IMPORTANT POINT
If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration.

Headnote:Indian Penal Code, 1860-Section 302 alternatively 304B-Conviction of appellant husband for murder and dowry death by trial Court was set aside in appeal by High Court-State appeal -Case rested entirely on three dying declaration, one oral statement made to uncle when victim was being taken to hospital having sustained burn injuries-Witness deposed about such dying declaration only during trial and had not stated it in his statement under Section 161 Cr.P.C.-High Court was justified in rejecting the dying declaration-Other two dying declarations, one recorded by Executive Magistrate and other recorded by investigating officer on basis of which FIR was recorded were inconsistent with each other-In the dying declaration before Magistrate, only respondent husband was alleged to have sprinkled kerosene and lit match stick and set victim on fire-In other dying declaration, acquitted accused, mother-in-law was alleged to have sprinkled kerosene and respondent husband lit match stick and set her on fire and other two acquitted accused i.e. father-in-law and sister-in-law gave exhortation-No reason to differ with view taken by High Court.
       Held : It will thus, appear that so far the first dying declaration is concerned, there is no allegation against either the mother-in-law, father-in-law or the sister-in-law and the allegation is solely against the respondent, who is said to have sprinkled kerosene oil on her and set her on fire. In the second dying declaration, the allegation is that the mother-in-law sprinkled the kerosene oil and the husband set her on fire with a match stick. While they were doing so, her father-in-law and sister-in-law were exhorting them to do away with her by setting her on fire. These two versions are quite different and not consistent with each other, except that so far as the respondent is concerned, the act of lighting the fire is ascribed to him in both the dying declarations. (Para 10)
       While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and another Vs. State of Mysore, AIR 1965 SC 939, and Khusal Rao Vs. State of Bombay, 1958 SCR 552. The High Court having subjected the dying declarations to close scrutiny, has reached the conclusion that they are not reliable. We entirely agree. (Paras 12 and 13)

JUDGMENT

B.P. Singh, J.-This appeal by special leave is preferred by the State of Punjab against the judgment and order of the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No. 481-DB/95 dated 11th December, 1998 whereby the High Court allowed the appeal of the respondent herein and set aside his conviction under Section 302 and alternatively under Section 304-B IPC and the sentence of life imprisonment passed against him.

2. We have heard counsel for the parties at length and perused the evidence on record.

3. Apart from the appellant, Praveen Kumar, who was the husband of Geeta Rani, deceased, his father and mother as well as his younger sister were put up for trial before the Sessions Judge, Bhatinda. They were charged of offences under Sections 302, 304B and 498A IPC. The learned sessions judge dis-believing the case of the prosecution as against the remaining accused acquitted them of the charges levelled against them, but convicted only the respondent herein under Section 302 IPC as well as under Section 304B IPC and sentenced the respondent to undergo imprisonment for life under Section 302 IPC without passing a sentence under Section 304-B IPC.

4. The deceased Geeta Rani was married to the respondent one year and three months before the occurrence. The occurrence giving rise to this appeal took place on January 4, 1994 at 5.00 A.M. in which it was alleged that Geeta Rani was set on fire by the respondent herein and the other members of the family, who were the co-accused, had acted in concert with the respondent. It is not in dispute that after the deceased had suffered burn injuries, she was removed to the local hospital at Jaitu by the respondent and his father and was being treated there by the attending physician. On the next day, her uncle Kulwant Kumar, PW-5 who had come to visit her, on coming to know about the occurrence rushed to the local hospital and arranged for shifting Geeta Rani from the hospital at Jaitu to the civil hospital at Bhatinda for better treatment. Accordingly, Geeta Rani was shifted to the civil hospital, Bhatinda where she was admitted on 5th January, 1994. It is the case of the prosecution that while being shifted to the civil hospital at Bhatinda, deceased had made a dying declaration to her uncle, Kulwant Kumar, PW-5 disclosing the complicity of the respondent and the aforesaid family members.

5. On information being sent by the hospital authorities, sub-inspector, Kewal Singh, PW-7 came to the hospital and recorded the statement of Geeta Rani. Even before her statement was recorded by the police, the tehsildar, an executive magistrate, PW-4 Harjit Singh, was requested to record the dying declaration of Geeta Rani and he had accordingly recorded the dying declaration of Geeta Rani Ex. PD between 5.30 and 5.55 p.m. Subsequently, at 8.35 p.m. the statement of Geeta Rani was recorded by sub-inspector, Kewal Singh (PW-7) in the hospital, on the basis of which a formal first information report was drawn up. Ultimately, the respondent and the aforesaid 3 members of his family were put up for trial, in which except for the respondent, the others were acquitted. The High Court on appeal has set aside the conviction of the respondent as well.

6. Admittedly, there is no eye witnesses to the occurrence and, therefore, the case rests entirely on the alleged 3 dying declarations. The High Court has rejected the first dying declaration made to Kulwant Kumar, PW-5. The reason given by the High Court is that Kulwant Kumar for the first time stated about the alleged dying declaration made to him at the stage of trial. In his statement under Section 161 Cr.P.C. made in the course of investigation, he had not stated that Geeta Rani had made a dying declaration to him. We find no fault with the reasoning of the High Court so far as rejection of the dying declaration made to PW-5 is concerned.

7. Left with two other dying declarations, the High Court found that these two dying declarations are inc

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2004 Supreme(SC) 1434

IMPORTANT POINTIf there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration.

Cases Referred (2)

IMPORTANT POINT
If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration.