   doctor 

                                                                              15

certifying at the time and date when she made a statement, he 

clarified that the doctor issuing such certificate was busy with 

his professional work.  Kamlesh Rani had made a statement in 

local   dialect   of   mixed   Hindi/Punjabi   and   PW-2   had   recorded 

her statement in Hindi script.   Here again, it was pointed out 

that these were not factually correct.  In view of the doubt, we  

verified the original which is in Hindi script only and not local  

dialect   in   mixed   Hindi/Punjabi.     Though,   according   to   PW-2, 

she put her thumb impression, in view of the evidence of the 

doctors that she was brought to hospital with 100% burns and 

at   the   time   of   recording   her   statement,   she   suffered   95-97% 

burn   injuries,   it   is   highly   doubtful   whether   it   would   be 

possible   for   her   to   have   her   thumb   impression   below   her 

statement.     It   is   also   not   clear   that   when   the   whole   body   is 

burnt   and   bandaged   how   the   thumb   impression   of   the 

deceased was obtained.  

11)    We   have   already   noted   that   admittedly   at   the   time   of 

recording   the   statement   of   the   deceased   by   PW-2,   no 

endorsement   of   the   doctor   was   made   about   her   position   to 

make such statement.  On the other hand, an application was 

                                                                                16

filed by Hira Lal, (PW-11) to Doctor In-charge PGI, Chandigarh 

seeking clarification "whether she is fit to make the statement 

or   not"   and   for   the   said  query  an   endorsement  was   made  by 

the   doctor   mentioning   that   "patient   conscious   answering   the 

questions,   patient   fit   to   give   statement".     We   compared   the 

dying   declaration   Ex.   PD   recorded   by   PW-2   as   well   as   the 

endorsement made in the requisition of Hira Lal, ASI (PW-11). 

The verification of both the documents show different doctors 

have   certified   and   made   such   a   statement.     Dr.   Vipul   Sood, 

PW-9,   PGI   Chandigarh   in   his   evidence   has   stated   Kamlesh 

Rani was admitted in the Emergency ward of PGI Hospital on  

26.06.1991   at   about   4.30   a.m.   with   95%   burns.     He   also 

deposed   that   when   Ex.   C/1   was   submitted   by   P.K.   Sharma, 

PW-2   on   which   he   gave   his   opinion   that   the   patient   is   fit   to  

make a statement on 26.06.1991 at about 7.25 a.m.  It is clear 

that   at   the   time   when   PW-2   recorded   the   statement   of   the 

deceased   Dr.   Vipul   Sood   (PW-9)   was   not   present   and 

subsequently on the request of the police officer, he offered his 

opinion   to   the   effect   that   the   patient   was   fit   to   make   a 

                                                                                  17

statement.     The   procedure   adopted   by   PW-2   while   recording 

the statement of dying declaration is not acceptable.               

12)    As per the prosecution, the incident took place at 2 a.m. 

on   26.06.1991   and   as   per   her   statement,   the   occurrence   of 

burning   was   in   the   evening   of   25.06.1991,   that   is,   the  

previous day.  The dying declaration did not carry a certificate 

by   the   Executive   Magistrate   to   the   effect   that   it   was   a 

voluntary   statement   made   by   the   deceased   and   that   he   had 

read over the statement to her.  The dying declaration was not 

even   attested   by   the   doctor.     As   stated   earlier,   though   the 

Magistrate   had   stated   that   the   statement   had   been   made   in 

mixed   dialect   of   Hindi   and   Punjabi   and   the   statement   was 

recorded only in Hindi.  Another important aspect is that there 

was   evidence   that   Kamlesh   Rani   was   under   the   influence   of 

Fortwin and Pethidine injections and was not supposed to be 

having   normal   alertness.     In   our   view,   the   trial   Court   rightly  

rejected   the   dying   declaration   altogether   shrouded   by 

suspicious   circumstances   and   contrary   to   the   story   of 

prosecution and acquitted the appellant.  

                                                                               18

13)    It   is   settled   that   a   valid   and   well   reasoned   judgment   of  

the   trial   Court   is   seldom   set   aside   unless   there   was   some  

perversity   or   not   based   on   correct   law.       From   the   materials  

available,   absolutely   there   was   no   case   to   presume   that   the 

death of the deceased occurred at the hands of the appellant 

especially,   when   her   statement   was   shrouded   by   suspicious 

circumstances   and   contrary   to   the   claim   of   the   prosecution. 

Particularly,   when   she   was   alleged   to   have   97%   burns   and 

being   under   constant   sedatives   first   at   Civil   Hospital, 

Naraingarh and then at PGI, Chandigarh, in such a situation  

she   could   not   be   expected   to   make   a   statement   at   a   stretch 

without   asking   any   questions.     Admittedly,   the   Executive 

Magistrate,   PW-2   did   not   put   any   question   and   recorded   her 

answers.  

14)    Another important aspect relating to failure on the part of 

prosecution   is   that   on   the   date   of   the   incident,   the   deceased 

had   two   children   aged   about   six   and   four   years   respectively 

and both of them were present there, admittedly, the I.O. has  

not   enquired   them   about   the   genuineness   of   the   incident. 

Though,   there   are   number   of   immediate   neighbours/co-

                                                                                 19

tenants   in   the   same   premises,   their   statements   were   not 

recorded   which   means   that   nobody   supported   the   version   of 

the   prosecution.     Though   there   is   neither   rule   of   law   nor   of 

prudence that dying declaration cannot be acted upon without 

corroboration   but   the   court   must   be   satisfied   that   the   dying 

declaration is true and voluntary and in that event, there is no 

impediment in basing conviction on it, without corroboration. 

It is  the   duty  of   the   court   to   scrutinise   the   dying  declaration 

carefully   and   must   ensure   that   the   declaration   is   not   the 

result   of   tutoring,   prompting   or   imagination.     Where   a   dying 

declaration is suspicious, it should not be acted upon without 

corroborative   evidence.     Likewise,   where   the   deceased   was 

unconscious   and   could   never   make   any   declaration   the 

evidence   with   regard   to   it   is   rejected.     The   dying   declaration 

which   suffers   from   infirmity   cannot   form   the   basis   of 

conviction.   All these principles have been fully adhered to by  

the trial Court and rightly acquitted the accused and on wrong 

assumption   the   High   Court   interfered   with   the   order   of 

acquittal. 

                                                                              20

15)    It   is   the   consistent   stand   of   the   defence   from   the 

beginning that the appellant had been falsely implicated, more 

particularly, at the instance of I.O. Hira Lal (PW-11) who had a 

previous   enmity   with   him   for   asking   some   bribe   for   running 

his business of ghee.   As rightly pointed out, other witnesses 

who accompanied the injured Kamlesh Rani did not make any 

statement   involving   the   appellant   in   the   burning   of   Kamlesh 

Rani till 29.06.1991.  

16)    We are satisfied that the dying declaration was totally in 

conflict   with   the   version   of   the   prosecution   as   to   the   time   of  

her   burning,   relation   of   the   appellant   with   the   deceased, 

except for the implication part, which was clarified in favour of 

the   appellant   by   PW-10   Surinder   Singh   in   his   cross-

examination.     In   such   circumstances,   the   dying   declaration 

was totally unacceptable, could not be believed as trustworthy, 

which was rightly not believed so by the trial Court. 

17)    Inasmuch   as   the   acquittal   by   the   trial   Court   and 

conviction   by   the   High   Court   is   solely   based   on   the   dying 

declaration, in view of our above discussion, there is no need 

to  traverse  the  evidence and other  factual  details.   In view of 

                                                                                  21

the   infirmities   pointed   above,   and   contradictions   as   to   the 

occurrence, failure on the part of the Executive Magistrate in 

obtaining certificate as to whether Kamlesh Rani had made a 

voluntary   statement  and  not   attested by  any  doctor   and  also 

his   statement   which   is   contradictory   to   that   of   the   deceased 

Kamlesh Rani and of the fact that at the relevant time she was 

under   the   influence   of   Fortwin   and   Pethidine   injections   and 

was   not   supposed   to   be   having   normal   alertness,   as   rightly 

observed by the trial Court, we hold that the dying declaration 

Ex.PD   does   not   inspire   confidence   in   the   mind   of   the   Court. 

Inasmuch   as   the   dying   declaration   is   the   only   piece   of 

evidence   put   forward   against   the   accused   in   the   light   of   our 

discussion   and   reasoning,   the   accused   -   Surinder   Kumar   is 

entitled to the benefit of doubt.  

18)        Consequently,   the   conviction   and   sentence   ordered   by 

the High Court is set aside and the  order of acquittal  passed 

by the trial Court is restored.   Since the appellant is on bail, 

his bail bonds shall stand discharged.  The appeal is allowed. 

                                        ..........................................J. 

                                                                             22

                    (P. SATHASIVAM)                                 

                                ...........................................J.

                                 (DR. B.S. CHAUHAN)

NEW DELHI;

OCTOBER 21, 2011                                                                           23

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