SUPREME COURT OF INDIA
Mohan Lal & Ors.
Vs.
State of Haryana
Crl.A.No.236 of 2007
(Arijit Pasayat and R.V. Raveendran, JJ.,)
21.02.2007
JUDGMENT
Dr.Arijit Pasayat, J.
SLP(Crl.)No.6344 of 2006
1. Leave granted.
2. 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.
3. 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.
4. 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
High Court was that sanctity has to be attached to the dying declaration and
therefore the appellants were guilty of the charged offences.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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 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 Gujarat1 :
(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 Pradesh2
(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 Yadav3 and
Ors. and Ramavati Devi v. State of Bihar 4
(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 Prosecutor5
(iv) Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh6
(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.P7.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P8.
(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 Naidu9
(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 10.
(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 Pradesh11
(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.12 .
(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 Maharashtra13
11. 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 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.
12. 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.
Judgment Referred.
1AIR 1992 SC 1817
2(1976) 2 SCR 0764
3AIR 1985 SC 0416
4AIR 1983 SC 0164
5AIR 1976 SC 1994
61974 (4) SCC 0264
7AIR 1982 SC 1021
8(1981) 2 SCC 0654
9AIR 1981 SC 0617
10AIR 1979 SC 1505
11AIR 1988 SC 0912
12AIR 1989 SC 1519
13AIR 1982 SC 0839