Very Important Point
The dying decleration in this case is unreliable as it suffers from number of informities, material witnesses are not examined. There are no eye-witnesses to the incident. The accused had serious injuries which could not be self inflicted. F.I.R. was lodged late. There are interpolations. Thus conviction of appellant for offences u/s 376, 511 and 302 IPC cannot be sit aived in law.as defence plea of invcouse was probable in the circumstances of the case.

JUDGMENT

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.

2. 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 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 l PC. The case was investigated by Inspector Kanhiya La1 (PW-11) and charge-sheet was filed.

3. 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.

4. The learned counsel for the appellant contended that the trial court as well as the High

Court have concurrantly 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. Besides, material witnesses also were not examined. We were taken through the evidence in support of these submissions. The learned counsel for State made submissions supporting the impugned judgment and order.

5. 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 the deceased to P.W.- 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 spot itseIf. 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.

6. 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 dying declaration in all its aspects, having due regard to surrounding circumstances, we find it unreliable as it suffers from number of infirmities stated hereinafter.

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

17-11-1993 Betty informed PW-4, her friend, that the appellant wanted to see her (deceased) briefly. The