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.
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(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
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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.
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(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
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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
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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
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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 )
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(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
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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
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(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
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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
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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.
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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.
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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
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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
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