SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Pashupati Nath Shah (Deceased By … vs State on 4 April, 2018

$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 434/2002
PASHUPATI NATH SHAH (Deceased by LR) ….. Appellant
Through: Mr. D.K.Mathur, Advocate.

versus

STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

ORDER
% 04.04.2018
Dr. S. Muralidhar, J.:
Introduction

1. This is an appeal against the judgment dated 2nd March 2002 passed by
the learned Additional Sessions Judge, New Delhi in Sessions Case
No.175/1996 arising from FIR No.107/1995, registered at Police Station
(„PS‟) Dabri, convicting the Appellant for the offences under Sections 376
and
302 IPC. The appeal is also against the order on sentence dated 10th
April 2002 whereby for the offence under
Section 376 IPC, the Appellant
was sentenced to undergo rigorous imprisonment for 10 years and to pay a
fine of Rs.1,000/- and in default of payment of fine, to undergo simple
imprisonment (SI) for one month; and for the offence under
Section 302
IPC, the Appellant was sentenced to undergo imprisonment for life and to
pay a fine of Rs.1,000/- and in default of payment of fine, to undergo SI for
one month.

CRL.A.434/2002 Page 1 of 21

2. The Appellant was charged with having raped his sister-in-law on 7th
April 1993 at about 12.15 pm at his house in West Sagarpur, New Delhi and
thereafter, having committed her murder by pouring kerosene oil on her and
then setting her afire. She suffered 100 % burn injuries and succumbed to
the injuries on the same day.

3. During the pendency of the present appeal, the Appellant expired on 3 rd
April 2016. This was brought to the notice of this Court when the appeal
was listed for final hearing on 11th January 2018. Since none appeared for
the Appellant on that date, the appeal was disposed of as having abated.

4. Subsequently, the Appellant‟s son and legal representative (LR) Krishan
Kumar Sah filed an application seeking restoration of the appeal. In this
application (Crl. M. A. No. 2726 of 2018) it was stated that as a result of his
conviction by the trial Court, the Appellant was removed from service at the
Engineers India Ltd. (EIL) where he was working at the relevant time. It was
further stated that the Appellant had four daughters and two sons including
the Applicant. The Appellants‟ wife was stated to be an old lady who was
mentally disturbed. It was averred that if the appeal were to be allowed then
the family would have the benefit of the emoluments and pension that would
have accrued to the Appellant.

5. By its order dated 19th February 2018, the Court allowed the above
application, brought on record by the LR of the deceased Appellant and
restored the appeal to file. The appeal was then set down for final hearing.

CRL.A.434/2002 Page 2 of 21

The incident

6. The criminal law process was set in motion when DD No.12A was
recorded at 1.20 pm on 7th April 1993 pursuant to a wireless message
received at PS Dabri from one Rattan Singh that a lady had died on account
of burn injuries near the Masjid at Sagarpur. Sub-inspector (SI) Abdul
Razak (PW-5) along with Constable (Ct.) Gajpal reached the spot only to be
informed that the victim had already been removed to the Safdarjung
Hospital, New Delhi by her husband.

7. The MLC of the deceased (Ex.PW-2/A) drawn up at the Safdarjung
Hospital Burns Ward reveals that the deceased was brought there at 2:15 pm
on 7th April 1993 by her husband Ramji Shah (PW-7) who informed the
doctor at the burns ward, Dr. R.K. Srivastava (PW-2), that she had been
raped by her brother-in-law, i.e. the Appellant herein, who then doused her
in kerosene and set her afire. The doctor noted that there were 100% burn
injuries all over the body. The vaginal swabs were then taken, sealed, and
handed over to the Constable on duty. An endorsement to this effect was
made on the MLC.

Recording of the dying declaration

8. According to the prosecution, PW-5 made an application (Ex.PW-5/B) to
PW-2 for recording the dying declaration of the victim in case she was fit to
give a statement. On the said application, PW-2 purportedly endorsed
“patient is fit to give her statement” and signed it with the date and time as
7th April 1993 and 2:35 pm respectively.

9. According to the prosecution, on the basis of the above certification by

CRL.A.434/2002 Page 3 of 21
PW-2, PW-5 proceeded to record the purported dying declaration of the
deceased. In the said dying declaration the deceased stated that she was
residing at her residence at West Sagarpur on rent for the past 6-7 years with
her husband. She was undertaking tasks as a domestic helper. Her husband,
Ramji Shah (PW-7) was working with the Railway Mail Services („RMS‟).
That day i.e. 7th April 1993, he was on night duty and was sleeping at home
during the day. She stated that at around 12:15 pm, her nandoi (the
Appellant herein), who lived in the neighbourhood, and who was working
with EIL came to her house and stated that his son was unwell and that she
should come and take a look. She then went over to the Appellant‟s house
but found that the Appellant‟s son was not present. The Appellant then
bolted the entrance door from inside, pushed her on the cot and raped her.
When she tried to scream in protest, he closed her mouth with her odhni.
Thereafter, when she tried to get up, he took out a kerosene oil can from
beneath the bed, poured the kerosene on her, set her on fire and then opened
the door and ran away. The neighbours and her husband on hearing her
screams came there. Her husband then brought her to the hospital.

10. The left toe impression of the deceased was taken on the dying
declaration. It bore the endorsement of PW-5 but not of PW-2. On the basis
of the above dying declaration, a rukka was drawn up and an FIR registered.

Investigation

11. Thereafter, PW-5 returned to the place of occurrence and prepared a
rough site plan (Ex.PW-5/D). It must be noted at this stage that there does
not appear to be any scaled site plan prepared in the matter. There are five

CRL.A.434/2002 Page 4 of 21
alphabets indicated in the rough site plan. „A‟ was the single room of the
Appellant which was shown to have a double bed, a main gate and a
window, and a gate in the rear side of the room indicated as B gate. „B‟ to
„E‟ were rooms given on rent but it is not indicated if anyone was occupying
them. The rough site plan does not enable the Court to appreciate whether
PW-5, when he went to the spot, found the B gate of the room locked from
inside or not.

12. As far as the visit to the spot is concerned, PW-5 took into possession
the burnt clothes, the plastic chappals, and a plastic can containing some
kerosene oil (Ex.PW-5/E). It appears that a crime team was also called to the
spot. The crime team report (Ex.PW-5/DC) was prepared at around 6:30 pm.
The articles found included a burnt cloth and a can of kerosene oil (white).
The in-charge of the Crime Team one Gopal Singh (not examined) noted as
under:

“(1) I inspected the S.O.C. and found that half of the cot is
brunt and parts of bedding were also burnt. Water is
spread all over. Neighbour says she was alone when this
incident occurred.

(2) Take the statement of the husband and of children and
neighbours.

(3) Take the statement of the victim if she is still alive.

(4) Inform the parents of the victim.”

13. It appears that the Appellant was arrested on 7th April 1993 although it is
not clear where he was arrested from. According to the Appellant, he was
arrested from his office at EIL where he was on duty.

CRL.A.434/2002 Page 5 of 21

Post mortem examination

14. The post-mortem of the deceased was conducted by Dr. Chander Kant
(PW-6). He noticed that there were 100% superficial and deep ante-mortem
burns covering the whole body. He did not find any smell of kerosene oil on
the scalp and hair. The skin was peeled off at places. There appeared to be a
ligature injury on the neck. The other injuries noted were as under:

“(3) Contusion and variable size laceration two in number
under surface of upper lip right side in the mucosa size
right to left 1cm.x 0.8cm. and 0.9cm. x 0.5cm.

(4) Multiple linear abrasions six in numbers on pubic region
superior (upper aspect) in an area of 3 cm. x 1.8cms
(5) Two linear abrasions on left breast below left nipple in an
area of 2.1cms. x 0.9 cm.”

15. An examination of the victim‟s private parts revealed that “old healed
torn hymen orifice was wide and easily admitting vaginal scope, vaginal
rugucity reduced in sharpness”.

16. The cause of death was opined as shock as a result of 100% superficial
and deep, first, second, third and fourth degrees (Dupuytren‟s Classification)
or type I, II (Wilson‟s Classifications) burn injuries which were ante-mortem
and caused by flames. Ante-mortem ligature injury No.2 was stated to have
been caused by some soft cloth and injury No.3 by application of blunt force
and injury Nos. 4 and 5 by sharp edge weapons like nails.

17. Three vaginal swabs were sealed in a glass bottle. In his cross-
examination, PW-6 stated that there was no cloth around the neck at the time
of the post-mortem. He further stated: “IO was specifically requested to seal
the cloth removed from the neck and mouth of deceased in Burn and Plastic

CRL.A.434/2002 Page 6 of 21
Surgery unit”.

18. It must be noted at this stage that the vaginal swab was sent to the
Forensic Sciences Laboratory („FSL‟) but no semen stain was detected on
the said swab.

19. At the end of the investigation, a charge sheet was filed against the
Appellant and charges framed by the trial Court by an order dated
7th January 1997 for the offences under
Sections 376 and 302 IPC.

20. Seven witnesses were examined by the prosecution. The case of the
prosecution rested essentially on the dying declaration of the deceased
purportedly made to the IO of the case (PW-5). The trial Court has based the
conviction of the Appellant on the aforementioned dying declaration.

Law relating to recording of dying declarations

21. In the present case there are two aspects to the dying declaration. The
first is the actual recording of the dying declaration, which raises the
question whether the deceased was fit to make the statement. The further
issue is whether the IO who recorded the statement took the necessary
permission and precaution and whether it was under the supervision of a
medical practitioner. In this regard the following observations of the
Constitution Bench of the Supreme Court in
Laxman v. State of
Maharashtra (2002) 6 SCC 710 are relevant:

“Normally, therefore, 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 eyewitnesses state that

CRL.A.434/2002 Page 7 of 21
the deceased was in a fit and conscious state to make the declaration,
the medical opinion will not prevail, nor can it be said that since there
is no certification of the doctor as to the fitness of the mind of the
declarant, the dying declaration is not acceptable. A dying declaration
can be oral or in writing and in any adequate method of
communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. In most cases,
however, such statements are made orally before death ensues and is
reduced to writing by someone like a magistrate or a doctor or a
police officer. When it is recorded, no oath is necessary nor is the
presence of a magistrate is absolutely necessary, although to assure
authenticity it is usual to call a magistrate, if available for recording
the statement of a man about to die. There is no requirement of law
that a dying declaration must necessarily be made to a magistrate and
when such statement is recorded by a magistrate there is no specified
statutory form for such recording. Consequently, what evidential
value or weight has to be attached to such statement necessarily
depends on the facts and circumstances of each particular case. What
is essentially required is that the person who records a dying
declaration must be satisfied that the deceased was in a fit state of
mind. Where it is proved by the testimony of the magistrate that the
declarant was fit to make the statement even without examination by
the doctor the declaration can be acted upon provided the court
ultimately holds the same to be voluntary and truthful. A certification
by the doctor is essentially a rule of caution and therefore the
voluntary and truthful nature of the declaration can be established
otherwise.”

22. In the above decision the Supreme Court reaffirmed its earlier decision
in
Koli Chunilal Savji v. State of Gujarat 1999(9) SCC 562 where it was
held that the ultimate test is whether the dying declaration can be held to be
a truthful one and voluntarily given. It was further held that before recording
the declaration the officer concerned must find that the declarant was in a fit
condition to make the statement in question.

CRL.A.434/2002 Page 8 of 21

Evidence of PW-7

23. In light of the above legal position, the Court proceeds to examine if in
the present case there is any eye witness evidence as regards the fitness of
the victim to make a statement. It is significant that the husband of the
deceased, Ramji Shah (PW-7), did not support the prosecution. According to
him, on 7th April 1993, he was present at home and the deceased was sick.
He had quarrelled with her since she was not taking medicines while he was
insisting that she should. He then gave her two or three slaps. He then stated
that at around 12 noon, he came to know that his wife had died due to
burning at the house of the Appellant, who was his brother-in-law. The
house of the Appellant was about 3-4 houses away from the house of the
deceased. PW-7 then stated as under:

“I went the house of the accused after there was a noise. The door
of the house of the accused was closed from inside. I saw that
people were pouring water inside the room through a ventilator.
The door was broken open. I took my wife to the hospital in
police ambulance. My wife died in the hospital after 1 ½ hour.”

24. At this stage the Additional PP got PW-7 declared hostile and proceeded
to cross examine him. He was confronted with his previous statement under
Section 161 Cr.P.C where he had stated that the Appellant had come to the
house of the deceased at 12:15 pm, told the deceased that his son Krishna
(who would later be examined as DW-5) was not well and she should come
to look him up. PW-7 stated that it was incorrect that he did not tell the
police about breaking open the door and pouring water through the
ventilator.

25. In his cross-examination by the counsel for the accused, PW-7 again

CRL.A.434/2002 Page 9 of 21
maintained as under:

“When I reached the house of accused, I found that people were
trying to break open the main gate of the house of accused. It is
correct that there was another door of the room in which the
accused was residing. It is also correct that the door of the room
of the house was also bolted from inside. There was no way to
come out of the room except the door which was bolted from
inside. The ventilator was of a very small size and one could not
come out of it. The size of ventilator was 1 feet x 1 feet. Many
people had collected there. My wife was already burnt when we
entered the room after breaking open the door. I did not see any
can of kerosene oil inside the room. I did not see chappals of my
wife there – my wife was gasping for breath when she was taken
out from the room. My wife was not able to speak. It is correct
that the thumb of left foot of my wife was totally burnt. I
remained with my wife throughout from the time she was taken
from the house to the hospital and till her death and during this
period police did not record her statement because she was not
able to speak, or make a statement. My wife was not able to
speak even then the doctor prepared the MLC at that time of
admission. There was no Odhni (cover) on my wife when she
was taken from the house to hospital. I did not smell any
kerosene oil from the body of my wife when she was taken to the
hospital. It is correct that on that day the accused was present in
his office. I do not suspect the accused to be involved in the
death of my wife.”

26. In other words, PW-7 gave the Appellant a clean chit and also stated that
the deceased was not in a position to even speak, much less make a
statement.

Evidence of PW-2

27. Dr. R.K. Srivastava (PW-2), who attended to the deceased as soon as she
was brought to the Safdarjung Hospital, maintained that her history of being
raped by her brother-in-law was given by the patient herself. In his cross-

CRL.A.434/2002 Page 10 of 21

examination, he was specifically asked about the IO having made an
application to him for recording the dying declaration of the deceased. He
replied “the IO had not given any application to me for recording the dying
declaration of the patient”.

28. For some reason, the application (Ex.PW-5/B) which contained an
endorsement of PW-2 about the victim’s fitness to make a statement, was
produced by the IO and not put to PW-2. This was a lapse on the part of the
Additional PP. Therefore, on this very important aspect of the IO having
applied to PW-2 for permission to record the statement of the deceased
subject to PW-2 certifying her fitness to make a statement, there is a major
contradiction in the evidence of PWs 2 and 5.

Evidence of PW-5

29. The IO (PW-5) was also confronted on this aspect in his cross-
examination. He maintained that PW-2 had certified the deceased to be fit to
make a statement at around 2:35 pm and that he recorded her statement
„immediately thereafter‟. He then stated as under:

“The doctor was present at the time I recorded the statement
Ex.PW-5/A. I did not obtain the signatures of the doctor on
Ex.PW-5/A in token of the statement having been recorded in his
presence. Vol. In fact, I requested the doctor to put his signatures
on the same, but he refused to do so, without permission from a
senior doctor and I mentioned this fact in the case diary. It is
correct that this fact is not mentioned in end or semen Ex.PW-
5/C.”

30. The question of Dr. R.K. Srivastava seeking the permission of a senior
doctor in order to make an endorsement did not arise because Dr. R.K.

CRL.A.434/2002 Page 11 of 21

Srivastava was himself the Head of the Burns Ward of Safdarjung Hospital.
If indeed he had made an endorsement on the application (Ex.PW-5/B) that
the deceased was fit to make a statement, there was no reason why he would
not make an endorsement again thereon after she made such statement. This,
therefore, raise serious doubts as to whether:

(i) There was in fact any application made by PW-5 to PW-2;

(ii) Whether PW-2 made an endorsement thereon about the deceased
being fit to make a statement;

(iii) Whether in the presence of PW-2 the dying declaration of the
deceased was recorded by PW-5; and

(iv) Whether PW-2, despite being present, declined to sign on the said
dying declaration.

31. Therefore, the manner of recording of the dying declaration is itself
shrouded in grave doubts. The depositions of PWs 2 and 5 do not help the
prosecution one bit in this regard. This important aspect of the matter has
not been taken note of by the trial Court and it has, in the impugned
judgment, proceeded to rely on the dying declaration to convict the
Appellant for the aforementioned offences.

The Appellant’s alibi

32. At this stage, it is necessary to refer to the defence of the Appellant when
the incriminating circumstances were put to him in his statement under
Section 313 Cr PC. The Appellant maintained that he did not know anything
about the quarrel that took place between PW-7 and the deceased on 7th
April 1993. According to the Appellant, he remained in his office, i.e. the

CRL.A.434/2002 Page 12 of 21
EIL at Bhikaji Cama Place. Only later he came to know that the deceased
had come to his residence in his absence. When asked whether he had
anything else to say, the Appellant stated as under:

“On the alleged date and time I was present in my office i.e.
Engineers India Limited, Bhikaji Cama Place, New Delhi. The
deceased was my salyaz, and I came to know later on that in my
absence she came to my residence after having quarrel with her
husband pertaining to consuming of medicine and she committed
suicide by bolting the main gate as well as the gate of room from
inside and this information was also stated by Sh. Ramji Shah
(PW-7) before the Hon‟ble Court.”

33. The Appellant did not stop with taking the above defence. He also
examined as many as five defence witnesses. As far as the plea of alibi is
concerned, the Appellant examined Mr. U.G. Shetty (DW-3) who was the
senior officer of EIL, New Delhi. DW-3 brought to the Court the computer
printout of the attendance sheet of EIL for the period 1st April 1993 to 15th
April 1993. In terms thereof on 7th April 1993, the Appellant was on duty at
EIL from 8:26 am till 5:04 pm.

34. In his cross examination by the learned Additional PP, DW-3 stated that
he had no personal knowledge as to whether the Appellant left the office
after marking his attendance at 8:26 am. Nevertheless, as far as the
Appellant is concerned, he did place on record evidence to show that he was
present at his office at EIL at Bhikaji Cama Place between 8:26 am and 5:04
pm. This coupled with the fact that there is no clarity about the place where
the Appellant was arrested, and that too on 7th April 1993 itself, poses a
serious problem for the prosecution. In other words, the prosecution has not
been able to conclusively prove the presence of the Appellant at the scene of

CRL.A.434/2002 Page 13 of 21
crime at the relevant time, i.e. between 12 noon and 1 pm.

The other defence evidence

35. The Appellant also examined the neighbours as defence witnesses. Aisa
Begum (DW-1) was one such neighbour. In her deposition, she stated that it
was morning time and her children were getting ready to go to school when
they raised an alarm about the fire in the house of the Appellant. She stated:

“I went to that side and saw smoke coming out of the house of
accused and both the doors were closed from inside along with
windows. There was no way to go inside the house. The neighbours
gathered there. The house of Kapoor Chand was under construction,
people brought the pipe for throwing water, they broke the window
and threw the water. Police came in my presence. I had not made any
statement to the police. The door was broken by children and the
neighbours”.

36. The above statement has to be seen in the context of the observation
made by the crime team in its report to the effect that at the scene of crime
“water is spread all over”. The crime team report also noted that the
neighbours said “she was alone when the incident occurred”. If the
neighbours were already speaking to the police team when it arrived at the
spot, it is a mystery why the IO did not record the statement of such
neighbour. In fact, DW-1 should have been spoken to by the IO. Be that as it
may, although DW-1 was subjected to cross examination by the learned
Addl PP, there was nothing to discredit her deposition. She maintained that
she had not tried to extinguish the fire but “water was thrown by the
neighbours”. Importantly, her statement that she found that the doors of the
room where the deceased was found in a burnt condition were “closed from
inside along with windows” was not contradicted in her cross examination.

CRL.A.434/2002 Page 14 of 21

37. As already noted hereinbefore, the rough site plan also does not help the
Court to appreciate whether the door was found opened or had been broken
into by the neighbours in order to retrieve the deceased from inside the
room. This contradicts the dying declaration of the deceased, where she
states after committing the rape and setting her on fire by pouring kerosene
and lighting a matchstick, the Appellant un-bolted the door and ran away.

38. Another neighbour, Kamla Devi, was examined as DW-2. She also was
clear that both the gates were bolted from inside at that time. The two gates
she refers to are the ones shown in the rough site plan. Again, the cross
examination of this witness by the learned APP could not shake the above
assertion that both gates were bolted from inside. This witness also states
that water was thrown into the house in order to extinguish the fire.

39. Krishna Singh, the son of the Appellant, was examined as DW-5. He
confirmed that the deceased had come to their house at 12:00 noon, dressed
his hair and sent him to school. He stated that, at that time, his father was not
present.

The dying declaration in the present case

40. Although the trial Court has based the conviction of the Appellant on the
dying declaration, this Court is unable to come to the conclusion that in the
present case the dying declaration can be believed. On the aspect of basing
the conviction of the accused on the dying declaration, the legal position
requires to be recapitulated.

CRL.A.434/2002 Page 15 of 21

41. In Paniben v. State of Gujarat (1992) 2 SCC 474 the Supreme Court
summarized the legal principles governing dying declaration as under:

“(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)

(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

CRL.A.434/2002 Page 16 of 21
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)

42. Subsequently, in Sham Shankar Kankaria v. State of Maharashtra
(2006) 13 SCC 165, the Supreme 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 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-

CRL.A.434/2002 Page 17 of 21

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.”

43. In Puran Chand v. State of Haryana (2010) 6 SCC 566, the Supreme
Court reiterated the above principles.

44. In the present case, since the dying declaration is not free from doubt as
to the manner of its recording and its contents, this Court has examined the
entire trial Court record to seek corroboration of the important aspects of the
dying declaration. The Court finds that far from corroborating the dying
declaration, the materials on record contradict it on the material particulars.
This is apart from the fact that there are serious doubts about the manner of
recording the dying declaration and whether the deceased was at all in a
state fit to make a dying declaration. This has already been adverted to.

45. To briefly summarise the uncorroborated portions of the dying
declaration, it should be noted first that in her dying declaration, the
deceased is supposed to have stated that the Appellant bolted the door of the
room from inside and then threw her on a cot and committed rape on her.
The vaginal swabs were taken at the earliest point in time as spoken by PW-

CRL.A.434/2002 Page 18 of 21

2. The vaginal swabs were sent to the FSL. As already noted hereinbefore,
the FSL report states that semen could not be detected on the vaginal swabs.
In other words, the forensic evidence has failed to corroborate the important
aspect of the dying declaration, viz., the commission of rape on the deceased
by the Appellant prior to her being burnt alive.

46. The second aspect is about the burning of the deceased by the accused
by pouring kerosene oil on her and then setting her on fire. Although the
crime team found a can of kerosene oil, which was seized, when the post-
mortem of the deceased was conducted, PW-6 found no smell of kerosene
on the scalp hair.

47. Thirdly, the most serious contradiction is about the unbolting of the door
of the room by the accused before escaping. Although this is spoken to by
the deceased in her dying declaration, there appears to be overwhelming
evidence to show that the door remained bolted from inside when the
deceased was burning inside the room. Apart from PW-7, we have the
evidence of DW-1 and DW-2, who maintained that both the doors of the
room were bolted from inside. The prosecution has been unable to explain
how it was possible for the doors to remain bolted from inside if the
Appellant had indeed escaped from the room after unbolting it soon after
setting the deceased on fire. DW-2 goes to the extent of saying that both the
doors, i.e. the „B‟ gate and the main door were bolted from inside. The
burden was on the prosecution to explain how the Appellant could have
possibly escaped from that room after committing the crime. It has failed to
do so. This is a serious lapse in the investigation. The trial Court too failed

CRL.A.434/2002 Page 19 of 21
to discuss the defence evidence in light of the rough site plan.

48. Lastly, although in her dying declaration, the deceased purportedly
referred to her mouth being stuffed with the odhini she was wearing in order
to prevent her from screaming, no such odhini appears to have been found
on her body or seized from the place of crime.

Conclusion

49. The Court is not satisfied that the dying declaration of the deceased was
correctly recorded. According to PW-7 and even PW-2 she had suffered
100% burns all over her body. It was doubtful that even her left toe could
have been used to sign the dying declaration. PW-2 states that no application
was made to him for recording her statement, thereby contradicting PW-5.
The substantive portions of the dying declaration have not been corroborated
by the other evidence that has been gathered by the prosecution. As already
mentioned, the forensic evidence in fact negates the charge of rape having
been committed on the deceased shortly prior to her death.

50. In a case of this nature, the prosecution had to make an effort to rule out
the possibility that the deceased may have committed suicide. This is
particularly because of the neighbour pointing out that the room in which
she was found in a burnt condition was locked from inside. The crime team
noticed no signs of any forcible exit by anyone from that room. The fact that
PW-7 stated that soon prior to the incident he and the deceased had a quarrel
in which he slapped her two or three times adds another dimension, which
was not fully investigated by the IO. The failure of the prosecution to record

CRL.A.434/2002 Page 20 of 21
the statements of the neighbours and produce them as prosecution witnesses
has further considerably weakened the case of the prosecution.

51. For all of the aforementioned reasons, the Court is of the view that it is
not safe to base the conviction of the Appellant on the dying declaration of
the deceased. The Appellant is entitled to the benefit of doubt. He is,
accordingly, acquitted of the offences under
Sections 376 and 302 IPC. The
impugned judgment dated 2nd March 2002 of the trial Court and the order on
sentence dated 10th April 2002 are hereby set aside.

52. As noted earlier, the Appellant died during the pendency of the present
appeal. However, it would be open to his family members/LRs to produce
the certified copy of this judgment before EIL to persuade it to reverse its
decision to dismiss him from service on account of his conviction which
now stands reversed, and to release his emoluments and other service dues
to them in accordance with law.

53. The appeal is allowed in the above terms. The trial Court record be
returned with a certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

APRIL 04, 2018/sr

CRL.A.434/2002 Page 21 of 21

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Rules of Group, If You agree then Message us on Above Number.

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh