2004 INSC 0707
                                    SUPREME COURT OF INDIA

                                            Ashok Kumar Kalia

                                                      Vs.

                                               State of Punjab

                                          Crl.A.No.1039 of 2003

                                  (B. N. Agarwal and H. K. Sema JJ.)

                                                 13.07.2004

                                                JUDGMENT

B.N.Agarwal, J.

1. Heard learned counsel for the parties.

2. The sole appellant along with four other persons was tried and by judgment rendered by
the trial Court other four persons were acquitted while the appellant was convicted under
Section 302 of the Penal code and sentenced to undergo imprisonment for life. Against the
order of acquittal, no appeal was preferred by the State of Punjab whereas conviction of the
appellant has been maintained by the High Court of Punjab & Haryana on appeal being
preferred by the appellant. Hence this appeal by special leave.

3. The conviction of the appellant was primarily based upon the dying declaration recorded
on 10.12.1993 at 6.35 p.m. by the Executive Magistrate P.W.-5. In our view, the High Court
has committed a serious error in upholding the conviction by placing reliance on the
aforesaid dying declaration which was recorded four days after the alleged occurrence. The
prosecution has got exhibited another dying declaration in the present case as Exhibit DB
which was also recorded by an Executive Magistrate on the date of occurrence itself, i.e. on
6.12.1993 at 2.55 p.m. in which the victim has clearly stated that she received burn injuries
in accidental fire when she was putting oil in the stove and at that time, the stove caught fire
while she had gone to the kitchen to boil the water on the stove. In the earliest version, the
prosecution has disclosed a case of accidental fire and there is nothing to doubt the veracity
of the statement made in the first dying declaration, Exhibit DB, therefore, no reliance can be
placed upon the second dying declaration which has been recorded after four days of the
occurrence. This being the position, we are of the view that the prosecution has failed to
prove its case beyond reasonable doubt and the High Court was not justified in upholding
conviction of the appellant.

4. In the result, the appeal is allowed, conviction and sentence of the appellant are set aside

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and he is acquitted of the charge. The appellant who is in custody is directed to be released
forthwith, if not required in any other case.

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