State Of Punjab vs Raj Kumar & Ors

1. Challenge in this appeal is to the judgment of a Division

Bench of the Punjab and Haryana High Court directing

acquittal of the respondents who had faced trial for alleged

commission of offence punishable under Section 302 read

with Section 34 of the Indian Penal Code, 1860 (in short the

`IPC'). Each was sentenced to undergo RI for life and to pay a

fine of Rs.1,000/- each with default stipulation.

2. Background facts as projected by prosecution in a

nutshell are as follows:

Sunita (hereinafter referred to as the `deceased') had

been married to accused-Raj Kumar about 1= year prior to

the occurrence and a son had been born to the couple though

he had died some time later. Relationship between the parties

was strained on account of the demands being made by Raj

Kumar, as also by his parents. Ram Piari and Piara Singh and

as Sunita and her parents had not been able to satisfy their

demands, the three accused had maltreated her. Chaman Lal

(PW.7), one of the brothers of the deceased had an unpleasant

exchange with Ram Piari on account of her behaviour with his

sister and this act had further incensed the accused. Around

midnight on March 12, 1996, Ram Piari sprinkled kerosene oil

on Sunita and set her on fire. The alarm raised by Sunita

attracted her husband's brother and his wife and she was

immediately removed to the Guru Nanak Dev Hospital,

Amritsar by them. ASI, Harjinder Singh (PW.8) of Police

2 Station Sadar, Amritsar also reached the hospital and after

ascertaining Sunita's fitness to make a statement from Dr.

Sanjiv Kumar (PW.9) recorded the same (Exh. PM/2) at about

10.20 A.M. on March 13, 1996 and on its basis the FIR was

registered at the Police Station at 10.45 a.m. ASI Harjinder

Singh also made an application to the Deputy Commissioner

for getting Sunita's statement recorded by a Magistrate. Naib-

Tehsildar Lakhbir Slngh Kahlon (PW.6) was accordingly

deputed to do the needful. He too went to the hospital and

after getting the opinion of Dr. Kulwar Singh (PW.4) that

Sunita was fit to make a statement recorded the same (Exh.

PL) at 6.00 PM on March 13, 1996. Sunita died on March 14,

1996. On the completion of the investigation, the accused

were charged for offence punishable under Section 302/34

IPC and as they pleaded not guilty, were brought to trial.

Prosecution examined witnesses to establish the

accusations. Primarily reference was made to the evidence of

PWs 5 and 7 (Ashok Kumar and Chaman Lal respectively) to

whom she had made oral dying declarations about 10.30 a.m.

3 on March 13, 1996. Lakhbir Singh (PW-6) had recorded the

dying declaration. Similarly, Harjinder Singh, ASI (PW-8) the

Investigating Officer had recorded the dying declaration

(Exh.PM/2) and Dr. Sanjiv Kumar (PW-9) had opined that

the deceased was in a fit condition to make statement which

had been recorded by PWs 6 and 8. Appellant No.1 pleaded

alibi. He further stated that he had taken the deceased to the

hospital in injured condition. Two witnesses were examined to

prove the aforesaid stands. The trial Court observed that the

dying declaration (Exh.PL and PM/2) made to ASI Harjinder

Singh and Lakhbir Singh clearly proved the prosecution case

beyond doubt. It also observed that it appears that last three

lines of the statement Exh.PM/2 excluded Raj Kumar and

Piara Singh from any wrong doing. It was clear from the

subsequent statement (Ex.PL) that she had reiterated the facts

already mentioned in the earlier statement (Exh.PM/2) and

again there was manipulation in the statement Exh.PM/2).

The trial Court relied on oral dying declaration made to PWs 5

and 7 at 10.30 a.m. on 13.5.1996. Referring to the evidence of

the doctor and PW-8 it was observed that the deceased was in

4 a conscious and fit state of mind to make the dying

declaration. Referring to the fact that the FIR had been lodged

promptly, conviction was recorded.

Conviction was challenged before the High Court. It was

the stand of the appellants (respondents herein) that dying

declaration (Ex.PL) in which manipulations were done had

been recorded after deliberation between the deceased and her

brothers PWs 5 and 7.

The State supported the judgment of the trial Court.

The High Court observed that as an after thought the

deceased might have added that her mother-in-law set fire on

her and her father-in-law was present in the house, though in

dying declaration (Ex.PL) the deceased had clearly inculpated

all the accused persons in the actual incidence. The High

Court accepted the stand of the accused persons that the last

three lines in the dying declaration (Exh.PM/2) appear to have

been interpolated. It was however noted that though the

5 mother-in-law had been stated to have set her on fire, but

there was no reference whatsoever to the other two accused

persons. The High Court held that in case of eye-witnesses,

there can be dissection of a statement to find out as to what

part can be believed. But in the case of dying declarations

same cannot be done.

3. Learned counsel for the appellant submitted that the

approach of the High Court is clearly erroneous. Even if it is

accepted that there was some manipulation as urged by the

accused persons, the effect of the dying declaration (Exh.PL)

has not been dealt with at all. In the said dying declaration A-

2 was named. Both the dying declarations clearly referred to

A-2.

4. This is a case where the basis of conviction of the

accused by the trial Court was the dying declarations. 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

6 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.

5. 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

7 further corroboration. It cannot be laid down as an absolute

rule of law that the dying declaration cannot form the sole

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

8 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

9 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) and Mohan Lal and Ors. v.

State of Haryana (2007 (9) SCC 151).

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6. As rightly contended by learned counsel for the

appellant-State even if the so-called interpolations are kept

out of consideration the effect of the statement made in the

dying declaration (Exh.PL) cannot be lost sight of.

7. Considering the principles set out above and the factual

scenario, it is crystal clear that the prosecution has been able

to establish the accusations so far as respondent No.2 is

concerned. But the question is whether it is a case under

Section 302 IPC. According to us the factual scenario shows

that a case at hand would be covered by Section 304 Part II

IPC. Custodial sentence of 6 years would meet the ends of

justice. The sentence has been imposed considering the age of

the respondent No.2. He shall surrender to custody forthwith

to serve the remainder of sentence. Appeal stands dismissed

vis-`-vis other respondents.

8. The appeal is allowed to the aforesaid extent.

11 ...............................J. (Dr. ARIJIT PASAYAT)

...............................J. (G.S. SINGHVI) New Delhi, August 11, 2008

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