State of Punjab Vs.
Raj Kumar & Ors.  INSC 1345 (11 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 537 OF 2003 State
of Punjab Rep. through Secretary ..Appellant Versus Raj Kumar and Ors. ...
Dr. ARIJIT PASAYAT,
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
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
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.
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. 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).
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.
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 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
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.
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 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.
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 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
[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) and Mohan Lal
and Ors. v. State of Haryana (2007 (9) SCC 151).
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.
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.
appeal is allowed to the aforesaid extent.
...............................J. `(Dr. ARIJIT PASAYAT)