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CASE NO.: Appeal (crl.)  236 of 2007

PETITIONER: Mohan Lal and Ors

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 21/02/2007

BENCH: Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT:

J U D G M E N T (Arising out of SLP (Crl.)  No. 6344 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.  

        Challenge in this appeal is to the order passed by a  Division Bench of the Punjab and Haryana High Court  upholding the conviction of the appellants for offences  punishable under Section 302 read with Section 34 of the  Indian Penal Code, 1860 (in short the ’IPC’) and sentence of  imprisonment for life as was awarded by the trial Judge i.e.  learned Additional Sessions Judge, Narnaul.         According to the prosecution version as unfolded during  the trial, Renu (hereinafter referred to as the ’deceased’) was  set on fire by the appellants who were torturing and harassing  her for dowry demand. A boil had developed under her armpit.  After making arrangements for her comforts, her husband  went out of station. Her mother in law- appellant No.3 told her  that she was telling a lie about the boil under her armpit and  she really had no problem. Her father in law (appellant No.1)  wanted her to show the place where the boil was, but the  deceased did not show it to him. Her brother in law- appellant  No. 2 also used to harass her. On the contrary, her husband  did not cause any harassment to her. On the date of  occurrence i.e. 15.9.2001, the appellants confined her in a  room, poured kerosene on her and set her on fire. Her father-  in- law remarked that on her failure to show him the place  where the boil was, she has to die by burning. They were also  harassing her for dowry. Her dying declaration was recorded  by Judicial Magistrate, First Class (PW-3) and was exhibited  as Ex. PD/4. The learned trial Court put emphasis on the  dying declaration and recorded the conviction as afore-noted.  

       The stand of the appellants before the trial Court and the  High Court was to the effect that the statement in the so called  dying declaration that she had a boil in her armpit was belied  by the doctor’s evidence who found no boil on her body.  Furthermore, the evidence of PW-3, whose testimony is the  foundation for the conviction by the trial Court, as upheld by  the High Court, indicates that there was scope for tutoring the  victim. That aspect has been lost sight of by the courts below.  The stand of the State before the trial Court as well as the

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High Court was that sanctity has to be attached to the dying  declaration and therefore the appellants were guilty of the  charged offences.  

       The High Court by the impugned judgment held that the  entire case hinges on the dying declaration given by the  deceased to the JMFC (PW-3). It was held that the dying  declaration clearly implicated the appellants and, therefore,  the same was rightly acted upon by the trial Court. Further,  the evidence of PWs 7 and 8 i.e. father and mother of the  deceased clearly showed that there was demand for dowry.   The High Court accordingly upheld the conviction and  sentence.          In support of the appeal, learned counsel for the  appellants submitted that the very fact that the doctor did not  find any boil in the armpit of the deceased falsified the  prosecution case, as according to the prosecution, the refusal  by the deceased to show the boil was the cause for pouring  kerosene on the deceased. Additionally it was pointed out that   though PWs 7 and 8 claimed to have stated before the police  about the dowry demand during investigation, the same was  found to be untrue in view of the acceptance that no such  statements were made during investigation to the Investigating  Officer.  

       Learned counsel for the respondent on the other hand  supported the judgment of the courts below submitting that  the dying declaration has been rightly relied upon by the  courts below.  

       A bare reading of the so called dying declaration Ex.PD/4  shows that according to the deceased, the appellants were  enraged because she did not show the place of the boil to her  father in law (appellant No.1). As rightly submitted, the doctor  (PW1) who conducted the post mortem clearly stated that  there was no boil or pustule in the armpit of the deceased.  There is no dispute to this factual position by learned counsel  for the respondent-State.   This is a case where the basis of conviction of the  accused is the dying declaration. The situation in which a  person is on his deathbed, being exceedingly solemn, serene  and grave, is the reason in law to accept the veracity of his  statement. It is for this reason that 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 eye-witness  in a serious crime, the exclusion of the statement would leave  the Court without a scrap of evidence.  

       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  nature as to inspire full confidence of the Court in its  correctness. The Court has to be on guard that the statement  of the 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

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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 could be summed up as under as indicated  in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

       (i)     There is neither rule of law nor of prudence that  dying declaration cannot be acted upon without corroboration.  [See Munnu Raja & Anr. v. The State of Madhya Pradesh  (1976) 2 SCR 764)]         (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 Uttar Pradesh v. Ram Sagar Yadav  and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of  Bihar (AIR 1983 SC 164)]         (iii)   The Court has to scrutinize 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 and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]

       (iv)     Where the dying declaration is suspicious, it  should not be acted upon without corroborative evidence. [See  Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]         (v)     Where the deceased was unconscious and could  never make any dying declaration, the evidence with regard to  it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982  SC 1021)]         (vi)    A dying declaration which suffers from infirmity  cannot form the basis of conviction. [See Ram Manorath and  Ors. 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. Krishnamurthi Laxmipati Naidu (AIR 1981  SC 617)]         (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 Oza and Ors.  v. State of Bihar (AIR 1979 SC 1505).         (ix)    Normally the Court in order to satisfy whether the  deceased was in a fit mental condition to make the dying  declaration looks up to the medical opinion. But where the  eye-witness said that the deceased was in a fit and conscious  state to make the dying declaration, the medical opinion  cannot prevail. [See Nanahau Ram and Anr. v. State of  Madhya Pradesh (AIR 1988 SC 912)].         (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 and  Ors. (AIR 1989 SC 1519)].         (xi)    Where there is 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 declarations could  be held to be trustworthy and reliable, it has to be accepted.  [See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR  1982 SC 839)]   

       In the instant case, it is to be noted that the evidence of  PW-3 and doctor clearly show that before the dying declaration  was recorded the relatives of the deceased including PWs 7  and 8 were present with her and were subsequently asked to  leave the room where the dying declaration was recorded.  Though much was made of the dowry demand by the courts  below there is only a vague reference to it in the dying

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declaration. The statement of PWs 7 and 8 that they had told  the Investigating Officer about the dowry demand is not  correct. They had not said so before the Investigating Officer. It  is also significant that prior to the death, neither the deceased  nor her parents had complained to the police or told anyone  else about any alleged dowry demand. In the circumstances,  the dying declaration itself was clearly the result of tutoring  and was not a free and voluntary one. The courts below were  therefore not justified in placing reliance on the same.  Additionally, there was only a vague reference of dowry  demand to the police which in any event has not been  established and also was not told during investigation. Once  the dying declaration is excluded, there is nothing to implicate  the accused-appellants with the death.

       Looked at from any angle, the impugned judgment of the  High Court cannot be maintained and is set aside. The  appellants are acquitted of the charges. They will be set at  liberty forthwith unless required in custody in respect of any  other case. The appeal is allowed.