Jagga Singh vs State Of Punjab on 20 September, 1994
Equivalent citations: AIR 1995 SC 135, JT 1994 (6) SC 99, 1994 (4) SCALE 188
Author: B Hansaria
Bench: R Sahai, B Hansaria
B.L. Hansaria, J.
1. The extremely shocking nature of the case as put forward by the prosecution and accepted by the High Court – the same being attempted rape on a young girl which is protested, followed next day by setting of the girl to fire by pouring kerosene on her and on rescue effort being made to bolt the door from outside because of which the burn injuries ultimately lead to her death; and all these by taking undue advantage of the fiduciary capacity as the father of the girls, a tenant of the accused, had left her and his young boy in the care and custody of the latter during former’s temporary absence led us to issue a notice of enhancement in this appeal as the sentence awarded for the conviction under Section 302 of the Indian Penal Code by the High Court, on reversing the order of acquittal passed by the trial court, was imprisonment for life, whereas we felt that, if the prosecution case be true, the sentence to be awarded should be the extreme visualised by Section 302, i.e. the sentence of death. But having heard learned Counsel for the parties we have come to the conclusion that far from enhancing the punishment, the appellant deserves to be acquitted.
2. We have come to the aforesaid conclusion because it is the dying declaration of Nihalo deceased containing the above facts which shocked our conscience. But then from what is being stated later, it would be appear that the dying declaration does not inspire confidence. Not only this, we entertain reasonable doubt if the appellant was the person who had set Nihalo to fire, and it is because of this that we propose to acquit him.
3. As it is the dying declaration which had prevailed with the High Court in convicting the appellant, let it be seen as to why we are disinclined to place reliance on it. The first reservation of ours is that the allegation about attempted rape on Nihalo which finds place in the statement is one about which we entertain serious doubt in as much as even the brother of Nihalo, Ram Pal (PW.9), who has deposed about seeing her sister in burning condition, which was on the night of 4.10.1980, has not deposed about the attempted rape the previous night. We are conscious of the fact that Ram Pal is a child witness an was aged about 12 years when he gave evidence, but then having deposed about the incident of 4th October and having stood cross-examination well, Ram Pal is a witness, who, despite being only 12 years old, is one whose evidence inspires confidence as he gave a good account of himself in the witness – box.
4. The aforesaid is not only the reason of our disbelieving the prosecution story relating to attempted rape on Nihalo in as much as even PW.10, Devi Chand, has not said anything regarding this part of the prosecution case, despite the fact that Nihalo had been brought to his house by his wife a day earlier to the occurrence. Now, if any rape would have been attempted on Nihalo, she would have definitely stand about the same , if not to Devi Chand at least to his wife. But Devi Chand’s wife does not come forward to depose about the same, nor does Devi Chand say anything about it.
5. Our second reservation about the correctness of the statements as recorded in the dying declaration relates to that part in which it has been stated that after Nihalo had been set on fire, which was in the court-yard, she rushed to her room which was bolted from outside by the appellant. PW.10 Devi Chand who is a close neighbour and who had heard an alarm in the house of the appellant, in which Nihalo’s father was a tenant, hearing which he peeped into the house and scaled over the wall, which was about 5 ft. in height, saw Nihalo in a burning condition in the court-yard of the house. This witness (or, for that matter, Ram Pal) does not say anything about Nihalo rushing into the room, which as per the dying declaration, was bolted from the outside by the appellant. Shri Ujjagar Singh, learnt Sr. Advocate appearing for the appellant has also submitted in this regard that if Nihalo would have been set on fire in the court-yard, she would not have rushed inside the room to save herself – this would have been unnatural conduct; she would have instead gone outside the house to attract the attention of others who could have come forward to save he. There is sufficient force in this submission.
6. Another infirmity in the dying declaration is that PW.2, Dr. Surinder Sharma, who had testified about the fitness of Nihalo to make the statement in question, had not been asked by PW.11 ASI Harbans Singh, who recorded the declaration, to make his endorsement in the declaration, though the doctor was present at the time the statement was recorded, as admitted by PW. 11 on his being questioned by the court.
7. The aforesaid infirmities are sufficient to throw doubt on the correctness of the statements which find place in dying declaration. It is a settled law that for a dying declaration to provide the basis for conviction, the same has to be beyond any reproach. As the present dying declaration is not of such a status at all, we are of the view that the conviction of the appellant can not be based on what has been recorded in the dying declaration.
8. If the dying declaration dies, much does not remain to sustain the conviction in-as-much as of the two occurrence witnesses, namely PW.9 Ram Pal and PW.10 Devi Chand, none had seen the appellant setting Nihalo on fire. Of course, Ram Pal did state in his examination-in-chief that Nihalo was crying that Jagga (the appellant) had set her on fire; but he admitted in cross-examination that he had not stated about the same to the police, though his statement had been recorded next morning. This omission has to be regarded as material and the same would greatly water down the statement made by Ram Pal in examination-in-chief. Devi Chand also deposed that when Nihalo was questioned by Lakhi Ram in the hospital in his presence, she told him that Jagga had burnt her. As to this piece of evidence we would say that the best person to depose about the same is Lakhi Ram who has not been examined by the prosecution. The best evidence having not been brought on record, we think that the statement of Devi Chand in this regard has become rather weak and we would not be justified, on his sole evidence, to hold that it was the appellant who had done the mischief.
9. What remains is the statement of Ram Pal that when he got up hearing the cries of her sister, he saw Jagga coming out of their house and running away. Law does not permit us to find Jagga guilty of homicide merely because he was seen by Ram Pal running away from the place of occurrence. Jagga might have taken to his heels for many reasons.
10. The aforesaid is all that is on record which the prosecution relied upon to fasten the guilt on the appellant. According to us, the aforesaid material only points the needle of suspicion, towards the appellant and nothing more. Suspicion, however, is no substitute for proof; and in criminal law the prosecution has to prove the guilt beyond reasonable doubt. The offence alleged in the present case being murder, which visits the perpetrator of the crime with the minimum sentence of imprisonment for life, a Court of law would be justified in demanding full satisfaction before the lethality of Section 302 can be used against anyone. The materials on record in the present case do not have so much of cutting-edge as to penetrate the fortress of innocence built round on accused in our criminal jurisprudence.
11. The aforesaid being the effect and weight of the materials relied on by the prosecution to fasten the guilt on the appellant, we hold that the same fall below the standard required to be achieved by a prosecuting agency to demand conviction. We, therefore, allow the appeal, acquit the appellant and order for his release from custody forthwith if not needed in connection with any other case. The rule of enhancement also stands discharged.