PREM KUMAR GULATIversusSTATE OF HARYANA AND ANOTHER

                    [2014] 13 S.C.R. 717


                  PREM KUMAR GULATI                            A
                             v.
           STATE OF HARYANAANDANOTHER
             (Criminal Appeal No. 1422 of 2009)
                                                               B
                  SEPTEMBER 23, 2014
   [M. Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]
      Penal Code, 1860 - s.302/498A rlw s.34 - Death of
 married woman due to burn injuries caused by pouring of
 kerosene oil and being lit on fire - Dying declaration - C
 Conviction of husband, brother-in-law and wife of brother-in-
 /aw- Challenge to - Held: Conviction of husband upheld as
·prosecution established the case that deceased was
 subjected to death at the instance and instigation of the
 husband - However, no corroborative evidence to come to D
 the conclusion that brother-in-law and his wife participated
 along with the husband for commission of the offence - They
 were living separately- Wife of brother-in-law already expired
 - Benefit of doubt given to brother-in-law; his conviction
 cannot be sustained.                                           E
      Evidence Act, 1872 - s.32 - Dying declaration -
 Evidentiary value and reliability of - Held: Merely because
 dying declaration was not in question-answer form, the
 sanctity attached to a dying declaration cannot be brushed    F
 aside and its reliability cannot be doubted.
      Disposing of the appeals, the Court
      HELD:1. It is well settled that a truthful and reliable
 dying declaration may form the sole basis of conviction
 even though it is not corroborated. However, the G
 reliability of declaration should be subjected to close
 scrutiny and the courts must be satisfied that the
 declaration is truthful. In the instant case, merely·
 because dying declaration was not in question-answer
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                             717
718        SUPREME COURT REPORTS              [2014] 13 S.C.R.


A · form, the sanctity attached to a dying declaration as it
    comes from the mouth of a dying person cannot be
    brushed aside and its reliability cannot be doubted.
    [Paras 13 and 16][725-F-G; 732-8]
           Godhu &Anr. v. State of Rajasthan (1975) 3 SCC
B          241: 1975 (1) SCR 906; K. Ramachandra
           Reddy V. Public Prosecutor (1976) 3 sec 618:
           1976 Suppl. SCR 542; Kali Ram v. State of
           Himachal Pradesh (1973) 2 SCC 808 : 1974
           (1) SCR 722- referred to.
c
           P Mani v. State of Tamil Nadu (2006) 3 SCC
           161: 2006 (2) SCR 486; Mohan Lal & Ors. v.
           State of Haryana (2007) 9 SCC 151: 2007 (2)
            SCR 1030; State of Karnataka v. Shariff (2003)
D          2 sec 473: 2003 (1) SCR 572 - cited.
         2.1. In the case at hand, in the dying declaration,
   the deceased declared that 'M', her husband alongwith
   'P', her brother-in-law and '8', the wife of 'P' have poured
   kerosene oil upon her. Except that, nothing has been
E said in the dying declaration as against the 'P' or his wife-
   '8' as to which accused poured kerosene oil upon her
   and the accused lighted the fire. PW-2, the police officer
   deposed that during the investigation, 'P' and '8' were
   found innocent as they were living separately. There are
F no corroborative evidence to come to the conclusion that
  ·these two participated along with the main accused 'M'
   for the commission of the offence. '8' has already
   expired. Neither in the dying declaration nor in the
   statement of witnesses it has come in light as to what
G act was done by 'P'. The benefit of doubt should be given
   to 'P' and his conviction cannot be sustained.
   [Paras 19, 20][732-G-H; 733-8-F]
           2.2. However, sufficient evidence has come on
      record and the prosecution has established the case that
H
     PREM KUMAR GULATI v. STATE OF HARYANA                     719


it was 'M' at whose instance and instigation she was A
subjected to death by pouring kerosene oil and lit on
fire. Therefore, the finding recorded by the trial court as
also by the Appellate Court as against main accused 'M'
(husband of the deceased) cannot be interfered with.
[Para 21][733-F-G]                                          B
                    Case Law Reference:
     2006 (2) SCR 486             cited          Para 8
     2007 (2) SCR 1030            cited          Para 8
     2003 (1) SCR 572             cited          Para 11
                                                               c
     1975 (1) SCR 906             referred to    Para 13
     1976 (0) Suppl. SCR 542 referred to         Para 14
     1974 (1) SCR 722            · referred to   Para 15       D
    CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1422 of 2009.
     From the Judgment and Order dated 09.05.2008 in
Criminal Appeal No. 342-DB of 2006 passed by the High Court
of Punjab & Haryana.                                           E
                           WITH
     Crl. A. No. 1423 of 2009.
      Ms. Meenakshi Arora, Sr. Adv., Jasbir Singh Malik (For   F
S. K. Sabharwal), Adv., for the Appellant.
    Roopansh Purohit, AAG, Ramesh Kumar, Ms. Naresh·
Bakshi and Daya Krishan Sharma, Advs. for the Respondents.
     The Judgment of the Court was delivered by
                                                               G
      M. Y. EQBAL, J. 1. These appeals are directed against
judgment and order dated 06.09.2008 passed by the High
Court of Punjab and Haryana in Criminal Appeal No. 342-DB
 of 2006, whereby the High Court dismissed the appeal of the
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720        SUPREME COURT REPORTS                [2014] 13 S.C.R.


A accused persons and upheld the judgment dated 25.04.2006
  passed by the Additional Sessions Judge, Bhiwani (Haryana)
  in Sessions Case No.8 RBT of 18.3.2004, inflicting sentence
  with rigorous imprisonment for life under Section 302/498-A
  read with Section 34, Indian Penal Code and imposed fine
B with default clause.
        2. The facts leading to the prosecution story are that on
  16.1.1995, Rajni-deceased was married with Mahender Singh
  alias Mahender Gulati and out of this wedlock, three children
  were born. Both the appellants, namely Maher:ider Gulati and
C Prem Kumar Gulati (brother in-law Ueth) of deceased) are the
  brothers. The prosecution case is that on receipt of V.T.
  message on 10.12.2003, ASI Ram Singh rushed to PGIMS,
  Rohtak with regard to admission of Rajni in burnt condition.
  After obtaining Doctor's certificate regarding fitness of the
D victim to give statement, Additional Chief Judicial Magistrate,
  Rohtak recorded her statement (dying declaration) to the effect
  that on 9.12.2003, at around 9.30/10.00 P.M. the accused
  persons being her husband, Jeth and Jethani poured kerosene
  oil on her and set ablaze. It is also stated in her dying
E declaration that her husband had illicit relation with his Bhabi
  Simla (since deceased), with the result she used to pick up
  quarrel with him. Her husband gave her beatings under the
  influence of intoxication. None made attempt to extinguish fire.
 F        3. On the basis of the above dying declaration a case
    was registered and the investigation agency swung into action .
   .Statements of witnesses were accordingly recorded under
    Section 161, Cr.P.C. The Investigating Officer investigated
    the spot and prepared rough site plan with correct marginal
 G notes and took into possession burnt clothes of Rajni, ash of
    burnt clothes, one kerosene lamp after converting the same
    into sealed parcel. On the night of 12.12.2003, message was
    received from PGIMS, Rohtak that Rajini had died as a result
    of burn injuries. Post mortem report was obtained, site plan
    was sketched and FSL report was obtained. After completion
 H
      PREM KUMAR GULATI v. STATE OF HARYANA                          721
                 [M. Y. EQBAL, J.]

of investigation, only accused Mahender Singh alias Mahender A
Gulati was arraigned to stand trial under Sections 302/498A,
l.P.C. by Police, whereas Prem Kumar Gulati and Smt. Bimla
alias Nirmla were summoned to face trial along with other
accused Mahender, as additional accused, by invoking the
provisions of Section 319, Cr.P.C.                           B
       4. In order to substantiate the charges, the prosecution
examined nine witnesses. According to Dr. Ravi Kanta (PW-
1), who conducted post mortem examination, burn injuries
were approximately 50% and cause of death of Rajni was due
to ante mortem burns, which were sufficient to cause death in        C
ordinary course of nature. According to Dr. Naresh Kumar
Kardwal (PW-3), who medico-legally examined the deceased,
found superficial deep burns all over the body except back,
hip, lower leg, left hand and forearm. He stated that possi_bility
of burn injuries in this case by fall of kerosene oil on the head    D
cannot be ruled out. Agyapal (PW-7), father of the deceased,
stated that accused person started harassing his daughter
three months after marriage for want of dowry although
sufficient dowry was given. Ultimately, she was shunted out
from the matrimonial abode and her husband filed a divorce           E
petition. Later, the matter was resolved on the apology being
tendered and assurance given by the accused persons before
the panchayat on 1.12.1996. Ironically she fell prey to
recurrence and was turned out from the matrimonial house in
the year 1997. His daughter divulged about the illicit relations     F
between her husband and sister-in-law. Again accused
 persons were apologized before the Panchayat on the
 assurance given by them. In 2001, a criminal case was filed,
which was also compromised with the intervention of
 panchayat. Against willingness of his daughter, he persuaded        G
 and sent her daughter back to the matrimonial house through
 panchayat. He further highlighted that about one week prior to
 the occurrence, his daughter informed him telephonically about
 harassment and requested him to take her to. parental house.
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722         SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A Thereafter, on 10.12.2003 at around 5.00 A.M. a telephonic
  message, was received and he along with his wife and son
  rushed to the hospital, where the victim disclosed that accused
  Prem and Bimla caught hold of her and her husband Mahender
  poured kerosene oil and set her on fire. PW8, brother of Rajni,
B supported the version of his father PW?.
             5. Accused denied all the charges and in defence
      accused Mahender Singh stated that at the time of occurrence
      he was present on the ground floor and was working at flour
      mill. His wife and children were on the first floor. After hearing
C     cries of children, he went upstairs on the first floor and saw
      that his wife was having burn injuries accidentally due to falling
      of a lamp upon herin the kitchen. Complaint against his brother
      and bhabhi, who were residing separately, was filed at the
      instance of her parents. The accused examined deceased's
 D    eight years' old daughter Kumari Manshu (DW-1 ), who
      deposed that she heard cries of her mother in the kitchen. She
      came out and told that she had caught fire due to falling of
      burning lamp on her as glass of the lamp got broken after falling
      upon her. The Child called her father, who was on the ground
 E    floor in the flour mill at that time. Her father and neighbours
      extinguished fire and took her mother to the hospital. Upon
      this, trial court has opined that the child has been tutored as
      she was residing with accused persons, namely, Prem and
      Bimla, afterthe death of her mother and she had come along
 F    with them on the date of examination in the Court. Trial court
      further observed that broken glasses of the lamp had fallen in
      the verandah and not in the kitchen.
         6. After careful examination of the evidence and pleadings
 G of the parties, the trial court held that the prosecution has
   proved that the accused persons, in furtherance of the common
   intention, subjected Rajni to cruelty as her husband had illicit
   relations with co-accused Simla (Bhabhi). The Trial Court
   convicted all the three accused persons under Section 302/
   498-A read with Section 34 IPC and sentenced them with
 H
      PREM KUMAR GULATI v. STATE OF HARYANA                          723
                 [M. Y. EQBAL, J.]

rigorous imprisonment for life and imposed a fine of Rs.5,000/ A
-under Section 302 read with Section 34 IPC and rigorous
imprisonment for one year and fine of Rs. 500/- under Section
498A-read with Section 34 IPC on each accused convicts.
      7. Aggrieved by the decision of the trial court, the accused
persons preferred criminal appeal before the High Court of           8
Punjab and Haryana at Chandigarh, which was dismissed by
the Division Bench of the High Court upholding the judgment
of the trial Court. Hence, the present appeals by special leave
by two accused persons.
                                                                     c
      8. Mrs. Meenakshi Arora, learned senior counsel
appearing for the appellants assailed the judgment of
conviction as being contrary to law and the facts of the case
and that the prosecution has not proved the case beyond
reasonable doubt. At the very outset, learned senior counsel 0
submitted that two of the accused persons, viz., Prem Kumar
Gulati and his wife were in noway involved in the commission
of the alleged offence. She drew our attention to the evidence
of PW-2 Sub-Inspector who investigated the case and
recorded the statement of witnesses under Section 161 of E
Cr.P.C. He deposed that during investigation the accused
Prem Kumar Gulati and his wife were found innocent. Hence
they were not summoned ,to face trial along with the
deceased's husband Mahender Singh Gulati. Similarly, PW-
9 ASI Ram Singh Investigating Officer in the case deposed
inter alia that the accused appellant Prem and his wife Simla F
were residing separately. However, they could not escape
themselves from the clutches of law on the basis of so called
dying declaration. .She further submitted that the dying
declaration cannot be relied upon and conviction cannot be · G
based on vague statement. She submitted that in the dying
declaration, there is neither anu mention of time of its recording
nor there is any mention about the state of mind of the deceased
while making her statement before the Magistrate. The dying
declaration is also not in question answer form. Learned senior H
724        SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A counsel submitted that in case of any inconsistency between
  the dying declaration and the evidence adduced by the
  prosecution such dying declaration cannot be relied upon.
  Learned senior counsel relied upon few of the decisions of
  this Court viz., P. Mani vs. State of Tamil NaduJ. (2006) 3
B SCC 161; Mohan Lal & Ors. vs. State of Haryana, (2007)
  9 sec 1s1.
          9. Mrs. Arora further submitted that there is no eye-
   witness in the case except one eight year old daughter of the
   deceased who was examined as DW-1. She further submitted
 C that it is wrong to disbelieve the child on the ground that she is
   a tutored witness being residing with the accused persons after
   the death of her mother and on the date of examination in court,
   she had come along with them. It was contended that father
   of the deceased (PW-7) did not express that he would keep
 D the· child in his care and guardianship. Learned counsel
   submitted that because of the past history of alleged torture
   and several litigations, the motive of giving dying declaration
   cannot be ruled out.
 E       10. Mrs. Arora, specifically mentioned the innocence of
   the accused-appellant Prem Kumar Gulati (brother of the main
   accused) who is found innocent during the investigation and
   was not put on trial. It was only after the orders passed under
   Section 319 of Cr.P.C. he faced the trial along with the main
 F accused. Finally, she submitted that in the absence of eye-
   witness to the incident the prosecution story based on
   inconsistent evidence of the witnesses cannot be relied upon.
         11. Mr. Rupansh Purohit, learned Addi. Advocate General
   appearing for the State, firstly submitted that the statement
 G made by the deceased on the dying declaration is sufficient to
   convict the appellants forthe offence committed by them. Ld.
   MG submitted that dying declaration is not necessary to be
   in question answer form, rather dying declaration in narrative
   form is more natural. In this connection he relied upon a
 H
      PREM KUMAR GULATI v. STATE OF HARYANA                       725
                 [M. Y. EQBAL, J.]

decision of this Court in State of Karnataka v. Shariff (2003)    A
2 SCC 473. Learned AAG further submitted that evidence
given by the father (PW-7) is more reliable evidence and there
is nothing on record to suggest that the deceased made a
dying declaration on the influence of her father. Lastly, he
submitted that the accused Prem Kumar Gulati and his wife         B
were residing in the sc:ime building and there is no evidence
that they were living separately.
     12. First of all we shall consider the authenticity of the
dying declaration recorded by the Magistrate. The dying
declaration reads as under:-                                      C
     "Statement of Rajni W/o Mahender, aged 28 years,
     Household, Jamalpur, District Bhiwani.
     .Stated that yesterday night at 9.30/10.00 my husband
      Mahender, my Jeth Prem Gulati, myJethani Simla have D
      poured kerosene oil upon me. My husband used to
      reside with his bhabhi. There was quarrel between us
      daily. After drinking liquor, I was beaten up with lathi and
      shoes. None has extinguished the fire. I have three
      children. I have heard my statement, which is correct. I E
      do not want to say anything else."
     RO&AC                                       Sd/-
     Sd/-                                  ACJM, Rohtak
     R.T.I. Rajni                          10.12.2003"
       13. It is well settled that a truthful and reliable dying F
declaration may form the sole basis of conviction even though
it is not corroborated. However, the reliability of declaration
should be subjected to close scrutiny and the courts must be
satisfied that the declaration is truthful. In the case of Gadhu
& Anr. vs. State of Rajasthan, (1975) 3 SCC 241, a three G
Judge Bench of this Court has thoroughly discussed the
evidentiary value and reliability of dying declaration observed:-


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726      SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A        "16. We are also unable to subscribe to the view that if a
         part of the dying declaration has not been proved to be
         correct, it must necessarily result in the rejection of the
         whole of the dying declaration. The rejection of a part of
         the dying declaration would put the court on the guard
 B       and induce it to apply a rule of caution. There may be
         cases wherein the part of the dying declaration which is
         not found to be correct is so indissolubly linked with the
         other part of the dying declaration that it is not possible
         to sever the two parts. In such an event the court would
c        well be justified in rejecting the whole of the dying
         declaration. There may, however, be other cases wherein
         the two parts of a dying declaration may be severable
         and the correctness of one part does not depend upon
         the correctness of the other part. In the last mentiC?ned
 D       cases the court would not normally act upon a part of the
         dying declaration, the other part of which has not been
         found to be true, unless the part relied upon is
         corroborated in material particulars by the other evidence
         on record. If such other evidence shows that part of the
 E       dying declaration relied upon is correct and trustworthy
         the court can act upon that part of the dying declaration
         despite the fact that another part of the dying declaration
         has not been proved to be correct."
       14. In the case of K. Ramachandra Reddy vs. Public
 F Prosecutor, (1976) 3 SCC 618, this Court observed that:-
         "6. The accused pleaded innocence and averred that they
         had been falsely implicated due to enmity. Thus it would
         appear that the conviction of the accused depends
         entirely on the reliability of the dying declaration Ext. P-
 G       2. The dying declaration is undoubtedly admissible under
         Section 32 of the Evidence Act and not being a statement
         on oath so that its truth could be tested by cross-
         examination, the courts have to apply the strictest scrutiny
         and the closest circumspection to the statement before
 H
PREM KUMAR GULATI v. STATE OF HARYANA                      727
           [M. Y. EQBAL, J.]

acting upon it. While great solemnity and sanctity is A
attached to the words of a dying man because a person
on the verge of death is not likely to tell lies or to concoct
a case so as to implicate an innocent person yet the court
has to be on guard against the statement of the deceased
being a result of either tutoring, prompting or a product B
of his imagination. The court must be satisfied that the
deceased was in a fit state of mind to make the statement
after the deceased had a clear opportunity to observe
and identify his assailants and that he was making the
statement without any influence or rancour. Once the court c
is satisfied that the dying declaration is true and voluntary
it can be sufficient to found the conviction even without
any further corroboration. The law on the subject has been
clearly and explicitly enunciated by this Court in Khusha/
Rao v. State of Bombay, AIR 1958 SC 22, where the D
Court observed as follows:
"On a review of the relevant provisions of the Evidence
Act and of the decided cases in the different High Courts
in India and in this Court, we have come to the conclusion,
in agreement with the opinion of the Full Bench of the E
Madras High Court, aforesaid, ( 1) that it cannot be laid
down as an absolute rule of law that a dying declaration
cannot form the sole basis of convictiorn unless it is
corroborated; (2) that each case must be determined on
its own facts keeping in view the circumstances in which F
the dying declaration was made; (3) that it cannot be laid
down as a general proposition that a dying declaration
is a weaker kind of evidence than other pieces of
evidence; (4) that a dying declaration stands on the same
footing as another piece of evidence and has to be G
judged in the light of surrounding circumstances and with
reference to.the principles governing the weighing of
evidence; (5) that a dying declaration which has been
recorded by a competent Magistrate in the proper
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728   SUPREME COURT REPORTS                     [2014] 13 S.C.R.

A     manner, that is to say, in the form of questions and
      answers, and, as far as practicable, in the words of the
      maker of the declaration, stands on a much higher footing
      than a dying declaration which depends upon oral
      testimony which may suffer from all the infirmities of
B     human memory and human character, and (6) that in
      order to test the reliability of a dying declaration, the court
      has to keep in view the circumstances like the opportunity
      of the dying man for observation, for example, whether
      there was sufficient light if the crime was committed at
c     night, whether the capacity of the man to remember the
      facts stated had not been impaired at the time he was
      making the statement, by circumstances beyond his
      control; that the statement has been consistent throughout
      if he had several opportunities of making a dying
D     declaration apart from the official record of it; and that
      the statement had been made at the earliest opportunity"
      and was not the result of tutoring by interested parties.
      Hence, in order to pass the test of reliability, a dying
      declaration has to be subjected to a very close scrutiny,
 E    keeping in view the fact that the statement has been
      made in the absence of the accused who had no
      opportunity of testing the veracity of the statement by
      cross-examination."
      The above observations made by this Court were fully
 F
      endorsed by a Bench o.f five Judges of this Court in
      Harbans Singh v. State of Punjab AIR 1962 SC 439. In
      a recent decision of this Court in Tapinder Singh v. State
      of Punjab,(1970) 2     sec 113, relying upon the earlier
      decision referred to above, this Court observed as
 G
      follows: [SCC p. 119, para 5]
      "It is true that a dying declaration is not a deposition iri
      court and it is neither made on oath nor in the presence
      of the accused. It is, therefore, not tested by cross-
 H
     PREM KUMAR GULATI v. STATE OF HARYANA                            729
                [M. Y. EQBAL, J.]

     examination on behalf of the accused. But a dying A
     declaration is admitted in evidence by way of an
     exception to the general rule against the admissibility of
     hearsay evidence, on the principle of necessity. The
     weak points ofa dying declaration just mentioned merely
     serve to put the court on its guard while testing its B
     reliability, by imposing on it an obligation to closely
     scrutinise all the relevant attendant circumstances."
     In Lallubhai Devchand Shah v. State of Gujarat, (1971 )3
     SCC 767, this Court laid special stress on the fact that
     one of the important tests of the reliability of a dying         C
     declaration is that the person who recorded it must be
     satisfied that the deceased was in a fit state of mind and
     observed as follows: [SCC p. 772 : SCC (CRI) p. 18,
     para 9]
                                                                      D
     "The Court, therefore, blamed Dr Pant for not questioning
     Trilok Singh with a view to test whether Trilok Singh was
     in a 'fit state of mind' to make the statement. The 'fit state
     of mind' referred to is in relation to the statement that the
     dying man was making. In other words, what the case              E
     suggests is that the person who records a dying
     declaration must be satisfied that the dying man was
     making a conscious and voluntary statement with normal
     understanding."
      15. In the case of Kali Ram v. State of Himachal                F
Pradesh, (1973) 2 SCC 808, a three Judge Bench of this
Court elaborately discussed the mode of appreciation of
evidence and the general principles regarding presumption
of innocence of the accused. The Bench observed:-
     "25. Another golden thread which runs through the web G
     of the administration of justice in criminal cases is that if
     two views are possible on the evidence adduced in the
     case, one pointing to the guilt of the accused and the
     other to his innocence, the view which is favourable to
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730   SUPREME COURT REPORTS                    [2014] 13 S.C.R.


A     the accused should be adopted. This principle has a
      special relevance in cases wherein the guilt of the
      accused is sought to be established by circumstantial
      evidence. Rule has accordingly been laid down that
      unless the evidence adduced in the case is consistent
B     only with the hypothesis of the guilt of the accused and is
      inconsistent with that of his innocence, the Court should
      refrain from recording a finding of guilt of the accused. It
      is also an accepted rule that in case the Court entertains
      reasonable doubt regarding the guilt of the accused, the
c     accused must have the benefit of that doubt. Of course,
      the doubt regarding the guilt of the accused should be
      reasonable; it is not the doubt of a mind which is either
      so vacillating that it is incapable of reaching a firm
      conclusion or so timid that is is hesitant and afraid to
D     take things to their natural consequences. The rule
      regarding the benefit of doubt also does not warrant
      acquittal of the accused by report to surmises,
      conjectures or fanciful considerations. As mentioned by
      us recently in the case of State of Punjab v. Jagir
 E    Singh(1974)3SCC 227 a criminal trial is not like a fairy
      tale wherein one is free to give flight to one's imagination
      and phantasy. It concerns itself with the question as to
      whether the accused arraigned at the trial is guilty of the
      offence with which he is charged. Crime is an event in
 F     real life and is the product of interplay of different human
      emotions. In arriving at the conclusion about the guilt of
      the accused charged with the commission of a crime,
      the Court has to judge the evidence by the yardstick of
       probabilities, its intrinsic worth and the animus of
 G     witnesses. Every case in the final analysis would have to
       depend upon its own facts. Although the benefit of every
       reasonable doubt should be given to the accused, the
       Courts should not at the same time reject evidence which
       is ex facie trustworthy on grounds which are fanciful or in
       the nature of conjectures.
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                                                                      -
PREM KUMAR GULATI v. STATE OF HARYANA                            731
           [M. Y. EQBAL, J.]

27. It is no doubt true that wrongful acquittals are             A
undesirable and shake the confidence of the people in
the judicial system, much worse, however, is the wrongful
conviction of an innocent person. The consequences of
the conviction of an innocent person are far more serious
and its reverberations cannot but be felt in a civilised         B
society." Suppose an innocent person is convicted of the
offence of murder and is hanged, nothing further can
undo the mischief for the wrong resulting from the
unmerited conviction is irretrievable. To take another
instance, if an innocent person is sent to jail and              c
undergoes the sentence, the scars left by the miscarriage
of justice cannot qe eraseel by any subsequent act of
expiation. Not many persons undergoing the pangs of
wrongful conviction are fortunate like Dreyfus to have an
Emile Zola to champion their cause and succeed in                o
getting the verdict of guilt annulled. All this highlights the
importance of ensuring, as far as possible, that there
should be no wrongful conviction of an innocent person.
Some risk of the.conviction of the innocent, of course, is
always there in any system of the administration of              E
criminal justice. Such a risk can be minimised but not
ruled out altogether. It may in this connection be apposite
to refer to the following observations of Sir Carleton Alien
quoted on p. 157 of The Proof of Guilt by Glanville
Williams, 2nd Edn.:                                              F
"I dare say some sentimentalists would assent to the
proposition that it is better that a thousand or even a
million guilty persons should escape than that one
innocent person should suffer; but no responsible and
practical person would accept such a view. For it is             G
obvious that if our ratio is extended indefinitely, there
comes a point when the whole system of justice has
broken down and society is in a state of chaos."

                                                                 H
732        SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A        16. The submission of Ms. Meenakshi Arora, learned
   senior counsel appearing for the appellant that the dying
   declaration is untenable being without mentioning the time when
   the statement was recorded as also not in the question answer
   form, cannot be sustained. Merely because dying declaration
 B was not in question answer form, the sanctity attached to a
   dying declaration as it comes from the mouth of a dying person
   cannot be brushed aside and its reliability cannot be doubted.
         17. In the light of the law settled by the Supreme Court,
   we shall first examine the case of the accused appellant Prem
 C Kumar Gulati, whose wife (Bimla, since deceased) was also
   co- accused. Immediately after the occurrence took place,
   the police reached the place of occurrence and recorded the
   statement of witnesses in course of investigation and found
   that the said accused Prem Kumar Gulati was innocent and
 D he was not involved in the commission of the offence.
         · 18. Admittedly, they were not put on trial along with the
   main accused-appellant Mahender Singh. It was only at the
   stage of Section 319, Cr.P.C. the accused persons namely
 E Prem Kumar Gulati and his wife were summoned and put on
   trial. Except dying declaration there is nothing on record to
   strongly suggest that they were involved in the commission of
   crime. There is nothing in the findings of sessions court which
   suggest that the said accused persons participated in the
 F commission of the aforesaid crime, and this fact has been
   reiterated by the High Court also.
         19. As noticed above, in the dying declaration, the
   deceased declared that her husband Mahender Singh along
   with the accused Prem Kumar Gulati and Simla (deceased)
 G have poured kerosene oil upon her. Except that, nothing has
   been said in the dying declaration as against the accused
   Prem Kumar Gulati or his wife- Simla as to which accused
   ppumd kerosene oil upon her and the accused lighted the fire.
   In the later part of dying declaration, the deceased stated that
 H
      PREM KUMAR GULATI v. STATE OF HARYANA                        733
                 [M. Y. EQSAL, J.]

her husband Mahender Singh used to reside with his Shabhi. A
After drinking liquor, she was beaten up by her husband with
lathi and shoes. In other words, in her dying declaration she
said that her husband Mahender Singh used to beat her after
drinking liquor. There is no eye-witness to the occurrence.
PW-2, the police officer deposed that he recorded the S
statement of several persons and collected all the papers
including ration card and compromise letter written to the
Panchayat etc. He further deposed that during the
investigation, the accused Prem Kumar and Simla were found
innocent as they were living separately. Although the trial court c
and the appellate court convicted both the accused Prem
Kumar Gulati and his wife Simla, but after scrutiny of all the
evidence, we are of the view that there are no corroborative
evidence to come to the conclusion that these two participated
along with the main accused Mahender Singh for the o
commission of the offence. As noticed above, one of the
accused Simla already expired. We do not find any reason
why Prem Kumar also participated in the commission of the
offence. Admittedly, neither in the dying declaration nor in the
statement of witnesses it has come in light as to what act was E
done by the accused- Prem Kumar.
      20. In our considered opinion, the benefit of doubt should
be given to accused-appellant Prem Kumar and his conviction
cannot be sustained.
      21. Sufficient evidence has come on record and the F
prosecution has established the case that it was Mahender
Singh at whose instance and instigation she was subjected to
death by pouring kerosene oil and lit on fire. We are, therefore,
of the view that the finding recorded by the trial court as also G
by the Appellate Court as against main accused Mahnder
Singh (husband of the deceased) cannot be interfered with.
     22. We, therefore, dismiss_ Criminal Appeal No. 1423 of
2009 and uphold the conviction of Mahender Singh.
                                                                   H
734         SUPREME COURT REPORTS                [2014] 13 S.C.R.


A            23. Criminal Appeal No.1422 of 2009 is allowed and the
      appellant Prem Kumar Gulati is acquitted from charges. He
      is directed to be released forthwith.


      Bibhuti Bhushan Bose                        Appeals disposed of.