Supreme Court of India
RAMESH AND OTHERSversusSTATE OF HARYANA
- Citation
- 2016 INSC 1049
- Decided
- 22 November 2016
- Disposal
- Dismissed
- Bench
- A K SIKRI
Holding
An accused may be convicted on a dying declaration if the declarant was medically certified as fit, the statement was voluntarily made, and it is reliable, irrespective of the extent of injuries, and an appellate court may overturn an acquittal where the trial court’s rejection of such evidence is perverse.
Summary
The case involves the death of Roshni, who suffered 100% burns and gave a dying declaration to a Judicial Magistrate in hospital after a doctor certified her fitness to speak. The trial court acquitted the four accused, rejecting the dying declaration and relying on the victim's brother's testimony that the accused were elsewhere at the time. The High Court reversed the acquittal, convicting the accused under Sections 302, 34 and 498A IPC, based on the dying declaration. On appeal, the Supreme Court examined whether the dying declaration was admissible despite the victim's severe injuries and the magistrate's cross‑examination remark, and whether the brother's testimony could be trusted. The Court held that the medical certification and the magistrate's proper procedure rendered the dying declaration reliable, and that the brother's evidence was compromised; consequently, the High Court's conviction was upheld. The appeal was dismissed, confirming the life sentence and other punishments.
Issues considered
- The admissibility and reliability of a dying declaration made by a victim with 100% burns, certified fit by a doctor, without corroboration.
- Whether the magistrate's inability to state definitively that the victim was semi‑conscious undermines the dying declaration.
- The credibility of the victim's brother's testimony that the accused were with him at the time of the incident, in light of hospital records.
- The scope of appellate power under Section 378 CrPC to set aside an acquittal when the trial court's assessment of evidence is perverse.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 173(2), s. 207, s. 209, s. 313, s. 378
- Indian Evidence Act, 1872
- Indian Penal Code, 1860s. 302, s. 34, s. 498A
Subjects
dying declarationevidenceSection 302 IPCSection 498A IPCdowry deathappeal against acquittalSection 378 CrPCwitness hostilitymedical certificationSection 34 IPCcriminal lawcriminal procedure
Judgment
[2016] 8 S.C.R. 936
A RAMESH AND OTHERS
v.
STATE OF HARYANA
(Criminal Appeal No. 2526of2014)
B NOVEMBER 22, 2016
[A.K. SIKRI AND AMITAVA ROY, JJ.]
Penal Code, 1860: ss.302, 34, 498-A - Dowry death - 100%
burn injuries - Dying declaration - Four accused - Dying
C declaration was recorded before the Magistrate after the doctor
certifying fitness of the victim - Trial court did not believe the
testimony of Magistrate on the ground that in his cross-examination
he stated that he could not say whether the deceased was semi-
conscious at the time of making statement - Trial court also relied
. upon the testimony of PW-4 brother of deceased to the effect that
D the appellant was with him at the time of incident - Acquittal by
trial court - High Court relied upon the dying declaration and
convicted the appellants - Appeal against conviction - Held: In
view of the specific certification by the Doctor about the fitness
of the deceased that she remained fit while recording the statement,
E the mere fact that she had suffered 100% burns would not, ipso
facto, lead to the conclusion that the deceased was unconscious
or that she was not in a proper state of mind to make a statement
- Magistrate had taken due precautions and in/act medical officer
remained present when the dying declaration was being recorded -
There was no reason to discard the dying declaration - Moreover,
F records show that it was appellant-husband who took the victim to
the hospital and got her admitted and, therefore, version of PW-4
was wrongly accepted by trial court - High Court rightly held that
PW-4 appeared to have been won over by appellant - No reason to
interfere with the order of conviction.
G Evidence: Dying declaration made to magistrate - Evidentiary
value, discussed.
Code o.f Criminal Procedure, 1973: s.378 - Appeal against
order of acquittal - Scope of interference - Held: The appellate
court is within its power to reappreciate or review the evidence
H
936
RAMESH AND OTHERS v. STATE OF HARYANA 937
on which the acquittal is based - On reconsideration of the evidence A
on record, if the appellate court finds the verdict of acquittal to
be perverse or against the settled position of law, it is duly
empowered to set aside the same - On the other hand, if the trial
court had appreciated the evidence in right perspective and recorded
the findings which are plausible and the view of the trial court does
B
not suffer from perversity, simply because the appellate court
comes to a different conclusion on the appreciation of the evidence
on record, it will not substitute its findings to that of findings
recorded by the trial court - All precautions were taken by concerned
authorities before and while recording her statement - After the
completion of her statement, the Doctor made an endorsement to c
the effect that the deceased remained fit during the recording
of her statement and it is only thereafter the Magistrate (PW-11)
appended his signature categorically stating that the statement
recorded by him was true version of what the deceased had spoken
and he had stated in unambiguous terms that she was fit to make
D
statement and remained fit till her statement was recorded.
Witnesses: Hostile witness - Peculiar behaviour of witnesses
turning hostile - Situations when witnesses retract their statements
before the court and turn hostile - Discussed.
Dismissing the appeal, the Court E
HELD: 1. The scope of interference in an appeal against
acquittal is undoubtedly narrower than the scope of appeal against
conviction. Section 378 of the Code of Criminal Procedure,
1973 confers upon the State a right to prefer an appeal to the
High Court against the order of acquittal. At the same time, F
sub-section (3) thereof mandates that such an appeal is not to
be entertained except with the leave of the High Court. Thus,
before an appeal is entertained on merits, leave of the High
Court is to be obtained which means that normally judgment
of acquittal of the trial court is attached a definite value which is
not to be ignored by the High Court. In other words, presumption G
of innocence in favour of an accused gets further fortified or
reinforced by an order of acquittal. At the same time, while
exercising its appellate power, the High Court is empowered
to reappreciate, review and reconsider the evidence before it.
However, this exercise is to be undertaken in order to come to H
938 SUPREME COURT REPORTS [2016] 8 S.C.R.
A an independent conclusion and unless there are substantial and
compelling reasons or very strong reasons to differ from the
findings of acquittal recorded by the trial court, the High Court,
as an appellate court in an appeal against the acquittal, is not
supposed to substitute its findings in case the findings recorded
by the trial court are equally plausible. [Para 21][951-E-H; 952-
B
A]
Sanwat Singh v. State of Rajasthan 1961 SCR (3) 120;
Govindaraju @ Govinda v. State by Sriramapuram
Police Station and another 2012 (5) SCR 67 : (2012) 4
sec 722 - relied on.
c
2.1. Admittedly, no weightage is given by the trial court
to the opinion of the Doctor certifying that the deceased was in
a fit state of mind. Likewise, no reasons were given by the trild
court as to why the testimony of the Judicial Magistrate, who
recorded the statement, be disbelieved. It is immaterial to whom
D the declaration is made. The declaration may be made to a
Magistrate, to a Police Officer, a public servant or a private
person. It may be made before the doctor; indeed, he would be
the best person to opine about the fitness of the dying man to
make the statement, and to record the statement, where he
E found that life was fast ebbing out of the dying man and there
was no time to call the Police or the Magistrate. In such a
situation, the Doctor would be justified, rather duty bound, to
record the dying declaration of the dying man. In the instant
case, dying declaration is recorded by a competent Magistrate
who was having no animus with the accused persons. This
.F kind of dying declaration would stand on a much higher footing.
After all, a competent Magistrate lias no axe to grind against
the person named in the dying declaration of the victim and in
the absence of circumstances showing anything to the contrary,
he should not be disbelieved by the Court. [Paras 26, 28] [954-
G F-G; 955-E-H; 956-A]
2.2. No doubt, the victim has been brought with 100%
burn injuries. Notwithstanding, the doctor found that she was in
a conscious state of mind and was competent to give her
statement. Thus, the Magistrate had taken due precautions and,
H in fact, Medical Officer remained present when the dying
RAMESH AND OTHERS v. STATE OF HARYANA 939
declaration was being recorded. Therefore, this dying declaration A
cannot be discarded merely going by the extent of burns with
which she was suffering, particularly, when the defence has not
been able to elicit anything from the cross-examination of the
doctor that her mental faculties had totally impaired rendering
her incapable of giving a statement. Keeping in view the B
considerations, High Court rightly observed that the manner in
which the trial court proceeded with the matter was legally
unsustainable. It was necessary for the trial court, in the first
instance, to see as to whether due precautions were taken before
recording the statement of the deceased, which became dying
declaration as she died within few hours thereafter. The manner C
in which statement of the deceased was recorded clearly brings
out that all possible precautions were taken by the concerned
authorities before and while recording her statement. The trial
court has not even discussed the said aspects. The recording of
statement by the Magistrate is sought to be discredited on the D
specious ground that in his cross-examination he has stated that
he could not say whether the deceased was semi-conscious. The
High Court has rightly recorded that this statement of PW-11 is
read out of context. The said answer by PW-11 was in reply to
the question put to him as to whether the deceased was semi-
conscious when her statement was recorded by him. It is in E
reply to this question he stated that he cannot say if she was
semi-conscious when her statement was recorded. He also
clarified that since the Doctor had given his opinion, he
proceeded to record her statement. PW-11 nowhere stated that
the deceased was semi-conscious when her statement was
F
recorded. The statement of PW-11 was to be taken into
consideration as a whole. It came on record that after the
completion of her statement, the Doctor made an endorsement
to the effect that the deceased remained fit during the recording
of her statement and it is only thereafter the Magistrate
appended his signature categorically stating that the statement G
recorded by him was true version of what the deceased had
spoken and he had stated in unambiguous terms that she was fit
to make statement and remained fit till her statement was
recorded. [Paras 29, 30, 31)[956-B-E; 957-A-E)
2.3. In view of the specific certification by the Doctor about H
940 SUPREME COURT REPORTS [2016) 8 S.C.R.
A the fitness of the deceased that she remained fit while recording
the statement, the mere effect that she had suffered 100% burns
would not, ipso facto, lead to the conclusion that the deceased
was unconscious or that she was not in a proper state of mind
to make a statement. No challenge was made by the defence to
the said statement of the deceased on the ground that it was
B
not made voluntarily or it was made by any extraneous
circumstances or was the result of tntoring. In fact, even as per
the appellants, it is they who had taken the deceased to the
hospital and no other person known to her had come in her
contact before the statement was recorded. On the contrary, PW-
C 3 and PW-4 (father and brother of the deceased respectively)
did not support the prosecution version and, therefore, the
question of tutoring does not arise at all. The examination and
analysis of the dying declaration showed that there was no
reason to discard it. [Paras 32, 33][957-F-H; 958-A-B]
D 2.4; The trial court also discarded the dying declaration
on the basis of evidence of PW-4. PW-4, brother of the deceased
had stated that on the night intervening 19th - 20th September,
1999, appellant no. 1 was with him. He further deposed that at
4:00 a.m., they received the information about the deceased
having sustained burn injuries and he along with appellant No.1
E reached PGIMS, Rohtak where she was already present. It is
on the basis of this statement that the trial court observed that
since appellant_ No.1 was with PW-4 in his house, he could not be
present at the place of incident when it took place and, therefore,
he is falsely implicated and mentioning of his name considerably
F dents the veracity of dying declaration thereby rendering it
questionable. However, in accepting the said version of PW-4,
the trial court committed a serious mistake. As per the hospital
records, it is appellant No.1 who had brought the deceased to
the hospital and got her admitted which was even the defence
case as well. The trial court completely overlooked this pertinent
G aspect. This fact alone is sufficient to discredit the statement of
PW-4 that appellant No.1 was with him in his house and both of
them had received the information about the incident and
when both of them reached PGIMS, Rohtak, the deceased
was already there. In these circumstances, the High Court rightly
H
RAMESH AND OTHERS v. STATE OF HARYANA 941
held that PW-4, though brother of the deceased, appears to have A
been won over by the appellants. [Para 34][958-C-G)
Jai Karan v. State of N.C.T., Delhi 1999 (3) Suppl.
SCR 200 : (1999) 8 SCC 161; Rambai v. State of
Chhatisgarh (2002) 8 SCC 83; Kushal Rao v. State of
Bombay 1958 SCR 552; Vikas & Ors. v. State of B
Maharashtra 2008 (1) SCR 933 : (2008) 2 SCC 516 -
relied on.
3. It is becoming a common phenomenon, almost a regular
feature, that in criminal cases witnesses turn hostile. There
could be various reasons for this behaviour or attitude of the c
witnesses. It is possible that when the statements of such
witnesses were recorded under Section 161 of the Code of
Criminal Procedure, 1973 by the police during investigation,
the Investigating Officer forced them to make such statements
and, therefore, they resiled therefrom while deposing in the
Court and justifiably so. However, this is no longer the reason D
in most of the cases. This trend of witnesses turning hostile is
due to various other factors. It may be fear of deposing against
the accused/delinquent or political pressure or pressure of
other family members or other such sociological factors. It is
also possible that witnesses are corrupted with monetary E
considerations. When the witnesses are not able to depose
correctly in the court of law, it results in low rate of conviction
and many times even hardened criminals escape the conviction.
It shakes public confidence in the criminal justice delivery system.
It is for this reason there has been a lot of discussion on witness
protection and from various quarters demand is made for the F
State to play a definite role in coming out with witness
protection programme, at least in sensitive cases involving those
in power, who have political patronage and could wield muscle
and money power, to avert trial getting tainted and derailed and
truth becoming a casualty. Apart from the above, another G .
significant reason for witnesses turning hostile may be what is
described as 'culture of compromise'. Present case appears
to have been stung by 'culture of compromise'. Fortunately,
statement of PW-4 in attempting to shield the accused appellant
No. 1 has been proved to be false in view of the records of
H
942 SUPREME COURT REPORTS [2016] 8 S.C.R.
A PGIMS, Rohtak and, therefore, High Court was right in
discarding his testimony. [Paras 35, 41, 44, 46)(958-H; 959-A-C;
963-E-F; 964-H; 967-A-BJ
Krishna Moc hi v. State of Bihar 2002 (3) SCR 1 : (2002)
6 SCC 81; Zahira Habibullah v. State of Gujarat 2006
B (2) SCR 1081: (2006) 3 SCC 374; Sakshi v. Union of
India 2004 (2) Suppl. SCR 723 : (2004) 5 SCC 518;
State v. Sanjeev Nanda 2012 (12) SCR 881 : (2012) 8
sec 450 - relied on.
Case Law Reference
c 1961 SCR (3) 120 relied on Para 21
2012 (5) SCR 67 relied on Para 22
1999 (3) Suppl. SCR 200 relied on Para 27
(2002) 8 sec 83 relied on Para 27
D 1958 SCR 552 relied on Para 28
2008 (1) SCR 933 relied on Para 28
2002 (3) SCR 1 relied on Para36
2006 (2) SCR 1081 relied on Para 37
2004 (2) Suppl. SCR 723 relied on Para 38
E
2012 (12) SCR 881 relied on Para 39
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
2526of2014.
From the Judgment and Order dated 30.05.2014 of the High Court
F of Punjab and Haryana at Chandigarh in Cri. Appeal No. D-541-DBA
of2002.
Praveen Kr. Aggai-Wal, Upendra Pratap Singh, Sanjay Jain, Advs.
for the Appellants.
Jagdeep Kr. Sharma, Gyanendra Kr., Vishwa Pal Singh, Advs.
G for the Respondent.
The Judgment of the Court was delivered by
A.K. SIKRI, J. I. The appellants herein were tried and acquitted
by the Sessions Court for offences under Sections 302, 34, 498A of
Indian Penal Code (for short, 'IPC') for which FIR bearing No. 254
H
RAMESH AND OTHERS v. STATE OF HARYANA 943
[A. K. SIKRI, J.]
dated 28 1h September, 1999 was registered against them in Police Station A
Sadar, Bahadurgarh, District Jhajjar, Haryana. However, the High Court,
in appeal, has overturned the verdict of acquittal, thereby convicting all
the four accused persons (appellants herein). The judgment of the High
Court is dated 301h May, 2014, whereby the appellants are sentenced as
under:
B
"Section 302/34 !PC:- To undergo rigorous
imprisonment for life and to pay a fine of Rs. I 0,000/-. In
default of payment of fine, to further undergo rigorous
imprisonment for one year.
Section 498-A/34 !PC:- To undergo rigorous c
imprisonment for two years and to pay a fine ofRs.2,000/
-. In default of payment of fine, to further undergo rigorous
imprisonment for six months."
2. We may state at the outset that the conviction is primarily based
upon the statement ofSmt. Roshni, wife of Appellant no. l,just before D
her death. This statement has been taken by the courts below as her
'dying declaration' and acted upon with the aid of Section 34 of the
Indian Evidence Act, 1872. It is this dying declaration which is the bone
of contention. According to the appellants herein there was no reason
to rely upon the same not only because of certain infirmities therein but
also for the reason of absence of any corroboration. Therefore, before E
proceeding further, we would like to reproduce the statement ofRoshni
(hereinafter referred to as the 'deceased'). It reads as under:
" ..... Stated that it was the time of 3 A.M. today. I was
sleeping in my house at that time. Then my husband Ramesh
came and Suresh his brother, i.e., my devar was also with F
him. Before this, Ramesh my husband and Suresh gave
beatings to me. Thereafter, my devar Suresh lighted stick
of matchbox. Wife ofSuresh and my mother in law namely
Saroj and Prem caught hold. Those both brothers ablazed
me. Thereafter, the person who had caught hold me and G
who had set me on fire fled away from the spot. Thereafter,
outsider persons came there and put off my fire. I had
become upset. Then I was shifted to Medical College by
my devar Suresh and my mother in law.
My marriage was solemnized 20 years before. I have
H
944 SUPREME COURT REPORTS [2016] 8 S.C.R.
A two sons Manj it and Ravinder aged about 16 and 1S years.
One year ago after giving beatings to me I was thrown in a
well by Ramesh and Suresh. I was taken out from the well
by the villagers. On some occasion they say to bring buffalo
and on some occasion they demand money and scooter.
All the persons i.e. my mother in law, devrani, devar and
B
husband used to beat me. Nothing else i intend to depose,
i am illiterate. I have heard my aforesaid statement, which
is correct and accurate. Admitting it to be correct i put my
signature on it."
3. As pointed about above, FIR was registered against the
c appellants on the basis of the aforesaid statement which reflects the
case of prosecution as well. Still, in order to have the complete narration
of the prosecution story, we would like to recapitulate the same hereunder.
4. Marriage between Ramesh (Appellant No. 1) and the deceased
was solemnized 20 years before the aforesaid incident. They had two
D sons out of their wedlock, namely, Manjit and Ravinder, 16 and IS years
old respectively. The deceased was being harassed by her husband and
in-laws on continuous demand of dowry which could not be fulfilled by
the parents of the deceased. One year before the incident, she was
even thrown in a well by her husband and younger brother Suresh but
E was rescued by the villagers. She was subjected to continuous physical
torture and beatings by her husband, younger brother Suresh, Saroj (wife
of Suresh) and Prem (her mother in-law).
On the fateful day, i.e., 20'h September, 1999 when the deceased
was sleeping in the matrimonial house, her husband Ramesh, Suresh,
F Saroj and Prem came there. Saroj and Prem caught hold of her from
her arms and Ramesh sprinkled kerosene on her. Suresh lighted a
matchstick and set her ablaze. After setting her ablaze all of them fled
away from the spot. Some persons from her neighbourhood came and
extinguished the fire. She was taken to Post-Graduate Institute of
Medical Sciences (PGIMS), Rohtak by Ramesh, Suresh and Prem. On
G examination by the doctors in the Post-Graduate Institute of Medical
Sciences, it was found that she was suffering from 100% burns. An
information was sent by Dr. R.P. Verma to Police intimating admission
of the deceased in the hospital. On receipt of this information, Sub-
Inspector Rohtash visited the hospital and collected medico-legal report
H of the victim. He moved the application (Ex. PJ) to the same medical
'
RAMESH AND OTHERS v. STATE OF HARYANA 945
rA.
K. SIKRI, J.l
officer seeking his opinion with regard to the fitness of the patient, that A
is, to say whether she was in fit state of mind to give a statement. The
doctor declared her fit to make a statement vi de endorsement Ex. PJI 1.
On this, the Sub-Inspector approached the Chief Judicial Magistrate,
Rohtak and moved the application (Ex. PH) for deputing an officer to
record her statement. Shri Bhupender Nath, Judicial Magistrate, First B
Class, Rohtak was assigned this task vide order Ex. PH/I. The said
Judicial Magistrate visited the hospital and recorded the statement, which
has already been reproduced above. On the basis of the aforesaid
statement, initially the FIR was registered under Section 307, 498A read
with Section 34, IPC. However, Roshni succumbed to injuries within
few hours (around 10.30 p.m.) on the same day, i.e., 20'h September, C
1999. After her death, the FIR was modified by substituting Section 302
IPC in place of Section 307 IPC. Postmortem of the body of the deceased
was conducted. The dead body was also subjected to autopsy by a
Board of Doctors. Investigating Officer also conducted the spot
inspection, prepared rough site plan of the place of occurrence (Ex.PL), D
took into possession writing Ex.PD/I, arrested the accused persons,
subjected them to custodial interrogation and in pursuance to their
disclosure statement, got recovered various articles which were taken
into possession. On completion of investigation and other formalities, a
report under Section 173(2) Cr.P.C. was presented before the Court of
Jurisdictional Magistrate. E
5. Since an offence under Section 302 IPC is exclusively triable
by the Court of Sessions, case was committed under Section 209 Cr.P.C.
by the Magistrate after having complied with the provisions contained
under Section 207 Cr.P.C. It was ultimately entrusted to the Court of
Additional Sessions Judge, Rohtak, for trial. F
6. The Court of Sessions framed the charges against all the
accused persons under Section 302, 498A, !PC with the aid of section
34 IPC. The appellants pleaded not guilty and opted to contest. With
this, trial began and prosecution examined as many as 14 witnesses.
Deposition of these witnesses, as taken note of by the Trial Court as G
well as the High Court, is described in capitulated form hereinafter.
7. PW-1, Dr. R.P. Verma deposed with regard to admission of the
deceased in PGIMS, Rohtak at 6:40 AM on 20•h September, 1999 with
I 00% burns. He conducted medico-legal examination and proved copy
of MLR (Ex.PA). He also sent ruqa (Ex.PB) to Police Post, PGIMS, H
946 SUPREME COURT REPORTS [2016] 8 S.C.R.
A Rohtak, intimating her admission.
8. PW-2, Constable Jai Chand prepared scaled site plan (Ex.PC)
of the place of occurrence with correct marginal notes on demarcation
by Karan Singh.
9. PW-3, Sardar Singh (father of the deceased), deposed with
B regard to the compromise arrived at with the accused Ramesh and others
about a year prior to the occurrence in question. He furnished copy of
compromise as well as that of proceedings initiated under Section 107/
151 Cr.P.C. to Investigating Officer which were taken into possession
by him vide Ex.PD. He did not support prosecution version in respect of
c occurrence and ultimately he was declared hostile for toeing the line of
the defence.
10. PW-4, Balraj (brother of the deceased), identified dead body
of the deceased in the hospital. PW-5, Partap, who is one of the relations
of the deceased, was a witness to the recovery memo (Ex.PD/I). PW-
D 6, Constable Jagdish Chander got conducted autopsy of the dead body
of the deceased. PW-7, Constable Kuldeep Singh was entrusted with
the duty of handing over the special report to the jurisdictional Magistrate
as well as senior police officer.
11. PW-8, Sub-Inspector Rohtash Singh, conducted initial
E investigation of this case. PW-9, Head Constable Balwan Singh, was a
member of police party at the time when accused Ramesh was subjected
to interrogation by the Station House Officer Karan Singh and he suffered
disclosure statement (Ex.PM) to the effect that he had kept concealed
an empty plastic container of kerosene and that he could get the same
recovered. Subsequently, in pursuance to his disclosure statement, he
F got recovered plastic container (Ex.PI) from the premises of his residential
house which was taken into possession vide Ex.PN.
12. PW-I 0, Inspector Mohar Singh proved proceedings carried
by him under Section I 07/151 Cr.P.C. against Ram Phal, son ofChandgi,
and Ramesh and Suresh, sons of Ram Phal, in pursuance ofDDR No. 5
G dated May 22, 1998, Police Station, Sadar, Bahadurgarh. He proved
copy of the calender (Ex.PD/2). On receipt of ruqa, he got registered
FIR Ex.Pl/A on September 20, 1999.
13. PW-11, Shri Bhupender Nath, Judicial Magistrate 1st Class,
who recorded dying declaration of the deceased, proved the same as
H
RAMESH AND OTHERS v. STATE OF HARYANA 947
rA. K. SIKRI, J.l
Ex. PH/3, on the basis of which formal FIR was put in black & white A
and investigation was put in motion.
14. PW-12, Dr. Neelam Thapar, Medical Officer, General Hospital,
Rohtak, being a member of the Medical Board, conducted autopsy on
the dead body ofSmt. Roshni and deposed as under:
" .... Length of the body was 160 C.M. A mod build and mod B
nourished dead body offemale, wearing no clothes having
white metal ring in body side 2"d toes. No mark of ligature
on the neck and dissection etc. present. R.M. present in all
four limbs. The injuries are follows:-
" I. Superficial to be deep infected burns present all c
over the body except both feet.
2. There is red line of demarcation between burn
and non-burn areas.
3. Singing of hair present over scalp, external
D
genetalia and both axilla.
4. Scalp, skull and vertebrae described, membranes
brain healthy and congested walls, ribs and cartridges
described.
Pleura healthy, larynx and trachea healthy, both lungs healthy E
and congested.
Right side heart contains blood, left side of heart empty.
Abdominal wall described. Peritoneum healthy. Mouth,
pharynx and oesophagus healthy, stomach and its contents
healthy and congested. Stomach contains SOcss of mucoid F
juices. Small intestines and their contents healthy and
congested and large intestine contain faecal matter. Liver,
spleen, kidneys healthy and congested. Bladder empty.
Organs of generation external and internal external
genetalia-hair burn and uterus does not have any product
of conception.
G
In our opinion the cause of death of deceased was bum
and its complication where were ante mortem in nature
and sufficient to cause the death in natural course of
nature ..... "
H
948 SUPREME COURT REPORTS [2016] 8 S.C.R.
A 15. On the conclusion of the prosecution evidence, incriminating
circumstances appearing on record were put to the accused persons for
eliciting their explanation thereto, as per the procedure mandated under
Section 313 of the Cr.P.C. They denied having any role and pleaded
that it was a case of accidental fire in which the deceased was trapped.
Since identical defence plea was taken by all the accused persons, our
B
purpose would be served in reproducing the statement of Ramesh
(Appellant No. I) which runs as under :
"I am innocent. I was living separate from the rest of the
family after dispute was settled in May, 1998 as declared
by the deceased Smt. Roshni. On the night between 19/
c 20/9.1999, I was at my in laws house at Nizampur, Delhi
along with my truck and early in the morning at 4.00 A.M.
a telephonic message was received that Smt. Roshni has
received burn injuries due to falling of kerosene lamp and is
being referred to PGI, Rohtak and got her admitted in the
D hospital. I or any of my family members have never
harassed Smt. Roshni for dowry or otherwise. After
compromise, she was living happily with me. It seems that
since she has tutored her to make she alleged statement
before JMIC."
E 16. The trial court, after appraising the evidence on record, in the
light of oral arguments which were advanced by both the sides, held that
the prosecution could not prove the guilt of the appellants beyond
reasonable doubt. As per the trial court, the dying declaration of the
victim could not be acted upon for the purpose of conviction in view of
the following attendant circumstances:
F
(a) The Judicial Magistrate (PW-11) had stated during his cross-
<xamination that he could not say if the deceased was semi-conscious
" he recorded her statement and he had proceeded to record her
state ;1· - ·t because the Doctor had given his opinion that she was in fit
state of mi.id to give the statement.
G
(b) Balraj (PW-4), who is the brother of the deceased had stated
during the cross-examination that deceased husband Ramesh (appellant
No. I) had come to his house and stayed with him on the night intervening
19'h-201h September, 1999. He further deposed that on 20'h September,
1999 at 4:00 a.m., they had received information about the deceased
H
RAMESH AND OTHERS v. STATE OF HARYANA 949
[A. K. SIKRI, J.]
catching fire and on hearing this news, he along with Ramesh had gone A
to Rohtak, where the deceased was already lying admitted in the hospital.
PW-4 had also deposed to the effect that he had a talk with the deceased
who disclosed him that she had received burn injuries as an earthern
lamp had fallen on her.
The trial court believed the aforesaid statement of PW-4 who is B
none else than the brother of the deceased and concluded that had the
appellants committed murder of his sister, he would not have any soft
corner for these accused persons. The trial court also observed that as
per the statement of PW-4, since appellant No. 1 Ramesh was with him
at the time of the incident, he had been falsely implicated in the case.
c
(c) The trial court also took into consideration the conduct of
other appellants, namely, Suresh (brother of Ramesh), his wife Saroj
and Prem (mother of Ramesh) who had taken the deceased to the hospital
i.e. PGIMS, Rohtak for treatment. Commenting upon this, the trial court
observed that had they poured kerosene on the deceased and set her on
fire with intention to cause her death, tbey would not have taken her to D
the hospital for treatment and they would not have got evidence created
against themselves. ·
(d) As per the trial court, the dying declaration of the deceased
was also intrinsically weak and was not trustworthy.
E
This conclusion was arrived at by analysing the episode in the
following manner:
" ... Roshni was sleeping in the house when she caught fire
at 3:00AM on 20.09.1999. Four persons were not required
to commit her murder by getting her on fire. When she F
was sleeping one person could easily pour kerosene and
set heron fire. Allegations made by Roshni in her statement
Ex.PH/3 that Saroj and Prem caught hold of her and
Ramesh poured kerosene on her and Suresh lighted fire,
appears to be concocted and unnatural."
G
17. On the aforesaid circumstances, the Court of Sessions held
that it was not safe to place reliance upon the dying declaration and the
possibility that the deceased committed suicide by dousing herself with
kerosene and setting herself on fire and thereafter falsely implicating
the appellants, could not be ruled out in order to take revenge against
H
950 SUPREME COURT REPORTS [2016] 8 S.C.R.
A them for their perceived past misbehaviour.
18. The High Court, in the impugned judgment, has found fault
with the aforesaid analysis, approach and the manner in which the dying
declaration has: been dealt with by the trial court. According to the High
Court, the veracity of the dying declaration could not be examined with
B reference to the other evidence. It has held that the approach of the
trial court was blemished. According to the High Court, the trial court
was required to appreciate as to whether the statement of the deceased
was given in a fit state of mind; and whether it was voluntarily given
without being influenced by any extraneous circumstances and without
any tutory. If that was so and the dying declaration of the deceased
c passed the muster of the aforesaid test and was to be believed, the
conviction could be based solely on such a dying declaration. The High
Court then examined the dying declaration in the aforesaid perspective
and found that the Doctor had declared her fit to make a statement on
the basis of which the Judicial Magistrate recorded the statement and
D even after recording of the statement, the Doctor again gave endorsement
that the deceased remained fit during the period her statement was
recorded. In such circumstances, statement of the Judicial Magistrate
(PW- I I) in the Court that he could not say whether the deceased was
semi-conscious when her statement was recorded, was of no
consequence as he had acted on the basis of the medical opinion. The
E
High Court has also observed that PW-11 never stated in categorical
terms that the deceased was semi-conscious when her statement was
recorded and, therefore, the said reply of PW-I I in cross-examination
was read out of context. The High Court further observed that it was
not appropriate on the part of the trial court to discard the dying
F declaration in view of the deposition of her brother Balraj (PW-4). As
perthe High Court, not only PW-4 but his father(PW-3) had not supported
the statement for the reasons best known to them and it appeared that
»ey had been won over by the appellants. The High Court also noted
that merely because the deceased had suffered I 00% burns was no
ground to discard the dying declaration when there was a specific
G certificate given by the Doctor about her mental fitness and that she
was capable of giving the statement.
19. Learned counsel for the appellants challenged the correctness
of the manner in which the High Court has pondered over the issue. In
the first instance, he submitted that it was a case of acquittal by the trial
H
RAMESH AND OTflERS v. STATE OF HARYANA 951
[A.' K. SIKRI, J.]
court after due appreciation of evidence on record and even when two A
views were possible, the High Court should not have tinkered with the
acquittal. He also insisted that the trial court had given cogent reasons
for not believing the dying declaration and one of the most material
circumstance was .that on the fateful night when the incident occurred,
appellant No. I (husband of the deceased) was with PW-4 and it clearly B
demonstrated that appellant No. I was falsely roped in. Therefore, it
could not be said that the deceased had given an honest and truthful
statement. He further submitted that having suffered 100% burns, under
no circumstances could she be in a position to give the statement and,
therefore, certificate of Doctor should not have been believed.
20. Learned counsel for the respondent, on the other hand, c
submitted that incident took place in the matrimonial house and the
deceased had given the statement after reaching the hospital. The
authorities were fully satisfied that she was in a position to give the
statement. Therefore, there was no reason to discard the statement as
was wrongly done by the trial court. He, thus, supported the reasons D
given by the High Court.
21. We have duly appreciated the submissions advanced by
counsel for the parties on both sides. No doubt, the High Court was
dealing with the appeal against the judgment of the trial court which had
acquitted the appellants herein. The scope of interference in an appeai E
against acquittal is undoubtedly narrower than the scope of appeal against
conviction. Section 378 of the Code of Criminal Procedure, 1973 confers
upon the State a right to prefer an appeal to the High Court against the
order of acquittal. At the same time, sub-section (3) thereof mandates
that such an appeal is not to be entertained except with the leave of the
High Court. Thus, before an appeal is entertained on merits, leave of F
the High Court is to be obtained which means that normally judgment of
acquittal of the trial court is attached a definite value which is not to be
ignored by the High Court. In other words, presumption of innocence in
favour of an accused gets further fortified or reinforced by an order of
acquittal. At the same time, while exercising its appellate power, the G
High Court is empowered to reappreciate, review and reconsider the
evidence before it. However, this exercise is to be undertaken in order
to come to an independent conclusion and unless there are substantial
and compelling reasons or very strong reasons to differ from the findings
of acquittal recorded by the trial court, the High Court, as an appellate
H
952 SUPREME COURT REPORTS [2016] 8 S.C.R.
A court in an appeal against the acquittal, is not supposed to substitute its
findings in case the findings recorded by the trial court are equally
plausible. The scope of interference by the appellate court in an order
of acquittal is beautifully summed up in the case of Sanwat Singh v.
State of Rajasthan 1 in the following words:
B "The foregoing discussion yields the following results: (I)
an appellate court has full power to review the evidence
upon which the order ofacquittal is founded; (2) the principles
laid down in Sheo Swarup's case afford a correct guide for
the appellate court's approach to a case in disposing of such
an appeal; and (3) the different phraseology used in the
c judgments of this Court, such as, (i) "substantial and
compelling reasons", (ii) "good and sufficiently cogent
reasons", and (iii) "strong reasons" are not intended to curtail
the undoubted power of an appellate court in an appeal
against acquittal to review the entire evidence and to come
D to its own conclusion; but in doing so it should not only
consider every matter on record having a bearing on the
questions of fact and the reasons given by the court below
in support of its order of acquittal in its arriving at a
conclusion on those facts, but should also express those
reasons in its judgment, which lead it to hold that the acquittal
E was not justified."
22. This legal position is reiterated in Govindaraju ® Govinda v.
State by Sriramapuram Police Station and another and the following
passage therefrom needs to be extracted:
F "12. The legislature in its wisdom, unlike an appeal by an
accused in the case of conviction, introduced the concept
ofleave to appeal in term~_ofSection 378 CrPC. This is an
indication that appeal from acquittal is placed on a
somewhat different footing than a normal appeal. But once
leave is granted, then there is hardly any difference between
G a normal appeal and an appeal against acquittal. The concept
of leave to appeal under Section 378 CrPC has been
introduced as an additional stage between the order of
acquittal and consideration of the judgment by the appellate
I 1961 SCR (3) 120
H '(2012) 4 sec 122
RAMESH AND OTHERS v. STATE OF HARYANA 953
[A. K. SIKRI, J.]
court on merits as in the case of a regular appeal. Sub- A
section (3) of Section 378 clearly provides that no appeal to
the High Court under sub-section (I) or (2) shall be
entertained except with the leave of the High Court. This
legislative intent of attaching a definite value to the judgment
of acquittal cannot be ignored by the courts.
B
13. Under the scheme ofCrPC, acquittal confers rights on
an accused that of a free citizen. A benefit that has accrued
to an accused by the judgment of acquittal can be taken
away and he can be convicted on appeal, only when the
judgment of the trial court is perverse on facts or law. Upon
examination of the evidence before it, the appellate court c
should be fully convinced that the findings returned by the
trial court are really erroneous and contrary to the settled
principles of criminal law."
23. The Court also took note of earlier precedents and summarised
the legal position laid down in those cases, in the following words: D
"17. Ifwe analyse the above principle somewhat concisely,
it is obvious that the golden thread which runs through the
web of administration of justice in criminal cases is that if
two views are possible on the evidence adduced in a case,
one pointing to the guilt of the accused and the other to his E
innocence, the view which is favourable to the accused
should be adopted.
18. There are no jurisdictional limitations on the power of
the appellate court but it is to be exercised with some
circumspection. The paramount consideration of the court F
should be to avoid miscarriage ofjustice. A miscarriage of
justice which may arise from the acquittal of guilty is no ·
less than that from the conviction ofan innocent. If there is
miscarriage of justice from the acquittal, the higher court
would examine the matter as a court of fact and appeal G
while correcting the errors of law and in appreciation of
evidence as well. Then the appellate court may even
proceed to record the judgment of guilt to meet the ends of
justice, if it is really called for.
xx xx xx
H
954 SUPREME COURT REPORTS [2016] 8 S.C.R.
A 22. A vel)' vital distinction which the court has to keep in
mind while dealing with such appeals against the order of
acquittal is that interference by the court is justifiable only
when a clear distinction is kept between perversity in
appreciation of evidence and merely the possibility of
another view. It may not be quite appropriate for the High
B
Court to merely record that the judgment of the trial court
was perverse without specifically dealing with the facets
ofperversity relating to the issues oflaw and/or appreciation
of evidence, as otherwise such observations of the High
Court may not be sustainable in law."
c 24. The appellate court, therefore, is within its power to
reappreciate or review the evidence on which the acquittal is based. On
reconsideration of the evidence on record, if the appellate court finds
the verdict of acquittal to be perverse or against the settled position of
law, it is duly empowered to set aside the same. On the other hand, if
D the trial court had appreciated the evidence in right perspective and
recorded the findings which are plausible and the view of the trial court
does not suffer from perversity, simply because the appellate court comes
tQ, a different conclusion on the appreciation of the evidence on record,
it will not substitute its findings to that of findings recorded by the trial
court.
E
25. In the instant case, we find that the High Court has interferec;I
on the ground that the vel)' approach of the trial court in appreciating the
evidence on record was legally unsustainable. If such observations of
the High Court are correct, it was fully justified in interjecting with the
verdict of the trial court.
F
26. We have already noticed above the reasons recorded by the
trial court while discarding the dying declaration. Admittedly, no
weightage is given by the trial court to the opinion of the Doctor certifying
that the deceased was in a fit state of mind. Likewise, no reasons were
given by the trial court as to why the testimony of the Judicial Magistrate,
G who recorded the statement, be disbelieved.
27. Law on the admissibility of the dying declarations is well settled.
In Jai Karan v. State of N.C.T., DellzP, this Court explained that a
dying declaration is admissible in evidence on the principle of necessity
'(1999) s sec 161
H
RAMESH AND OTHERS v. STATE OF HARYANA 955
[A. K. SIKRl, J.]
and can form the basis of conviction if it is found to be reliable. In order A
that a dying declaration may form the sole basis for conviction without
the need for independent corroboration it must be shown that the person
making it had the opportunity of identifying the person implicated and is
thoroughly reliable and free from blemish. If, in the facts and
circumstances of the case, it is found that the maker of the statement B
was in a fit state of mind and had voluntarily made the statement on the
basis of personal knowledge without being influenced by others and the
court on strict scrutiny finds it to be reliable, there is no rule of law or
even of prudence that such a reliable piece of evidence cannot be acted
upon unless it is corroborated. A dying declaration is an independent
piece of evidence like any other piece of evidence, neither extra strong C
or weak, and can be acted upon without corroboration if it is found to be
otherwise true and reliable. There is no hard and fast rule of universal
application as to whether percentage of burns suffered is determinative
factor to affect credibility of dying declaration and improbability of its
recording. Much depends upon the nature of the burn, part of the body D
affected by the burn, impact of the burn on the faculties to think and
convey the idea or facts coming to mind and other relevant factors.
Percentage of burns alone would not determine the probability or
otherwise of making dying declaration. Physical state or injuries on the
declarant do not by themselves become determinative of mental fitness
of the declarant to make the statement (See Rambai v. Stute of E
Cltllatisgarll~).
28. It is immaterial to whom the declaration is made. The
declaration may be made to a Magistrate, to a Police Officer, a public
servant or a private person. It may be made before the doctor; indeed,
he would be the best person to opine about the fitness of the dying man F
to make the statement, and to record the statement, where he found that
life was fast ebbing out of the dying man and there was no time to call
the Police or the Magistrate. In such a situation the Doctor would be
justified, rather duty bound, to record the dying declaration of the dying
man. At the same time, it also needs to be emphasised that in the instant
case, dying declaration is recorded by a competent Magistrate who was G
having no animus with the accused persons. As held in Kuslwl Rao v.
State ofBombay;, this kind of dying declaration would stand on a much
higher footing. After all, a competent Magistrate has no axe to grind
'(2002) 8 sec 83
' 1958 SCR 552 H
956 SUPREME COURT REPORTS [2016] 8 S.C.R.
A against the person named in the dying declaration of the victim and in
the absence of circumstances showing anything to the contraiy, he should
not be disbelieved by the Court (See Vikas & Ors. v. State of
Malzaraslltra').
29. No doubt, the victim has been brought with 100% bum injuries.
B Notwithstanding, the doctor found that she was in a conscious state of
mind and was competent to give her statement. Thus, the Magistrate
had taken due precautions and, in fact, Medical Officer remained present
when the dying declaration was being recorded. Therefore, this dying
declaration cannot be discarded merely going by the extent of burns
with which she was suffering, particularly, when the defence has not
C been able to elicit anything from the cross-examination of the doctor
that her mental faculties had totally impaired rendering her incapable of
giving a statement.
30. Keeping in view the aforesaid considerations, we feel that
High Court rightly observed that the manner in which the trial court
D proceeded with the matter was legally unsustainable. It was necessary
forthe trial court, in the first instance, to see as to whether due precautions
were taken before recording the statement of the deceased, which
became dying declaration as she died within few hours thereafter. In
this context, what is relevant is that the moment the deceased was admitted
E in PGIMS, Rohtak, without any loss of time and immediately thereafter
the Doctor at the said hospital sent the information to the police post
about her admission in the hospital with burns. On receipt of that
information, Sub-Inspector visited the hospital and collected Medical
Report of the deceased. He immediately moved an application before
the concerned Medical Officer seeking his opinion with regard to the
F fitness of the patient. On that application itself (Ex. PG), the Doctor
made an endorsement (Ex. PG/I) that she was fit to make statement.
Sub-Inspector did not record the statement of the deceased himself.
Rather, he took due precaution by approaching the Chief Judicial
Magistrate, Rohtak with an application (Ex. PH) requesting him to depute
G an officer to record the statement of the deceased. On this application,
orders were passed (Ex. PH/I) directing Bhupinder Nath, Judicial
Magistrate, First Class, Rohtak to go to the hospital and record the
statement. Armed with this order, the Magistrate reached the hospital
and recorded the statement of the deceased. This recording was done
• (2008) 2 sec s16
H
RAMESH AND OTHERS v. STATE OF HARYANA 957
[A. K. SIKRI, J.]
in the presence of the Doctor who again certified that she had given the A
statement in a fit state of mind.
31. Aforesaid narration stating the manner in which statement of
the deceased was recorded clearly brings out that all possible precautions
were taken by the concerned authorities before and while recording her
statement. The trial court in its judgment has not even discussed the B
aforesaid aspects. The recording of statement by the Judicial Magistrate
is sought to be, discredited on the specious ground that in his cross-
examination he has stated that he could not say whether the deceased
was semi-conscious. The High Court has rightly recorded that this
statement of PW-11 is read out of context. The aforesaid answer by
PW-11 was in reply to the question put to him as to whether the deceased C
was semi-conscious when her statement was recorded by him. It is in
reply to this question he stated that he cannot say if she was semi-
conscious when her statement was recorded. He also clarified that
since the Doctor had given his opinion, he proceeded to record her
statement. It may be noticed that PW-11 nowhere stated that the D
deceased was semi-conscious when her statement was recorded. The
statement of PW-11 was to be taken into consideration as a whole. It
has come on record, and we repeat, that after the completion of her
statement, the Doctor made an endorsement (Ex. PH/4) to the effect
that the deceased remained fit during the recording of her statement and
it is only thereafter the learned Magistrate (PW-I I) appended his E
signature (Ex. PHIS) categorically stating that the statement recorded
by him was true version of what the deceased had spoken and he had
stated in unambiguous terms that she was fit to make statement and
remained fit till her statement was recorded.
32. In view of the specific certification by the Doctor about the F
fitness of the deceased that she remained fit while recording the
statement, the mere effect that she had suffered I 00% burns would not,
ipso facto, lead to the conclusion that the deceased was unconscious or
that she was not in a proper state of mind to make a statement. At this -
stage, it would also be relevant to point out that no challenge was made o
by the defence to the aforesaid statement of the deceased on the ground
that it was not made voluntarily or it was made by any extraneous
circumstances or was the result of tutoring. In fact, even as 'per the
appellants, it is they who had taken the deceased to the hospital and no
other person known to her f1ad come in her contact before the statement
H
958 SUPREME COURT REPORTS [2016] 8 S.C.R.
A was recorded. On the contrary, PW-3 and PW-4 (father and brother of
the deceased respectively) have not supported the prosecution version,
which aspect shall be dealt with later at the appropriate stage and,
therefore, the question of tutoring does not arise at all.
33. On examination and analysis of the dying declaration in the
B aforesaid perspective, we do not find any reason to discard it having
regard to the legal position on the subject already noticed above by referring
to relevant case law. It is trite that dying declaration is a substantive
piece of evidence and can be made the basis of conviction once the
Court is convinced that dying declaration is made voluntarily and is not
influenced by any extraneous circumstances.
c
34. There is one more reason that was given by the trial court in
discarding the dying declaration and if correct, that would afford strong
circumstance to justify its conclusion. It is the PW-4 who has come as
a shield to protect the appellants. For this reason, we advert to the
statement ofBalraj (PW-4), brother of the deceased. He stated that on
D the night intervening I 9'h - 20'h September, 1999, Ramesh was with
him. He further deposed that at 4:00 a.m. on 20'h September, 1999, they
received the information about the deceased having sustained bum injuries
and he along with Ramesh reached PGIMS, Rohtak where she was
already present. It is on the basis of this statement that the trial court
E observed that since Ramesh was with Balraj (PW-4) in his house, he
could not be present at the place of incident when it took place and,
therefore, he is falsely implicated and mentioning of his name considerably
dents the veracity of dying declaration thereby rendering it questionable.
However, we find that in accepting the aforesaid version of PW-4, the
trial court committed a serious mistake. As per the hospital records, it is
F Ramesh who had brought the deceased to the hospital and got her
admitted which was even the defence case as well. The trial court
completely overlooked this pertinent aspect. This fact alone is sufficient
to discredit the statement of PW-4 that Ramesh was with him in his
house and both of them had received the information about the incident
G and when both of them reached PGIMS, Rohtak, the deceased was
already there. In these circumstances, we entirely agree with the High
Court that PW-4, though brother of the deceased, appears to have been
won over by the appellants.
35. We find that it is becoming a common phenomenon, almost a
H regular feature, that in criminal cases witnesses turn hostile. There could
RAMESH AND OTHERS v. STATE OF HARYANA 959
rA. K. SIKRI, J.]
be various reasons for this behaviour or attitude of the witnesses. It is A
possible that when the statements of such witnesses were recorded
under Section 161 of the Code of Criminal Procedure, 1973 by the police
during investigation, the Investigating Officer forced them to make such
statements and, therefore, they resiled therefrom while deposing in the
Court and justifiably so. However, this is no longer the reason in most of B
the cases. This trend of witnesses turning hostile is due to various other
factors. It may be fear of deposing against the accused/delinquent or
political pressure or pressure of other family members or other such
sociological factors. It is also possible that witnesses are corrupted with
monetary considerations.
36. In some of the judgments in past few years, this Court has c
commented upon such peculiar behaviour of witnesses turning hostile
and we would like to quote from few such judgments. In Krishna Moc/ii
v. State of Bilwr', this Court observed as under:
"31. It is matter of common experience that in recent times
there has been sharp decline of ethical values in public life D
even in developed countries much less developing one, like
ours, where the ratio of decline is higher. Even in ordinary
cases, witnesses are not inclined to depose or their evidence
is not found to be credible by courts for manifold reasons.
'one of the reasons may be that they do not have courage E
to depose against an accused because of threats to their
life, more so when the offenders are habitual criminals or
high-ups in the Government or close to powers, which may
be political, economic or other powers including muscle
power."
F
3 7. Likewise, in Zahira Habibullah v. State of Gujarat8, this
Court highlighted the problem with following observations:
"40. Witnesses, as Bentham said, are the eyes and ears of
justice. Hence, the importance and prima<!y of the quality
oftriill process. If the witness himself is incapacitated from G
acting as eyes and ears of justice, the trial gets putrefied
and paralysed and it no longer can constitute a fair trial.
The incapacitation may be due to several factors like the
witness being not in a position for reasons beyond control,
1
(2002) 6 secs 1
'(2006) 3 sec 374 H
960 SUPREME COURT REPORTS [2016] 8 S.C.R.
A to speak the truth in the court or due to negligence or
ignorance or some corrupt collusion. Time has become ripe
to act on account of numerous experiences faced by the
court on account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary
considerations at the instance of those in power, their
B
henchmen and hirelings, political clouts and patronage and
innumerable other con'Upt practices ingeniously adopted to
smother and stifle truth and realities coming out to surface.
Broader public and social interest require that the victims
of the crime who are not ordinarily parties to prosecution
c and the interests of State representing by their presenting
agencies do not suffer ... there comes the need for protecting
the witnesses. Time has come when serious and undiluted
thoughts are to be bestowed for protecting witnesses so
that ultimate truth presented before the Court and justice
triumphs and that the trial is not reduced to mockery.
D
41. The State has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases involving
those in power, who has political patronage and could wield
muscle and money power, to avert trial getting tainted and
derailed and truth becoming a casualty. As a protector of
E
its citizens it has to ensure that during a trial in Court the
witness could safely depose truth without any fear of being
haunted by those against whom he had deposed. Every
State has a constitutional obligation and duty to protect the
life and liberty of its citizens. That is the fundamental
F requirement forobservance of the rule oflaw. There cannot
be any deviation from this requirement because of any
extraneous factors like, caste, creed, religion, political belief
or ideology. Every State is supposed to know these
fundamental requirements and this needs no retaliation. We
can only say this with regard to the criticism levelled against
G
the State of Gujarat. Some legislative enactments like the
Terrorist and Disruptive Activities (Prevention) Act, 1987
(in short the "TADA Act") have taken note of the reluctance
shown by witnesses to depose against people with muscle
power, money power or political power which has become
H
RAMESH AND OTHERS v. STATE OF HARYANA 961
[A. K. SIKRI, J.]
the order of the day. If ultimately truth is to be arrived at, A
the eyes and ears ofjustice have to be protected so that the
interests of justice do not get incapacitated in the sense of
making the proceedings before Courts mere mock trials as
are usually seen in movies."
38. Ukewise, in Saks/ii v. Union of l11dia 9 , the menace of B
witnesses turning hostile was again described in the following words:
"32. The mere sight of the accused may induce an element
of extreme fear in the mind of the victim or the witnesses
or can put them in a state of shock. In such a situation he or
she may not be able to give full details of the incident which c
may result in miscarriage ofjustice. Therefore, a screen or
some such arrangement can be made where the victim or
witnesses do not have to undergo the trauma of seeing the
body or the face of the accused. Often the questions put in
cross-examination are purposely designed to embarrass or
confuse the victims ofrape and child abuse. The object is D
that out of the feeling of shame or embarrassment, the victim
may not speak out or give details of certain acts committed
by the accused. It will, therefore, be better if the questions
to be put by the accused in cross-examination are given in
writing to the Presiding Officer of the Court, who may put E
the same to the victim or witnesses in a language which is
not embarrassing. There can hardly be any objection to the
other suggestion given by the petitioner that whenever a
child or victim of rape is required to give testimony, sufficient
breaks should be given as and when required. The provisions
of sub-section (2) of section 327 Cr.P.C. should also apply F
in inquiry or trial of offences under Section 354 and 377
IPC."
39. In State v. Sanjeev Nanda 10 , the Court felt constrained in
reiterating the growing disturbing trend:
G
"99. Witness turning hostile is a major disturbing factor faced
by the criminal courts in India. Reasons are many for the
witnesses turning hostile, but of late, we see, especially in
'(2004) 5 sec 518
"(2012) s sec 450
H
962 SUPREME COURT REPORTS [2016) 8 S.C.R.
A high profile cases, there is a regularity in the witnesses
turning hostile, either due to monetary consideration or by
other tempting offers which undermine the entire criminal
justice system and people carry the impression that the
mighty and powerful can always get away from the clutches
of law thereby, eroding people's faith in the system.
B
100. This court in State of U.P. v. Ramesh Mishra and
Anr. [AIR 1996 SC 2766) held that it is equally settled law
that the evidence of hostile witness could not be totally
rejected, if spoken in favour of the prosecution or the
accused, but it can be subjected to closest scrutiny and that
c portion of the evidence which is consistent with the case of
the prosecution or defence may be accepted. In K.
Anbazhagan v. Superintendent of Police and Anr., (AIR
2004 SC 524), this Court held that if a court finds that in the
process the credit of the witness has not been completely
D shaken, he may after reading and considering the evidence
of the witness as a whole with due caution, accept, in the
light of the evidence on the record that part of his testimony
which it finds to be creditw011hy and act upon it. This is
exactly what was done in the instant case by both the trial
court and the High Court and they found the accused guilty.
E
I 01. We cannot, however, close our eyes to the disturbing
fact in the instant case where even the injured witness,
who was present on the spot, turned hostile. This Court in
Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi), (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v.
F State of Gujarat, AIR 2006 SC 1367, had highlighted the
glaring defects in the system like non-recording of the
statements correctly by the police and the retraction of the
statements by the prosecution witness due to intimidation,
inducement and other methods of manipulation. Courts,
G however, cannot shut their eyes to the reality. If a witness
becomes hostile to subvert the judicial process, the Courts
shall not stand as a mute spectator and every effort should
be made to bring home the truth. Criminal judicial system
cannot be overturned by those gullible witnesses who act
under pressure, inducement or intimidation. Further, Section
H
RAMESH AND OTHERS v. STATE OF HARYANA 963
[A. K. SIKRI, J.]
193 of the IPC imposes punishment for giving false evidence A
but is seldom invoked."
40. On the analysis of various cases, following reasons can be
discerned which make witnesses retracting their statements before the
Court and turning hostile:
"(i) Threat/intimidation. 8
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
c
(vi) Hassles faced by the witnesses during investigation and
trial.
(vii) Non-existence of any clear-cut legislation to check
hostility of witness." D
41. Threat and intimidation has been one of the major causes for
the hostility of witnesses. Bentham said: "witnesses are the eyes and
ears ofjustice". When the witnesses are not able to depose correctly
in the court of law, it results in low rate of conviction and many times
even hardened criminals escape the conviction. It shakes public E
confidence in the criminal justice delivery system. It is for this reason
there has been a lot of discussion on witness protection and from various
quarters demand is made for the State to play a definite role in coming
out with witness protection programme, at least in sensitive cases involving
those in power, who have political patronage and could wield muscle
and money power, to avert trial getting tainted and derailed and truth F
becoming a casualty. A stern and emphatic message to this effect was
given in Zallira Hahibullali 's case as well.
42. Justifying the measures to be taken for witness protection to
enable the witnesses to depose truthfully and without fear, Justice
Malimath Committee Report on Reforms of Criminal Justice System, G
2003 has remarked as under:
"11.3 Another major problem is about safety of witnesses
and their family members who face danger at different
stages. They are often threatened and the seriousness of
H
964 SUPREME COURT REPORTS [2016) 8 S.C.R.
A the threat depends upon the type of the case and the
background of the accused and his family. Many times
crucial witnesses are threatened or injured prior to their
testifying in the court. If the witness is still not amenable he
may even be murdered. In such situations the witness will
not come forward to give evidence unless he is assured of
B
protection or is guaranteed anonymity of some form of
physical disguise ... Time has come for a comprehensive law
being enacted for protection of the witness and members
ofhis family."
43. Almost to similar effect are the observations of Law
c Commission of India in its l 981h Report 11 , as can be seen from the
following discussion therein:
"The reason is not far to seek. In the case of victims of
terrorism and sexual offences against women and juveniles,
we are dealing with a section of society consisting of very
D vulnerable people, be they victims or witnesses. The victims
and witnesses are under fear of or danger to their lives or
lives of their relations or to their property. It is obvious that
in the case of serious offences under the Indian Penal code,
1860 and other special enactments, some of which we have
E referred to above, there are bound to be absolutely similar
situations for victims and witnesses. While in the case of
certain offences under special statutes such fear or danger
to victims and witnesses may be more common and
pronounced, in the case of victims and witnesses involved
or concerned with some serious offences, fear may be no
F less important. Obviously, if the trial in the case of special
offences is to be fair both to the accused as well as to the
victims/witnesses, then there is no reason as to why it should
not be equally fair in the case of other general offences of
· •rious nature falling undertl)e Indian Penal Code, 1860. It
G 1~ the fear or danger or rather the likelihood thereof that is
common to both cases. That is why several general statutes
in other countries provide for victim and witness protection."
44. Apart from the above, another significant reason for witnesses
turning hostile may be what is described as 'culture of compromise'.
H 11
Report on ·witness identity protection and witness protection programmes'
RAMESH AND OTHERS v. STATE OF HARYANA 965
(A. K. SIKRI, J.]
Commenting upon such culture in rape trials, Pratiksha Bakshi 1" has A
highlighted this problem in the following manner:
"During the trial, compromise acts as a tool in the hands of
defence lawyers and the accused to pressurise complainants
and victims to change their testimonies in a courtroom. Let
us turn to a recent case from Agra wherein a young Dalit B
woman was gang-raped and the rapist let off on bail. The
accused threatened to rape the victim again if she did not
compromise. Nearly a year after she was raped, she
committed suicide. While we find that the judgment records
that the victim committed suicide following the pressure to
compromise, the judgment does not criminalise the pressure c
to compromise as criminal intimidation of the victim ancl-
her family. The normalising function of the socio-legal
category of compromise converts terror into a bargain in a
context where there is no witness protection programme.
This often accounts for why prosecution witnesses routinely D
tum hostile by the time the case comes on trial, if the victim
does not lose the will to live.
In other words, I have shown how legality is
actually perceived as disruptive of sociality; in this instance,
a sociality that is marked by caste based patriarchies, such E
that compromise is actively perceived, to put it in the words
of a woman judge of a district court, as a mechanism for
'restoring social relations in society'."
45. In this regard, two articles by Daniela Berti delve into a
sociological analysis ofhostile witnesses, noting how village compromises F
(and possibly peer pressure) are a reason for witnesses turning hostile.
In one of his articles 13 , he writes:
"For reasons that cannot be explained here, even the people
who initiate a legal case may change their minds later on
and pursue non-official forms of compromise or adjustment. G
Ethnographic observations of the cases that do make it to
the criminal courtroom thus provide insight into the kinds of
tensions that arise between local society and the state judicial
12
In Justice is a Secret : Compromise in Rape Trials"
13 Daniela Berti : Courts of Law and Legal Practice (pp. 6-7) H
966 SUPREME COURT REPORTS [2016] 8 S.C.R.
A administration. These tensions are particularly palpable
when witnesses deny before the judge what they allegedly
said to the police during preliminary investigations. At this
very moment they often become hostile. Here I must point
out that the problem of what in common law tenninology is
called "hostile witnesses" is, in fact, general in India and
B
has provoked many a reaction from judges and politicians,
as well as countless debates in newspaper editorials.
Although this problem assumes particular relevance at high-
profile, well-publicized trials, where witnesses may be
politically pressured or bribed, it is a recurring everyday
c situation with which judges and prosecutors of any small
district town are routinely faced. In many such cases, the
hostile behavior results from various dynamics that interfere
with the trial's outcome - village or family solidarity, the
sharing of the same illegal activity for which the accused
has been incriminated (as in case of cannabis cultivation),
D
political interests, family pressures, various forms of
economic compensation, and so forth. Sometimes the
witness becomes "hostile" simply because police records
of his or her earlier testimony are plainly wrong. Judges
themselves are well aware that the police do write false
E statements for the purpose of strengthening their cases.
Though well known in judicial milieus, the dynamics just
described have not yet been studied as they unfold over the
course of a trial. My research suggests, however, that the
witness's withdrawal from his or her previous statement is
a crucial moment in the trial, one that clearly encapsulates
F
the tensions arising between those involved in a trial and
the court machinery itself."
"In my fieldwork experiences, witnesses become "hostile"
not only when they are directly implicated in a case filed by
the police, but also when they are on the side of the plaintiff's
G party. During the often rather long period that elapses
between the police investigation and the trial itself, I often
observed, the pai1y who has lodged the complaint (and who
becomes the main witness) can irreparably compromise the
case with the other party by means of compensation, threat
H or blackmail."
RAMESH AND OTHERS v. STATE OF HARYANA 967
rA.
K. SIKRI, J.l
46. Present case appears to have been stung by 'culture of A
compromise'. Fortunately, statement of PW-4 in attempting to shield
the accused Ramesh has been proved to be false in view of the records
of PG IMS, Rohtak and, therefore, we held that High Court was right in
discarding his testimony.
47. We, thus, do not find any merit in this appeal, which is B
accordingly dismissed.
Devika Gujral Appeal dismissed.
c
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "dying declaration"Sign in to search