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2011 Supreme(UK) 564
2012 (1) N.C.C. 149
SUPREME COURT OF INDIA
Hon'ble Mr. Justice P. Sathasivam and Hon'ble Mr. Justice B.S. Chauhan
Criminal Appeal No. 328 of 2004
SURINDER KUMAR – Appellant
Versus
STATE OF HARYANA – Respondent
Decided on : 21.10.2011
Headnote:(A) Dying Declaration — Dying declaration not carried a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased — Also, the dying declaration was not even attested by the doctor — And the dying declaration appeared to be shrouded by suspicious circumstances, contrary to the story of prosecution — Held though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary — It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination — Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected — The dying declaration which suffers from infirmity cannot form the basis of conviction — All these principles fully adhered to by the trial Court and rightly acquitted the accused — And on wrong assumption the High Court interfered with the order of acquittal — Consequently, the conviction and sentence ordered by the High Court, set aside — And the order of acquittal passed by the trial Court restored. (Paras 12, 14, 18)
(B) Appellate Court — Powers of — Interference by — It is settled that a valid and well reasoned judgment of the trial Court is seldom set aside unless there was some perversity or not based on correct law.
(Para 13)
¼v½ e``R;q le; dk c;ku & e`R;q le; ds c;ku ds lkFk dk;Zdkjh n.Mkf/kdkjh dk izek.k i= ;g n'kkZrs gq, fd ;g e`rd }kjk LosPNk ls fn;k x;k c;ku Fkk] layXu ugha Fkk vkSj e`R;q le; ds c;ku dks fpfdRld }kjk Hkh izekf.kr ugha fd;k x;k Fkk vkSj bl izdkj e`R;q le; dk c;ku lansgtud ifjfLFkfr;ksa ls f/kjk gqvk yxrk gS] tks vfHk;kstu dh dgkuh ds foijhr gS & fu.kZ; esa dgk x;k fd ,slk dksbZ uk rks dkuwu dk 'kklu gS ukgh nwjnf'kZrk gS fd e`R;q le; dk c;ku fcuk laiqf"V ds izHkkoh ugha fd;k tk ldrk ijUrq U;k;ky; dks bl ckr ds fy, larq"V gksuk visf{kr gS fd e`R;q le; dk c;ku lR; gS vkSj LoSfPNd gS & ;g U;k;ky; dk drZO; gS fd og e`R;q le; ds c;ku dh tkap lko/kkuh iwoZd djs vkSj mls fo'oLr gks tkuk pkfg, fd c;ku fl[kk i<+k dj fn;s tkus vkSj dYiuk ij vk/kkfjr ugha gS & blh izdkj tc e`rd vpsr Fkk vkSj dksbZ c;ku ugha ns ldrk Fkk] blls lEcfU/kr lk{; vLohdkj dj fn;k x;k Fkk & e`R;q le; dk c;ku tks dfe;ksa ls Hkjk gqvk gks dks nks"kflf) dk vk/kkj ugha cuk;k tk ldrk & ;s lc fl)kUr iw.kZr;k fopkj.k U;k;ky; ls lEcfU/kr gS vkSj mlds }kjk vfHk;qDr dks lgh nks"keqDr fd;k x;k Fkk vkSj =qfViw.kZ /kkj.kk ds vk/kkj ij mPp U;k;ky; }kjk nks"keqfDr ds vkns'k esa gLr{ksi fd;k x;k Fkk & ifj.kker% mPp U;k;ky; ds nks"kflf) vkSj ltk ds vkns'k dks fujLr fd;k x;k vkSj fopkj.k U;k;ky; ds nks"keqfDr ds vkns'k dks cgky fd;k x;kA ¼izLrj 12] 14] 18½
¼c½ vihysV U;k;ky; dh gLr{ksi djus dh 'kfDr;k¡ & ;g LFkkfir gS fd fopkj.k U;k;ky; ds mfpr vkSj Hkyh izdkj vkSfpR;iw.kZ fu.kZ; dks ml le; rd fujLr ugha fd;k tkrk tc rd og vuqfpr uk gks vFkok =qfViw.kZ dkuwu ij vk/kkfjr uk gksA
¼izLrj 13½
Hon'ble P. Sathasivam, J. : This appeal is directed against the final judgment and order dated 19.12.2003 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 241-DBA of 1993 whereby the High Court while reversing the judgment dated 17.12.1992 passed by the Sessions Judge, Ambala allowed the appeal filed by the State and convicted the appellant herein under Section 302 of the Indian Penal Code, 1860 (in short 'IPC') and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year.
2. Brief facts :
(a) According to the prosecution, the accusation against the appellant-accused was that he was on visiting terms to the house of Inder Pal (PW-7), husband of Kamlesh Rani (since deceased), who was working at Mullana and keeping his family at Naraingarh, Distt. Ambala, Haryana. The appellant-accused had been visiting Inder Pal's house and developed illicit relationship with his wife-Kamlesh Rani. Inder Pal (PW-7) suspected the same between them and stopped his wife from meeting the appellant-accused. When the appellant-accused was stopped to visit their house, he had started threatening and harassing Kamlesh Rani for which she made a complaint to her husband. Inder Pal (PW-7) also visited the shop of the appellant-accused and told him not to visit his house and harass his wife.
(b) On the intervening night of 25/26.06.1991, when Inder Pal (PW-7) was away from his house, the appellant-accused went to his house and taunted his wife that she had become a woman of immoral character and called upon her to burn herself to death if she had any sense of shame. Thereafter, the appellant-accused picked up a kerosene can lying in the one room apartment and after pouring the same on the deceased, set her on fire. When the fire developed, the appellant-accused ran away from the room after placing a quilt on the deceased. The neighbours of the deceased took her to the Civil Hospital, Naraingarh where she was examined by Dr. Ashwani Kumar Kashyap, Medical Officer (PW-1). He immediately sent intimation to In-charge Police Station, Naraingarh to the effect that the deceased had been brought to the hospital with 100% burns, and as the condition of the patient was critical she had been referred to P.G.I., Chandigarh. At P.G.I. Chandigarh, she was admitted in the Emergency Ward and Dr. Vipul Sood (PW-9) examined her and reported a case of 95% burn injuries.
(c) On receiving the information, Dalip Rattan (PW-3), Sub-Inspector, P.S. West, Chandigarh applied to the Sub-Divisional Magistrate, Chandigarh for appointment of an Executive Magistrate to record the statement of Kamlesh Rani. Consequently, Shri P.K. Sharma, Tehsildar-cum-Executive Magistrate (PW-2) was deputed to record her statement. On 26.06.1991, PW-2 recorded her statement and a First Information Report was registered being No. 86/1991 at P.S. Naraingarh at 5.30 p.m. under Section 307 IPC. On the intervening night of 28/29.06.1991, Kamlesh Rani succumbed to the injuries and the case was converted into Section 302 IPC. Thereafter, Ram Niws (PW-13), Sub Inspector, P.S. Ambala, arrived at P.G.I., Chandigarh and prepared the inquest report. Post mortem was conducted at General Hospital, Sector 16, Chandigarh by Dr. V.K. Chopra and Dr. Ajay Verma (PW-12) on 29.06.1991 at 4.45 p.m. On the same day, the accused was arrested and the case was committed to the Court of Sessions.
(d) The Sessions Judge, Ambala, after analyzing the evidence and after giving the benefit of doubt, vide judgment dated 17.12.1992 acquitted the appellant-accused.
(e) Challenging the said judgment, the State of Haryana filed an appeal bearing Criminal Appeal No. 241-DBA of 1993 before the Division Bench of the High Court. The High Court, vide judgment dated 19.12.2003, reversed the judgment of the Sessions Judge, Ambala and sentenced the appellant-accused to rigorous impris
