MAKHAN SINGH versus THE STATE OF HARYANA
[2022] 13 S.C.R. 357, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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MAKHAN SINGH
v.
THE STATE OF HARYANA
(Criminal Appeal No. 1290 of 2010)
AUGUST 16, 2022
[B. R. GAVAI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Evidence – Two dying declarations – In first dying declaration
recorded by DW-1, deceased exonerated appellant and his family –
However, in the second dying declaration recorded by PW-6,
deceased implicated appellant and his parents – Trial Court
convicted appellant u/s. 304-B of the IPC and sentenced him to 10
years rigorous imprisonment – High Court reduced the sentence
from 10 years to 7 years – On appeal, held: In the first dying
declaration, PW1-doctor had examined deceased whether she was
in fit state of mind and conscious to make statement – After
certification, DW-1 also satisfied herself as to whether deceased
was voluntary making statement or not – However, the second dying
declaration was recorded without there being examination by a
doctor with regard to the fitness of the deceased – Further, PW6
herself admitted that PW13 (father of deceased) and PW11 (sister
of deceased) were present in the hospital – The possibility of the
second dying declaration being given after tutoring by her relatives
cannot therefore be ruled out – DW-2(DSP) had stated in his
deposition that the statement was made by the deceased after being
tutored by her relatives – Also, prosecution had not examined DW1
and DW2 – Therefore, in the facts and circumstances of the case,
the first dying declaration considered more reliable and
trustworthy
than the second dying declaration – Accordingly, appellant acquitted
of all the charges.
Allowing the appeal, the Court
HELD: 1. The first dying declaration (Ex. DO/C) is recorded
by DW-1. A perusal of the said would reveal that prior to recording
the statement of deceased, PW-1 had examined as to whether
she was in a fit state of mind and conscious to make the statement.
After certification, DW-1 got herself satisfied as to whether
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deceased was voluntarily making the statement or not and
thereafter, recorded her statement. The said dying declaration
(Ex. DO/C) is also endorsed by PW-1 with the remarks that
deceased was conscious throughout while making statement.
DW-1 has also deposed that even after making the statement,
she confirmed from the deceased as to whether the statement
was voluntarily made by her. [Para 16][365-A-C]
2. As against this, as far as the second dying declaration
(Ex. PE) which was recorded by another Judicial Magistrate PW-6
after 3 days is concerned, it was recorded without there being
examination by a doctor with regard to the fitness of the deceased
to make the statement. Though the statement is recorded in
Hospital and though doctors were available, PW-6 did not find it
necessary to get the medical condition of the deceased examined
from the doctors available in the hospital. It is further to be noted
that PW-6 herself has admitted that PW-13) and PW-11, father
and sister of deceased were present in the hospital. The possibility
of the second dying declaration (Ex. PE) being given after tutoring
by her relatives cannot therefore be ruled out. [Para 17][365-D-
E]
3. It is also relevant to note that the prosecution had not
examined DW-1 and DSP (DW-2). It therefore creates a serious
doubt with regard to fairness and impartiality of the IO. Apart
from that, it is to be noted that on the basis of very same evidence,
the
trial court, by giving benefit of doubt, has acquitted the father
and mother of the appellant. In that view of the matter, conviction
of the appellant on the very same evidence, was improper. [Para
19][365-H; 366-A]
4. Therefore, this Court finds that in the facts and
circumstances of the present case, the first dying declaration (Ex.
DO/C) will have to be considered to be more reliable and
trustworthy as against the second one (Ex. PE). In any case, the
benefit of doubt which has been given to the other accused by
the trial court, ought to have been equally given to the present
appellant when the evidence was totally identical against all the
three accused. [Para 20][366-B-C]
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Harjit Kaur v. State of Punjab (1999) 6 SCC 545 : 1999
(5) JT 317; Sayarabano v. State of Maharashtra (2007)
12 SCC 562 : [2007] 2 SCR 354; Sher Singh v. State of
Punjab (2008) 4 SCC 265 : [2008] 2 SCR 959;
Munnawar v. State of U.P. (2010) 5 SCC 451; Lakhan
v. State of M.P. (2010) 8 SCC 514 : [2010] 9 SCR 705;
Shudhakar v. State of M.P. (2012) 7 SCC 569 : [2012]
7 SCR 128; Raju Devade v. State of Maharashtra
(2016) 11 SCC 673 : [2016] 3 SCR 818; Kashmira
Devi v. State of Uttarakhand (2020) 11 SCC 343 :
[2020] 1 SCR 152; State of U.P. v. Veerpal (2022) 4
SCC 741 – referred to.
Case Law Reference
[2007] 2 SCR 354
referred to
Para 7
[2008] 2 SCR 959
referred to
Para 7
[2010] 9 SCR 705
referred to
Para 7
[2012] 7 SCR 128
referred to
Para 7
[2016] 3 SCR 818
referred to
Para 7
[2020] 1 SCR 152
referred to
Para 7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1290 of 2010.
From the Judgment and Order dated 15.05.2009 of the High Court
of Punjab and Haryana at Chandigarh in Crl. Appeal No.1189-SB of
2002.
R. K. Rathore, Sudarshan Singh Rawat, Ms. Saakshi S. Rawat,
Advs. for the Appellant.
Piyush Hans, Ms. Annu Singh, Navin Gupta, Dr. Monika Gusain,
Advs. for the Respondent.
MAKHAN SINGH v. THE STATE OF HARYANA
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The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. The appellant-Makhan Singh has approached this Court being
aggrieved by the judgment dated 15th May 2009 passed by the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.1189-
SB of 2002 vide which the High Court, though reduced the sentence
awarded from 10 years to 7 years, but concurred with the judgment and
order of conviction dated 13th/16th July 2002 recorded by the trial court
in Sessions Case No. 55 of 1998 for the offence punishable under Section
304-B of the Indian Penal Code, 1860 (for short ‘IPC’).
2. Deceased Manjit Kaur was married to the appellant-Makhan
Singh on 28th January 1996. It is the prosecution case that the appellant
used to demand dowry from the parents of the deceased Manjit Kaur. It
is further the prosecution case that, succumbing to the demands of the
appellant, an amount of Rs.30,000/- was paid to him by the parents of
the deceased Manjit Kaur. The appellant again demanded an amount of
Rs.2 lakhs. According to the prosecution, the appellant had utilized the
said amount for going to Moscow. However, after coming back from
Moscow in March 1998, he again tortured deceased Manjit Kaur and
asked her to bring Rs.6 lakhs as he wanted to go to USA. According to
the prosecution, deceased Manjit Kaur, fed up with the torture, consumed
poisonous substance on 21st April 1998. Deceased Manjit Kaur was
taken by the
appellant initially to the Community Health Centre, Ladwa
and thereafter, she was referred to L.N.J.P. Hospital, Kurukshetra. From
L.N.J.P. Hospital, deceased Manjit Kaur was taken to a private Nursing
Home of Dr. H.K. Sobti (PW-1) at Kurukshetra, wherein she was
admitted.
3. Ms. Vani Gopal Sharma, Judicial Magistrate, First Class,
Kurukshetra (DW-1) recorded the dying declaration of the deceased
Manjit Kaur (Ex. DO/C), wherein the deceased stated that she was
suffering from fever and since many medicines were lying on the Angithi,
by mistake, she took medicine of green colour. It appears that thereafter,
Kamlesh Kaur (PW-11) and Bhan Singh (P)W-13), parents of deceased
Manjit Kaur reached the hospital on the next morning. On 24th April
1998, they made a request for recording the statement of deceased Manjit
Kaur under Section 164 of the Cr.P.C. On such a request being made,
Ms. Kanchan Nariala, Judical Magistrate, First Class, Kurukshetra
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(PW-6) recorded the statement of deceased Manjit Kaur (Ex. PE) on
24th April 1998, wherein she stated that her husband had demanded
Rs. 6 lakhs to go to USA. According to the said dying declaration (Ex.
PE), the appellant as well as his parents administered the said poisonous
substance to deceased Manjit Kaur. On the basis of the second dying
declaration (Ex. PE), an FIR was registered on 25th April 1998. After
the said dying declaration (Ex. PE) was recorded, Sub-Inspector
Gurdwaya Ram (PW-14), Investigating Officer (for short ‘IO’) recorded
her oral statement (Ex. PV) on 28th April 1998. On 28th April 1998,
deceased Manjit Kaur was referred to PGIMS, Chandigarh, where she
expired on 9th May 1998.
4. Upon completion of investigation, though on verification by K.K.
Rao, DSP (DW-2) who found the accused innocent, Sub-Inspector
Gurdwaya Ram (PW-14), IO was of the opinion that there were sufficient
grounds for trial and therefore, he filed the charge-sheet. Charges came
to be framed for the offence punishable under Section 304-B of the
IPC. At the conclusion of the trial, the trial court convicted the appellant
under Section 304-B of the IPC. However, the trial court found that the
other two accused, i.e., the parents of the appellant were entitled to get
benefit of doubt and acquitted them. The appellant was sentenced to
suffer rigorous imprisonment for a period of 10 years. In an appeal
preferred by the appellant before the High Court, though the High
Court
confirmed the conviction under Section 304-B of the IPC, it reduced the
sentence awarded to 7 years. Being aggrieved thereby, the present appeal.
5. We have heard Shri R.K. Rathore, learned counsel appearing
on behalf of the appellant and Shri Piyush Hans, learned counsel
appearing on behalf of the State.
6. Shri Rathore submitted that the trial court and the Appellate
Court have failed to take into consideration that in the very first dying
declaration (Ex. DO/C), deceased Manjit Kaur had stated that she had
consumed the medicine by mistake. He therefore submitted that the
death was accidental. He further submitted that the second dying
declaration (Ex. PE), which was recorded after 3 days, had been recorded
after the parents of deceased Manjit Kaur instigated her to implicate the
appellant. He submitted that in case of conflicting dying declarations,
the accused is entitled to get benefit of doubt. He therefore submitted
that the order of conviction deserves to be set aside.
MAKHAN SINGH v. THE STATE OF HARYANA
[B. R. GAVAI, J.]
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7. Shri Hans vehemently submitted that each of the dying
declarations has to be appreciated independently. He submitted that the
courts below have rightly found that the first dying declaration (Ex. DO/
C) was given by the deceased Manjit Kaur under the influence of her
husband, whereas the second dying declaration (Ex. PE) was given by
her independently out of her free will. He further submitted that in view
of the concurrent findings of fact, this Court should not interfere. Shri
Hans has relied on the following authorities in support of his submission:
Harjit Kaur v. State of Punjab1, Sayarabano v. State of
Maharashtra2, Sher Singh v. State of Punjab3, Munnawar v. State of
U.P.4, Lakhan v. State of M.P.5, Shudhakar v. State of M.P.6, Raju
Devade v. State of Maharashtra7, Kashmira Devi v. State of
Uttarakhand8 and State of U.P. v. Veerpal9.
8. The law with regard to dying declaration has been summarized
by this Court in the case of Lakhan (supra), wherein the Court considered
various oral judgments on the issue and observed thus:
“21. In view of the above, the law on the issue of dying declaration
can be summarised to the effect that in case the court comes to
the conclusion that the dying declaration is true and reliable, has
been recorded by a person at a time when the deceased was fit
physically and mentally to make the declaration and it has not
been made under any tutoring/duress/prompting; it can be the sole
basis for recording conviction. In such an eventuality no
corroboration is required. In case there are multiple dying
declarations and there are inconsistencies between them,
generally, the dying declaration recorded by the higher officer like
a Magistrate can be relied upon, provided that there is no
circumstance giving rise to any suspicion about its truthfulness. In
case there are circumstances wherein the declaration had been
made, not voluntarily and even otherwise, it is not supported by
1 (1999) 6 SCC 545
2 (2007) 12 SCC 562
3 (2008) 4 SCC 265
4 (2010) 5 SCC 451
5 (2010) 8 SCC 514
6 (2012) 7 SCC 569
7 (2016) 11 SCC 673
8 (2020) 11 SCC 343
9 (2022) 4 SCC 741
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the other evidence, the court has to scrutinise the facts of an
individual case very carefully and take a decision as to which of
the declarations is worth reliance.”
9. It could thus be seen that the Court is required to examine as to
whether the dying declaration is true and reliable; as to whether it has
been recorded by a person at a time when the deceased was fit physically
and mentally to make the declaration; as to whether it has been made
under any tutoring/duress/prompting. The dying declaration can be the
sole basis for recording conviction and if it is found reliable and
trustworthy, no corroboration is required. In case there are multiple dying
declarations and there are inconsistencies between them, the dying
declaration recorded by the higher officer like a Magistrate can be relied
upon. However, this is with the condition that there is no circumstance
giving rise to any suspicion about its truthfulness. In case there are
circumstances wherein the declaration has not been found to be made
voluntarily and is not supported by any other evidence, the Court is
required to scrutinize the facts of an individual case very carefully and
take a decision as to which of the declarations is worth reliance.
10. In the present case, there are two dying declarations. The
first one in point of time is recorded by Ms. Vani Gopal Sharma (DW-1)
and the second one is recorded by Ms. Kanchan Nariala (PW-6). In her
first dying declaration (Ex. DO/C), deceased
Manjit Kaur has exonerated
the appellant and his family members. In the second dying declaration
(Ex. PE), she has implicated the appellant as well as his parents. In the
first dying declaration (Ex. DO/C), she stated that she was having fever
and by mistake, she took another medicine of green colour. On a specific
query being made to her by Ms. Vani Gopal Sharma (DW-1) as to whether
she has suspicion on anyone, she has replied in the negative. The first
dying declaration (Ex. DO/C) is also endorsed by Dr. Sobti (PW-1) stating
therein that the patient remained conscious throughout her statement.
11. In her second dying declaration (Ex. PE), she has stated that
the appellant’s father and mother caught hold of her and the appellant
forcibly administered her the medicine.
12. It is pertinent to note that the prosecution had not examined
Ms. Vani Gopal Sharma (DW-1), who had recorded the first dying
declaration (Ex. DO/C) and therefore, the defence was required to
examine her as DW-1. A perusal of her evidence would reveal that on
MAKHAN SINGH v. THE STATE OF HARYANA
[B. R. GAVAI, J.]
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ASI Ranjit Singh making a request, she went to the hospital of Dr. Sobti
(PW-1) and asked her whether Mrs. Manjit Kaur was fit to make a
statement and thereupon, the doctor opined that she was fit to make the
statement. Thereafter, she recorded the statement of deceased Manjit
Kaur. She stated that when she was recording the statement, nobody
except Dr. Sobti (PW-1) was present there and everyone else was asked
to go out. She stated that she found that deceased Manjit Kaur was in
sound disposing mind but still she gave her sometime to relax so that she
could compose herself and could give statement voluntarily. She stated
that she was satisfied that the deceased Manjit Kaur was prepared to
make statement voluntarily. Thereafter, her statement was recorded.
After recording her statement, right thumb impression of deceased Manjit
Kaur was taken. She deposed that deceased Manjit Kaur remained
conscious throughout and she appended a certificate to that effect. She
has also deposed with regard to the certificate issued by Dr. Sobti
(PW-1).
13. Ms. Vani Gopal Sharma (DW-1) was cross-examined by
Additional Public Prosecutor. In her cross-examination, she has reiterated
that she had satisfied herself that deceased Manjit Kaur was making
statement voluntarily and only then, she recorded it and even satisfied
herself after recording her statement.
14. Ms. Kanchan Nariala (PW-6), who recorded the second dying
declaration (Ex.
PE), has also stated that she had satisfied herself that
deceased Manjit Kaur was making a voluntarily statement. Attendants
sitting by her side were asked to leave the premises. She stated that
when she was recording the statement, except deceased Manjit Kaur,
none were present. She has admitted in her cross-examination that she
did not consider obtaining certificate of fitness from the Medical Officer
to the effect that deceased Manjit Kaur was fit to make a statement.
She has admitted that she did not obtain any opinion from any Medical
Officer of L.N.J.P. Hospital, where she recorded the dying declaration.
She has also admitted that Bhan Singh (PW-13) and Kamlesh Kaur
(PW-11), father and sister of deceased Manjit Kaur were present in the
hospital.
15. In the present case, we are faced with two dying declarations,
which are totally inconsistent and contradictory to each other. Both are
recorded by Judicial Magistrates. A difficult question that we have to
answer is which one of the dying declarations is to be believed.
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16. The first dying declaration (Ex. DO/C) is recorded by Ms.
Vani Gopal Sharma (DW-1). A perusal of the said would reveal that
prior to recording the statement of deceased Manjit Kaur, Dr. Sobti
(PW-1) had examined as to whether she was in a fit state of mind and
conscious to make the statement. After certification, Ms. Vani Gopal
Sharma (DW-1) got herself satisfied as to whether deceased Manjit
Kaur was voluntarily making the statement or not and thereafter, recorded
her statement. The said dying declaration (Ex. DO/C) is also endorsed
by Dr. Sobti (PW-1) with the remarks that deceased Manjit Kaur was
conscious throughout while making statement. Ms. Vani Gopal Sharma
(DW-1) has also deposed that even after making the statement, she
confirmed from the deceased as to whether the statement was voluntarily
made by her.
17. As against this, as far as the second dying declaration
(Ex. PE) which was recorded by another Judicial Magistrate Ms.
Kanchan Nariala (PW-6) after 3 days is concerned, it was recorded
without there being examination by a doctor with regard to the fitness of
the deceased Manjit Kaur to make the statement. Though the statement
is recorded in L.N.J.P. Hospital and though doctors were available, Ms.
Kanchan Nariala (PW-6) did not find it necessary to get the medical
condition of the deceased examined from the doctors available in the
hospital. It is further to be noted that Ms. Kanchan Nariala (PW-6)
herself has admitted that Bhan Singh
(PW-13) and Kamlesh Kaur (PW-
11), father and sister of deceased Manjit Kaur were present in the
hospital. The possibility of the second dying declaration (Ex. PE) being
given after tutoring by her relatives cannot therefore be ruled out.
18. Not only that, it is also relevant to refer to the testimony of
K.K. Rao (DW-2), who was the Deputy Superintendent of Police (DSP).
He has stated, in his deposition, thus:
“However, no witness supported the version detailed Mrs. Manjit
Kaur in that statement. According to my investigation the said
statement dated 24.4.1998 was made by Mrs. Manjit after being
tutored by her relatives and it did not contain the true version of
the incident.”
19. It is also relevant to note that the prosecution had not examined
Ms. Vani Gopal Sharma (DW-1) and K.K. Rao, DSP (DW-2). It
therefore creates a serious doubt with regard to fairness and impartiality
MAKHAN SINGH v. THE STATE OF HARYANA
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of the IO. Apart from that, it is to be noted that on the basis of very same
evidence, the trial court, by giving benefit of doubt, has acquitted the
father and mother of the appellant. In that view of the matter, conviction
of the appellant on the very same evidence, in our view, was improper.
20. We therefore find that in the facts and circumstances of the
present case, the first dying declaration (Ex. DO/C) will have to be
considered to be more reliable and trustworthy as against the second
one (Ex. PE). In any case, the benefit of doubt which has been given to
the other accused by the trial court, ought to have been equally given to
the present appellant when the evidence was totally identical against all
the three accused.
21. Before we part with the judgment, we place on record our
appreciation for the painstaking efforts made by Shri Piyush Hans, learned
counsel appearing on behalf of the State for supporting the conviction.
22. In the result, we pass the following order:
(i)
The appeal is allowed;
(ii)
The judgment dated 15th May 2009 passed by the High
Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No.1189-SB of 2002 and the judgment and order
dated 13th/16th July 2002 passed by the trial court in Sessions
Case No. 55 of 1998 are quashed and set aside;
(iii)
The appellant is acquitted of all the charges charged with
and his bail bonds shall stand discharged.
23. Pending application(s), if any,
shall stand disposed of in the
above terms.
Ankit Gyan
Appeal allowed.