Surinder Kumar vs State Of Haryana

2) Brief facts:

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-

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.

(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.

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-

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.

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.

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-

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.

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