REPORTABLE                       

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 328  OF 2004

Surinder Kumar           .... Appellant(s)

Versus

State of Haryana               .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) This  appeal  is  directed against  the final  judgment and  

order dated 19.12.2003 passed by the High Court of Punjab  

and Haryana at Chandigarh in Criminal Appeal No. 241-DBA  

of 1993 whereby the High Court while reversing the judgment  

dated  17.12.1992  passed  by  the  Sessions  Judge,  Ambala  

allowed  the  appeal  filed  by  the  State  and  convicted  the  

appellant herein under Section 302 of the Indian Penal Code,  

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1860 (in short ‘IPC’) and sentenced him to undergo rigorous  

imprisonment for life and to pay a fine of Rs.25,000/- and in  

default  of  payment  of  fine,  to  further  undergo  rigorous  

imprisonment for one year.

2)  Brief facts:

(a) According to the prosecution, the accusation against the  

appellant-accused was that  he was on visiting terms to the  

house of  Inder Pal (PW-7),  husband of Kamlesh Rani (since  

deceased), who was working at Mullana and keeping his family  

at Naraingarh, Dist. Ambala, Haryana.  The appellant-accused  

had  been  visiting  Inder  Pal’s  house  and  developed  illicit  

relationship  with  his  wife-Kamlesh  Rani.   Inder  Pal  (PW-7)  

suspected the same between them and stopped his wife from  

meeting the appellant-accused.  When the appellant-accused  

was stopped to visit their house, he had started threatening  

and harassing Kamlesh Rani for which she made a complaint  

to her husband.  Inder Pal (PW-7) also visited the shop of the  

appellant-accused  and  told  him not  to  visit  his  house  and  

harass his wife.   

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(b) On the intervening night of 25/26.06.1991, when Inder  

Pal (PW-7) was away from his house, the appellant-accused  

went to his house and taunted his wife that she had become a  

woman  of  immoral  character  and  called  upon  her  to  burn  

herself to death if she had any sense of shame.  Thereafter, the  

appellant-accused picked up a kerosene can lying in the one  

room apartment and after pouring the same on the deceased,  

set  her  on  fire.   When  the  fire  developed,  the  appellant-

accused ran away from the room after placing a quilt on the  

deceased.  The neighbours of the deceased took her to the Civil  

Hospital, Naraingarh where she was examined by Dr. Ashwani  

Kumar Kashyap, Medical Officer (PW-1).  He immediately sent  

intimation to In-charge Police Station, Naraingarh to the effect  

that the deceased had been brought to the hospital with 100%  

burns, and as the condition of the patient was critical she had  

been referred to P.G.I., Chandigarh.  At P.G.I. Chandigarh, she  

was admitted in the Emergency Ward and Dr.Vipul Sood (PW-

9) examined her and reported a case of 95% burn injuries.   

(c)  On receiving the information, Dalip Rattan (PW-3), Sub-

Inspector, P.S. West, Chandigarh applied to the Sub-Divisional  

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Magistrate,  Chandigarh  for  appointment  of  an  Executive  

Magistrate  to  record  the  statement  of  Kamlesh  Rani.  

Consequently,  Shri  P.K.  Sharma,  Tehsildar-cum-Executive  

Magistrate (PW-2) was deputed to record her statement.  On  

26.06.1991,  PW-2  recorded  her  statement  and  a  First  

Information Report was registered being No. 86/1991 at P.S.  

Naraingarh  at  5.30  p.m.  under  Section  307  IPC.   On  the  

intervening night of 28/29.06.1991, Kamlesh Rani succumbed  

to the injuries and the case was converted into Section 302  

IPC.   Thereafter,  Ram  Niwas  (PW-13),  Sub  Inspector,  P.S.  

Ambala,  arrived  at  P.G.I.,  Chandigarh  and  prepared  the  

inquest  report.   Post  mortem  was  conducted  at  General  

Hospital, Sector 16, Chandigarh by Dr. V.K. Chopra and Dr.  

Ajay Verma (PW-12) on 29.06.1991 at 4.45 p.m.  On the same  

day, the accused was arrested and the case was committed to  

the Court of Sessions.   

(d)  The  Sessions  Judge,  Ambala,  after  analyzing  the  

evidence and after giving the benefit of doubt, vide judgment  

dated 17.12.1992 acquitted the appellant-accused.    

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(e) Challenging the said judgment, the State of Haryana filed  

an  appeal  bearing  Criminal  Appeal  No.  241-DBA  of  1993  

before the Division Bench of the High Court.  The High Court,  

vide judgment dated 19.12.2003, reversed the judgment of the  

Sessions Judge, Ambala and sentenced the appellant-accused  

to  rigorous  imprisonment  for  life  and  imposed  a  fine  of  

Rs.25,000/-  and  in  default  of  payment  of  fine,  to  further  

undergo rigorous imprisonment for one year.   

(f) Aggrieved by the  said judgment,  the  appellant-accused  

has filed this appeal before this Court.

3)  Heard Mr. Sushil  Kumar, learned senior counsel for the  

appellant-accused and Mr.  Manjit  Singh,  learned Additional  

Advocate General for the respondent-State.   

4) The trial  Court based on the dying declaration Ex.  PD  

alleged  to  have  been  made  by  the  deceased-Kamlesh  Rani  

before  Shri  P.K.  Sharma  (PW-2),  Executive  Magistrate,  

Chandigarh  and  after  finding  that  it  does  not  inspire  

confidence  in  the  mind  of  the  Court  and  being  the  only  

evidence  appearing  against  the  accused,  after  giving  the  

benefit  of  doubt  in  his  favour,  acquitted  from  the  charges  

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levelled  against  him.   On  the  other  hand,  the  High  Court  

relying on the dying declaration holding that it  is extremely  

difficult to reject the dying declaration altogether and finding  

that in the said dying declaration the deceased had positively  

stated that she had been immolated by the accused/appellant,  

set aside the order of acquittal passed by the trial Court and  

found  him  guilty  under  Section  302  IPC  and  sentenced  to  

undergo rigorous imprisonment for life.  In view of the same,  

the only question for consideration in this appeal is whether  

the  dying  declaration  Ex.  PD  of  Kamlesh  Rani  is  reliable,  

acceptable and based on which conviction is sustainable.   

5) We have already referred to the accusation against the  

accused that he was on visiting terms to the house of Inder  

Pal-husband of the deceased who was keeping his family at  

Naraingarh,  however,  working  at  Mullana.   The  accused  

Surinder Kumar had been visiting the house of the deceased-

Kamlesh Rani during the absence of her husband Inder Pal.  

Inder  Pal  suspected  illicit  relationship  between  Surinder  

Kumar and his wife Kamlesh Rani.  It is further seen that on  

the date of occurrence, that is, on 26.06.1991, Kamlesh Rani  

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went to the cinema in the company of four other ladies.  On  

the same evening, Surinder Kumar confronted her of having  

loose  character  and called  upon her  to  immolate  herself  to  

death if  she had any sense of shame.  Thereafter,  Surinder  

Kumar  picked  up  a  kerosene  can  lying  in  the  one-room  

apartment and after pouring the same on Kamlesh Rani set  

her on fire.  When the fire developed, he ran away from the  

room after placing a quilt on her person.  On hearing her cries,  

neighbours reached at the spot and carried her to the Civil  

Hospital,  Naraingarh and then she had been shifted to PGI  

Hospital,  Chandigarh  where  she  made  a  dying  declaration  

statement  before  P.K.  Sharma,  (PW-2),  Executive  Magistrate  

and  thereafter  on  28/29.06.1991,  she  succumbed  to  her  

injuries.   

6) Before considering the acceptability of dying declaration  

(Ex.PD), it would be useful to refer the legal position.

(i) In  Sham  Shankar  Kankaria  vs.  State  of  

Maharashtra, (2006) 13 SCC 165, this Court held as under:

“10.  This  is  a  case  where  the  basis  of  conviction  of  the  accused is the dying declaration. The situation in which a  person is on deathbed is so solemn and serene when he is  dying that the grave position in which he is placed, is the  reason in law to accept veracity of his statement. It is for this  

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reason 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 eyewitness in a serious crime,  the exclusion of the statement would leave the court without  a scrap of evidence.

11. 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 a nature as to inspire full confidence of  the court in its correctness. The court has to be on guard  that the statement of 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    Paniben   v.    State of Gujarat (1992) 2 SCC 474 (SCC pp.480  -81, para 18)   

    (Emphasis supplied)  (i) There is neither rule of law nor of prudence that  

dying  declaration  cannot  be  acted  upon  without  corroboration. (See Munnu Raja v. State of M.P.,(1976) 3 SCC  104)

(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 U.P. v. Ram Sagar Yadav, (1985)   1 SCC 552 and Ramawati Devi v. State of Bihar,(1983) 1 SCC  211)

(iii) The Court has to scrutinise 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 v. Public Prosecutor,(1976) 3 SCC 618)

(iv)  Where dying declaration is  suspicious,  it  should  not  be  acted  upon  without  corroborative  evidence.  (See  Rasheed Beg v. State of M.P.,(1974) 4 SCC 264 )

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(v)  Where  the  deceased  was  unconscious  and could  never make any dying declaration the evidence with regard  to it is to be rejected. (See Kake Singh v. State of M.P., 1981  Supp SCC 25)

(vi)  A  dying  declaration which  suffers  from infirmity  cannot form the basis of conviction. (See  Ram Manorath 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.  Krishnamurti Laxmipati Naidu,1980  Supp SCC 455)

(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  Ojha v.  State of Bihar,1980 Supp SCC 769.)

(ix) Normally the court in order to satisfy whether the  deceased was in a fit  mental condition to make the dying  declaration look up to the medical opinion. But where the  eyewitness  has  said  that  the  deceased  was  in  a  fit  and  conscious state to make the dying declaration, the medical  opinion  cannot  prevail.  (See  Nanhau  Ram v.  State  of   M.P.,1988 Supp SCC 152)

(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, (1989) 3 SCC 390)

(xi) Where there are 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  declaration  could be held to be trustworthy and reliable, it  has to be  accepted.  (See  Mohanlal  Gangaram  Gehani v.  State  of   Maharashtra,(1982) 1 SCC 700)”

(ii) In  Puran Chand vs. State of Haryana, (2010) 6 SCC  

566,  this  Court  once  again  reiterated  the  abovementioned  

principles.   

(iii) In Panneerselvam vs. State of Tamil Nadu, (2008) 17  

SCC 190, a Bench of  three Judges of  this Court reiterating  

various principles mentioned above held that it cannot be laid  

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down as an absolute  rule  of  law that  the  dying declaration  

cannot  form  the  sole  basis  of  the  conviction  unless  it  is  

corroborated and the rule requiring corroboration is merely a  

rule of prudence.

7) In the light of the above principles, the acceptability of  

the  alleged dying  declaration in the  instant  case  has  to  be  

considered.   If,  after  careful  scrutiny,  the  Court  is  satisfied  

that it is free from any effort to induce the deceased to make a  

false statement and if it is coherent and consistent, there shall  

be no legal impediment to make a basis of conviction, even if  

there  is  no  corroboration.   With  these  principles,  let  us  

consider the statement of Kamlesh Rani and its acceptability.

8) Kamlesh Rani  was initially  taken to  the  Civil  Hospital,  

Naraingarh at 2.20 a.m. on 26.06.1991 where she was initially  

examined by Dr. Ashwani  Kumar Kashyap (PW-1).  The said  

Medical Officer immediately sent intimation to In-charge P.S.  

Naraingarh to the effect that Kamlesh Rani had been brought  

to the hospital with 100% burns, the patient was critical and  

had been referred to PGI, Chandigarh.  Thereafter, at P.G.I.,  

she was admitted in the Emergency ward and Dr. Vipul Sood  

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(PW-9) examined her at 04:35 a.m. and reported a case of 95%  

burns.  It is further seen that on receiving information, Sub-

inspector  Dalip  Rattan (PW-3)  applied to  the  Sub-Divisional  

Magistrate,  Chandigarh  for  appointment  of  Executive  

Magistrate to record Kamlesh Rani’s statement.  Based on the  

same, Shri P.K. Sharma, Tahsildar-cum-Executive Magistrate  

(PW-2) was deputed to record her statement.  The Magistrate  

who reached PGI applied to the Doctor In-charge to certify if  

Kamlesh  Rani  was  mentally  and  physically  fit  to  make  a  

statement or not.  The doctor certified at 07.25 a.m. that she  

was  fit  to  make  a  statement.   Thereafter,  Kamlesh  Rani’s  

statement was recorded which is marked as Ex. PD.  It was  

marked with thumb impression of Kamlesh Rani and signed  

by the Magistrate at 7.45 a.m.  It is relevant to note the said  

dying declaration which reads thus:

“Yesterday, at about 10:00 o’clock four ladies came to my  house and asked me to accompany them to see a movie and  we all had gone to see the movie. One boy Subhash was also  seeing movie. He was sitting there on the back seat. After  seeing the movie, I came back to my house. Surinder Kumar  Garg  who  is  a  so-called  brother  (dharma  Bhai)  of  my  husband came in the evening and asked me that I had gone  to see picture and stated that I had become a bad character.  My husband is doing service at Mullana and lives there. At  that time, he was at Mullana. Then Surinder said if I had  any sense of shame, I should die by burning myself. Then,  he  took  kerosene  from  a  container  (small  peepi)  and  

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sprinkled it over me and set me on fire with a match stick.  When I was in flame, he put a quilt upon me and ran away.  My neighbour removed me to Naraingarh hospital and from  there I was referred to P.G.I., Chandigarh. I have made my  statement in full senses and without any pressure.”

As  observed  earlier,  initially,  the  trial  Court  acquitted  the  

accused and the High Court convicted him solely on the basis  

of the above declaration.  In the light of the same, we have to  

find out whether the dying declaration made and recorded is  

acceptable  and  whether  it  satisfied  the  required  

norms/procedure as held by this Court.  In other words, we  

have  to  see  whether  the  dying  declaration  inspire  the  

confidence of the court.  It is not in dispute that if the dying  

declaration is by a person who is conscious and the same was  

made  and  recorded  after  due  certification  by  the  doctor,  it  

cannot be ignored.  In the first sentence of Ex. PD, it has been  

mentioned that on the date of occurrence, she had gone for a  

movie at 10.00 O’ clock with four other ladies.  According to  

her, these ladies came to her house and on their request she  

also went to see the movie and returned back to her home.  

Though  I.O.  has  examined  some  persons,  there  is  no  

information  about  the  “four  ladies”  who  accompanied  the  

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deceased to the cinema house.  The I.O. did not care to verify  

those four ladies who accompanied the deceased to the cinema  

house.  In the same declaration,  she also stated that  apart  

from the  four  ladies  one  boy  Subhash was  also  seeing  the  

movie along with them.  According to her, he was sitting there  

on the back seat.  The said Subhash was also not examined by  

the I.O.  Non-examination of four ladies, who accompanied the  

deceased  to  the  cinema  house  and  no  information  about  

Subhash gave an impression that the I.O. had not properly  

conducted the investigation.  If at least one of the ladies or  

Subhash was examined, it would strengthen the prosecution  

case.   However,  the  I.O.  purposely  omitted  to  examine  the  

ladies who went for cinema and in the same manner no effort  

was made to trace Subhash whom the deceased saw at the  

movie.  None of the so-called neighbours were produced at the  

trial.   The  landlord  of  the  deceased-Ram  Rattan  was  not  

examined at the trial.  It was Ram Rattan who had driven the  

van to take Kamlesh Rani from Civil Hospital, Naraingarh to  

PGI, Chandigarh.  It is to be noted that Kamlesh Rani’s sister’s  

husband  Surinder  Pal  informed  Inder  Pal-husband  of  the  

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deceased about the incident.  Inder Pal and Surinder Pal had  

together gone to Chandigarh and later met Kamlesh Rani.  For  

the reasons best known to the I.O., the said Surinder Pal was  

not examined on the side of the prosecution.  In other words,  

non-examination of  any one of  the ladies who accompanied  

the deceased to cinema in the morning, presence of Subhash  

and  the  landlord  of  the  deceased,  namely,  Ram  Rattan,  

another tenant Jeet Singh were all vital to the prosecution.  All  

these were important omissions on the part of the I.O.  When  

Hira Lal (PW-11), Assistant Sub-Inspector was examined, he  

fairly admitted that he had not obtained opinion of the Doctor  

at that time about her fitness to make a statement.  Another  

doctor-PW-12, who conducted post mortem, had opined that  

the  cause  of  death  is  septicemia  due  to  extensive  burns  

(approx. 97%) which is sufficient to cause death in ordinary  

course of nature.  

9) Ram Niwas (PW-13), Sub-inspector also admitted that he  

did  not  make  any  effort  to  ascertain  the  women  who  had  

accompanied  Kamlesh  Rani  to  see  the  movie.   He  also  

admitted that he had not associated Subhash referred to in  

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the dying declaration during investigation.  He fairly admitted  

that he had no knowledge about any person by name Surinder  

Pal who happened to be sister’s husband of Kamlesh Rani who  

was  employed  in  Civil  Hospital,  Naraingarh.   All  the  above  

infirmities/defects  have  not  been properly  explained  by  the  

prosecution.   

10) Now coming to her state of  mind, all  the doctors have  

mentioned that  she was admitted with burn injuries  to the  

extent  of  100% and  after  sometime  she  succumbed  to  the  

injuries.  It is true that P.K. Sharma (PW-2), Tahsildar-cum-

Executive Magistrate recorded her statement.  In his evidence,  

PW-2 has stated that on the orders of Shri Jagjit Puri, SDM,  

Union Territory of Chandigarh, by his order Ex. PB/1 deputed  

him to record the statement of Kamlesh Rani.  Pursuant to the  

said direction, he went to the PGI and moved an application to  

seek the opinion of the doctor whether Kamlesh Rani was fit to  

make a statement or not.  He further deposed that when he  

had contacted Kamlesh Rani she was present in the general  

ward and some persons were also standing there, they left the  

room  on  his  direction.   About  the  absence  of  the  doctor  

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certifying at the time and date when she made a statement, he  

clarified that the doctor issuing such certificate was busy with  

his professional work.  Kamlesh Rani had made a statement in  

local dialect of mixed Hindi/Punjabi and PW-2 had recorded  

her statement in Hindi script.  Here again, it was pointed out  

that these were not factually correct.  In view of the doubt, we  

verified the original which is in Hindi script only and not local  

dialect in mixed Hindi/Punjabi.  Though, according to PW-2,  

she put her thumb impression, in view of the evidence of the  

doctors that she was brought to hospital with 100% burns and  

at the time of recording her statement, she suffered 95-97%  

burn  injuries,  it  is  highly  doubtful  whether  it  would  be  

possible  for  her  to  have  her  thumb  impression  below  her  

statement.  It is also not clear that when the whole body is  

burnt  and  bandaged  how  the  thumb  impression  of  the  

deceased was obtained.   

11) We  have  already  noted  that  admittedly  at  the  time  of  

recording  the  statement  of  the  deceased  by  PW-2,  no  

endorsement  of  the  doctor  was made about  her  position  to  

make such statement.  On the other hand, an application was  

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filed by Hira Lal, (PW-11) to Doctor In-charge PGI, Chandigarh  

seeking clarification “whether she is fit to make the statement  

or not” and for the said query an endorsement was made by  

the doctor mentioning that “patient conscious answering the  

questions,  patient  fit  to  give  statement”.   We compared the  

dying  declaration  Ex.  PD recorded  by  PW-2  as  well  as  the  

endorsement made in the requisition of Hira Lal, ASI (PW-11).  

The verification of both the documents show different doctors  

have certified and made such a statement.  Dr. Vipul Sood,  

PW-9,  PGI  Chandigarh in  his  evidence  has  stated  Kamlesh  

Rani was admitted in the Emergency ward of PGI Hospital on  

26.06.1991  at  about  4.30  a.m.  with  95% burns.   He  also  

deposed that when Ex. C/1 was submitted by P.K. Sharma,  

PW-2 on which he gave his opinion that the patient is fit to  

make a statement on 26.06.1991 at about 7.25 a.m.  It is clear  

that  at  the  time when PW-2 recorded the  statement  of  the  

deceased  Dr.  Vipul  Sood  (PW-9)  was  not  present  and  

subsequently on the request of the police officer, he offered his  

opinion  to  the  effect  that  the  patient  was  fit  to  make  a  

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statement.  The procedure adopted by PW-2 while recording  

the statement of dying declaration is not acceptable.                

12) As per the prosecution, the incident took place at 2 a.m.  

on 26.06.1991 and as per her statement, the occurrence of  

burning  was  in  the  evening  of  25.06.1991,  that  is,  the  

previous day.  The dying declaration did not carry a certificate  

by  the  Executive  Magistrate  to  the  effect  that  it  was  a  

voluntary statement made by the deceased and that he had  

read over the statement to her.  The dying declaration was not  

even attested  by  the  doctor.   As  stated  earlier,  though  the  

Magistrate had stated that the statement had been made in  

mixed  dialect  of  Hindi  and  Punjabi  and the  statement  was  

recorded only in Hindi.  Another important aspect is that there  

was evidence that Kamlesh Rani was under the influence of  

Fortwin and Pethidine injections and was not supposed to be  

having normal alertness.  In our view, the trial Court rightly  

rejected  the  dying  declaration  altogether  shrouded  by  

suspicious  circumstances  and  contrary  to  the  story  of  

prosecution and acquitted the appellant.   

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13) It is settled that a valid and well reasoned judgment of  

the  trial  Court  is  seldom set  aside  unless  there  was  some  

perversity or not based on correct law.   From the materials  

available, absolutely there was no case to presume that the  

death of the deceased occurred at the hands of the appellant  

especially,  when her statement was shrouded by suspicious  

circumstances and contrary to the claim of the prosecution.  

Particularly,  when she was alleged to  have  97% burns and  

being  under  constant  sedatives  first  at  Civil  Hospital,  

Naraingarh and then at PGI, Chandigarh, in such a situation  

she could not be expected to make a statement at a stretch  

without  asking  any  questions.   Admittedly,  the  Executive  

Magistrate, PW-2 did not put any question and recorded her  

answers.   

14) Another important aspect relating to failure on the part of  

prosecution is that on the date of the incident, the deceased  

had two children aged about six and four years respectively  

and both of them were present there, admittedly, the I.O. has  

not  enquired  them  about  the  genuineness  of  the  incident.  

Though,  there  are  number  of  immediate  neighbours/co-

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tenants  in  the  same  premises,  their  statements  were  not  

recorded which means that nobody supported the version of  

the prosecution.  Though there is neither rule of law nor of  

prudence that dying declaration cannot be acted upon without  

corroboration but the court must be satisfied that the dying  

declaration is true and voluntary and in that event, there is no  

impediment in basing conviction on it, without corroboration.  

It is the duty of the court to scrutinise the dying declaration  

carefully  and  must  ensure  that  the  declaration  is  not  the  

result of tutoring, prompting or imagination.  Where a dying  

declaration is suspicious, it should not be acted upon without  

corroborative  evidence.   Likewise,  where  the  deceased  was  

unconscious  and  could  never  make  any  declaration  the  

evidence with regard to it is rejected.  The dying declaration  

which  suffers  from  infirmity  cannot  form  the  basis  of  

conviction.  All these principles have been fully adhered to by  

the trial Court and rightly acquitted the accused and on wrong  

assumption  the  High  Court  interfered  with  the  order  of  

acquittal.  

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15) It  is  the  consistent  stand  of  the  defence  from  the  

beginning that the appellant had been falsely implicated, more  

particularly, at the instance of I.O. Hira Lal (PW-11) who had a  

previous enmity with him for asking some bribe for running  

his business of ghee.  As rightly pointed out, other witnesses  

who accompanied the injured Kamlesh Rani did not make any  

statement involving the appellant in the burning of Kamlesh  

Rani till 29.06.1991.   

16) We are satisfied that the dying declaration was totally in  

conflict with the version of the prosecution as to the time of  

her  burning,  relation  of  the  appellant  with  the  deceased,  

except for the implication part, which was clarified in favour of  

the  appellant  by  PW-10  Surinder  Singh  in  his  cross-

examination.   In such circumstances,  the  dying  declaration  

was totally unacceptable, could not be believed as trustworthy,  

which was rightly not believed so by the trial Court.  

17) Inasmuch  as  the  acquittal  by  the  trial  Court  and  

conviction  by  the  High  Court  is  solely  based  on  the  dying  

declaration, in view of our above discussion, there is no need  

to traverse the evidence and other factual details.  In view of  

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the  infirmities  pointed  above,  and  contradictions  as  to  the  

occurrence, failure on the part of the Executive Magistrate in  

obtaining certificate as to whether Kamlesh Rani had made a  

voluntary statement and not attested by any doctor and also  

his statement which is contradictory to that of the deceased  

Kamlesh Rani and of the fact that at the relevant time she was  

under the influence of  Fortwin and Pethidine injections and  

was not  supposed to be having normal alertness, as rightly  

observed by the trial Court, we hold that the dying declaration  

Ex.PD does not inspire confidence in the mind of the Court.  

Inasmuch  as  the  dying  declaration  is  the  only  piece  of  

evidence put forward against the accused in the light of our  

discussion and reasoning,  the accused - Surinder Kumar is  

entitled to the benefit of doubt.   

18) Consequently,  the  conviction  and  sentence  ordered  by  

the High Court is set aside and the order of acquittal passed  

by the trial Court is restored.  Since the appellant is on bail,  

his bail bonds shall stand discharged.  The appeal is allowed.  

...…………………………………J.  

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(P. SATHASIVAM)                                  

....…………………………………J.   (DR. B.S. CHAUHAN)

NEW DELHI; OCTOBER 21, 2011          

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