As per the case facts, the appellant was convicted under Section 304-B of the Indian Penal Code, related to dowry death. The High Court reduced his sentence but upheld the ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1290 OF 2010
MAKHAN SINGH ...APPELLANT(S)
VERSUS
THE STATE OF HARYANA ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. The appellantMakhan Singh has approached this
Court being aggrieved by the judgment dated 15
th
May 2009
passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No.1189SB of 2002 vide
which the High Court, though reduced the sentence awarded
from 10 years to 7 years, but concurred with the judgment
and order of conviction dated 13
th
/16
th
July 2002 recorded
by the trial court in Sessions Case No. 55 of 1998 for the
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offence punishable under Section 304B of the Indian Penal
Code, 1860 (for short ‘IPC’).
2. Deceased Manjit Kaur was married to the appellant
Makhan Singh on 28
th
January 1996. It is the prosecution
case that the appellant used to demand dowry from the
parents of the deceased Manjit Kaur. It is further the
prosecution case that, succumbing to the demands of the
appellant, an amount of Rs.30,000/ was paid to him by the
parents of the deceased Manjit Kaur. The appellant again
demanded an amount of Rs.2 lakhs. According to the
prosecution, the appellant had utilized the said amount for
going to Moscow. However, after coming back from Moscow
in March 1998, he again tortured deceased Manjit Kaur and
asked her to bring Rs.6 lakhs as he wanted to go to USA.
According to the prosecution, deceased Manjit Kaur, fed up
with the torture, consumed poisonous substance on 21
st
April 1998. Deceased Manjit Kaur was taken by the
appellant initially to the Community Health Centre, Ladwa
and thereafter, she was referred to L.N.J.P. Hospital,
Kurukshetra. From L.N.J.P. Hospital, deceased Manjit Kaur
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was taken to a private Nursing Home of Dr. H.K. Sobti (PW1)
at Kurukshetra, wherein she was admitted.
3. Ms. Vani Gopal Sharma, Judicial Magistrate, First
Class, Kurukshetra (DW1) recorded the dying declaration of
the deceased Manjit Kaur (Ex. DO/C), wherein the deceased
stated that she was suffering from fever and since many
medicines were lying on the Angithi, by mistake, she took
medicine of green colour. It appears that thereafter, Kamlesh
Kaur (PW11) and Bhan Singh (P)W13), parents of deceased
Manjit Kaur reached the hospital on the next morning. On
24
th
April 1998, they made a request for recording the
statement of deceased Manjit Kaur under Section 164 of the
Cr.P.C. On such a request being made, Ms. Kanchan
Nariala, Judical Magistrate, First Class, Kurukshetra (PW6)
recorded the statement of deceased Manjit Kaur (Ex. PE) on
24
th
April 1998, wherein she stated that her husband had
demanded Rs. 6 lakhs to go to USA. According to the said
dying declaration (Ex. PE), the appellant as well as his
parents administered the said poisonous substance to
deceased Manjit Kaur. On the basis of the second dying
3
declaration (Ex. PE), an FIR was registered on 25
th
April
1998. After the said dying declaration (Ex. PE) was recorded,
SubInspector Gurdwaya Ram (PW14), Investigating Officer
(for short ‘IO’) recorded her oral statement (Ex. PV) on 28
th
April 1998. On 28
th
April 1998, deceased Manjit Kaur was
referred to PGIMS, Chandigarh, where she expired on 9
th
May
1998.
4. Upon completion of investigation, though on
verification by K.K. Rao, DSP (DW2) who found the accused
innocent, SubInspector Gurdwaya Ram (PW14), IO was of
the opinion that there were sufficient grounds for trial and
therefore, he filed the chargesheet. Charges came to be
framed for the offence punishable under Section 304B of the
IPC. At the conclusion of the trial, the trial court convicted
the appellant under Section 304B of the IPC. However, the
trial court found that the other two accused, i.e., the parents
of the appellant were entitled to get benefit of doubt and
acquitted them. The appellant was sentenced to suffer
rigorous imprisonment for a period of 10 years. In an appeal
preferred by the appellant before the High Court, though the
4
High Court confirmed the conviction under Section 304B of
the IPC, it reduced the sentence awarded to 7 years. Being
aggrieved thereby, the present appeal.
5. We have heard Shri R.K. Rathore, learned counsel
appearing on behalf of the appellant and Shri Piyush Hans,
learned counsel appearing on behalf of the State.
6. Shri Rathore submitted that the trial court and the
Appellate Court have failed to take into consideration that in
the very first dying declaration (Ex. DO/C), deceased Manjit
Kaur had stated that she had consumed the medicine by
mistake. He therefore submitted that the death was
accidental. He further submitted that the second dying
declaration (Ex. PE), which was recorded after 3 days, had
been recorded after the parents of deceased Manjit Kaur
instigated her to implicate the appellant. He submitted that
in case of conflicting dying declarations, the accused is
entitled to get benefit of doubt. He therefore submitted that
the order of conviction deserves to be set aside.
7. Shri Hans vehemently submitted that each of the
dying declarations has to be appreciated independently. He
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submitted that the courts below have rightly found that the
first dying declaration (Ex. DO/C) was given by the deceased
Manjit Kaur under the influence of her husband, whereas the
second dying declaration (Ex. PE) was given by her
independently out of her free will. He further submitted that
in view of the concurrent findings of fact, this Court should
not interfere. Shri Hans has relied on the following
authorities in support of his submission:
Harjit Kaur v. State of Punjab
1
, Sayarabano v. State of
Maharashtra
2
, Sher Singh v. State of Punjab
3
,
Munnawar v. State of U.P.
4
, Lakhan v. State of M.P.
5
,
Shudhakar v. State of M.P.
6
, Raju Devade v. State of
Maharashtra
7
, Kashmira Devi v. State of Uttarakhand
8
and State of U.P. v. Veerpal
9
.
8. The law with regard to dying declaration has been
summarized by this Court in the case of Lakhan (supra),
1 (1999) 6 SCC 545
2 (2007) 12 SCC 562
3 (2008) 4 SCC 265
4 (2010) 5 SCC 451
5 (2010) 8 SCC 514
6 (2012) 7 SCC 569
7 (2016) 11 SCC 673
8 (2020) 11 SCC 343
9 (2022) 4 SCC 741
6
wherein the Court considered various oral judgments on the
issue and observed thus:
“21. In view of the above, the law on the issue of
dying declaration can be summarised to the effect
that in case the court comes to the conclusion that
the dying declaration is true and reliable, has been
recorded by a person at a time when the deceased
was fit physically and mentally to make the
declaration and it has not been made under any
tutoring/duress/prompting; it can be the sole basis
for recording conviction. In such an eventuality no
corroboration is required. In case there are multiple
dying declarations and there are inconsistencies
between them, generally, the dying declaration
recorded by the higher officer like a Magistrate can
be relied upon, provided that there is no
circumstance giving rise to any suspicion about its
truthfulness. In case there are circumstances
wherein the declaration had been made, not
voluntarily and even otherwise, it is not supported
by the other evidence, the court has to scrutinise
the facts of an individual case very carefully and
take a decision as to which of the declarations is
worth reliance.”
9. It could thus be seen that the Court is required to
examine as to whether the dying declaration is true and
reliable; as to whether it has been recorded by a person at a
time when the deceased was fit physically and mentally to
make the declaration; as to whether it has been made under
any tutoring/duress/prompting. The dying declaration can
be the sole basis for recording conviction and if it is found
7
reliable and trustworthy, no corroboration is required. In
case there are multiple dying declarations and there are
inconsistencies between them, the dying declaration recorded
by the higher officer like a Magistrate can be relied upon.
However, this is with the condition that there is no
circumstance giving rise to any suspicion about its
truthfulness. In case there are circumstances wherein the
declaration has not been found to be made voluntarily and is
not supported by any other evidence, the Court is required to
scrutinize the facts of an individual case very carefully and
take a decision as to which of the declarations is worth
reliance.
10. In the present case, there are two dying declarations.
The first one in point of time is recorded by Ms. Vani Gopal
Sharma (DW1) and the second one is recorded by Ms.
Kanchan Nariala (PW6). In her first dying declaration (Ex.
DO/C), deceased Manjit Kaur has exonerated the appellant
and his family members. In the second dying declaration
(Ex. PE), she has implicated the appellant as well as his
parents. In the first dying declaration (Ex. DO/C), she stated
8
that she was having fever and by mistake, she took another
medicine of green colour. On a specific query being made to
her by Ms. Vani Gopal Sharma (DW1) as to whether she has
suspicion on anyone, she has replied in the negative. The
first dying declaration (Ex. DO/C) is also endorsed by Dr.
Sobti (PW1) stating therein that the patient remained
conscious throughout her statement.
11. In her second dying declaration (Ex. PE), she has
stated that the appellant’s father and mother caught hold of
her and the appellant forcibly administered her the medicine.
12. It is pertinent to note that the prosecution had not
examined Ms. Vani Gopal Sharma (DW1), who had recorded
the first dying declaration (Ex. DO/C) and therefore, the
defence was required to examine her as DW1. A perusal of
her evidence would reveal that on ASI Ranjit Singh making a
request, she went to the hospital of Dr. Sobti (PW1) and
asked her whether Mrs. Manjit Kaur was fit to make a
statement and thereupon, the doctor opined that she was fit
to make the statement. Thereafter, she recorded the
statement of deceased Manjit Kaur. She stated that when
9
she was recording the statement, nobody except Dr. Sobti
(PW1) was present there and everyone else was asked to go
out. She stated that she found that deceased Manjit Kaur
was in sound disposing mind but still she gave her sometime
to relax so that she could compose herself and could give
statement voluntarily. She stated that she was satisfied that
the deceased Manjit Kaur was prepared to make statement
voluntarily. Thereafter, her statement was recorded. After
recording her statement, right thumb impression of deceased
Manjit Kaur was taken. She deposed that deceased Manjit
Kaur remained conscious throughout and she appended a
certificate to that effect. She has also deposed with regard to
the certificate issued by Dr. Sobti (PW1).
13. Ms. Vani Gopal Sharma (DW1) was crossexamined
by Additional Public Prosecutor. In her crossexamination,
she has reiterated that she had satisfied herself that
deceased Manjit Kaur was making statement voluntarily and
only then, she recorded it and even satisfied herself after
recording her statement.
10
14. Ms. Kanchan Nariala (PW6), who recorded the
second dying declaration (Ex. PE), has also stated that she
had satisfied herself that deceased Manjit Kaur was making a
voluntarily statement. Attendants sitting by her side were
asked to leave the premises. She stated that when she was
recording the statement, except deceased Manjit Kaur, none
were present. She has admitted in her crossexamination
that she did not consider obtaining certificate of fitness from
the Medical Officer to the effect that deceased Manjit Kaur
was fit to make a statement. She has admitted that she did
not obtain any opinion from any Medical Officer of L.N.J.P.
Hospital, where she recorded the dying declaration. She has
also admitted that Bhan Singh (PW13) and Kamlesh Kaur
(PW11), father and sister of deceased Manjit Kaur were
present in the hospital.
15. In the present case, we are faced with two dying
declarations, which are totally inconsistent and contradictory
to each other. Both are recorded by Judicial Magistrates. A
difficult question that we have to answer is which one of the
dying declarations is to be believed.
11
16. The first dying declaration (Ex. DO/C) is recorded by
Ms. Vani Gopal Sharma (DW1). A perusal of the said would
reveal that prior to recording the statement of deceased
Manjit Kaur, Dr. Sobti (PW1) had examined as to whether
she was in a fit state of mind and conscious to make the
statement. After certification, Ms. Vani Gopal Sharma
(DW1) got herself satisfied as to whether deceased Manjit
Kaur was voluntarily making the statement or not and
thereafter, recorded her statement. The said dying
declaration (Ex. DO/C) is also endorsed by Dr. Sobti (PW1)
with the remarks that deceased Manjit Kaur was conscious
throughout while making statement. Ms. Vani Gopal Sharma
(DW1) has also deposed that even after making the
statement, she confirmed from the deceased as to whether
the statement was voluntarily made by her.
17. As against this, as far as the second dying
declaration (Ex. PE) which was recorded by another Judicial
Magistrate Ms. Kanchan Nariala (PW6) after 3 days is
concerned, it was recorded without there being examination
by a doctor with regard to the fitness of the deceased Manjit
12
Kaur to make the statement. Though the statement is
recorded in L.N.J.P. Hospital and though doctors were
available, Ms. Kanchan Nariala (PW6) did not find it
necessary to get the medical condition of the deceased
examined from the doctors available in the hospital. It is
further to be noted that Ms. Kanchan Nariala (PW6) herself
has admitted that Bhan Singh (PW13) and Kamlesh Kaur
(PW11), father and sister of deceased Manjit Kaur were
present in the hospital. The possibility of the second dying
declaration (Ex. PE) being given after tutoring by her relatives
cannot therefore be ruled out.
18. Not only that, it is also relevant to refer to the
testimony of K.K. Rao (DW2), who was the Deputy
Superintendent of Police (DSP). He has stated, in his
deposition, thus:
“However, no witness supported the version detailed
Mrs. Manjit Kaur in that statement. According to
my investigation the said statement dated
24.4.1998 was made by Mrs. Manjit after being
tutored by her relatives and it did not contain the
true version of the incident.”
19. It is also relevant to note that the prosecution had
not examined Ms. Vani Gopal Sharma (DW1) and K.K. Rao,
13
DSP (DW2). It therefore creates a serious doubt with regard
to fairness and impartiality of the IO. Apart from that, it is to
be noted that on the basis of very same evidence, the trial
court, by giving benefit of doubt, has acquitted the father and
mother of the appellant. In that view of the matter, conviction
of the appellant on the very same evidence, in our view, was
improper.
20. We therefore find that in the facts and
circumstances of the present case, the first dying declaration
(Ex. DO/C) will have to be considered to be more reliable and
trustworthy as against the second one (Ex. PE). In any case,
the benefit of doubt which has been given to the other
accused by the trial court, ought to have been equally given
to the present appellant when the evidence was totally
identical against all the three accused.
21. Before we part with the judgment, we place on
record our appreciation for the painstaking efforts made by
Shri Piyush Hans, learned counsel appearing on behalf of the
State for supporting the conviction.
22. In the result, we pass the following order:
14
(i)The appeal is allowed;
(ii)The judgment dated 15
th
May 2009 passed by the
High Court of Punjab and Haryana at Chandigarh in
Criminal Appeal No.1189SB of 2002 and the
judgment and order dated 13
th
/16
th
July 2002 passed
by the trial court in Sessions Case No. 55 of 1998 are
quashed and set aside;
(iii)The appellant is acquitted of all the charges charged
with and his bail bonds shall stand discharged.
23. Pending application(s), if any, shall stand disposed of
in the above terms.
…..….......................J.
[B.R. GAVAI]
…….................................................J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
AUGUST 16, 2022.
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