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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2526 OF 2014

RAMESH AND OTHERS .....APPELLANT(S)

VERSUS

STATE OF HARYANA .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The appellants herein were tried and acquitted by the Sessions

Court for offences under Sections 302, 34, 498A of Indian Penal Code

(for short, 'IPC') for which FIR bearing No. 254 dated 28 th September,

1999 was registered against them in Police Station Sadar, Bahadurgarh,

District  Jhajjar,  Haryana.   However,   the  High  Court,  in  appeal,  has

overturned  the  verdict  of  acquittal,  thereby  convicting  all  the  four

accused persons (appellants herein).  The judgment of the High Court is

dated 30th May, 2014, whereby the appellants are sentenced as under:

“Section  302/34  IPC:-  To  undergo  rigorous imprisonment for life and to pay a fine of Rs.10,000/-.  In default  of  payment  of  fine,  to further undergo rigorous

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imprisonment for one year.   Section  498-A/34  IPC:-  To  undergo  rigorous

imprisonment  for  two  years  and  to  pay  a  fine  of Rs.2,000/-.   In  default  of  payment  of  fine,  to  further undergo rigorous imprisonment for six months.”

2. We may state at the outset that the conviction is primarily based upon

the statement of Smt. Roshni, wife of Appellant no. 1, just before her

death.  This statement has been taken by the courts below as her 'dying

declaration'  and acted upon with  the aid  of  Section 34 of  the Indian

Evidence Act,  1872.  It  is this dying declaration which is the bone of

contention.  According to the appellants herein there was no reason to

rely upon the same not only because of certain infirmities therein but

also for the reason of absence of any corroboration.  Therefore, before

proceeding further, we would like to reproduce the statement of Roshni

(hereinafter referred to as the 'deceased').  It reads as under:

“.....Stated that it was the time of 3 A.M. today.  I was sleeping in my house at  that  time.   Then my husband Ramesh came and Suresh his brother, i.e., my devar was also with him.  Before this, Ramesh  my  husband  and  Suresh  gave  beatings  to  me. Thereafter, my devar Suresh lighted stick of matchbox.  Wife of Suresh and my mother in law namely Saroj and  Prem caught hold.  Those both brothers ablazed me.  Thereafter, the person who had caught hold me and who had set me on fire fled away from the spot.  Thereafter, outsider persons came there and put off my fire.  I had become upset. Then I was shifted to Medical College by my devar Suresh and my mother in law.

My marriage was solemnized 20 years before.  I have two sons Manjit and Ravinder aged about 16 and 15 years. One year ago after giving beatings to me I was thrown in a well by Ramesh and Suresh.  I was taken out from the well by the villagers.  On some occasion they say to bring buffalo and on some occasion they demand money and scooter.  All the persons i.e. my mother in law, devrani, devar and husband used to beat me.  Nothing else i intend  to  depose,  i  am  illiterate.   I  have  heard  my  aforesaid

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statement,  which  is  correct  and  accurate.   Admitting  it  to  be correct i put my signature on it.”   

3. As pointed about above, FIR was registered against the appellants on

the  basis  of  the  aforesaid  statement  which  reflects  the  case  of

prosecution as well.  Still, in order to have the complete narration of the

prosecution story, we would like to recapitulate the same hereunder.

4. Marriage between Ramesh (Appellant  No.  1)  and the deceased was

solemnized 20 years before the aforesaid incident.  They had two sons

out of their wedlock, namely, Manjit and Ravinder, 16 and 15 years old

respectively.  The deceased was being harassed by her husband and

in-laws on continuous demand of dowry which could not be fulfilled by

the parents of  the deceased.  One year  before the incident,  she was

even thrown in a well by her husband and younger brother Suresh but

was rescued by the villagers.  She was subjected to continuous physical

torture  and  beatings  by  her  husband,  younger  brother  Suresh,  Saroj

(wife of Suresh) and Prem (her mother in-law).     

On the fateful day, i.e., 20th September, 1999 when the deceased was

sleeping in the matrimonial house, her husband Ramesh, Suresh, Saroj

and Prem came there.  Saroj and Prem caught hold of her from her arms

and Ramesh sprinkled kerosene on her.  Suresh lighted a matchstick

and set her ablaze.  After setting her ablaze all of them fled away from

the  spot.   Some  persons  from  her  neighbourhood  came  and

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extinguished  the  fire.   She  was  taken  to  Post-Graduate  Institute  of

Medical Sciences (PGIMS), Rohtak by Ramesh, Suresh and Prem.  On

examination  by  the doctors  in  the Post-Graduate  Institute  of  Medical

Sciences,  it  was  found that  she  was suffering  from 100% burns.  An

information was sent by Dr. R.P. Verma to Police intimating admission of

the  deceased  in  the  hospital.   On  receipt  of  this  information,

Sub-Inspector Rohtash visited the hospital and collected medico-legal

report  of  the victim.  He moved the application (Ex.  PJ) to the same

medical  officer  seeking  his  opinion  with  regard  to  the  fitness  of  the

patient, that is, to say  whether she was in fit state of mind to give a

statement.   The  doctor  declared  her  fit  to  make  a  statement  vide

endorsement Ex. PJ/1.  On this, the Sub-Inspector approached the Chief

Judicial  Magistrate,  Rohtak  and  moved  the  application  (Ex.  PH)  for

deputing  an  officer  to  record  her  statement.   Shri  Bhupender  Nath,

Judicial  Magistrate,  First  Class,  Rohtak was assigned this  task  vide

order Ex. PH/1.  The said Judicial Magistrate visited the hospital and

recorded the statement, which has already been reproduced above.  On

the  basis  of  the  aforesaid  statement,  initially  the  FIR was registered

under Section 307, 498A read with Section 34, IPC.  However,  Roshni

succumbed to injuries within few hours (around 10.30 p.m.) on the same

day, i.e., 20th September, 1999.  After her death, the FIR was modified by

substituting Section 302 IPC in place of Section 307 IPC.  Postmortem

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of the body of the deceased was conducted.  The dead body was also

subjected to autopsy by a Board of Doctors.  Investigating Officer also

conducted the spot inspection, prepared rough site plan of the place of

occurrence (Ex.PL), took into possession writing Ex.PD/1, arrested the

accused  persons,  subjected  them  to  custodial  interrogation  and  in

pursuance to their disclosure statement, got recovered various articles

which were taken into possession.  On completion of investigation and

other formalities, a report under Section 173(2) Cr.P.C. was presented

before the Court of Jurisdictional Magistrate.  

5. Since an offence under Section 302 IPC is  exclusively triable by the

Court of Sessions, case was committed under Section 209 Cr.P.C. by

the Magistrate after having complied with the provisions contained under

Section 207 Cr.P.C.  It was ultimately entrusted to the Court of Additional

Sessions Judge, Rohtak, for trial.   

6. The  Court  of  Sessions  framed  the  charges  against  all  the  accused

persons under Section 302, 498A, IPC with the aid of section 34 IPC.

The appellants pleaded not guilty and opted to contest.  With this, trial

began and prosecution examined as many as 14 witnesses.  Deposition

of these witnesses, as taken note of by the Trial Court as well as the

High Court, is described in capitulated form hereinafter.

7. PW-1,  Dr.  R.P.  Verma  deposed  with  regard  to  admission  of  the

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deceased in PGIMS, Rohtak at 6:40 AM on 20 th September, 1999 with

100% burns.  He conducted medico-legal examination and proved copy

of MLR (Ex.PA).   He also sent ruqa (Ex.PB) to Police Post,  PGIMS,

Rohtak, intimating her admission.

8. PW-2, Constable Jai Chand prepared scaled site plan (Ex.PC) of the

place  of  occurrence  with  correct  marginal  notes  on  demarcation  by

Karan Singh.

9. PW-3, Sardar Singh (father of the deceased), deposed with regard to

the compromise arrived at with the accused Ramesh and others about a

year  prior  to  the  occurrence  in  question.  He  furnished  copy  of

compromise  as  well  as  that  of  proceedings  initiated  under  Section

107/151  Cr.P.C.  to  Investigating  Officer  which  were  taken  into

possession by him vide Ex.PD. He did not support prosecution version in

respect of occurrence and ultimately he was declared hostile for toeing

the line of the defence.

10. PW-4,  Balraj  (brother  of  the  deceased),  identified  dead  body  of  the

deceased in the hospital.  PW-5, Partap, who is one of the relations of

the deceased, was a witness to the recovery memo (Ex.PD/1).  PW-6,

Constable Jagdish Chander got conducted autopsy of the dead body of

the deceased.  PW-7, Constable Kuldeep Singh was entrusted with the

duty of handing over the special report to the jurisdictional Magistrate as

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well as senior police officer.

11. PW-8, Sub-Inspector Rohtash Singh, conducted initial  investigation of

this  case.   PW-9,  Head Constable  Balwan Singh,  was a  member  of

police  party  at  the  time  when  accused  Ramesh  was  subjected  to

interrogation by the Station House Officer Karan Singh and he suffered

disclosure statement (Ex.PM) to the effect that he had kept concealed

an empty plastic container of kerosene and that he could get the same

recovered. Subsequently, in pursuance to his disclosure statement, he

got  recovered  plastic  container  (Ex.P1)  from  the  premises  of  his

residential house which was taken into possession vide Ex.PN.

12. PW-10, Inspector Mohar Singh proved proceedings carried by him under

Section  107/151  Cr.P.C.  against  Ram  Phal,  son  of  Chandgi,  and

Ramesh and Suresh, sons of Ram Phal,  in pursuance of DDR No. 5

dated May 22, 1998, Police Station, Sadar, Bahadurgarh.  He proved

copy of the calender (Ex.PD/2).  On receipt of ruqa, he got registered

FIR Ex.P1/A on September 20, 1999.

13. PW-11,  Shri  Bhupender  Nath,  Judicial  Magistrate  Ist  Class,  who

recorded dying declaration of  the deceased, proved the same as Ex.

PH/3, on the basis of which formal FIR was put in black & white and

investigation was put in motion.

14. PW-12, Dr. Neelam Thapar, Medical Officer, General Hospital, Rohtak,

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being a member of the Medical Board, conducted autopsy on the dead

body of Smt. Roshni and deposed as under:

“....Length of the body was 160 C.M. A mod build and mod nourished dead body of female, wearing no clothes having white metal ring in body side 2nd toes.  No mark of ligature on the neck and dissection etc. present.  R.M. present in all four limbs.  The injuries are follows:-

“1. Superficial to be deep infected burns present all over the body except both feet. 2. There is red line of  demarcation between burn and non-burn areas. 3. Singing  of  hair  present  over  scalp,  external genetalia and both axilla. 4. Scalp,  skull  and  vertebrae  described, membranes brain healthy and congested walls,  ribs and cartridges described.

Pleura  healthy,  larynx  and  trachea  healthy,  both  lungs healthy and congested.

Right side heart contains blood, left side of heart empty. Abdominal  wall  described.   Peritoneum healthy.  Mouth, pharynx  and  oesophagus  healthy,  stomach  and  its contents healthy and congested.  Stomach contains 50css of  mucoid  juices.   Small  intestines  and  their  contents healthy and congested and large intestine contain faecal matter.  Liver,  spleen,  kidneys  healthy  and  congested. Bladder empty.  Organs of generation external and internal external genetalia-hair burn and uterus does not have any product of conception.

In our opinion the cause of death of deceased was burn and its  complication where were ante mortem in  nature and  sufficient  to  cause  the  death  in  natural  course  of nature.....”

15. On  the  conclusion  of  the  prosecution  evidence,  incriminating

circumstances appearing on record were put to the accused persons for

eliciting their explanation thereto, as per the procedure mandated under

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Section 313 of the Cr.P.C.  They denied having any role and pleaded

that it was a case of accidental fire in which the deceased was trapped.

Since identical defence plea was taken by all the accused persons, our

purpose  would  be  served  in  reproducing  the  statement  of  Ramesh

(Appellant No.1)  which runs as under :

“I am innocent.  I was living separate from the rest of the family after dispute was settled in May, 1998 as declared by  the  deceased  Smt.  Roshni.   On  the  night  between 19/20/9.1999,  I  was  at  my  in  laws  house  at  Nizampur, Delhi along with my truck and early in the morning at 4.00 A.M. a telephonic message was received that Smt. Roshni has received burn injuries due to falling of kerosene lamp and is being referred to PGI, Rohtak and got her admitted in the hospital.  I or any of my family members have never harassed  Smt.  Roshni  for  dowry  or  otherwise.   After compromise, she was living happily with me.  It seems that since she has tutored her to make she alleged statement before JMIC.”  

      16. The trial court, after appraising the evidence on record, in the light of

oral arguments which were advanced by both the sides, held that the

prosecution  could  not  prove  the  guilt  of  the  appellants  beyond

reasonable doubt.  As per the trial court,  the dying declaration of the

victim could not be acted upon for the purpose of conviction in view of

the following attendant circumstances:

(a)  The Judicial Magistrate (PW-11) had stated during his cross-examination

that  he  could  not  say if  the  deceased was semi-conscious when he

recorded her statement and he had proceeded to record her statement

because the Doctor had given his opinion that she was in fit  state of

mind to give the statement.  

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(b)  Balraj (PW-4), who is the brother of the deceased had stated during the

cross-examination that deceased husband Ramesh (appellant No.1) had

come to his house and stayed with him on the night intervening 19 th-20th

September, 1999.  He further deposed that on 20th September, 1999 at

4:00 a.m., they had received information about the deceased catching

fire  and  on  hearing  this  news,  he  along  with  Ramesh  had  gone  to

Rohtak, where the deceased was already lying admitted in the hospital.

PW-4  had  also  deposed  to  the  effect  that  he  had  a  talk  with  the

deceased who disclosed him that she had received burn injuries as an

earthern lamp had fallen on her.   

The trial court believed the aforesaid statement of PW-4 who is none

else  than  the  brother  of  the  deceased  and  concluded  that  had  the

appellants committed murder of his sister, he would not have any soft

corner for these accused persons.  The trial court also observed that as

per the statement of PW-4, since appellant No. 1 Ramesh was with him

at the time of the incident, he had been falsely implicated in the case.   

(c)  The trial court also took into consideration the conduct of other appellants,

namely, Suresh (brother of Ramesh), his wife Saroj and Prem (mother of

Ramesh)  who  had  taken  the  deceased  to  the  hospital  i.e.  PGIMS,

Rohtak for treatment.  Commenting upon this, the trial court observed

that had they poured kerosene on the deceased and set her on fire with

intention  to  cause  her  death,  they  would  not  have  taken  her  to  the

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hospital  for  treatment  and they would not  have got  evidence created

against themselves.   

(d)  As per the trial  court,  the dying declaration of the deceased was also

intrinsically weak and was not trustworthy.   

This conclusion was arrived at by analysing the episode in the following

manner:

“...Roshni was sleeping in the house when she caught fire at  3:00  AM  on  20.09.1999.   Four  persons  were  not required  to  commit  her  murder  by  getting  her  on  fire. When  she  was  sleeping  one  person  could  easily  pour kerosene and set her on fire.  Allegations made by Roshni in her statement Ex.PH/3 that Saroj and Prem caught hold of her and Ramesh poured kerosene on her and Suresh lighted fire, appears to be concocted and unnatural.”

17. On the aforesaid circumstances, the Court of Sessions held that it was

not safe to place reliance upon the dying declaration and the possibility

that the deceased committed suicide by dousing herself with kerosene

and  setting  herself  on  fire  and  thereafter  falsely  implicating  the

appellants, could not be ruled out in order to take revenge against them

for their perceived past misbehaviour.   

18. The High Court,  in  the impugned judgment,  has found fault  with the

aforesaid  analysis,  approach  and  the  manner  in  which  the  dying

declaration has been dealt with by the trial court.  According to the High

Court, the veracity of the dying declaration could not be examined with

reference to the other evidence.  It has held that the approach of the trial

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court was blemished.  According to the High Court, the trial court was

required to appreciate as to whether the statement of the deceased was

given in a fit state of mind; and whether it was voluntarily given without

being  influenced  by  any  extraneous  circumstances  and  without  any

tutory.  If that was so and the dying declaration of the deceased passed

the muster of the aforesaid test and was to be believed, the conviction

could be based solely on such a dying declaration.  The High Court then

examined the dying declaration in the aforesaid perspective and found

that the Doctor had declared her fit to make a statement on the basis of

which  the  Judicial  Magistrate  recorded the  statement  and  even after

recording of the statement, the Doctor again gave endorsement that the

deceased remained fit during the period her statement was recorded.  In

such circumstances, statement of the Judicial Magistrate (PW-11) in the

Court that he could not say whether the deceased was semi-conscious

when her statement was recorded, was of no consequence as he had

acted on the basis of the medical opinion.  The High Court has also

observed  that  PW-11  never  stated  in  categorical  terms  that  the

deceased was semi-conscious when her statement was recorded and,

therefore, the said reply of PW-11 in cross-examination was read out of

context.  The High Court further observed that it was not appropriate on

the part of the trial court to discard the dying declaration in view of the

deposition of her brother Balraj (PW-4).  As per the High Court, not only

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PW-4 but  his  father  (PW-3)  had not  supported the statement  for  the

reasons best known to them and it appeared that they had been won

over by the appellants.  The High Court also noted that merely because

the deceased had suffered 100% burns was no ground to discard the

dying  declaration  when  there  was  a  specific  certificate  given  by  the

Doctor about her mental fitness and that she was capable of giving the

statement.   

19. Learned counsel for  the appellants challenged the correctness of  the

manner in which the High Court has pondered over the issue.   In the

first instance, he submitted that it  was a case of acquittal by the trial

court after due appreciation of evidence on record and even when two

views were possible, the High Court should not have tinkered with the

acquittal.  He also insisted that the trial court had given cogent reasons

for  not  believing  the  dying  declaration  and  one of  the  most  material

circumstance was that on the fateful night when the incident occurred,

appellant No.1 (husband of the deceased) was with PW-4 and it clearly

demonstrated  that  appellant  No.1  was  falsely  roped  in.  Therefore,  it

could not be said that the deceased had given an honest and truthful

statement.  He further submitted that having suffered 100% burns, under

no circumstances could she be in a position to give the statement and,

therefore, certificate of Doctor should not have been believed.  

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20. Learned counsel for the respondent, on the other hand, submitted that

incident  took  place  in  the  matrimonial  house  and  the  deceased  had

given the statement after reaching the hospital.  The authorities were

fully  satisfied  that  she  was  in  a  position  to  give  the  statement.

Therefore, there was no reason to discard the statement as was wrongly

done by the trial court.  He, thus, supported the reasons given by the

High Court.   

21. We have duly appreciated the submissions advanced by counsel for the

parties on both sides.  No doubt, the High Court was dealing with the

appeal against the judgment of the trial court which had acquitted the

appellants  herein.   The  scope  of  interference  in  an  appeal  against

acquittal  is  undoubtedly  narrower  than  the  scope  of  appeal  against

conviction.   Section  378  of  the  Code  of  Criminal  Procedure,  1973

confers upon the State a right to prefer an appeal to the High Court

against the order of acquittal.  At the same time, sub-section (3) thereof

mandates that such an appeal is not to be entertained except with the

leave  of  the  High  Court.   Thus,  before  an  appeal  is  entertained  on

merits,  leave  of  the  High  Court  is  to  be  obtained  which  means  that

normally  judgment  of  acquittal  of  the trial  court  is attached a definite

value which is not to be ignored by the High Court.   In other words,

presumption of innocence in favour of an accused gets further fortified or

reinforced by an order of acquittal.  At the same time, while exercising its

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appellate power, the High Court is empowered to reappreciate, review

and reconsider the evidence before it.  However, this exercise is to be

undertaken in order to come to an independent conclusion and unless

there are substantial and compelling reasons or very strong reasons to

differ from the findings of acquittal recorded by the trial court, the High

Court, as an appellate court in an appeal against the acquittal, is not

supposed to substitute its findings in case the findings recorded by the

trial  court  are  equally  plausible.   The  scope  of  interference  by  the

appellate court in an order of acquittal is beautifully summed up in the

case of Sanwat Singh v. State of Rajasthan1 in the following words:

“The foregoing discussion yields the following results: (1) an appellate court has full  power to review the evidence upon  which  the  order  of  acquittal  is  founded;  (2)  the principles  laid  down  in  Sheo  Swarup's  case  afford  a correct guide for the appellate court's approach to a case in  disposing  of  such  an  appeal;  and  (3)  the  different phraseology used in the judgments of this Court, such as, (i)  "substantial  and  compelling  reasons",  (ii)  "good  and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court  in  an appeal  against  acquittal  to review the entire evidence and to come to its own conclusion; but in doing so  it  should  not  only  consider  every  matter  on  record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts,  but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.”

 22. This legal position is reiterated in Govindaraju @ Govinda v. State by

Sriramapuram Police Station and another2 and the following passage

1 1961 SCR (3) 120 2 (2012) 4 SCC 722

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therefrom needs to be extracted:

“12. The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 CrPC. This is an indication  that  appeal  from  acquittal  is  placed  on  a somewhat different footing than a normal appeal. But once leave  is  granted,  then  there  is  hardly  any  difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under Section 378 CrPC has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate  court  on  merits  as  in  the  case  of  a  regular appeal.  Sub-section  (3)  of  Section  378  clearly  provides that no appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts.

13.  Under the scheme of CrPC, acquittal confers rights on an  accused  that  of  a  free  citizen.  A  benefit  that  has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the appellate court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law.”

23. The Court also took note of earlier precedents and summarised the legal

position laid down in those cases, in the following words:

“17. If we analyse the above principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence,  the view which is  favourable  to the accused should be adopted.

18.  There are no jurisdictional limitations on the power of the  appellate  court  but  it  is  to  be  exercised  with  some circumspection. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no

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less than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher court would examine the matter as a court of fact and appeal while correcting the errors of  law and in appreciation of evidence  as  well.  Then  the  appellate  court  may  even proceed to record the judgment of guilt to meet the ends of justice,  if  it  is  really  called  for.

xx xx xx

22.  A very vital distinction which the court has to keep in mind while dealing with such appeals against the order of acquittal is that interference by the court is justifiable only when  a  clear  distinction  is  kept  between  perversity  in appreciation  of  evidence  and  merely  the  possibility  of another view. It may not be quite appropriate for the High Court to merely record that the judgment of the trial court was perverse without specifically dealing with the facets of perversity relating to the issues of law and/or appreciation of evidence, as otherwise such observations of the High Court may not be sustainable in law.”

24. The  appellate  court,  therefore,  is  within  its  power  to  reappreciate  or

review the evidence on which the acquittal is based.  On reconsideration

of  the  evidence  on  record,  if  the  appellate  court  finds  the  verdict  of

acquittal to be perverse or against the settled position of law, it is duly

empowered to set aside the same.  On the other hand, if the trial court

had  appreciated  the  evidence  in  right  perspective  and  recorded  the

findings which are plausible and the view of the trial court does not suffer

from perversity, simply because the appellate court comes to a different

conclusion  on  the  appreciation  of  the  evidence  on  record,  it  will  not

substitute its findings to that of findings recorded by the trial court.   

25. In the instant case, we find that the High Court has interfered on the

ground  that  the  very  approach  of  the  trial  court  in  appreciating  the

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evidence on record was legally unsustainable.  If such observations of

the High Court are correct, it was fully justified in interjecting with the

verdict of the trial court.   

26. We have already noticed above the reasons recorded by the trial court

while discarding the dying declaration.  Admittedly, no weightage is given

by the trial court to the opinion of the Doctor certifying that the deceased

was in a fit state of mind. Likewise, no reasons were given by the trial

court as to why the testimony of the Judicial Magistrate, who recorded

the statement, be disbelieved.   

27. Law on the admissibility of the dying declarations is well settled. In Jai

Karan  v.  State  of  N.C.T.,  Delhi3,  this  Court  explained  that  a  dying

declaration is admissible in evidence on the principle of necessity and

can form the basis of conviction if it is found to be reliable.  In order that

a dying declaration may form the sole basis for conviction without the

need for independent corroboration it  must be shown that the person

making it had the opportunity of identifying the person implicated and is

thoroughly  reliable  and  free  from  blemish.   If,  in  the  facts  and

circumstances of the case, it is found that the maker of the statement

was in a fit state of mind and had voluntarily made the statement on the

basis of personal knowledge without being influenced by others and the

court on strict scrutiny finds it to be reliable, there is no rule of law or

3 (1999) 8 SCC 161

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even of prudence that such a reliable piece of evidence cannot be acted

upon unless it is corroborated.  A dying declaration is an independent

piece of evidence like any other piece of evidence, neither extra strong

or weak, and can be acted upon without corroboration if it is found to be

otherwise true and reliable.  There is no hard and fast rule of universal

application as to whether percentage of burns suffered is determinative

factor  to  affect  credibility  of  dying declaration and improbability  of  its

recording.  Much depends upon the nature of the burn, part of the body

affected by the burn, impact of the burn on the faculties to think and

convey  the  idea  or  facts  coming  to  mind  and  other  relevant  factors.

Percentage  of  burns  alone  would  not  determine  the  probability  or

otherwise of making dying declaration.  Physical state or injuries on the

declarant do not by themselves become determinative of mental fitness

of  the  declarant  to  make  the  statement  (See  Rambai  v.  State  of

Chhatisgarh4).

28. It is immaterial to whom the declaration is made.  The declaration may

be made to a Magistrate, to a Police Officer, a public servant or a private

person.  It may be made before the doctor; indeed, he would be the best

person  to  opine  about  the  fitness  of  the  dying  man  to  make  the

statement, and to record the statement, where he found that life was fast

ebbing out of the dying man and there was no time to call the Police or

4 (2002) 8 SCC 83)

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the Magistrate.  In such a situation the Doctor would be justified, rather

duty bound, to record the dying declaration of the dying man.  At the

same time, it also needs to be emphasised that in the instant case, dying

declaration is recorded by a competent Magistrate who was having no

animus with the accused persons.  As held in  Kushal Rao v. State of

Bombay5, this kind of dying declaration would stand on a much higher

footing.  After all, a competent Magistrate has no axe to grind against the

person named in the dying declaration of the victim and in the absence

of  circumstances showing anything to the contrary, he should not  be

disbelieved by the Court (See Vikas & Ors. v. State of Maharashtra6).

29. No  doubt,  the  victim  has  been  brought  with  100%  burn  injuries.

Notwithstanding, the doctor found that she was in a conscious state of

mind and was competent to give her statement.  Thus, the Magistrate

had  taken  due  precautions  and,  in  fact,  Medical  Officer  remained

present when the dying declaration was being recorded.  Therefore, this

dying declaration cannot  be discarded merely going by the extent  of

burns with which she was suffering, particularly, when the defence has

not been able to elicit anything from the cross-examination of the doctor

that her mental faculties had totally impaired rendering her incapable of

giving a statement.   

5 1958 SCR 552 6 (2008) 2 SCC 516

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30. Keeping in view the aforesaid considerations, we feel that High Court

rightly observed that the manner in which the trial court proceeded with

the matter was legally unsustainable.  It was necessary for the trial court,

in the first instance, to see as to whether due precautions were taken

before recording the statement of the deceased, which became dying

declaration as she died within few hours thereafter.  In this context, what

is relevant is that the moment the deceased was admitted in PGIMS,

Rohtak, without any loss of time and immediately thereafter the Doctor

at  the said hospital  sent the information to the police post  about her

admission in  the hospital  with burns.   On receipt  of  that  information,

Sub-Inspector visited the hospital and collected Medical Report of the

deceased.  He immediately moved an application before the concerned

Medical  Officer  seeking  his  opinion  with  regard  to  the  fitness  of  the

patient.   On  that  application  itself  (Ex.  PG),  the  Doctor  made  an

endorsement  (Ex.  PG/1)  that  she  was  fit  to  make  statement.

Sub-Inspector  did  not  record the  statement  of  the  deceased himself.

Rather,  he  took  due  precaution  by  approaching  the  Chief  Judicial

Magistrate,  Rohtak  with  an  application  (Ex.  PH)  requesting  him  to

depute an officer  to  record the statement  of  the deceased.   On this

application,  orders were passed (Ex.  PH/1) directing Bhupinder Nath,

Judicial Magistrate, First Class, Rohtak to go to the hospital and record

the  statement.   Armed  with  this  order,  the  Magistrate  reached  the

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hospital and recorded the statement of the deceased.  This recording

was done in the presence of the Doctor who again certified that she had

given the statement in a fit state of mind.   

31. Aforesaid  narration  stating  the  manner  in  which  statement  of  the

deceased was recorded clearly brings out that all possible precautions

were taken by the concerned authorities before and while recording her

statement.  The trial court in its judgment has not even discussed the

aforesaid aspects.  The recording of statement by the Judicial Magistrate

is  sought  to  be  discredited  on  the  specious  ground  that  in  his

cross-examination  he  has  stated  that  he  could  not  say  whether  the

deceased was semi-conscious.  The High Court has rightly recorded that

this statement of PW-11 is read out of context.  The aforesaid answer by

PW-11 was  in  reply  to  the  question  put  to  him  as  to  whether  the

deceased was semi-conscious  when her  statement  was recorded by

him.  It is in reply to this question he stated that he cannot say if she was

semi-conscious when her statement was recorded.  He also clarified that

since  the  Doctor  had  given  his  opinion,  he  proceeded to  record  her

statement.   It  may  be  noticed  that  PW-11 nowhere  stated  that  the

deceased was semi-conscious when her statement was recorded.  The

statement of PW-11 was to be taken into consideration as a whole.  It

has come on record,  and we repeat, that after  the completion of  her

statement, the Doctor made an endorsement (Ex. PH/4) to the effect that

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the deceased remained fit during the recording of her statement and it is

only thereafter the learned Magistrate (PW-11) appended his signature

(Ex. PH/5) categorically stating that the statement recorded by him was

true version of  what the deceased had spoken and he had stated in

unambiguous terms that she was fit to make statement and remained fit

till her statement was recorded.   

32. In view of the specific certification by the Doctor about the fitness of the

deceased that she remained fit while recording the statement, the mere

effect that she had suffered 100% burns would not,  ipso facto,  lead to

the conclusion that the deceased was unconscious or that she was not

in a proper state of mind to make a statement.  At this stage, it would

also be relevant to point out that no challenge was made by the defence

to the aforesaid statement of the deceased on the ground that it was not

made voluntarily or it  was made by any extraneous circumstances or

was the result of tutoring.  In fact, even as per the appellants, it is they

who had taken the deceased to the hospital and no other person known

to her had come in her contact before the statement was recorded.  On

the  contrary,  PW-3  and  PW-4  (father  and  brother  of  the  deceased

respectively) have not supported the prosecution version, which aspect

shall  be  dealt  with  later  at  the  appropriate  stage  and,  therefore,  the

question of tutoring does not arise at all.  

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33. On examination and analysis of the dying declaration in the aforesaid

perspective, we do not find any reason to discard it having regard to the

legal  position  on  the  subject  already  noticed  above  by  referring  to

relevant case law.  It is trite that dying declaration is a substantive piece

of evidence and can be made the basis of conviction once the Court is

convinced  that  dying  declaration  is  made  voluntarily  and  is  not

influenced by any extraneous circumstances.   

34. There is one more reason that was given by the trial court in discarding

the  dying  declaration  and  if  correct,  that  would  afford  strong

circumstance to justify its conclusion.  It is the PW-4 who has come as a

shield  to  protect  the  appellants.   For  this  reason,  we  advert  to  the

statement of Balraj (PW-4), brother of the deceased.  He stated that on

the night intervening 19th – 20th September, 1999, Ramesh was with him.

He further  deposed that  at  4:00 a.m.  on 20 th September, 1999,  they

received  the  information  about  the  deceased  having  sustained  burn

injuries and he along with Ramesh reached PGIMS, Rohtak where she

was already present.  It is on the basis of this statement that the trial

court observed that since Ramesh was with Balraj (PW-4) in his house,

he could not be present at the place of incident when it took place and,

therefore,  he  is  falsely  implicated  and  mentioning  of  his  name

considerably dents the veracity of dying declaration thereby rendering it

questionable.  However, we find that in accepting the aforesaid version

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of PW-4, the trial court committed a serious mistake.  As per the hospital

records, it is Ramesh who had brought the deceased to the hospital and

got her admitted which was even the defence case as well.  The trial

court  completely  overlooked this  pertinent  aspect.   This fact  alone is

sufficient to discredit the statement of PW-4 that Ramesh was with him

in his house and both of them had received the information about the

incident and when both of them reached PGIMS, Rohtak, the deceased

was already there.  In these circumstances, we entirely agree with the

High Court that PW-4, though brother of the deceased, appears to have

been won over by the appellants.   

35. We find that it is becoming a common phenomenon, almost a regular

feature,  that  in  criminal  cases witnesses turn hostile.  There could be

various reasons for  this  behaviour  or  attitude of  the witnesses.   It  is

possible  that  when  the  statements  of  such  witnesses  were  recorded

under Section 161 of the Code of Criminal Procedure, 1973 by the police

during investigation, the Investigating Officer forced them to make such

statements and, therefore, they resiled therefrom while deposing in the

Court and justifiably so.  However, this is no longer the reason in most of

the cases.  This trend of witnesses turning hostile is due to various other

factors.  It may be fear of deposing against the accused/delinquent or

political  pressure or  pressure of  other  family  members or  other  such

sociological factors.  It is also possible that witnesses are corrupted with

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monetary considerations.  

36. In some of the judgments in past few years, this Court has commented

upon such peculiar behaviour of witnesses turning hostile and we would

like to quote from few such judgments.   In Krishna Mochi v. State of

Bihar7, this Court observed as under:

“31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like  ours,  where  the  ratio  of  decline  is  higher.  Even  in ordinary  cases,  witnesses are not  inclined to depose or their  evidence is  not  found to  be credible  by  courts  for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of  threats  to  their  life,  more  so  when the offenders  are habitual criminals or high-ups in the Government or close to  powers,  which  may  be  political,  economic  or  other powers including muscle power.”

37. Likewise,  in  Zahira  Habibullah  v.  State  of  Gujarat8,  this  Court

highlighted the problem with following observations:

“40.  Witnesses, as Bentham said, are the eyes and ears of  justice.  Hence,  the  importance  and  primacy  of  the quality  of  trial  process.  If  the  witness  himself  is incapacitated from acting as eyes and ears of justice, the trial  gets  putrefied  and  paralysed  and  it  no  longer  can constitute  a  fair  trial.  The incapacitation  may be  due to several factors like the witness being not in a position for reasons beyond control, to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time  has  become  ripe  to  act  on  account  of  numerous experiences  faced  by  the  court  on  account  of  frequent turning  of  witnesses  as  hostile,  either  due  to  threats, coercion,  lures  and  monetary  considerations  at  the instance of those in power, their henchmen and hirelings, political  clouts  and  patronage  and  innumerable  other

7 (2002) 6 SCC 81 8 (2006) 3 SCC 374

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corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State  representing  by  their  presenting  agencies  do  not suffer…  there  comes  the  need  for  protecting  the witnesses.  Time  has  come  when  serious  and  undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.  

41.  The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those  in  power,  who  has  political  patronage  and  could wield  muscle  and  money  power,  to  avert  trial  getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court  the witness could safely depose truth without  any fear  of  being  haunted  by  those  against  whom  he  had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There  cannot  be  any  deviation  from  this  requirement because  of  any  extraneous  factors  like,  caste,  creed, religion,  political  belief  or  ideology.  Every  State  is supposed to  know these fundamental  requirements  and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative  enactments  like  the  Terrorist  and  Disruptive Activities (Prevention) Act, 1987 (in short the “TADA Act”) have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at,  the eyes and ears of justice have to be protected so that the interests of justice do  not  get  incapacitated  in  the  sense  of  making  the proceedings before Courts mere mock trials as are usually seen in movies.”

38. Likewise, in Sakshi v. Union of India9, the menace of witnesses turning

hostile was again described in the following words:  

“32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses

9 (2004) 5 SCC 518

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or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which  may result  in  miscarriage of  justice.  Therefore,  a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing  the  body  or  the  face  of  the  accused.  Often  the questions put in cross-examination are purposely designed to  embarrass  or  confuse  the  victims  of  rape  and  child abuse. The object is that out of the feeling of shame or embarrassment,  the  victim  may  not  speak  out  or  give details of  certain acts committed by the accused. It  will, therefore,  be  better  if  the  questions  to  be  put  by  the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the  victim  or  witnesses  in  a  language  which  is  not embarrassing.  There can hardly  be any objection to the other suggestion given by the petitioner that whenever a child  or  victim  of  rape  is  required  to  give  testimony, sufficient breaks should be given as and when required. The provisions of  sub-section (2)  of  section 327 Cr.P.C. should  also  apply  in  inquiry  or  trial  of  offences  under Section 354 and 377 IPC.”

39. In State v. Sanjeev Nanda10, the Court felt constrained in reiterating the

growing disturbing trend:  

“99.  Witness  turning  hostile  is  a  major  disturbing  factor faced by the criminal courts in India. Reasons are many for the  witnesses  turning  hostile,  but  of  late,  we  see, especially in high profile cases, there is a regularity in the witnesses  turning  hostile,  either  due  to  monetary consideration or by other tempting offers which undermine the  entire  criminal  justice  system  and  people  carry  the impression that the mighty and powerful  can always get away from the clutches of law thereby, eroding people’s faith in the system.

100.  This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the  evidence  of  hostile  witness  could  not  be  totally rejected,  if  spoken  in  favour  of  the  prosecution  or  the accused, but it  can be subjected to closest scrutiny and that portion of  the evidence which is consistent with the case of the prosecution or defence may be accepted. In K.

10 (2012) 8 SCC 450

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(vi)  Hassles  faced by the witnesses during investigation and trial.

(vii)  Non-existence  of  any  clear-cut  legislation  to  check hostility of witness.”   

41. Threat  and  intimidation  has  been  one  of  the  major  causes  for  the

hostility of witnesses.  Bentham said: “witnesses are the eyes and ears

of justice”.  When the witnesses are not able to depose correctly in the

court of law, it  results in low rate of conviction and many times even

hardened criminals escape the conviction.  It shakes public confidence

in the criminal justice delivery system.  It  is for this reason there has

been a lot of discussion on witness protection and from various quarters

demand is made for the State to play a definite role in coming out with

witness protection programme, at least in sensitive cases involving those

in  power,  who  have  political  patronage  and  could  wield  muscle  and

money  power,  to  avert  trial  getting  tainted  and  derailed  and  truth

becoming a casualty.  A stern and emphatic message to this effect was

given in Zahira Habibullah's case as well.

42. Justifying the measures to be taken for witness protection to enable the

witnesses  to  depose  truthfully  and  without  fear,  Justice  Malimath

Committee Report  on Reforms of  Criminal  Justice System, 2003 has

remarked as under:

“11.3 Another major problem is about safety of witnesses and  their  family  members  who  face  danger  at  different stages. They are often threatened and the seriousness of

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the  threat  depends  upon  the  type  of  the  case  and  the background  of  the  accused  and  his  family.  Many  times crucial  witnesses are threatened or  injured prior  to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection  or  is  guaranteed  anonymity  of  some form  of physical  disguise…Time has  come for  a  comprehensive law  being  enacted  for  protection  of  the  witness  and members of his family.”

43. Almost to similar effect are the observations of Law Commission of India

in  its  198th Report11,  as  can  be  seen  from  the  following  discussion

therein:

“The reason is not far to seek. In the case of victims of terrorism  and  sexual  offences  against  women  and juveniles,  we  are  dealing  with  a  section  of  society consisting of  very  vulnerable  people,  be they  victims or witnesses.   The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under  the  Indian  Penal  code,  1860  and  other  special enactments,  some of  which we have referred to  above, there  are  bound  to  be  absolutely  similar  situations  for victims  and  witnesses.  While  in  the  case  of  certain offences  under  special  statutes  such  fear  or  danger  to victims  and  witnesses  may  be  more  common  and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses,  then  there  is  no reason  as  to  why  it should  not  be  equally  fair  in  the  case  of  other  general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.”

 44. Apart from the above, another significant reason for witnesses turning

11 Report on 'witness identity protection and witness protection programmes'

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hostile  may  be  what  is  described  as  'culture  of  compromise'.

Commenting upon such culture  in  rape trials,  Pratiksha Bakshi12 has

highlighted this problem in the following manner:

“During the trial, compromise acts as a tool in the hands of defence  lawyers  and  the  accused  to  pressurise complainants and victims to change their testimonies in a courtroom. Let us turn to a recent case from Agra wherein a young Dalit woman was gang-raped and the rapist let off on bail.  The accused threatened to rape the victim again if she  did  not  compromise.  Nearly  a  year  after  she  was raped,  she  committed  suicide.   While  we  find  that  the judgment  records  that  the  victim  committed  suicide following the pressure to compromise, the judgment does not  criminalise  the  pressure  to  compromise  as  criminal intimidation of the victim and her family. The normalising function  of  the  socio-legal  category  of  compromise converts terror into a bargain in a context where there is no witness protection programme. This often accounts for why  prosecution  witnesses  routinely  turn  hostile  by  the time the case comes on trial, if the victim does not lose the will to live.

In  other  words,  I  have  shown  how  legality  is actually  perceived  as  disruptive  of  sociality;  in  this instance,  a  sociality  that  is  marked  by  caste  based patriarchies, such that compromise is actively perceived, to put it in the words of a woman judge of a district court, as a mechanism for ‘restoring social relations in society’.”

45. In  this  regard,  two articles  by Daniela  Berti  delve  into  a  sociological

analysis  of  hostile  witnesses,  noting  how  village  compromises  (and

possibly peer pressure) are a reason for witnesses turning hostile.  In

one of his articles13, he writes:

“For  reasons  that  cannot  be  explained  here,  even  the people who initiate a legal case may change their minds

12 In Justice is a Secret : Compromise in Rape Trials” 13 Daniela Berti : Courts of Law and Legal Practice (pp. 6-7)

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later on and pursue non-official  forms of  compromise or adjustment.  Ethnographic observations of  the cases that do make it to the criminal courtroom thus provide insight into the kinds of tensions that arise between local society and the state judicial  administration. These tensions are particularly  palpable  when  witnesses  deny  before  the judge  what  they  allegedly  said  to  the  police  during preliminary investigations. At this very moment they often become hostile. Here I must point out that the problem of what  in  common  law  terminology  is  called  “hostile witnesses” is, in fact, general in India and has provoked many a reaction from judges and politicians,  as well  as countless debates in newspaper editorials.  Although this problem  assumes  particular  relevance  at  high-profile, well-publicized trials,  where witnesses may be politically pressured or  bribed,  it  is  a  recurring  everyday  situation with  which  judges  and  prosecutors  of  any  small  district town are routinely faced. In many such cases, the hostile behavior results from various dynamics that interfere with the trial's outcome – village or family solidarity, the sharing of the same illegal activity for which the accused has been incriminated (as in case of cannabis cultivation), political interests,  family  pressures,  various  forms  of  economic compensation,  and  so  forth.  Sometimes  the  witness becomes “hostile” simply because police records of his or her earlier testimony are plainly wrong. Judges themselves are well aware that the police do write false statements for the  purpose  of  strengthening  their  cases.  Though  well known in judicial milieus, the dynamics just described have not yet been studied as they unfold over the course of a trial.  My research  suggests,  however, that  the  witness's withdrawal from his or her previous statement is a crucial moment  in  the  trial,  one  that  clearly  encapsulates  the tensions arising between those involved in a trial and the court machinery itself.”

“In  my fieldwork experiences, witnesses become “hostile” not only when they are directly implicated in a case filed by the  police,  but  also  when  they  are  on  the  side  of  the plaintiff's  party. During  the  often  rather  long  period  that elapses between the police investigation and the trial itself, I often observed, the party who has lodged the complaint (and  who  becomes  the  main  witness)  can  irreparably compromise the  case with  the  other  party  by  means of compensation, threat or blackmail.”  

46. Present case appears to have been  stung by 'culture of compromise'.

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Fortunately,  statement  of  PW-4 in  attempting  to  shield  the  accused

Ramesh has been proved to be false in view of the records of PGIMS,

Rohtak and, therefore, we held that High Court was right in discarding

his testimony.

47. We,  thus,  do  not  find  any  merit  in  this  appeal,  which  is  accordingly

dismissed.   

.............................................J. (A.K. SIKRI)

.............................................J. (AMITAVA ROY)

NEW DELHI; NOVEMBER 22, 2016.