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CASE NO.:

Appeal (crl.) 464 of 1999

PETITIONER:

RONAL KIPRONO RAMKAT

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 31/07/2001

BENCH:

DR. A.S. ANAND C.J & R.C. LAHOTI & SH1VARAJ V. PATIL

JUDGMENT:

JUDGMENT

2001 Supp(1) SCR 65

The Judgment of the Court was delivered by

SHIVARAJ V. PATIL, J. This appeal by special leave, is aggrieved by and

directed against the judgment and order of the High Court of Punjab and

Haryana dated 4.9.1997, upholding the order of conviction and sentence

passed on the appellant by the trial court.

The appellant was tried by the Additional Sessions Judge, Ambala, for the

offences under Section 376 read with Section 511 IPC and for an offence

under Section 302 IPC. The prosecution case, as unfolded during trial is

that at about 1.30 P.M. on 17.11.1993, Betty, the deceased, informed her

friend Caroline (Pw-4) that Ramkat Ronald (the accused), the appellant, who

was Betty's friend, wanted her to see him at his house No. 823, Sector 2,

Panchkula. Accordingly Betty went to the said house. At about 2.30 P.M.,

Caroline informed Elisha Siele (PW-5), Betty's brother that his sister had

been stabbed in house No. 823, Sector 2, Panchkula. She did not inform who

gave that information to her. PW-5 then rushed to the place and found the

appellant and the deceased lying in a pool of blood and that Betty managed

to tell him that the accused had tried to rape her and on her resistance,

he had stabbed her on the neck and head with a kitchen knife. PW-5

alongwith Kennith put Betty in a Maruti Car and rushed her to the

Government hospital, Sector 6, Panchkula. The doctor found Betty in a

serious condition and referred her to the P.G.I. Hospital, Chandigarh,

where she was found to be dead on arrival. ASI Pale Ram (PW-10) reached

P.G.I. Chandigarh and took the report (Exbt.P-E) from the PW-5 at 7.00 P.M.

which formed the basis of formal first information report registered at

7.30 P.M. in the police station, Panchkula for the offences under Section

376 read with Sections 511 and 302 of the IPC. The case was investigated by

Inspector Kanhiya Lal (PW-11) and charge-sheet was filed.

The trial court found the appellant guilty and convicted him for the

offences already mentioned above and passed consequent sentence on him. The

appellant failed before the High Court in the appeal filed by him. Hence,

this appeal.

The learned counsel for the appellant contended that the trial court as

well as the High Court have concurrently and manifestly erred in holding

the appellant guilty. The so-called dying declaration said to have been

made by the deceased could not be accepted as truthful for several reasons.

Admittedly, there are no eyewitnesses to the incident. Beside, material

witnesses also were not examined. We were taken through the evidence in

support of these submissions. The learned counsel for the State made

submissions supporting the impugned judgment and order.

There are no eyewitnesses to the incident. The prosecution, to support its

case mainly relied on the oral dying declaration said to have been made by

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the deceased to PW-5 and the evidence of PWs 4-5. The defence of the

appellant was that the deceased and he were friends and they had love

affair among them. The deceased came to his house on that fateful day. Some

unknown person came and assaulted the deceased and in the process to save

her he was also assaulted and suffered injuries. According to him, Betty

died on the spont itself. PW-5 was not tolerant of the love affair between

him and the deceased and that a false case was foisted against him after

due deliberation and consultation.

We are conscious if dying declaration passes the test of reliability and

truthfulness it can form basis of conviction even without further

corroboration. But in the case on hand, after examining the during

declaration in all its aspects, having due regard to surrounding

circumstances, we find it unreliable as it suffers from number of

infirmities stated hereinafter.

PW-5 was the first informant, who gave report Exh. P-E in which it is

stated that on 17.11.1983 Betty informed PW-4, her friend, that the

appellant wanted to see her (deceased) briefly. The deceased left alone at

about 1.30 P.M. to House No. 823, Sector 2, Panchkula, where the appellant

has been staying. On the contrary both PW-4 and PW-5 in their evidence

stated that the deceased went to the house of the appellant of her own

accord to say goodbye to him. This changes the complexion of the entire

case. PW-5 stated that PW-4 informed him at about 2.30 P.M. on 17.11.1993

that she had received information that the deceased had been stabbed in

house No. 823 but the name of the informant was not given. PW-4 in her

evidence stated that one Petric informed her about the incident. Apart from

this contradiction the said Petric was also not examined. PW-5 stated that

on getting information from PW-4 he along with Kennith went to the house of

the appellant and found the deceased in a naked condition lying in a pool

of blood on the floor in the corridor of the room, which was in the

occupation of the appellant. He himself and Kenith took the deceased in a

nearby Maruti car. The said Kennith has also not been examined. There is

one other disturbing feature. From the perusal of Exh. P-E, the complaint

given by PW-5, it is clear that the last words, that the appellant had also

tried to commit suicide by stabbing himself in the stomach, appears to have

been inserted later, in the space between the lines when compared with the

rest of the document. The High Court also found it so but lightly brushed

aside this infirmity saying "it cannot be concluded as after thought and

added later on as there are similar additions in other parts of the

document as well". It is stated in Exh. P-E that "Betty managed to tell me

that Ramkat tried to rape her but she refused, so Ramkat stripped and

stabbed her with kitchen knife on neck and head". After giving the details

in the last but one paragraph of Exh. P-E it is stated, "She died due to

deep head injuries caused by Ramkat. Ramkat also tried to kill himself

stabbing on the stomach". This portion of the statement appears to be the

assessment of PW-5 and not a part of dying declaration. Ramkat tried to

kill himself by stabbing by knife on the stomach are also additions made in

Ext. P-E as already stated above. In the absence of explanation as to the

serious nature of injuries sustained by the appellant giving rise to

serious doubt as to the very genesis of the incident, the said portion of

the statement appears to have been inserted after deliberation and

consultation. This insertion probabilises the defence version that the

appellant and the deceased were in love. The very fact that the deceased

was totally naked and underclothes of both the deceased and the appellant

were found in the same room probabilises the theory of inter-course by

consent and negatives the story of rape. PW-5 did not tolerate his sister

having sex with Ramkat and that might have lead to an attack on both of

them on that day.

Dr. Deepak Bakshi (PW-8), who examined the appellant, found several serious

incised wounds on him including the one on the right interior superior

iliac spine in the right lumber region. Looking to the seriousness,

location and nature of injuries, in particular, the incised wound in the

lumber region, it could not be said that they could be self-inflicted

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injuries. It is in the evidence of PW-5 that the appellant tried to kill

himself by jumping from the upper floor. The doctor, of course, says that

the possibility of injury Nos. 6 and 7 found on the appellant could not be

ruled out by fall from upper floor. It is difficult to believe how the

appellant with several serious injuries could walk to the upper floor and

jump from there and that apart in the earliest version given in the Exh. P-

E there is no mention about the appellant's jumping from the upper floor.

In view of the injuries found on the deceased and the defence taken by the

appellant that she died on the spot and in the absence of any other

evidence except the statement of PW-5 it is difficult to accept that the

deceased was alive or at any rate she was in a position to make the

statement to PW-5 as sought to be made out. The theory that the appellant

tried to kill himself does not appear to be probable as both PW-4 and PW-5

admitted that the deceased and the appellant knew each other; the deceased

voluntarily went to the house of the appellant to say goodbye, since she

was going back to her country. PW-4 did state before the police that the

appellant and the deceased had love affair, however, she denied this in the

court in her deposition having made such a statement.

In this background it appears improbable that the appellant forcefully

tried to rape the deceased. It appears that both the appellant and the

deceased may have been in a compromising position and were surprised and

attacked by an assailant. Since the injuries found on the appellant could

not be said to be self-inflicted, as already noticed above, his defence,

that he sustained injuries at the hands of unknown person when he tried to

save the deceased, appears to be probable. The trial court expected the

appellant to establish his defence by the same standard that the

prosecution should establish the guilt of an accused beyond reasonable

doubt. It was enough to show that the defence was probable in the given

circumstances. In this case the defence statement is probabilised by the

surrounding circumstances and the evidence brought on record. The so-called

dying declaration does not appear to be in the words of the deceased. It

does not inspire confidence. There was considerable delay in registering

the FIR and the explanation given for the delay is not convincing. The

incident took place between 1.30 to 2.30 P.M. and FIR reaches the

jurisdictional Magistrate at the same place at 10.00 P.M. Further, except

the interested statement of PW-5 there is no other evidence to corroborate

the dying declaration. The material witnesses Petric and Kennith, named

above, who could have thrown light in this regard, were also not examined

for reasons but known to the prosecution.

Having regard to all these infirmities, improbabilities and contradictions

found in the case we are of the view that it is unsafe to act upon the said

dying declaration. In view of what is stated above the impugned judgment

and order does call for interference. Hence the appeal is allowed. The

impugned judgment and order is set aside. The appellant shall be set at

liberty forthwith if not required in any other case.