RONAL KIPRONO RAMKATversusSTATE OF HARYANA

                         RONAL KIPRONO RAMKAT                                   A
                                      v.
                           STATE OF HARYANA

                              JULY 31, 2001

 [DR. A.S. ANAND, CJ., R.C. LAHOTI AND SHIVARAJ V. PATIL, JJ.]                  B


      Penal Code, 1860 :

      Section 376-Rape-With or without consent-Victim was totally naked
and underclothes of both the victim and accused found in the same room-         C
Effect of-Held : This probabilises theory of intercourse by consent and
negatives story of rape.

      Evidence Act, 1872 :

     Section 32(1)-Dying declaration-Evidentiary value of-Necessity of D
corroboration-Held, If dying declaration is reliable and truthful no further
corroboration is required.

      Criminal Trial :

      Standard of proof-Accused is no/ required to establish his defence by     E
the same standard as required by prosecution-// is enough if defence is
probable in the given circumstances.

      Words and Phrases:

      "Rape"-Meaning of-In the con/ex/ ofS.376 of the Penal Code, 1860.         F

      The appellant-accused was convicted for the offences under Section 376
read with Section 511 of the Penal Code, 1860 and also for an offence under
Section 302 IPC. The High Court confirmed the conviction and sentence.
Hence this appeal.
                                                                                G
      According to the prosecution the deceased informed her friend (PW-4)
that the appellant. Who was the deceased's friend, wanted the deceased to
see him at his house. Accordingly, the deceased went to the said house.
Subsequently, PW-4 informed PW-5, the deceased's brother, that the deceased
was stabbed in the appellant's house. PW-5 then rushed to the place and found   H
                                      65
     66                         SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A    the appellant and the deceased lying in a pool of blood and that the deceased
     managed to tell him that the accused had tried to rape her and on her
     resistance, he had stabbed her on the neck and head with a kitchen knife.
     PW-5 along with another person took the deceased to the hospital where she
     was found dead on arrival.

B          On behalf of the accused it was contended that the so-called dying
     declaration could not be accepted as truthful; that there were no eyewitnesses
     to the incident; that material witnesses were not examined; and that there
     was no explanation as to the serious injuries sustained by the accused.

           Allowing the appeal, the Court
c
          HELD : I. If dying declaration passes the test of reliability and
    truthfulness it can form the basis of conviction even without corroboration.
                                                                        (68-F-Gl

D          2.1. From the perusal of the complaint given by PW-5, it is clear that
    the last words, that the appellant had also tried to commit suicide by stabbing
     himself in the stomach, appear to have been inserted later in the space between
    the lines when compared with the rest of the document. This portion of the
    statement appears to be the assessment of PW-5 and not a part of the dying
    declaration. In the absence of explanation as to the serious nature of injuries
E   sustained by the appellant giving rise .to serious doubt as to the very genesis
    of the incident, the said portion of the statement appears to have been inserted
    after deliberation and consultation. This insertion probabilises the defence
    version that the appellant and the deceased were in love. The very fact that
    the deceased was totally naked and underclothes of both the deceased and
F   the appellant were found in the same room probabilises the theory of
    intercourse by consent and negatives the story of rape. (69-C-G I

          2.2. In view of the injuries found on the deceased and the defence taken
    by the appellant that she died on the spot and in the absence of any other
    evidence except the statement of PW-5 it is difficult to accept that the deceased
G   was alive or at any rate she was in a position to make the statement to PW-
    5 as sought to be made out. (70-Cj

           3. The injuries found on the appellant could not be said to be self-
    inllicted and, therefore, his defence, that he sustained injuries at the hands of
    an unknown person when he tried to save the deceased, appears to be
H   probable. The trial court expected the appellant to establish his defence by
        RONAL KJPRONO RAMKATv. STATE [SI-IIVARAJ Y. PATIL, .I.]               67

 the same standard that the prosecution should establish the guilt of an accused    A
 beyond reasonable doubt. It was enough to show that the defence was probable
 in the given circumstances. In this case the defence statement is probabilised
 by the surrounding circumstances and the evidence brought on record. The
 so-called dying declaration does not inspire confidence. The material witnesses,
 who could have thrown light in this regard, were also not examined for reasons     B
 best known to the prosecution. 170-E-H; 71-Al

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
 464 of 1999.

      From the Judgment and Order dated 4.9.97 of the Punjab and Haryana
 High Court in Crl. A. No. 499-DB of 1996.                                          C
       Rishi Malhotra and S.K. Sabharwal for the Appellant.

       Mahabir Singh for the Respondent.

       The Judgment of the Court was delivered by                                   D
       SHIVA RAJ V. PATIL, J. This appeal by special leave, is aggrieved
 by and directed against the judgment and order of the High Court of Punjab
 and Haryana dated 4. 9 .1997, upholding the order of conviction and sentence
 passed on the appellant by the trial court.
                                                                                    E
        The appellant was tried by the Additional Sessions Judge, Ambala, for
  the offences under Section 376 read with Section 511 IPC and for an offence
  under Section 302 !PC. The prosecution case, as unfolded during trial is that
  at about 1.30 P.M. on 17.11.1993, Betty, the deceased, informed her friend
  Caroline (Pw-4) that Ramkat Ronald (the accused), the appellant, who was
 Betty's friend, wanted her to see him at his house No. 823, Sector 2, Panchkula.   F
·Accordingly Betty went to the said house. At about 2.30 P.M., Caroline
  informed Elisha Siele (PW-5), Betty's brother that his sister had been stabbed
 in house No. 823, Sector 2, Panchkula. She did not inform who gave that
 information to her. PW-5 then rushed to the place and found the appellant
 and the deceased lying in a pool of blood and that Betty managed to tell him       G
 that the accused had tried to rape her and on her resistance, he had stabbed
 her on the neck and head with a kitchen knife. PW-5 alongwith Kennith put
 Betty in a Maruti Car and rushed her to the Government hospital, Sector 6,
 Panchkula. The doctor found Betty in a serious condition and referred her to
 the P.G.I. Hospital, Chandigarh, where she was found to be dead on arrival.
 ASI Pale Ram (PW-10) reached P.G.I. Chandigarh and took the report (Exbt.          H
     68                         SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A P-E) from the PW-5 at 7.00 P.M. which formed the basis of formal first
     information report registered at 7.30 P.M. in the police station, Panchkula for
     the offences under Section 3 76 read with Sections 511 and 302 of the IPC.
     The case was investigated by Inspector Kanhiya Lal (PW-I I) and charge-
     sheet was filed.

B         . The trial court found the appellant guilty and convicted him for the
     offences already mentioned above and passed consequent sentence on him.
     The appellant failed before the High Court in the appeal filed by him. Hence,
     this appeal.

C         The learned counsel for the appellant contended that the trial court as
    well as the High Court have concurrently and manifestly erred in holding the
    appellant guilty. The so-called dying declaration said to have been made by
    the deceased could not be accepted as truthful for several reasons. Admittedly,
    there are no eyewitnesses to the incident. Beside, material witnesses also
    were not examined. We were taken through the evidence in support of these
D   submissions. The learned counsel for the State made submissions supporting
    the impugned judgment and order.

            There are no eyewitnesses to the incident. The prosecution, to support
     its case mainly relied on the oral dying declaration said to have been made
    by the deceased to PW-5 and the evidence of PWs 4-5. The defence of the
E   appellant was that the deceased and he were friends and they had love affair
    among them. The deceased came to his house on that fateful day. Some
    unknown person came and assaulted the deceased and in the process to save
    her he was also assaulted and suffered injuries. According to him, Betty died
    on the spont itself. PW-5 was not tolerant of the love affair between him and
F   the deceased and that a false case was foisted against him after due deliberation
    and consultation.

           We are conscious if dying declaration passes the test of reliability and
    truthfulness it can form basis of conviction even without further corroboration.
    But in the case on hand, after examining the during declaration in all its
G   aspects, having due regard to surrounding circumstances, we find it unreliable
    as it suffers from number of infirmities stated hereinafter.

          PW-5 was the first informant, who gave report Exh. P-E in which it is
    stated that on I 7. I 1.1983 Betty informed PW-4, her friend, that the appellant
    wanted to see her (deceased) briefly. The deceased left alone at about 1.30
H   P.M. to House No. 823, Sector 2, Panchkula, where the appellant has been
        RONALKIPRONORAMKATv. STATE[SHIYARA.IY. PATIL,J.)                   69

 staying. On the contrary both PW-4 and PW-5 in their evidence stated that A
 the deceased went to the house of the appellant of her own accord to say
 goodbye to him. This changes the complexion of the entire case. PW-5 stated
 that PW-4 informed him at about 2.30 P.M. on 17 .11.1993 that she had
 received information that the deceased had been stabbed in house No. 823
 but the name of the informant was not given. PW-4 in her evidence stated
 that one Petric informed her about the incident. Apart from this contradiction B
 the said Petric was also not examined. PW-5 stated that on getting information
 from PW-4 he along with Kennith went to the house of the appellant and
 found the deceased in a naked condition lying in a pool of blood on the floor
 in the corridor of the room, which was in the occupation of the appellant. He
 himself and Kenith took the deceased in a nearby Maruti car. The said Kennith C
 has also not been examined. There is one other disturbing feature. From the
 perusal of Exh. P-E, the complaint given by PW-5, it is clear that the last
 words, that the appellant had also tried to commit suicide by stabbing himself
 in the stomach, appears to have been inserted later, in the space between the
 lines when compared with the rest of the document. The High Court also
 found it so but lightly brushed aside this infirmity saying "it cannot be D
 concluded as after thought and added later on as there are similar additions
  in other parts of the document as well". It is stated in Exh. P-E that "Betty
 managed to tell me that Ramkat tried to rape her but she refused, so Ramkat
 stripped and stabbed her with kitchen knife on neck and head". After giving
 the details in the last but one paragraph of Exh. P-E it is stated, "She died E
 due to deep head injuries caused by Ramkat. Ramkat also tried to kill himself
 stabbing on the stomach". This portion of the statement appears to be the
 assessment of PW-5 and not a part of dying declaration. Ramkat tried to kill
 himself by stabbing by knife on the stomach are also additions made in Ext.
 P-E as already stated above. In the absence of explanation as to the serious
 nature of injuries sustained by the appellant giving rise to serious doubt as F
to the very genesis of the incident, the said portion of the statement appears
to have been inserted after deliberation and consultation. This insertion
probabilises the defence version that the appellant and the deceased were in
love. The very fact that the deceased was totally naked and underclothes of
both the deceased and the appellant were found in the same room probabilises G
the theory of inter-course by consent and negatives the story of rape. PW-5
did not tolerate his sister having sex with Ramkat and that might have lead
to an attack on both of them on that day.

      Dr. Deepak Bakshi (PW-8), who examined the appellant, found several
serious incised wounds on him including the one on the right interior superior   H
     70                        SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A    iliac spine in the right lumber region. Looking to the seriousness, location
     and nature of injuries, in particular, the incised wound in the lumber region,
     it could not be said that they could be self-inflicted injuries. It is in the
     evidence of PW-5 that the appellant tried to kill himself by jumping from the
     upper floor. The doctor, of course, says that the possibility of injury Nos. 6
B   and 7 found on the appellant could not be ruled out by fall from upper floor.
     It is difficult to believe how the appellant with several serious injuries could
    walk to the upper floor and jump from there and that apart in the earliest
    version given in the Exh. P-E there is no mention about the appellant's
    jumping from the upper floor. In view of the injuries found on the deceased
    and the defence taken by the appellant that she died on the spot and in the
C   absence of any other evidence except the statement of PW-5 it is difficult to
    accept that the deceased was alive or at any rate she was in a position to
    make the statement to PW-5 as sought to be made out. The theory that the
    appellant tried to kill himself does not appear to be probable as both PW-4
    and PW-5 admitted that the deceased and the appellant knew each other; the
    deceased voluntarily went to the house of the appellant to say goodbye, since
D   she was going ·back to her country. PW-4 did state before the police that the
    appellant and the deceased had love affair, however, she denied this in ·the
    court in her deposition having made such a statement.

            In this background it appears improbable that the appellant forcefully
E    tried to rape the deceased. It appears that both the appellant and the deceased
     may have been in a compromising position and were surprised and attacked
     by an assailant. Since the injuries found on the appellant could not be said
     to be self-inflicted, as already noticed above, his defence, that he sustained
     injuries at the hands of unknown person when he tried to save the deceased,
     appears to be probable. The trial court expected the appellant to establish his
F   defence by the same standard that the prosecution should establish the guilt
    of an accused beyond reasonable doubt. It was enough to show that the
    defence was probable in the given circumstances. In this case the defence
    statement is probabilised by the surrounding circumstances and the evidence
    brought on record. The so-called dying declaration does not appear to be in
G   the words of the deceased. It does not inspire confidence. There was
    considerable delay in registering the FIR and the explanation given for the
    delay is not convincing. The incident took place between 1.30 to 2.30 P.M.
    and FIR reaches the jurisdictional Magistrate at the same place at I 0.00 P.M.
    Further, except the interested statement of PW-5 there is no other evidence
    to corroborate the dying declaration. The material witnesses Petric and Kennith,
H   named above, who could have thrown light in this regard, were also not
         RONAL KIPRONO RAMKATv. STATE [SHIVARAJV. PATIL, J.]                   71
examined for reasons but known to the prosecution.                                  A
      Having regard to all these infirmities, improbabilities and contradictions
found in the case we are of the view that it is unsafe to act upon the said
dying declaration. In view of what is stated above the impugned judgment
and order does call for interference. Hence the appeal is allowed. The impugned
judgment and order is set aside. The appellant shall be set at liberty forthwith    B
if not required in any other case.

v.s.s.                                                        Appeal allowed.

                                                                           I