SURINDER KUMARversusSTATE OF HARYANA

                   [2011] 12 S.C.R. 1205


                    SURINDER KUMAR                              A
                              v.
                    STATE OF HARYANA
             (Criminal Appeal No. 328 of 2004)
                    OCTOBER 21, 2011
                                                                B
    [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

      Penal Code, 1860: s.302 - Conviction based on dying
declaration - Allegation against the accused that he poured
kerosene on the victim and set her on fire which resulted in C
her death in hospital - Victim made statement in hospital
implicating the accused - Trial court did not find the dying
declaration reliable and acquitted the accused - High Court
convicted the accused on the basis of dying declaration - On
appeal, held: The dying declaration was totally in conflict with D
the version of the prosecution as to the time of her burning
and the relation of the accused with the victim - There were
serious omissions on part of investigating officer in
conducting investigation - Though there were immediate
neighbours/co-tenants and landlord in the premises where E
incident took place, their statements were not recorded - The
dying declaration was recorded in the absence of doctor - At
the time of recording the statement of the victim, no
endorsement of the doctor was obtained about her fitness to
make such statement - The victim was under the influence F
of injections and was not supposed to have normal alertness
- As per the doctor's report, victim had suffered 95-97% burns
injuries - In view of that it is highly doubtful that ~he could
possibly put her thumb impression below her statement -
Dying declaration·did not carry a certificate by the Magistrate G
to the effect that it was a voluntary statement made by the
victim and that he had read over the statement to her - Trial
court rightly rejected the. dying declaration which was
altogether shrouded by suspicious circumstances and
                            1205                                H
    1206    SUPREME COURT REPORTS              [2011] 12 S.C.R


A contrary to the story of prosecution - Inasmuch as the dyinf
    declaration was the only piece of evidence put forward agains
    the accused, the accused entitled to the benefit of doubt -
    Conviction set aside - Evidence Act, 1872 - s.32.

         The prosecution case was that the appellant-accused
8
    was on visiting terms to the house of victim's husband
    PW-7 who was working and living in a different city. The
    appellant ~eveloped illicit relationship with the victim.
    PW-7 suspected the same and stopped the victim from
    meeting the appellant whereafter the appellant started
C   threatening and harassing the victim. On the fateful night,
    when PW-7 was away from his house, the appellant come
    to the house of victim and set her on fire. The victim was
    taken to the hospital where she was initially examined by
    the doctor (PW-1 ). PW-1 referred her to PGI, Chandigarh.
D   Thereafter, at P.G.I., the doctor (PW-9) examined her and
    reported a case of 95% burns. The Magistrate (PW-2) was
    deputed to record her statement. The Magistrate who
    reached PGI applied to the Doctor In-charge to certify if
    the victim was mentally and physically fit to make a
E   statement. The doctor certified that she was fit to make a
    statement. Thereafter, her statement was recorded which
    was to the effect that she had gone to see a movie with
    four ladies where one boy 'S' was sitting on the back seat.
    After seeing the movie, the victim came back to her
F   house. The appellant came in the evening to her house
    and said that if she had any sense of shame, she should
    die by burning herself. Thereafter, the appellant took
    kerosene ·from a container and sprinkled it over her and
    set her on fire with a match stick. When s!le was in flame,
G   he put a quilt upon her and ran away. The neighbour took
    her to hospital and from there she was referred to P.G.I.,
    Chandigarh.

        The trial court did not find the dying declaration Ex.
    PD reliable and acquitted the appellant. The High Court
H
     SURINDER KUMAR v. STATE OF HARYANA                1207


allowed the appeal filed by the State and convicted the       A
appellant under Section 302, IPC and sentenced him to
undergo rigorous imprisonment for life. The instant
appeal was filed challenging the order of the High Court.

    Allowing the appeal, the Court
                                                              B
     Held: 1. If, after careful scrutiny, the Court is satisfied
that the dying declaration is free from any effort to induce
the deceased to make a false statement and if it is
coherent and consistent, there shall be no legai
impediment to make a basis of conviction, even if there C
is no corroboration. It is not in dispute that if the dying
declaration is by a person who is conscious and the
same was made and recorded after due certification by
the doctor, it cannot be ignored. In the instant case, in the
first sentence of Ex. PD, it was mentioned that on the D
date of occurrehce, the victim had gone for a movie at
10.00 O' clock with four other ladies. According to her,
these ladies came to her house and on their request she
also went to see the movie and returned back to her
home. Though 1.0. had examined some persons, there E
was no information about the "four ladies" who
accompanied the deceased to the cinema house. In the
same declaration, she also stated that apart from the four
ladies one boy 'S' was also seeing the movie along with
them. The said 'S' was also not examined by the 1.0. Non- F
examination of four ladies, who accompanied the
deceased to the cinema house and no information about
'S' would give an impression that the 1.0. had not properly
conducted the investigation. If at least one of the ladies
or 'S' was examined, it would have strengthened the G
prosecution case. The landlord of the deceased and
other neighbours were also not examined at the trial. It
was the landlord who had driven the van to take the
deceased from Civil Hospital, Naraingarh to PGI,
Chandigarh. The brother-in-law of the deceased ('SP') H
    1208    SUPREME COURT REPORTS             [2011) 12 S.C.R.


A informed husband of the deceased about the incident.
  1.0. did not examine 'SP' on the side of the prosecution.
  All these were important omissions on the part of the 1.0.
  When PW-11, Assistant Sub-Inspector was examined, he
  fairly admitted that he had not obtained opinion of the
B Doctor about her fitness to make a statement. [Paras 7,
  8] (1219-C; 1220-F-H; 1221-A-H]

       Sham Shankar Kankaria vs. State of Maharashtra,
  (2006) 13 SCC 165: 2006 (5) Suppl. SCR 709; Puran Chand
  vs. State ofHaryana, (2010) 6 SCC 566: 2010 (7) SCR 21;
C Panneerse/vam vs. State of Tamil Nadu, (2008) 17 SCC 190:
    2008 (8) SCR 962- referred to.

          2. All the doctors mentioned that the victim was
    admitted with burn injuries to the extent of 100% and after
D   sometime she succumbed to the injuries. PW-2,
    Tahsildar-cum-Executive Magistrate recorded her
    statement. He deposed that when he had contacted the
    victim she was present in the general ward and some
    persons were also standing there who left the room on
E   his direction. About the absence of the doctor certifying
    at the time and date when she made a statement, he
    clarified that the doctor issuing such certificate was busy
    with his professional work. He deposed that the victim
    had made a statement in local dialect of mixed Hindi/
F   Punjabi and PW-2 had recorded her statement in Hindi
    script. These were not found to be factually correct.
    Though, according to PW-2, the victim had put her thumb
    impression, in view of the evidence of the doctors that
    she was brought to hospital with 100% burns and at the
G   time of recording her statement, she suffered 95-97%
    burn injuries, it was highly doubtful that she could
    possibly put her thumb impression below her statement.
    It: was also not clear that when the whole body was burnt
    and bandaged how the thumb impression of the
H   deceased was obtained. [para 10] (1222-D-H; 1223-A]
     SURINDER KUMAR v. STATE OF HARYANA                 1209

      3. Admittedly, at the time of recording the statement     A
 of the deceased by PW-2, no endorsement of the doctor
 was made about her position to make such statement. On
 the other hand, an application was filed by Assistant Sub-
 Inspector (PW-11) to Doctor lr:i-charge PGI, Chandigarh
 seeking clarification "whether she is fit to make the          s
 statement or not" and for the said query an endorsement
 was made by the doctor mentioning that "patient
 conscious answering the questions, patient fit to give
 statement". The comparison of the dying declaration Ex.
 PD recorded by PW-2 and the endorsement made in the            c
 requisition of ASI (PW-11) showed that different doctors
 had certified and made such statement. The doctor, PW-
 9, PGI Chandigarh in his evidence had stated that the
 victim was admitted in the Emergency ward of PGI
 Hospital on 26.06.1991 at1:1bout 4.30 a.m. with 95% burns.
                                                                0
 He also deposed that when Ex. C/1 was submitted by
 PW-2, gave his opinion that the patient was fit to make a
 statement on 26.06.1991 at about 7.25 a.m. At the time
 when PW-2 recorded the statement of the deceased, the
 doctor (PW-9) was not present and subsequently on the
 request of the police officer, he offered his opinion to the   E
 effect that the patient was fit to make a statement. The
 procedure adopted by PW-2 wh.ile recording the
 statement of dying declaration cannot be. acceptable.
 [Para 11] [1223-B-F]
                                                                F
       4. As per the prosecution, the incident took place at
  2 a.m. on 26.06.1991 and as per her statement,· the
  occurrence of burning was in the evening of 25.06.1991,·
  that is, the previous day. The dying declaration did not
   carry a certificate by the Executive Magistrate to the       G
   effect that it was a voluntary statement made by the
   deceased and that he had read over the statement to her.
 .·The dying declaration was not even attested by the
· doctor. Though the· Magistrate had stated that the
   statement was made in mixed dialect of Hindi and Punji[lbi   H,
    1210    SUPREME COURT REPORTS             [2011] 12 S.C.R.

A but the statement was recorded only in Hindi. There was
  evidence that the victim was under the influence of
  Fortwin and Pethidine injections and was not supposed
  to be having normal alertness. The trial court rightly
  rejected the dying declaration which was altogether
B shrouded by suspicious circumstances and contrary to
  the story of prosecution. [Para 12) [1223-G-H; 1224-A-C)
       5. It is settled that a valid and well reasoned judgment
  of the trial Court is seldom set aside unless there is some
  perversity or not based on correct law. From the materials
C available, absolutely there was no case to presume that
  the death of the deceased occurred at the hands of the
  appellant especially, when her statement was shrouded
  by suspicious circumstances and contrary to the claim
  of the prosecution. Particularly, when she was alleged to
D have 97% burns and being under constant sedatives first
  at Civil Hospital, Naraingarh and then at PGI, Chandigarh,
  in such a situation she could not be expected to make a
  statement at a stretch without asking any questions.
  Admittedly, the Executive Magistrate, PW-2 did not put
E any question and record her answers. [Para 13) [1224-D-
  E]
      6. Another important aspect relating to failure on the
  part of prosecution was that on the date of the incident,
  the deceased had two children aged about six and four
F years respectively and both of them were present there,
  admittedly, the 1.0. had not enquired them about the
  genuineness of the incident. Though, there were number
  of immediate neighbours/co-tenants in the same
  premises, their statements were not recorded which
G meant that nobody supported the version of the
  prosecution. Though there is neither rule of law nor of
  prudence that dying declaration cannot be acted upon
  without corroboration but the court must be satisfied that
  the dying declaration is true and voluntary and in that
H event, there is no impediment in basing conviction on it,
     SURINDER KUMAR v. STATE OF HARYANA                1211


without corroboration. It is the duty of the court to          A
scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring,
prompting or imagination. Where a dying declaration is
suspicious, it should not be acted upon without
corroborative evidence. Likewise, where the deceased           B
was unconscious and could never make any declaration
the evidence with regard to it is rejected. The dying
declarati.on which suffers from infirmity cannot form the
basis of conviction. All these principles were fully
adhered to by the trial Court and on wrong assumption          c
the High Court interfered with the order of acquittal. [para
14] [1224-F-H; 1225-A-C]

     7. The dying declaration was totally in conflict with
the version of the prosecution as to the time of her
burning, relation of the appellant with the deceased,          D
except for the implication part, which was clarified in
favour of. the appellant by PW-10 in his cross-
examination. In such circumstances, the dying
declaration was totally unacceptable, could not be
believed as trustworthy, which was rightly not believed        E
so by the trial Court. [Para 16] [1225-F]

     8. In view of the infirmities and contradictions as to
the occurrence, failure on the part of the E>.<ecutive
Magistrate in obtaining certificate as to whether the victim   i=
had made a voluntary statement and not attested by any
doctor and also his statement which was contradictory
to that of the deceased the victim and of the fact that at
the relevant time she was under the influence of Fortwin
and Pethidine injections and was not supposed to b.e           G
having normal alertness, as rightly observed by the trial
court, the dying declaration Ex.PD did not inspire
confidence in the mind of the Court. Inasmuch as the
dying declaration was the only piece of evidence put
forward against the accused, the accused is entitled to        H.
    1212    SUPREME COURT REPORTS                 [2011] 12 S.C.R.


A the benefit of doubt. Consequently, the conviction and
  sentence ordered by the High Court is set aside and the
  order of acquittal passed by the trial Court is restored.
  [Paras 17, 18] [1225-H; 1226-A-D]
                          Case law reference:
B
        2006 (5) Suppl. SCR 709 referred to              Para 6
        2010 (7) SCR 21             referred to          Para 6
        2008 (8) SCR 962            referred to          Para 6
c
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 328 of 2004.

      From the Judgment & Order dated 19.12.2003 of the High
  Court of Punjab & Haryana at Chandigarh in Criminal Appeal
D No. 241-DBAof 1993.

        Sushil Kumar, K.G. Bhagat, Neha Jain, Vinay Arora, Aditya
    Kumar, Gaurav Murthy, Divya Shukla, Debasis Misra for the
    Appellant.
E
        Manjit Singh, AAG, Kamal Mohan Gupta for the
    Respondent.

        The Judgment of the Court was delivered by

F       P. SATHASIVAM, J. 1. This appeal is directed against the
  final judgment and order dated 19.12.2003 passed by the High
  Court of Punjab and Haryana at Chandigarh in Criminal Appeal
  No. 241-DBA of 1993 whereby the High Court while reversing
  the judgment dated 17.12.1992 passed by the Sessions Judge,
G Ambala allowed the appeal filed by the State and convicted the
  appellant herein under Section 302 of the Indian Penal Code,
  1860 (in short 'IPC') and sentenced him to undergo rigorous
  imprisonment for life and to pay a fine of Rs.25,000/- and in
  default of payment of fine, to further undergo rigorous
H imprisonment for one year.
     SURINDER KUMAR v. STATE OF HARYANA .                 1213
              [P. SATHASIVAM, J.]

    2. Brief facts:                                                 A

     (a) According to the prosecution, the accusation against
the appellant-accused was that he was on visiting_terms to the
house of lnder Pal (PW-7), husband of Kamlesh Rani (since
deceased), who was working at Mullana and keeping his family
                                                                    8
at Naraingarh, Dist. Ambala, Haryana. The appellant-accused
had been visiting lnder Pal's house and developed illicit
relationship with his wife-Kamlesh Rani. lnder Pal (PW-7)
suspected the same between them and stopped his wife from
meeting the appellant-accused. When the appellant-accused
was stopped to visit their house, he had started threatening and    C
harassing Kamlesh Rani for which she made a complaint to her
husband. lnder Pal (PW-7) also visited the shop of the
appellant-accused and told him not to visit his house and
harass his wife.
                                                                    D
     (b) On the intervening night of 25/26.06.1991, when lnder
Pal (PW-7) was away from his house, the appellant-accused
went to his house and taunted his wife that she had become a
woman of immoral character and called upon her to burn herself
to death if she had any sense of shame. Thereafter, the             E
appellant-accused picked ,up a kerosene can lying in the one
room apartment and after pouring the same on the deceased,
set her on fire. When the fire developed, the appellant-accused
ran away from the room after placing a quilt on the deceased.
The neighbours of the deceased took her to the Civil Hospital,      F
Naraingarh where she was examined by Dr. Ashwani Kumar
Kashyap, Medical Officer (PW-1). He immediately sent
intimation to In-charge Police Station, Naraingarh to the effect
that the deceased had been brought to the hospital with 100%
burns, and as the condition of the patient was critical she had     G
been referred to P.G.I., Chandigarh. At P.G.I. Chandigarh, she
was admitted in the Emergency Ward and Dr.Vipul Sood (PW-
9) examined her and reported a case of 95% turn injuries,

     (c) On receiving the information, Dalip Rattan (PW-3), Sub-.
                                                                    H
    1214     SUPREME COURT REPORTS               [2011] 12 S.C.R.


A Inspector, P.S. West, Chandigarh applied to the Sub-Divisional
  Magistrate, Chandigarh for appointment of an Executive
  Magistrate to record the statement of Kamlesh Rani.
  Consequently, Shri P.K. Sharma. Tehsildar-cum-Executive
  Magistrate (PW-2) was deputed to record her statement. On
B 26.06.1991, PW-2 recorded her statement and a First
  Information Report was registered being No. 86/1991 at P.S.
  Naraingarh at 5.30 p.m. under Section 307 IPC. On the
  intervening night of 28/29.06.1991, Kamlesh Rani succumbed
  to the injuries and the case was converted into Section 302
c IPC. Thereafter, Ram Niwas (PW-13), Sub Inspector, P.S.
  Ambala, arrived at P.G.I., Chandigarh and prepared the inquest
  report. Post mortem was conducted at General Hospital, Sector
  16, Chandigarh by Dr. V.K. Chopra and Dr. Ajay Verma (PW-
  12) on 29.06.1991 at 4.45 p.m. On the same day, the accused
D was arrested and the case was committed to the Court of
  Sessions.

         (d) The Sessions Judge, Ambala, after analyzing the
    evidence and after giving the benefit of doubt, vide judgment
    dated 17.12.1992 acquitted the appellant-accused.
E
        (e) Challenging the said judgment, the State of Haryana
  filed an appeal bearing Criminal Appeal No. 241-DBA of 1993
  before the Division Bench of the High Court. The High Court,
  vide judgment dated 19.12.2003, reversed the judgment of the
F Sessions Judge, Ambala and sentenced the appellant-accused
  to rigorous imprisonment for life .and imposed a fine of
  Rs.25,000/- and in default of payment of fine, to further undergo
  rigorous imprisonment for one year.

G        (f) Aggrieved by the said judgment, the appellant-accused
    has filed this appeal before this Court.

        3. Heard Mr. Sushil Kumar, learned senior counsel for the
    appellant-accused and Mr. Manjit Singh, learned Additional
    Advocate General for the respondent-State.
H
     SURINDER KUMAR v. STATE OF HARYANA                    1215
              [P. SATHASIVAM, J.]

       4. The trial Court based on the dying declaration Ex. PD A
alleged to have been made by the deceased-Kamlesh Rani
before Shri P.K. Sharma (PW-2), Executive Magistrate,
Chandigarh and after finding that it does not inspire confidence
in the mind of the Court and being the only evidence appearing
against the accused, after giving the benefit of doubt in his B
favour, acquitted from the charges levelled against him. On the
other hand, the High Court relying on the. dying declaration
holding that it is extremely difficult to reject the dying declaration
altogether and finding that in the said dying declaration the
deceased had positively stated that she had been immolated C
by the accused/appellant, set aside the order of ~cquittal
passed by the trial Court and found him guilty under Section
302 IPC and sentenced to undergo rigorous imprisonment for
life. In view of the same, the only question for consideration in
this appeal is whether the dying declaration Ex. PD of Kamlesh ·
Rani is reliable, acceptable and based on which conviction is D
sustainable.

      5. We have already referred to the accusation against the
accused that he was on visiting terms to the house of lnder Pal-
husband of the deceased who was keeping his family at               E
Naraingarh, however, working at Mullana. The accused
Surinder Kumar had been visiting the house of the deceased-
Kamlesh Rani during the absence of her husband lnder Pal.
lnder Pal suspected illicit relationship between Surinder Kumar
and his wife Kamlesh Rani. It is further seen that on the date of   F
occurrence, that is, on 26.06.1991, Kamlesh Rani went to the
cinema in the company of four other ladies. On the same
evening, Surinder Kumar confronted her of having loose
character and called upon her to immolate herself to death if
she had any sense of shame. Thereafter, Surinder Kumar              G
picked up a kerosene can lying in the one-room apartment and
after pouring the same on Kamlesh Rani set her on fire. When
the fire developed, he ran away from the room after placing a
quilt on her person. On hearing her cries, neighbours reached
at the spot and carried her to the Civil Hospital, Naraingarh and
                                                                    H
    1216    SUPREME COURT REPORTS                 [2011] 12 S.C.R.


A then she had been shifted to PGI Hospital, Chandigarh where
  she made a dying declaration statement before P.K. Sharma,
  (PW-2), Executive Magistrate and thereafter on 28/29.06.1991,
  she succumbed to her injuries.

      6. Before considering the acceptability of dying declaration
B (Ex.PD), it would be useful to refer the legal position.

        (i) In Sham Shankar Kankaria vs. State of Maharashtra,
    (2006) 13 SCC 165, this Court held as under:

c       "10. This is a case where the basis of conviction of the
        accused is the dying declaration. The situation in which a
        person is on deathbed is so solemn and serene whei:i he
        is dying that the grave position in which he is placed, is
        the reason in law to accept veracity of his statement. It is
        for this reason the requirements of oath and cross-
D
        examination are dispensed with. Besides, should the dying
        declaration be excluded it will result in miscarriage of
        justice because the victim being generally the only
        eyewitness in a serious crime, the exclusion of the
        statement would
                      .     leave the court
                                        .     without a scrap of
E       evidence.

                11. Though a dying declaratidn is entitled to great
        weight, it is worthwhile to note that the accused has no
        power of cross-examination. Such a power is essential for
F       eliciting the truth as an obligation of oath could be. This is
        the reason the court also insists that the dying declaration
        should be of such a nature as to inspire full confidence of
        the court in its correctness. The court has to be on guard
        that the statement of deceased was not as a result of either
G       tuto~ing or prompting or a product of imagination. The court
        must be further satisfied that the deceased was in a fit
        state of mind after a clear opportunity to observe and
        identify the assailant. Once the court is satisfied that the
        declaration was true and voluntary, undoubtedly, it can
H       base its conviction without any further corroboration. It
 SURINDER KUMAR v. STATE OF HARYANA                      1217
          [P. SATHASIVAM, J.]

 cannot be laid down as an absolute rule of law that the          A
 dying declaration cannotform the sole basis of conviction
 unless it is corroborated. The rule requiring corroboration
 is merely a rule of prudence. This Court has laid down
 iri several judgments the principles governing dying
 declaration, which could be summed up as under as                8
 indicated in Paniben v. State of Gujarat (1992) 2 SCC
 474 (SCC pp.480-81, para 18)

                                      (Emphasis supplied)

       (1) There is neither rule of law nor of prudence that      C
 dying declaration cannot be acted upon without
 corroboration. (See Munriu Raja v. State of M.P.,(1976)
 3 sec 104)

        (i1) If the Court is satisfied that the dying declaration
 is true and voluntary it can base conviction on it, without D
 corroboration. (See State of U.P. v. Ram Sagar Yadav,
 (1985) 1 SCC 552 and Ramawati Devi v. State of
 Bihar,(1983) 1 sec 211)

        (iii) The Court has to scrutinise the dying declaration   E
  carefully and must ensure that the declaration is not the
  result of tutoring, prompting or imagination. The deceased
. had an opportunity to observe and identify the assailants
  and was in a fit state to make the declaration. (See K.
  Ramachandra Reddy v. Public Prosecutor,(1976) 3 SCC             F
 618)

        (iv) Where dying declaration is suspicious, it should
 not be acted upon without corroborative evidence. (See
 Rasheed Beg v. State of M.P.,(1974) 4 SCC 264)
                                                                  G
        (v) Where the deceased was unconscious and could
 never make any dying declaration the evidence with regard
 to it is to be rejected. (See Kake Singh v. State of MP.,
 1981 Supp sec 25)
                                                                  H
    1218     SUPREME COURT REPORTS                 [2011] 12 S.C.R.


A             (vt) A dying declaration which suffers from infirmity
        cannot form the basis of conviction. (See Ram Manorath
        v. State of U.P.,(1981) 2 SCC 654)
              (vii) Merely because a dying declaration does
        contain the details as to the occurrence, it is not to be
B       rejected. (See State of Maharashtra v. Krishnamurti
        Laxmipati Naidu, 1980 Supp SCC 455)

               (viii) Equally, merely because it is a brief statement,
        it is not to be discarded. On the contrary, the shortness of
c       the statement itself guarantees truth. (See Surajdeo Ojha
        v. State of Bihar, 1980 Supp SCC 769.)
              (ix) Normally the court in order to satisfy whether the
        deceased was in a fit mental condition to make the dying
        declaration look up to the medical opinion. But where the
D
        eyewitness has said that the deceased was in a fit and
        conscious state to make the dying declaration, the medical
        opinion cannot prevail. (See Nanhau Ram v. State of
        MP., 1988 supp sec 152)

E             (x) Where the prosecution version differs from the
        version as given in the dying declaration, the said
        declaration cannot be acted upon. (See State of UP. v.
        Madan Mohan, (1989) 3 SCC 390)

              (xi) Where there are more than one statement in the
F
        nature of dying declaration, one first in point of time must
        be preferred. Of course, if the plurality of dying declaration
        could be held to be trustworthy and reliable, it has to be
        accepted. (See Mohan/a/ Gangaram Gehani v. State of
        Maharashtra,(1982) 1 SCC 700)"
G
         (ii) In Puran Chand vs. State of Haryana, (2010) 6 SCC
    566, this Court once again reiterated the abovementioned
    principles.

H       (iii) In Panneerse/vam vs. State of Tamil Nadu, (2008) 17
      SURINDER KUMAR v. STATE OF HARYANA                     1219
               [P. SATHASIVAM, J.]

SCC 190, a Bench of three Judges of this Court reiterating A
various principles mentioned above held that it cannot be laid
down as an absolute rule of law that the dying declaration
cannot form the sole basis of the conviction unless it is
corroborated and the rule requiring corroboration is merely a
rule of prudence.                                              B

       7. In the light of the above principles, the acceptability of
the alleged dying declaration in the instant case has to be
considered. If, after careful scrutiny, the Court is satisfied that
it is free from any effort to induce the deceased to make a false
statement and if it is coherent and consistent, there shall be no C
legal impediment to make a basis of conviction, even if there
is no corroboration. With these principles, let us consider the
statement of Kamlesh Rani and its acceptability.

       8. Kamlesh Rani was initially taken to the Civil Hospital,    D
 Naraingarh at 2.20 a.m. on 26.06.1991 where she was initially
 examined by Dr. Ashwani Kumar Kashyap (PW-1). The said
 Medical Officer immediately sent intimation to In-charge P.S.
 Naraingarh to the effect that Kamlesh Rani had been brought
 to the hospital with 100% burns, the patient was critical and had   E
 been referred to PGI, Chandigarh. Thereafter, at P.G.I., she was
 admitted in the Eme~gency ward and Dr. Vipul Sood (PW-9)
 examined her at 04:35 a.m. and reported a case of 95% burns.
 It is further seen that on receiving information, Sub-inspector
 Dalip Rattan (PW-3) applied to the Sub-Divisional Magistrate,       F
 Chandigarh for appointment of Executive Magistrate to record
 Kamlesh Rani's statement. Based on the same, Shri P.K.
 Sharma, Tahsildar-cum-Executive Magistrate (PW-2) was
 deputed to record her statement. The Magistrate who reached
,PGI applied to the Doctor In-charge to certify if Kamlesh Rani      G
 was mentally and physically fit to make a statement or not. The
 doctor certified at 07.25 a.m. that she was fit to make 'a
 statement. Thereafter, Kamlesh Rani's statement was recorded
 which is marked as Ex. PD. It was marked with thumb
 impression of Kamlesh Rani and signed by the Magistrate at          H
    1220     SUPREME COURT REPORTS                [2011] 12 S.C.R.


A   7.45 a.m. It is relevant to note the said dying declaration which
    reads thus:

        "Yesterday, at about 10:00 o'clock four ladies came to my
        house and asked me to accompany them to see a movie
        and we all had gone to see the movie. One boy Subhash
B
        was also seeing movie. He was sitting there on the back
        seat. After seeing the movie, I came back to my house.
        Surinder Kumar Garg who is a so-called brother (dharma
        Bhai) of my husband came in the evening and asked me
        that I had gone to see picture and stated that I had become
c       a bad character. My husband is doing service at Mullana
        and lives there. At that time, he was at Mullana. Then
        Surinder said if I had any sense of shame, I should die by
        burning myself. Then, he took kerosene from a container
        (small peepi) and sprinkled it over me and set me on fire
D       with a match stick. When I was in flame, he put a quilt upon
        me and ran away. My neighbour removed me to
        Naraingarh hospital and from there I was referred to P.G.I.,
        Chandigarh. I have made my statement in full senses and
        without any pressure."
E
  As observed earlier, initially, the trial Court acquitted the
  accused and the High Court convicted him solely on the basis
  of the above declaration. In the light of the same, we have to
  find out whether the dying declaration made and recorded is
F acceptable and whether it satisfied the required norms/
  procedure as held by this Court. In other words, we have to see
  whether the dying declaration inspire the confidence of the
  court. It is not in dispute that if the dying declaration is by a
  person who is conscious and the same was made and
G recorded after due certification by the doctor, it cannot be
  ignored. In the first sentence of Ex. PD, it has been mentioned
  that on the date of occurrerice, she had gone for a movie at
  10.00 O' clock with four other ladies. According to her, these
  ladies came to her house and on their request she also went
H to see the movie and returned back to her home. Though 1.0.
     SURINDER KUMAR v. STATE OF HARYANA                   1221
              [P. SATHASIVAM, J.]

has examined some persons, there is no information about the       A
"four ladies" who accompanied the deceased to the cinema
house. The 1.0. did not care to verify those four ladies who
accompanied the deceased to the cinema house. In the same
declaration, she also stated that apart from the four ladies one
boy Subhash was also seeing the movie along with them.             8
According to her, he was sitting there on the back seat. The
said Subhash was also not examined by the 1.0. Non-
examination of four ladies, who accompanied the deceased to
the cinema house and no information about Subhash gave an
impression that the 1.0. had not properly conducted the            C
investigation. If at least one of the ladies or Subhash was
examined, it would strengthen the prosecution case. However,
the 1.0. purposely omitted to examine the ladies who went for
cinema and in the same manner no effort was made to trace
Subhash whom the deceased saw at the movie. None of the
so-called neighbours were produced at the trial. The landlord      D
of the deceased-Ram Rattan was not examined at the trial. It
was Ram Rattan who had driven the van to take Kamlesh Rani
from Civil Hospital, Naraingarh to PGI, Chandigarh. It is to be
noted that Kamlesh Rani's sister's husband Surinder Pal
informed lnder Pal-husband of the deceased about the incident.     E
lnder Pal and Surinder Pal had together gone to Chandigarh
and later met Kamlesh Rani. For the reasons best known to
the 1.0., the said Surinder Pal was not examined on the side
of the prosecution. In other words, non-examination of any one
of the ladies who accompanied the decea·sed to cinema in the       F
morning, presence of Subhash and the landlord of the
deceased, namely, Ram Rattan, another tenant Jeet Singh
were all vital to the prosecution. All these were important
omissions on the part of the 1.0. When Hira Lal (PW-11),
Assistant Sub-Inspector was examined, he fairly admitted that      G
he had not obtained opinion of the Doctor at that time about
her fitness to make a statement. Another doctor-PW-12, who
conducted post mortem, had opined that the cause of death is
septicemia due to extensive burns (approx. 97%) which is
                                                                   H
    1222      SUPREME COURT REPORTS                [2011] 12 S.C.R.


A   sufficient to cause death in ordinary course of nature.

         9. Ram Niwas (PW-13), Sub-inspector also admitted that
    he did not make any effort to ascertain the women who had
    accompanied Kamlesh Rani to see the movie. He also
    admitted that he had not associated Subhash referred to in the
8   dying declaration during investigation. He fairly admitted that
    he had no knowledge about any person by name Surinder Pal
    who happened to be sister's husband of Kamlesh Rani who
    was employed in Civil Hospital, Naraingarh. All the above
    infirmities/defects have not been properly explained by the
C   prosecution.

          10. Now coming to her state of mind, all the doctors have
    mentioned that she was admitted with bum injuries to the extent
    of 100% and after sometime she succumbed to the injuries. It
o   is true that P.K. Sharma (PW-2), Tahsildar-cum-Executive
    Magistrate recorded her statement. In his evidence, PW-2 has
    stated that on the orders of Shri Jagjit Puri, SOM, Union Territory
    of Chandigarh, by his order Ex. PB/1 deputed him to record
    the statement of Kamlesh Rani. Pursuant to the said direction,
E he went to the PGI and moved an application to seek the
  . opinion of the doctor whether Kamlesh Rani was fit to make a
    statement or not. He further deposed that when he had
    contacted Kamlesh Rani she was present in the general ward
    and some persons were also standing there, they left the room
F on his direction. About the absence of the doctor certifying at
   the time and date when she made a statement, he clarified that
   the doctor issuing such certificate was busy with his professional
   work. Kamlesh Rani had made a statement in local dialect of
   mixed Hindi/Punjabi and PW-2 had recorded her statement in
    Hindi script. Here again, it was pointed out that these were not
G factually correct. In view of the doubt, we verified the original
   which is in Hindi script only and not local dialect in mixed Hindi/
   Punjabi. Though, according to PW-2, she put her thumb
   impression, in view of the evidence of the doctors that she was
   brought to hospital with 100% burns and at the time of
H
     SURINDER KUMAR v. STATE OF HARYANA                   1223
              [P. SATHASIVAM, J.]

recording her statement, she suffered 95-97% burn injuries, it    A
is highly doubtful whether it would be possible for her to have
her thumb impression below her statement. It is also not clear
that when the whole body is burnt and bandaged how the thumb
impression of the deceased was obtained.

      11. We have already noted that admittedly at the time of B
recording the statement of the decelased by PW-2, no
endorsement of the doctor was made about her position to
make such statement. On the other hand, an application was
filed by Hira Lal, (PW-11) to Doctor In-charge PGI, Chandigarh
seeking clarification "whether she is fit to make the statement C
or not" and for the said query an endorsement was made by
the doctor mentioning that "patient conscious answering the
questions, patient fit to give statement". We compared the dying
declaration Ex. PD recorded by PW-2 as well as the
endorsement made in the requisition of Hira Lal, ASI (PW-11 ). D
The verification of both the documents show different doctors
have certified and made such a statement. Dr. Vipul Sood, PW-
9, PGI Chandigarh in his evidence has stated Kamlesh Rani
was admitted in the Emergency ward of PGI Hospital on
26.06.1991 at about 4.30 a.m. with 95% burns. He also E
deposed that when Ex. C/1 was submitted by P.K. Sharma,
PW-2 on which he gave his opinion that the patient is fit to make
a statement on 26.06.1991 at about 7.25 a.m. It is clear that at
the time when PW-2 recorded the statement of the deceased
Dr. Vipul Sood (PW-9) was not present and subsequently on F
the request of the police officer, he offered his opinion to the
effect that the patient was fit to make a statement. The
procedure adopted by PW-2 while recording the statement of
dying declaration is not acceptable.                     ·

     12. As per the prosecution, the incident took place at 2 G
a.m. on 26.06.1991 and as per her statement, the occurrence
of burning was in the evening of 25.06; 1991, that is, the
previous day. The dying declaration did riot carry a certificate
by the Executive Magistrate to the effectthat it was a voluntary ·
                                                                   H
    1224      SUPREME COURT REPORTS               [2011] 12 S.C.R.

A statement made by the deceased and that he had read over
  the statement to her. The dying declaration was not EUten
  attested by the doctor. As stated earlier, though the Magistrate
  had stated that the statement had been made in mixed dialect
  of Hindi and Punjabi and the statement was recorded only In
  Hindi. Another important aspect is that there was evidence that
8
  Kamlesh Rani was under the influence of Fortwin and Pethidine
  Injections and was not supposed to be having normal alertness.
  In our view, the trial Court rightly rejected the dying declaration
  altogether shrouded by suspicious circumstances and contrary
C to the story of prosecution and acquitted the appellant.
       13. It is settled that a valid and well reasoned judgment of
  the trial Court is seldom set aside unless there was some
  perversity or not based on correct law. From the materials
  available, absolutely there was no case to presume that the
D death of the deceased occurred at the hands of the appellant
  especially, when her statement was shrouded by suspicious
  circumstances and contrary to the claim of the prosecution.
  Particularly, when she was alleged to have 97% burns and
  being under constant sedatives first at Civil Hospital,
E Naraingarh and then at PGI, Chandigarh, in such a situation
  she could not be expected to make a statement at a stretch
  without asking any questions. Admittedly, the Executive
  Magistrate, PW-2 did not put any question and recorded her
  answers.
F      14. Another important aspect relating to failure on the part
    of prosecution is that on the date of the incident, the deceased
    had two children aged about six and four years respectively and
  . both of them were present there, admittedly, the 1.0. has not
    enquired them about the genuineness of the incident. Though,
G there are number of immediate neighbours/co-tenants in the
    same premises, their statements were not recorded which
    means that nobody supported the version of the prosecution.
    Though there is neither rule of law nor of prudence that dying
    declaration cannot be acted upon without corroboration but the
H
     SURINDER KUMAR v. STATE OF HARYANA                   1225
              [P. SATHASIVAM, J.]
court must be satisfied that the dying declaration is true and A
voluntary and in that event, there is no impediment in basing
conviction on It, without corroboration. It is the duty of the court
to scrutinise the dying declaration carefully and must ensure that
the declaration is not the result'     of tutoring, prompting or
imagination. Where a dying aeclaration is suspicious, it should B
not be acted upon without corroborative evidence. Likewise,
where the deceased.was unconscious and could never make
any declaration the evidence with regard to it is rejected. The
dying declaration which suffers from infirmity cannot form the
basis of conviction. All these principles have been fully adhered c
to by the trial Court and rightly acquitted the accused and on
wrong assumption the High Court interfered with the order of
acquittal.
      15. H is the consistent stand of the defence from the
beginning that the appellant had been falsely implicated, more D
particularly, at the instance of 1.0. Hira Lal (PW-11) who had a
previous enmity with him for asking some bribe for running his
business of ghee. As rightly pointed out, other witnesses who
accompanied the injured Kamlesh Rani did not make any
statement involving the appellant in the burning of Kamlesh Rani E
till 29.06.1991.
      16. We are satisfied that the dying declaration was totally
in conflict with the version of the prosecution as to the time of
her burning, relation of the appellant with the deceased, except F
for the implication part, which was clarified in favour of the
appellant by PW-10 Surinder Singh in his cross-examination.
In such circumstances, the dying declaration was totally
unacceptable, could not be believed as trustworthy, which was
rightly not believed so by the trial Court.                        G
      17. Inasmuch as the acquittal by the trial Court and
conviction by the High Court is solely based on the dying
declaration, in view of our above discussion, there is no need
to traverse the evidence and other factual details. In view of the
infirmities pointed above, and contradictions as to the H
    1226     SUPREME COURT REPORTS                 [2011] 12 S.C.R.


A   occurrence, failure on the part of the Executive Magistrate in
    obtaining certificate as to whether Kamlesh Rani had made a
    voluntary statement and not attested by any doctor and also his
    statement which is contradictory to that of the deceased
    Kamlesh Rani and of the fact that at the relevant time she was
B   under the influence of Fortwin and Pethidine injections and was
    not supposed to be having normal alertness, as rightly observed
    by the trial Court, we hold that the dying declaration Ex.PD
    does not inspire confidence in the mind of the Court. Inasmuch
    as the dying declaration is the only piece of evidence put
c   forward against the accused in the light of our discussion and
    reasoning, the accused - Surinder Kurnar is entitled to the
    benefit of doubt.

         18. Consequently, the conviction and sentence ordered by
    the High Court is set aside and the order of acquittal passed
D   by the trial Court is restored. Since the appellant is on bail, his
    bail bonds shall stand discharged. The appeal is allowed.

    D.G.                                            Appeal allowed.