18 November 2004
Supreme Court


Case number: Crl.A. No.-000633-000633 / 1999
Diary number: 6377 / 1999



CASE NO.: Appeal (crl.)  633 of 1999



DATE OF JUDGMENT: 18/11/2004



B.P.Singh, J.

       This  appeal by special leave is preferred by the State of Punjab against the  judgment and order of the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal  No.481-DB/95 dated 11th December, 1998 whereby the High Court allowed the appeal of the  respondent herein and set aside his conviction under Section 302 and alternatively under Sec tion  304-B IPC and the sentence of life imprisonment passed against him.         We have heard counsel for the parties at length and perused the evidence on record.         Apart from the appellant, Praveen Kumar, who was the husband of Geeta Rani,  deceased, his father and mother as well as his younger sister were put up for trial  before  the  Sessions Judge, Bhatinda.  They were charged of offences under Sections 302, 304B and 498A  IPC.  The learned sessions judge dis-believing the case of the prosecution as against the  remaining accused acquitted them of the charges levelled against them, but convicted only th e  respondent herein under Section 302 IPC as well as under Section 304B IPC and sentenced the  respondent to undergo imprisonment for life under Section 302 IPC without passing a sentence   under Section 304-B IPC.           The deceased Geeta Rani was married to the respondent one year and three months  before the  occurrence.  The occurrence giving rise to this appeal took place on January 4,  1994  at 5.00 A.M. in which it was alleged that Geeta Rani was set on fire by the respondent herei n and  the other members of the family, who were the co-accused, had acted in concert with the  respondent.  It is not in dispute that after the deceased had suffered burn injuries, she wa s  removed to the local hospital at Jaitu by the respondent and his father and was being  treat ed  there by the attending physician.  On the next day, her uncle Kulwant Kumar, PW-5 who had  come to visit her, on coming to know about the occurrence rushed to the local hospital and  arranged for shifting Geeta Rani from the hospital at Jaitu to the civil hospital at Bhatind a for  better treatment.  Accordingly, Geeta Rani was shifted to the civil hospital, Bhatinda where  she  was admitted on 5th January, 1994.  It is the case of the prosecution that while being shift ed to  the civil hospital at Bhatinda, deceased had made a dying declaration to her uncle, Kulwant  Kumar, PW-5 disclosing the complicity of the respondent and the aforesaid family members.           On information being sent by the hospital authorities, sub-inspector, Kewal Singh,  PW-7 came to the hospital and recorded the statement of Geeta Rani.  Even before her stateme nt  was recorded by the police, the tehsildar, an executive magistrate, PW-4 Harjit Singh, was  requested to record   the dying declaration of Geeta Rani and he had accordingly recorded th e  dying declaration of Geeta Rani Ex.PD between 5.30 and 5.55 p.m.  Subsequently, at 8.35 p.m.



 the statement of Geeta Rani was recorded by sub-inspector, Kewal Singh (PW-7) in the hospita l,  on the basis of which a formal first information report was drawn up.  Ultimately, the  respondent and the aforesaid  3 members of his family were put up for trial, in which except  for  the respondent, the others were acquitted.  The High Court on appeal has set aside the convi ction  of the respondent as well.         Admittedly, there is no eye witnesses to the occurrence and, therefore, the case res ts  entirely on the alleged 3 dying declarations.  The High Court has rejected the first dying  declaration made to Kulwant Kumar, PW-5.  The reason given by the High Court is that  Kulwant Kumar for the first time stated about the alleged dying declaration made to him at t he  stage of trial.  In his statement under Section 161 Cr.P.C. made in the course of investigat ion, he  had not stated that Geeta Rani had made a dying declaration to him.  We find no fault with t he  reasoning of the High Court so far as rejection of the dying declaration made to PW-5 is  concerned.           Left with two other dying declarations,  the High Court found that these two dying  declarations are inconsistent with each other,  since the versions disclosed in these two dy ing  declarations are quite different and the  role of the accused is also differently described.   In the  first dying declaration Ext.PD made to the Executive Magistrate, it is stated that on 4.1.19 94 her  husband came home at about 5.00 A.M. after delivering milk to his customers and questioned t he  deceased as to why the scooter and furniture, etc. promised to him by her parents had not be en  supplied.  Thereafter, he sprinkled half bottle of kerosene oil on her and lit fire with a m atch  stick.  On her alarm all collected and her father-in-law extinguished the fire.  None else h ad  asked her anything. It, therefore, appears that so far as this dying declaration is concerned, the allegation is  solely  against her husband, the respondent herein, and it is alleged that he sprinkled kerosene oil  and  set her on fire.  The second aspect of the matter is that so far as the father-in-law is con cerned,  she has completely exonerated him by stating that he rushed and extinguished the fire. If we now turn to the report made to the sub-inspector, Kewal Singh (PW-7) on the basis of  which the formal first information report was drawn up, which has also been treated as dying   declaration Ext.PD, we find that the version given there is quite different.  It is stated t hat on  4.1.1994 her husband and her mother-in-law complained to her that her parents have not kept    their promise of supplying some articles and, therefore, they will finish her once and for a ll.  At  5.00 A.M. her mother-in-law sprinkled a bottle of kerosene oil on her while her husband,  respondent herein, set her on fire with a match stick.  Her father-in-law and sister-in-law  exhorted them to do away with her by setting her on fire.  It was only when she raised hue a nd  cry that her father-in-law extinguished the fire and she was brought to the local private ho spital  at Jaitu by her husband and father-in-law.         It will thus, appear that so far the first dying declaration is concerned, there is  no  allegation against either the mother-in-law, father-in-law or the sister-in-law and the alle gation is  solely against the respondent, who is said to have sprinkled kerosene oil on her and set her



on  fire.  In the second dying declaration, the allegation is that the mother-in-law sprinkled t he  kerosene oil and the husband set her on fire with a match stick.  While they were doing so,  her  father-in-law and sister-in-law were exhorting them to do away with her by setting her on fi re. These two versions are quite different and not consistent with each other, except that so fa r as  the respondent is concerned, the act of lighting the fire is ascribed to him in both the dyi ng  declarations.         Counsel for the State submitted that since the respondent has been named in both  the dying declarations, his conviction could be sustained.  We are afraid  we cannot accede  to his  request.  In the first place, in appeal against acquittal, this Court will not set aside the  findings of  fact and the order of acquittal recorded by the High Court unless it is satisfied that the f indings  recorded are wholly unreasonable, perverse, not based on evidence on record, or suffer from    serious legal infirmity.  The mere fact that  on the basis of the same evidence another view  is  possible, is not a ground for setting aside an order of acquittal.  We find that the view ta ken by  the High Court is a possible reasonable view on the evidence on record and, therefore, we wi ll  not be justified in setting aside the order of acquittal.           While appreciating the credibility of  the evidence produced before the Court, the  Court must view evidence as a whole and come to a conclusion as to its genuineness and  truthfulness.  The mere fact that two different versions are given but one name is common in   both of them cannot be a ground for convicting the named person.  The court must be satisfie d  that the  dying declaration is truthful.  If there are two dying declarations giving two dif ferent  versions, a serious doubt is created about the truthfulness of the dying declaration.  It ma y be  that if there was any other reliable evidence on record, this Court could have considered su ch   corroborative evidence to test the truthfulness of  the dying declarations.  The two dying  declarations, however, in the instant case stand by themselves and there is no other reliabl e  evidence on record by reference to which their truthfulness  can be tested.  It is well sett led that  one piece of unreliable evidence cannot be used to corroborate  another piece of unreliable  evidence.  The High Court while considering the evidence on record has rightly applied the     principles laid down by this Court in Thurukanni Pompiah and another Vs. State of Mysore,  AIR 1965 SC 939, and  Khusal Rao Vs. State of Bombay, 1958 SCR 552.         The High Court having subjected the dying declarations to close scrutiny, has  reached the conclusion that they are not reliable.  We entirely agree.           We, therefore, find no merit in the appeal and the same is accordingly dismissed.

       It appears that during the pendency of this appeal, bailable warrants were issued  against the respondent.  His bail bonds are discharged.