Case: Surinder Kumar Vs. State of Haryana

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 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. 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- 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.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 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,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 isis 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- 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.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 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.