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PETITIONER: BALBIR SINGH..

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       19/08/1999

BENCH: G.T. Nanavati, S.N.Phukan

JUDGMENT:

NANAVATI J.       The  appellant  had  married Sukhwinder  Kaur  ’  (the deceased) about four years before the date of incident which took  place  on 10,12.1990.  The prosecution case  was  that neither  the  appellant  nor   other  family  members  liked Sukhwinder  Kaur and all of them had desired that she should die  so that the appellant can marry again.  It was also the prosecution case that on 10.12.1990, the appellant gave some tablets  to  Dhan  Kaur,  his mother,  for  giving  them  to Sukhwinder Kaur who was not feeing well,

     As  a  result  of  taking  those  tablets  she  became restless  and was required to be taken to Civil hospital  at Barnala  on the same day In the evening.  On being  informed about  the condition of Sukhwinder Kaur, the police had gone to the hospital and recorded her statement(Exibit PW8/8) and on the basis thereof an offence was registered under Section 304-B  I.P.C.   against  the appellant and Dhan  Kaur.   Her dying  declaration was also got recorded through a  Judicial Magistrate  on  11.12.1930 when she was in the  hospital  at Ludhiana.   Sukhwinder  Kaur expired on 12.12.1930  and  the offence,  which  was earlier registered under Section  304-B IPC was converted into an offence under Section 302 IPC.

     The  appellant and Dhan Kaur were then  charge-sheeted and  tried for the offencs punishable under Section 302 read with  Section  34 IPC and in the alternative  under  Section 304-S  read with Section 34 IPC.  The Trial Court  convicted both  under  Section  30.2 read with Section 34  IPC.   They challenged  their conviction by filing an appeal in the High Court  but  the same was dismissed.  The present  appeal  is filed  by Balbir Singh, the husband, and he is  challenging his  conviction  on the ground that he could not  have  been convicted  under Section 302 read with Section 34 IPC on the basis of the evidence led in this case.

     The  only evidence against the appellant was an  extra judicial  confession  stated  to  have   been  made  by  the appellant  before  the  Sarpanch of the village,  the  dying declaration  of  Sukhwinder Kaur recorded by the  Police  on 10.12.1990  and  the  dying   declaration  recorded  by  the judicial  Magistrate on 11.12.90.  Both the Trial Court  and the  High  Court relied upon the two dying declarations  and also  the  extra  judicial  confession for  the  purpose  of convicting  the  accused.  It was submitted by  the  learned counsel  for  the  appellant  that  the  Courts  below  have committed  a grave error in relying upon the extra  judicial

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confession  as it was highly improbable that in absence-  of any  relationship  with the sarpanch or for any  other  good reason,  the  appellant would have gone to the Sarpanch  and confessed  that he had purchased the poisonous tablets which led  to the death of Sukhwinder Kaur.  If what the  Sarpanch has deposed was really true, the investigating officer would have then tried to find out from whose shop the tablets were purchased.   No  such  attempt was made.   The  evidence  of Ssrpanch is not such as could have been accepted without any "independent  corroboration.   Even the trial Court and  the High  Court  have  not considered the  said  extra  judicial confession  as  sufficient  to  prove   the  guilt  of   the appellant.   It  has  been regarded as a piece  of  evidence furnishing   independent   corroboration    to   the   dying declarations.  An extra judicial confession even if believed is  considered a very weak piece of evidence and  ordinarily is  not accepted without independent corroboration.  In this case,  it was of a doubtful character and therefosre it  was wrong  to  rely  upon  it and ho7d  that  it  afforded  good corroboration to the dying declarations.

     The  two dying declarations are also not consistent as regards  the  part played by the appellant.  in’  the  First Information  Report-cum-Dying  declaration, Sukhwinder  Kaur had  stated that on 10.12.1990 both the .appellant and  Dhan Kaur  had administered tablets to her.  When that  statement is  scrutinised  carefully  it becomes  apparent  that  what Sukhwinder  Kaur had stated against the appellant was by way of an inference and not as a