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acquits rape convict Sandeep @ Kala over unreliable
The has acquitted Sandeep @ Kala, who was sentenced to 12 years' rigorous imprisonment by a trial court in Rohtak for rape, and . In a judgment delivered on , a Division Bench of Justice Rajesh Bhardwaj and Justice Deepak Manchanda held that the at the heart of the prosecution case did not inspire confidence and could not safely form the basis of conviction.
The conviction and sentence passed by the on , were set aside. The appellant was also ordered to pay a fine of Rs. 40,000 and Rs. 1 lakh compensation to the victim's family under by the trial court. That order has now been overturned.
A deathbed statement that became the entire case
The case arose from an incident on , when the prosecutrix, wife of Subhash, was admitted to after consuming aluminium phosphide tablets. In her statement to the police, recorded at 9:45 p.m., she alleged that the appellant came to her house while she was alone, grappled with her, beat her and raped her. She said she then consumed two tablets of aluminium phosphide with tea.
The medical ruqa had been sent to the police at 8:35 p.m. The prosecutrix died at 12:05 a.m. on . The report confirmed aluminium phosphide poisoning as the cause of death. Since the prosecutrix died after making the statement, the statement was treated as a under .
The trial court convicted the appellant primarily on the strength of that declaration.
A challenge built on contradictions
, appearing for the appellant, argued that the was recorded by ASI Naresh Kumar, a police officer, without any permission from the SHO and without a proper certification of fitness. The defence highlighted several inconsistencies in the ASI's own account.
The ASI stated that he received the ruqa at 8:35 p.m., reached the hospital at 9:25 p.m., but also claimed he started recording the statement at 8:45 p.m. He admitted in that he did not obtain permission from his incharge for recording the statement. The defence also pointed out that no effort was made to have the statement recorded by a Judicial Magistrate, even though the prosecutrix was alive for some time after the recording.
Medical evidence added to the doubts. Dr. Ashok Chauhan, who conducted the medico-legal examination, deposed that the prosecutrix was unconscious at the time of examination. Dr. Jatin Ahuja deposed that he did not endorse on the statement that the prosecutrix remained fit throughout its recording. There was also a cutting in the time mentioned in the medical record, with the time changed from 9:45 p.m. to 9:25 p.m.
The defence further pointed to the absence of injuries. Dr. Pawan Mittal, who conducted the post-mortem, stated that no injury was found on the body of the prosecutrix, including on both wrists. Dr. Dolly Sharma, who examined the appellant, deposed that there were no injury marks on his person. The husband of the prosecutrix and ASI Naresh Kumar, both material witnesses, were declared hostile and did not support the prosecution case.
The State's response
The State, opposing the appeal, argued that the was recorded in accordance with law after the doctor was consulted. It submitted that broken bangles were recovered from the place of occurrence and that semen was detected from the mattress, which corroborated the prosecutrix's version.
The State also argued that even if some prosecution witnesses were declared hostile, the part of their deposition consistent with the prosecution case could still be relied upon. According to the State, the suffered from no infirmity and the trial court's conclusion was not perverse.
The law on dying declarations
The High Court revisited the settled legal framework on dying declarations. Section 32 of the Indian Evidence Act makes statements of a dead person relevant when they relate to the cause of death or the circumstances of the transaction resulting in death. The principle is derived from the maxim — no one at the point of death is presumed to lie.
The Court noted that a can, by itself, form the if it is voluntary, truthful, reliable and inspires the confidence of the court. Corroboration is not an absolute requirement; it is only a applied when the court doubts the authenticity or reliability of the declaration.
Reliance was placed on Muthu Kutty v. State by Inspector of Police , (2005) 9 SCC 113, Panneerselvam v. State of Tamil Nadu , (2008) 17 SCC 190, Paniben v. State of Gujarat , (1992) 2 SCC 474 and Satish Ambanna Bansode v. State of Maharashtra , (2009) 11 SCC 217. These decisions establish that the court must be satisfied that the deceased was in a and that the statement was not the result of tutoring, prompting or imagination. A declaration that suffers from an infirmity, such as the deceased being , cannot form the basis of conviction.
The High Court stressed that because the accused has no power of in relation to a , the declaration must be of such a nature as to inspire full confidence in its correctness.
Why the declaration failed here
Applying these principles, the High Court found that the was full of and did not inspire confidence. The Court observed that even if the doctor's statement that the prosecutrix was fit were believed, no effort was made by the investigating agency to get her statement recorded by a Judicial Magistrate.
"Even if, the statement of the Doctor is believed that she was in , then it is evident that no efforts whatsoever were made by the Investigating Agency for recording her statement by a Judicial Magistrate. This omission assumes greater significance in the facts of the present case particularly when prosecution itself seeks to base the conviction on ."
The Court also noted that the prosecution story suffered from several unexplained circumstances and inconsistencies. Once the was found untrustworthy, it was not safe to hold the appellant guilty.
"Once, the relied upon is not trustworthy, it would not be safe to hold the appellant guilty."
The Bench reminded that it is a that where two views are possible, or where evidence gives rise to , the .
The verdict
The appeal was allowed and the judgment of conviction and order of sentence dated were set aside. The appellant was acquitted of all charges.
The decision reinforces that dying declarations must be subjected to , particularly when they are recorded by police officers rather than Judicial Magistrates, and when medical evidence creates doubt about the deceased's mental and physical condition at the time of the statement.
