JUDGMENT This appeal is directed against the judgment dated 30.10.2007 rendered by the learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in Sessions Case No. 22-G/VII/2002, whereby the appellant/accused (hereinafter referred to as the “accused” for the sake of convenience) has been convicted and sentenced to undergo rigorous imprisonment for five years with a fine of Rs.10,000/- and in default of payment of fine to further undergo simple imprisonment for six months under Section 376/511 of the Indian Penal Code. 2. The case of the prosecution, in a nutshell, is that an information was received from the doctor at PGI Chandigarh disclosing that the prosecutrix suffering 95% burn injuries was admitted at PGI Chandigarh and her dying declaration was sought to be recorded. ASI Tarlochan Singh moved an application before the Chief Judicial Magistrate, Chandigarh, for recording the statement of the prosecutrix. The Chief Judicial Magistrate visited PGI Chandigarh. The prosecutrix disclosed before him that the accused, husband of her sister-in-law (Nandoe) attempted to rape her and thereafter, her mother-in-law Shanti Devi sprinkled kerosene oil over her and put her on fire. Her mother-in-law used to harass her on account of demand of dowry. She jumped into a small water tank to save her life. Her mother-in-law was only present in the house and her husband had gone to Delhi. Her brother brought her to Hospital since he was informed by her neighbourers telephonically. She was also accompanied by her mother-in-law, father-in-law and the accused to the Hospital. The prosecutrix further disclosed that the accused had bad eye on her. On 11.1.1999 she was sent to the house of the accused. The accused attempted to commit rape with her. When she raised alarm, she was threatened that she would not be allowed to remain in her in-laws house. She was also offered Rs.1000/- to sleep with the accused. However, she refused and thereafter ran away towards mother of the accused. She did not disclose the incident to mother of the accused because she was threatened by the accused. On the basis of statement of the prosecutrix, recorded by the Chief Judicial Magistrate, Chandigarh, initially an FIR under Sections 307, 498-A, 376 and 511 read with Section 34 of the Indian Penal Code was registered. She did not disclose the incident to mother of the accused because she was threatened by the accused. On the basis of statement of the prosecutrix, recorded by the Chief Judicial Magistrate, Chandigarh, initially an FIR under Sections 307, 498-A, 376 and 511 read with Section 34 of the Indian Penal Code was registered. During investigation, offence punishable under Section 376 of the Indian Penal Code was found to have committed on 11.1.999 and a separate final report was prepared against the accused. The prosecutrix died on 3.2.1999 at PGI Chandigarh and an offence, found to have been committed on 30.1.1999 punishable under Section 302 of the Indian Penal Code, was incorporated against her mother-in-law and a challan was prepared and filed separately in the Court. Investigation was completed and the challan was filed in the court against the accused for the offence punishable under Section 376/511 of the Indian Penal Code, after completing all codal formalities. 3. The prosecution examined as many as ten witnesses to prove its case. He denied the case of the prosecution and claimed innocence. The accused also produced one witness in his defence. The learned trial court convicted and sentenced the accused vide judgment dated 30.10.2007 as stated hereinabove. Hence, this appeal. . 4. Mr. Anoop Chitkara, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Parmod Thakur, learned Additional Advocate General, has supported the impugned judgment dated 30.10.2007. 6. PW1, Dr. K. K. Rattan, deposed that the police moved an application Ext.PW1/A for medical examination of the accused. According to his opinion, the accused was found to be capable of doing sexual intercourse. He issued MLC Ext.PW1/B. 7. PW2 Sandhya Devi, mother of the prosecutrix, deposed that her daugther was married to Umesh Kumar, resident of Village Kulyar Khera, about eight years back. She was told by her daughter that her in-laws used to harass her for bringing insufficient dowry. The prosecutrix visited her parental house about 2-3 times after marriage. She was notallowed to come to her parental house after September. When she visited the matrimonial house of her daughter to invite her on Lohri festival, she was told that the accused would leave her at parental house. However, instead of sending her daughter on Lohri festival to her parental house, she was sent to the house of the accused. She was notallowed to come to her parental house after September. When she visited the matrimonial house of her daughter to invite her on Lohri festival, she was told that the accused would leave her at parental house. However, instead of sending her daughter on Lohri festival to her parental house, she was sent to the house of the accused. She was informed telephonically that her daughter had been taken from Nadaun Hospital to Hamirpur Hospital as she was burnt. She visited Hamirpur Hospital. Her daughter was crying and praying to save her. She disclosed to her that her mother-in-law and the accused were responsible for the incident. Her mother-in-law and the accused were also present in the Hospital. Her daughter was scared and did not disclose to her. When they were not around her daughter, she disclosed the facts to her son. In cross-examination, she admitted that when she reached Hamirpur Hospital, her daughter was burnt. She did not talk to her. Her daughter did not talk to her son, Suresh Kumar, in her presence. She did not know the name of the accused. She did not know whether sister-in-law of her daughter was married in Village Sukrayala. According to her, distance may be 25 kms to the house of sister-in-law of her daughter. 8. PW3, Suresh Kumar, brother of the accused, deposed that after marriage of the prosecutrix, whenever he used to invite her to parental house, her mother-in-law used to demand dowry. In the month of January 1999, he received a telephonic message from Nadaun that his sister was burnt and taken from Nadaun Hospital to Hamirpur Hospital. He immediately visited Hamirpur Hospital. He inquired about the condition of his sister from the doctor. On his request, the doctor referred his sister to PGI Chandigarh. Her mother-in-law, father-in-law and the accused also accompanied him to PGI Chandigarh. When his sister was taken inside the PGI, Chandigarh, he inquired from her about the incident in the absence of her in-laws. She disclosed to him that she was sent to the house of the accused, where he committed sexual assault with her and she resisted and objected to it. When she came back to her in-laws house, she was not allowed by her in-laws to go to her parental house due to this reason and ultimately, she was burnt by her mother-in-law. When she came back to her in-laws house, she was not allowed by her in-laws to go to her parental house due to this reason and ultimately, she was burnt by her mother-in-law. He came out from the Hospital and asked the accused why he committed such a heinous crime. In cross-examination, he admitted that his sister did not talk to him at Hamirpur as she was referred from Hamirpur to PGI Chandigarh. He remained with his sister for about 3-4 days before her death. 9. PW4, Sant Parkash, deposed that on 31.1.1999, he was posted as Chief Judicial Magistrate, Chandigarh. At about 10.55 A.M., an application Ext. PW4/A was presented before him by ASI Tarlochan Singh. He went to PGI Chandigarh and sought opinion of the doctor regarding fitness of the prosecutrix. As per opinion of the doctor vide Ext. PW4/B, she was found to be fit for making statement. He recorded statement in question-answer form vide Ext.PW4/C. He also issued his certificate, Ext.PW4/D in this behalf. She could not put her thumb impression because her thumb was burnt. Her right toe impression was taken on her statement. She was conscious as per opinion of doctor vide Ext. PW4/E. In cross-examination, he admitted that he did not verify particulars of the patient. He volunteered that the patient was identified by the police. He also did not verify particulars of the attendants. According to him, the patient was 95% burnt when her statement was recorded. 10. PW5, Sub Inspector Tarlochan Singh deposed that he moved an application before Judicial Magistrate vide Ext.PW4/A to record statement of the prosecutrix admitted at PGI Chandigarh. He identified his signatures in encircled portion vide Ext. PW5/A. 11. PW6, Constable Shri Chand proved daily diary No.13 dated 31.1.1999 vide Ext. PW6/A. 12. PW7, Constable Hari Om deposed that on 1.2.1999, he was deputed from Police Post, PGI Chandigarh to Police Station, Jawalamukhi, District Kangra, to deliver statement of the prosecutrix recorded by the Chief Judicial Magistrate, Chandigarh. 13. PW8, Purshotam Chand deposed that he remained posted as I.O./ASI in Police Station Jawalamukhi in the year 1999. He partly investigated the case on 3.2.1999. He was directed by Inspector Jagdish Chand to seek postmortem of the prosecutrix, who died at PGI Chandigarh. On 4.2.1999 he prepared the inquest report and sought post mortem of the prosecutrix. 13. PW8, Purshotam Chand deposed that he remained posted as I.O./ASI in Police Station Jawalamukhi in the year 1999. He partly investigated the case on 3.2.1999. He was directed by Inspector Jagdish Chand to seek postmortem of the prosecutrix, who died at PGI Chandigarh. On 4.2.1999 he prepared the inquest report and sought post mortem of the prosecutrix. He recorded statements of mother, brother and maternal uncle of the prosecutrix. 14. PW9 Inspector Nathu Ram deposed that he prepared the final report after completion of the investigation. 15. PW10, Inspector Jagdish Chand, deposed that on 1.2.1999, he received copy of daily diary No.13 dated 31.1.1999 vide Ext. PW6/A duly accompanied by the statement of the prosecutrix recorded under Section 164 Cr.P.C. by the Chief Judicial Magistrate, Chandigarh through Constable Hari Om, on the basis of which, FIR Ext. PW10/A was registered. He had sent ASI Purshotam Chand to PGI Chandigarh for further investigation. In cross-examination, he deposed that he went to Hospital at Nadaun on 30.1.1999. He admitted that the prosecutrix made statement before the SDM Nadaun in the presence of the doctor. He volunteered that he was not present when the statement was recorded. Statement of Suresh Kumar Ext. DB was recorded by him. He also recorded the statement of the prosecutrix in the Hospital in the presence of the doctor. The prosecutrix did not disclose to him in her statement that the accused attempted to commit rape on her. He had sought opinion of the doctor with regard to capability of giving statement by the prosecutrix before recording her statement. She was declared fit by the doctor to make the statement. 16. DW1, Vinod Kumar Kapil, deposed that on 30.1.1999, the police sought medical examination of the prosecutrix. As per history given by the prosecutrix, she was sitting near Chullah, when her clothes caught fire. She ran out of the house and jumped in a small water storage tank and thereafter, she was brought to hospital by her in-laws. On examination, she was conscious, well oriented in time, place, alert and was responding to verbal command accurately. Pulse rate was 89 per minute. Feeble B/P could not be recorded. The patient was crying with pain and restless. The patient had 96% first degree superficial burns involving whole body except back of scalp. Nature of injuries was grievous and duration was within 24 hours caused by superficial flame burns. Pulse rate was 89 per minute. Feeble B/P could not be recorded. The patient was crying with pain and restless. The patient had 96% first degree superficial burns involving whole body except back of scalp. Nature of injuries was grievous and duration was within 24 hours caused by superficial flame burns. He identified copy of MLC issued by him vide Ext. DW1/A. In cross-examination conducted by the learned Public Prosecutor, he deposed that the patient was brought before him at 9.55 A.M.. She was accompanied by her father-in-law, who disclosed his identity to him. The patient was given first aid in the hospital and referred to District Hospital, Hamirpur. He denied the suggestion that the patient was not in a position to depose anything and the history mentioned in MLC Ext. DW1/A was recorded at the instance of father-in-law of the patient. 17. According to PW2, Sandhya Devi, mother of the prosecutrix, marriage of her daughter was solemnized with Umesh Kumar about eight years back. According to her, the prosecutrix was not being allowed to visit her parental house by her in-laws. They used to say her that she had brought insufficient dowry. She visited matrimonial house of the prosecutrix to invite her on Lohri festival. However, she was told by her in-laws that the accused would leave her daughter at her parental house. However, the prosecutrix was not sent to her parental house on Lohri festival and she was sent to the house of the accused. She was informed telephonically that her daughter was taken from Nadaun Hospital to Hamirpur Hospital. She visited Hamirpur Hospital. According to her, the entire incident was nrarrated by her daughter to her son at Hamirpur. She admitted in her cross-examination that when she reached Hamirpur Hospital, her daughter was burnt and did not talk to her. She also admitted that her daughter did not talk to her son, Suresh Kumar, in her presence. PW3, Suresh Kumar, brother of the prosecutrix, deposed that he had inquired about the incident from the prosecutrix at PGI Chandigarh only. According to him, her mother-in-law, father-in-law and the accused also accompanied him to PGI Chandigarh. The prosecutrix told him that she was sent to the house of the accused, where he attempted to commit sexual assault with her. She resisted and objected to it. According to him, her mother-in-law, father-in-law and the accused also accompanied him to PGI Chandigarh. The prosecutrix told him that she was sent to the house of the accused, where he attempted to commit sexual assault with her. She resisted and objected to it. In cross-examination, he admitted that his sister did not talk to him at Hamirpur because she was referred to PGI Chandigarh. Statement of the prosecutrix was recorded by PW4 Sant Parkash, Chief Judicial Magistrate, Chandigarh on 31.1.1999 at PGI Chandigarh, vide Ext. PW4/C. According to her statement, Ext. PW4/C, the accused tried to rape her on 11.1.1999. The prosecutrix had not narrated the incident of alleged attempt to rape by the accused to her mother, PW2 Sandhya Devi, who was present at Hamirpur Hospital. The version of the mother that the prosecutrix had disclosed to her brother PW3 Suresh Kumar at Hamirpur Hospital about the incident cannot be believed. If something like that had happened with the prosecutrix, she would have certainly disclosed to her mother. As noticed above, PW3 Suresh Kumar, deposed that his sister did not talk to him at Hamirpur Hospital as she was referred to PGI Chandigarh. It has also come in the statement of the prosecutrix, Ext.PW4/C that the accused was keeping bad eye on her. If that was so, she should not have gone to the house of the accused. It is also not believable that this incident would have happened the manner in which it has been narrated by the prosecutrix because mother of the accused was also present in the house. She was taken to CHC Nadaun on 30.1.1999, where she gave the case history to DW1 Dr. Vinod Kumar Kapil. According to her, when she was sitting near Chullah, her clothes caught fire. She ran out of the house and jumped in a small water storage tank. She was brought to hospital by her in-laws. According to DW1, Dr. Vinod Kumar, she was found to be conscious, well oriented in time, place, alert and was responding to verbal command accurately. Feeble and B/P of the prosecutrix could not recorded. She was crying with pain and restless. She had 96% first degree superficial burns involving whole body except back of scalp. The nature of injuries was grievous and duration was within 24 hours caused by superficial flame burns. He also issued MLC, Ext. Feeble and B/P of the prosecutrix could not recorded. She was crying with pain and restless. She had 96% first degree superficial burns involving whole body except back of scalp. The nature of injuries was grievous and duration was within 24 hours caused by superficial flame burns. He also issued MLC, Ext. DW1/A. He was cross-examined by the learned Public Prosecutor. In cross-examination, he deposed that the prosecutrix was brought before him at 9.55 A.M.. She was accompanied by her father-in-law, who disclosed his identity to him. The prosecutrix was given first aid in the Hospital and was referred to District Hospital, Hamirpur. The SDM Nadaun also reached the Hospital. The prosecutrix was crying while speaking. He denied the suggestion that the history mentioned in MLC Ext. DW1/A was recorded at the instance of father-in-law of the prosecutrix. PW10 Jagdish Chand in cross-examination, admitted that the prosecutrix had made the statement before SDM Naudan in the presence of doctor. He further admitted that he also recorded statement of the prosecutrix in the hospital in the presence of the doctor. According to him, the prosecutrix did not disclose to him in her statement that the accused had attempted to commit rape with her. It has also come on record that when she was admitted in Nadaun Hospital, thereafter at Hamirpur Hospital and lastly at PGI Chandigarh, the accused was also with her. In case he was involved in the incident dated 11.1.1999, he would have definitely avoided going with the prosecutrix to Hospitals at Nadaun, Hamirpur and PGI Chandigarh. 18. The dying declaration, Ext.PW4/C, in question-answer form, has been recorded by PW4 Sant Ram, Chief Judicial Magistrate, Chandigarh after seeking opinion of the doctor as regards to fitness of the prosecutrix to make the statement. A question was put to her who used to harass her for dowry. She answered - her mother-in-law alone used to harass her for dowry. Husband of her sister-in-law (accused) used to keep bad eye on her. He tried to rape her on 11.1.1999 and threatened her. The other question put to the prosecutrix was that how did she catch fire? She answered that the accused tried to commit rape with her. She was set on fire by her mother-in-law, Shanti Devi by sprinkling kerosene oil over her because she used to harass her for want of dowry. The other question put to the prosecutrix was that how did she catch fire? She answered that the accused tried to commit rape with her. She was set on fire by her mother-in-law, Shanti Devi by sprinkling kerosene oil over her because she used to harass her for want of dowry. Specific questions were put to her who used to harass her for want of dowry and the manner in which she burnt. She was not put the question, who tried to commit rape with her. However, she made a new complexion to the case that the accused had attempted to rape her. If statement, Ext.PW4/C is read as a whole, initially the accused tried to rape her and thereafter, she was put on fire, though as per earlier portion of the statement, Ext.PW4/C, the date of incident of alleged sexual assault is dated 11.1.999. Though, it has come in the statement of PW4, Sant Parkash, Chief Judicial Magistrate, Chandigarh that as per opinion of the doctor vide Ext. PW4/B, the prosecutrix was conscious and was found to be fit for making the statement, fact of the matter is that the doctor, in whose presence the Chief Judicial Magistrate recorded the dying declaration, Ext.PW4/C, has not been examined by the prosecution to corroborate the correctness and truthfulness of the dying declaration to warrant the conviction of the accused. It has also come in the statement of PW4, Sant Parkash, Chief Judicial Magistrate that the prosecutrix could not put thumb impression on her statement because her thumb was totally burnt. Her right toe impression was taken on her statement. It is not generally heard. He himself should have certified that since she was burnt, she was not in a position to put her thumb impression, instead of getting her right toe impression on statement Ext. PW4/C. As per statement of DW1 Dr. Vinod Kumar Kapil, the prosecutrix had 96% first degree superficial burns involving whole body except back of scalp. It is not believable, how right toe impression of the prosecution was taken on statement Ext. PW1/C. This is also supported by MLC Ext. DW1/A. 18. 19. Learned trial court has only relied on statement Ext. PW4/C instead of appraising entire evidence to see whether the prosecution was able to prove the case against the accused. The entire evidence including statement, Ext. PW1/C. This is also supported by MLC Ext. DW1/A. 18. 19. Learned trial court has only relied on statement Ext. PW4/C instead of appraising entire evidence to see whether the prosecution was able to prove the case against the accused. The entire evidence including statement, Ext. PW4/C, was required to be looked into in right perspective by the learned trial court. The conviction could not be recorded merely on the basis of the statement, Ext.PW4/C. The incident, though alleged to have happened on 11.1.1999, the prosecutrix ought to have disclosed the same either to her mother, or brother or some close relative. She got her statement recorded for the first time on 31.1.1999. It is true that due weightage has to be given to the dying declaration, but the attending circumstances cannot be overlooked. The dying declaration is not believable, credible and appealable to the Court. 20. Their Lordships of Hon’ble Supreme Court in Khushal Rao vs. State of Bombay, AIR 1958 Supreme Court 22 have held that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. Their Lordships have held as under:- “16. Their Lordships have held as under:- “16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying decla- ration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions -and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the. circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it-; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 17. 17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the, death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the -necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the re- ported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.” 21. Their Lordships of Hon’ble Supreme Court in J. Ramulu vs. State of Andhra Pradesh, (2009) 16 Supreme Court Cases 432 have held that in a case where suspicion can be raised as regards correctness of dying declaration, the court before convicting the accused on the basis thereof, should look for some corroborative evidence. The suspicion is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as piece of evidence, in which event conviction may not be rested only on the basis thereof. “14. This Court in P. Mani v. State of T.N. [(2006) 3 SCC161], while dealing with the question of dying declaration, held that conviction can be recorded on the basis of the dying declaration alone but the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion is no substitute for proof. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them.” 22 Their Lordships of Hon’ble Supreme Court in Sharda vs. State of Rajasthan, (2010) 2 Supreme Court Cases 85 have laid down the following tests to determine the credibility and standard of proof of dying declaration including corroboration:- “24. In the case in hand, the conviction of the appellant is based on the last dying declaration Exh.P- 18, said to have been recorded in presence of Executive Magistrate. The principle on which dying declarations are admitted in evidence is indicated in legal maxim: "Nemo moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his mouth." It is indicative of the fact that a man who is on Crl.A.No. 699/08 14 a death bed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 25. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a Crl.A.No. 699/08 15 fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 26. It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. In this regard, we may profitably quote the following para from (1985) 4 SCC 476 titled State (Delhi Administration) Vs Laxman Kumar & Ors : "We have also come to the conclusion that the High Court failed to take into account one material aspect while appreciating the evidence of the prosecution witnesses. It is a fact that Sudha had been burnt and according to the medical opinion that was to the extent of 70%. As the evidence shows, Sudha was in her senses and was capable of talking at the time when she was being removed to the hospital or even after she had been admitted as an indoor patient. The two sisters or their respective husbands had no apprehension that Sudha would not live. In case Sudha came round, she was to have lived in the family of her husband. No one interested in the welfare of Sudha was, therefore, prepared to make a statement which might prejudice the accused persons and lead to the straining of relationship in an irreparable way. In case Sudha came round, she was to have lived in the family of her husband. No one interested in the welfare of Sudha was, therefore, prepared to make a statement which might prejudice the accused persons and lead to the straining of relationship in an irreparable way. Therefore, Crl.A.No. 699/08 16 the silence or avoidance to make a true disclosure about the cause of fire particularly so long as Sudha was alive, cannot be over- emphasised an adverse inference drawn by the High Court from the conduct of the sisters was indeed not warranted in the facts of the case.” 23 Their Lordships of Hon’ble Supreme Court in Puran Chand vs. State of Haryana, (2010) 6 Supreme Court Cases 566 have held that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relative present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. Their Lordships have held as under:- “15. The Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. 16. Number of times, a young girl or a wife who makes the dying declaration could be under the impression that she would lead a peaceful, congenial, happy and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents-in-law or other relatives. Number of times the relatives influence the investigating agency and bring about a dying declaration. Number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the Court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such trend will be extremely dangerous. However, the Courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.” 24 Their Lordships of Hon’ble Supreme Court in Lakhan vs. State of Madhya Pradesh, (2010) 8 Supreme Court Cases 514 have summarized the law on the issue of dying declaration as under:- “9. The doctrine of dying declaration is enshrined in the legal maxim "Nemo moriturus praesumitur mentire", which means "a man will not meet his maker with a lie in his mouth". The doctrine of Dying Declaration is enshrined in Section 32 of the Indian Evidence Act, 1872 (hereinafter called as, "Evidence Act") as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. 10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution's version differs from the version given in the dying declaration, the said declaration cannot be acted upon. (vide : Kushal Rao v. State of Bombay, AIR 1958 SC 22 ; Rasheed Beg & Ors. v. State of Madhya Pradesh, AIR 1974 SC 332 ; K. R. Reddy & Anr. v. The Public Prosecutor, AIR 1976 SC 1994 ; State of Maharashtra v. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617 ; Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 ; Babulal & Ors. v. State of M.P., (2003) 12 SCC 490 ; Muthu Kutty & Anr. v. State, (2005) 9 SCC 113 ; State of Rajasthan v. Wakteng, AIR 2007 SC 2020 ; and Sharda v. State of Rajasthan, (2010) 2 SCC 85 ].” 25 Their Lordships of Hon’ble Supreme Court in Atbir vs. Government of NCT of Delhi, (2010) 9 SCC 1 have summarized the following tests, which are required to be taken while recording the dying declaration including mental condition of the maker, alertness of his/her mind and memory, evidentiary value etc.: “(A) Dying Declaration 14. It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account. 15) In Munnu Raja and Another vs. The State of Madhya Pradesh, (1976) 3 SCC 104 , this Court held:- “It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated....; It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged. 16) In Paras Yadav and Ors. vs. State of Bihar, (1999) 2 SCC 126 , this Court held that lapse on the part of the Investigation Officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement. 17) The effect of dying declaration not recorded by the Magistrate was considered and reiterated in Balbir Singh & Anr. Vs. State of Punjab, (2006) 12 SCC 283 . 11 Paragraph 23 of the said judgment is relevant which reads as under: “23. However, in State of Karnataka v. Shariff, (2003) 2 SCC 473 , this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. Vs. State of Punjab, (2006) 12 SCC 283 . 11 Paragraph 23 of the said judgment is relevant which reads as under: “23. However, in State of Karnataka v. Shariff, (2003) 2 SCC 473 , this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 , wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra, (2002) 6 SCC 710 ).” It is clear that merely because the dying declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the whole prosecution case. It also clarified that where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. This Court further held that the statement of the injured, in event of her death may also be treated as FIR. 12) 18. In State of Rajasthan vs. Wakteng, (2007) 14 SCC 550 , the view in Balbir Singh's case(supra) has been reiterated. The following conclusions are relevant which read as under: “14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity. 15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction” 19) In Bijoy Das vs. State of West Bengal, (2008) 4 SCC 511 , this Court after quoting various earlier decisions, reiterated the same position. 20) In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N., (2005) 9 SCC 113 , the following discussion and the ultimate conclusion are relevant which read as under: “14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when 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 that the requirements of oath and cross-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 evidence. 15. Though a dying declaration 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 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 the deceased was not as a result of either tutoring, 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 base its conviction without any further corroboration. 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 base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence” 21) The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474 . 22) The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.” 26 Their Lordships of Hon’ble Supreme Court in Surinder Kumar vs. State of Haryana, (2011) 10 Supreme Court Cases 173 have held that 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 even, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Their Lordships have held as under:- “14. 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 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. 17. 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 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. 18. 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 first sentence of Ex. In other words, we have to see whether the dying declaration inspire the confidence of the court. 18. 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 first sentence of Ex. PD, it has been mentioned that on the date of occurrence, 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 to see the movie and returned back to her home. Though I.O. has examined some persons, there is no information about the "four ladies" who accompanied the deceased to the cinema house. The I.O. 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. According to her, he was sitting there on the back seat. The said Subhash was also not examined by the I.O. 19. Non-examination of four ladies, who accompanied the deceased to the cinema house and no information about Subhash gave an impression that the I.O. had not properly conducted the investigation. If at least one of the ladies or Subhash was examined, it would strengthen the prosecution case. However, the I.O. 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. 23. Now coming to her state of mind, all the doctors have mentioned that she was admitted with burn injuries to the extent of 100% and after sometime she succumbed to the injuries. It 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, SDM, Union Territory of Chandigarh, by his order Ex. PB/1 deputed him to record the statement of Kamlesh Rani. Pursuant to the said direction, 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. PB/1 deputed him to record the statement of Kamlesh Rani. Pursuant to the said direction, 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 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 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 recording her statement, she suffered 95-97% burn injuries, it 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. 26. 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 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, 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. 27. Particularly, when she was alleged to 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 any question and recorded her answers. 27. 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 I.O. has not enquired them about the genuineness of the incident. Though, 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. 28. 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 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 declaration is suspicious, it should 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 to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal.” 27 The prosecution has failed to prove its case against the accused. The learned trial court has convicted the accused on a mere superfluous approach without in-depth analysis of the relevant facts. 28 Accordingly, the appeal is allowed and the judgment dated 30.10.2007 rendered by the learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in Sessions Case No. 22-G/VII/2002 under Section 376/511 of the Indian Penal Code is set aside. The appellant is acquitted of the charges framed against him. The fine amount, if any deposited by the appellant is ordered to be refunded to him. The bail bonds furnished by him are ordered to be discharged. The appellant is acquitted of the charges framed against him. The fine amount, if any deposited by the appellant is ordered to be refunded to him. The bail bonds furnished by him are ordered to be discharged. Pending application(s), if any, also stand disposed of.