Delhi High Court
Ikramuddin vs The State on 29 April, 2009
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, P. K. Bhasin
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 29.04.2009
+ CRL APPEAL No. 189/1994
IKRAMUDDIN ... Appellant
- versus -
THE STATE ... Respondent
Advocates who appeared in this case:
For the Appellants : Mr Sumeet Verma For the Respondent/State : Mr Sunil Sharma, APP CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P. K. BHASIN
1. Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES BADAR DURREZ AHMED, J
1. This appeal is directed against the judgment dated 05.08.1994 passed by the learned Additional Sessions Judge, Delhi in Sessions Case No. 102/1993 arising out of FIR No. 94/91 registered in Police Station Chandni Mahal whereby the appellant Ikrammudin was found guilty for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‗the IPC'). The appeal is also directed against the order on the point of sentence passed on the same date, that is, 05.08.1994 whereby the appellant Ikrammudin was sentenced to rigorous imprisonment for life and to pay a fine of CRL. A.189/94 Page No.1 of 21 Rs 3,000/- and in default of such payment, he was required to suffer rigorous imprisonment for a period of one year.
2. The prosecution case is that the deceased Ashraf Jahan was in love with the appellant Ikramuddin for over three years and that she wanted to marry him. It is also the case of the prosecution that about two days prior to the fateful day (09.05.1991), the appellant Ikramuddin met Ashraf Jahan and had agreed to marry her. However, a day thereafter, Ikramuddin met Ashraf Jahan on the roof of the house and refused to marry her. Her family members wanted to get her married to some other person. On 09.05.1991 at about 10 am while Ashraf Jahan was sitting for cleaning the utensils in one room of her house, it is alleged that the appellant Ikramuddin came from the roof of their house and poured kerosene oil on her from a plastic can kept at that place. He then lit a match and set her on fire and ran away. These circumstances have allegedly been narrated by Ashraf Jahan herself in her alleged dying declaration Exhibit PW20/A, which was allegedly recorded by PW20 ASI Guru Dutt in the presence of PW22 Prabhu Ram, who was the Investigating Officer. The alleged dying declaration was allegedly recorded in the hospital. As per Exhibit PW20/A, while Ikramuddin had poured kerosene oil on Ashraf Jahan and put her on fire, in the adjoining room Ashraf Jahan's sister PW16 Nusrat Jahan and brother-in-law PW1 Gulfam were present. When Ashraf Jahan CRL. A.189/94 Page No.2 of 21 was caught in flames, she allegedly saw Ikramuddin running away. She raised an alarm by exclaiming -- ―bachao, bachao........‖ Apparently, Ikramuddin had bolted the room from outside. She tried to open the door but fell down due to burns. Thereafter, her sister Nusrat Jahan and Gulfam entered the room and extinguished the fire and her other brother-in-law PW4 Niyabuddin brought her to JPN hospital where she was admitted. She ultimately succumbed to her burn injuries on 10.05.1991 at 5 am.
3. Mr Summet Verma, who appeared as an amicus curiae and presented the case on behalf of the appellant, submitted that the entire case of the prosecution hinges upon the so-called dying declaration Exhibit PW20/A which is said to have been given by the deceased Ashraf Jahan. According to him the dying declaration suffers from several infirmities. It is not in question and answer form. It has been allegedly dictated by the Investigating Officer Prabhu Ram and scribed by PW20 ASI Guru Dutt. Though questions were allegedly put to Ashraf Jahan, they have not been recorded. This circumstance, therefore, creates suspicion as to whether the alleged dying declaration was the true and correct declaration of Ashraf Jahan.
4. Mr Verma also submitted that even as per the testimony of PW20 ASI Guru Dutt, he only recorded what was told by the CRL. A.189/94 Page No.3 of 21 Investigating Officer PW22 Prabhu Ram. Therefore, it can be easily inferred that the dying declaration is not the verbatim account given by the victim Ashraf Jahan and consequently cannot be regarded as her dying declaration. Mr Verma also submitted that Ashraf Jahan had reportedly suffered 98% burns and was in a very critical condition and, therefore, could not have made any declaration at all. He submitted that the testimony of PW21 Dr K. D. Jassal, who had allegedly certified that the patient was fit for making a statement at 12:10 pm has, in his cross-examination indicated that the patient was heavily sedated and that he could not say if the patient was fit for making a statement at the time when such statement was allegedly recorded.
5. Mr Verma also submitted that the dying declaration Exhibit PW20/A is further shrouded in suspicion and cannot be made the basis for conviction because the normal procedure to be followed for recording dying declarations has not been adhered to in the present case. He referred to paragraph 25.21 of Chapter XXV of the Punjab Police Rules which clearly prescribe that ―A dying declaration shall, whenever possible, be recorded by a Magistrate.‖ The same paragraph also prescribes that if no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. And, that it is CRL. A.189/94 Page No.4 of 21 only if no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
6. Referring to the said paragraph 25.21, Mr Verma submitted that in the present case the dying declaration was not recorded by a Magistrate. Moreover, no attempt was made to call a Magistrate even though it has been admitted in evidence that there was sufficient time to call an SDM. Apart from the fact that no Magistrate was called for recording the dying declaration, there is an added circumstance of the declaration not having been recorded in the presence of two or more reliable witnesses unconnected with the police department or with the parties concerned in the case. Such witnesses could have easily been obtained inasmuch as the declaration was allegedly recorded in the day time in a busy hospital. For all these reasons, according to Mr Verma, Exhibit PW20/A cannot be regarded as the true and correct dying declaration of the deceased Ashraf Jahan. He, therefore, submitted that the Trial Court had completely wrong in placing reliance on Exhibit PW20/A and treating it as the dying declaration of the deceased Ashraf Jahan and thereby convicting the appellant Ikramuddin.
7. The learned counsel appearing on behalf of the State submitted that the Trial Court had arrived at the correct conclusion and CRL. A.189/94 Page No.5 of 21 had committed no error in placing reliance on the dying declaration which had been correctly recorded and was also the truthful declaration of Ashraf Jahan just prior to her death. He submitted that the dying declaration was of stellar quality and could be the sole basis for conviction. He submitted that in any event, the other prosecution witnesses, namely, PW1 Gulfam and PW16 Nusrat Jahan have fully supported the prosecution case albeit PW4 Niyabuddin had turned hostile. He, therefore, submitted that no interference with the impugned judgment and order on sentence was called for and the appeal be dismissed.
8. We shall first examine the circumstances under which the said dying declaration is said to have been recorded. We note that PW19 Constable Satpal Singh, who proceeded with PW22 SI Prabhu Ram to JPN Hospital, stated in his examination-in-chief that they went to the burns ward and produced the MLC before Dr K. D. Jassal, who declared the injured Ashraf Jahan fit for statement. The said witness stated that thereafter the Investigating Officer, PW22 SI Prabhu Ram had recorded the statement of Ashraf Jahan in the presence of Dr K. D. Jassal. However, PW20 ASI Guru Dutt in his examination-in-chief first stated that SI Prabhu Ram had recorded the statement of Ashraf Jahan but he clarified the same by saying that ―in fact the statement was recorded by me on the dictation of SI Prabhu Ram, who was CRL. A.189/94 Page No.6 of 21 questioning the injured.‖ He also stated that the statement was recorded in the presence of Dr K. D Jassal, who was present there throughout the recording of the statement. In his cross-examination, PW20 ASI Guru Dutt stated that he had given his statement to SI Prabhu Ram at 3:25 pm to the effect that he had recorded the statement of Ashraf Jahan. The defence counsel, however, confronted this witness with Exhibit PW20/DA where it was not so recorded. The said witness also indicated that he had not stated before the police that SI Prabhu Ram recorded the statement of the injured. Once again, the defence counsel confronted the witness with portion A to A where it was so recorded. He also stated that questions were being put to the injured by SI Prabhu Ram, who was also telling him the answers being given by the injured and accordingly he recorded the same. He stated that he did not record the questions which were put by SI Prabhu Ram to the injured. He further volunteered that whatever he was told by SI Prabhu Ram he recorded. In his cross-examination, PW20 ASI Guru Dutt admitted that SI Prabhu Ram did not call or attempt to call any SDM before recording the statement.
9. PW22 SI Prabhu Ram in his examination-in-chief stated that he interrogated Ashraf Jahan. ASI Guru Dutt, in the presence of the doctor, at his instructions, recorded the statement Exhibit PW 20/A on which the doctor also made his endorsement. He stated that he CRL. A.189/94 Page No.7 of 21 obtained the thumb impression of the deceased Ashraf Jahan at point ‗B' on the statement. This witness, however, admitted in his cross- examination that he had enough time to call the SDM and that he did not ask the doctor to write down the statement of the injured. He also admitted that he did not join any public person for the purposes of statement of the injured and that he did not record the statement in his own hand. Nor did he mention the time of commencement and ending of the statement. He, of course, denied the suggestion that Exhibit PW20/A had been fabricated by ASI Guru Dutt at the instance of Nusrat Jahan and that is why it was not written by him nor was it written by the doctor.
10. From the above testimonies of PWs 19, 20 and 22 it is abundantly clear that Exhibit PW20/A was scribed by PW20 ASI Guru Dutt. He did not record what the deceased Ashraf Jahan said or might have said but he only recorded whatever PW22 SI Prabhu Ram told him to record. It is also apparent that certain questions were allegedly put to Ashraf Jahan but those questions have not been recorded. Admittedly, there was enough time to call a Magistrate but no attempt was made to secure the services of a Magistrate for recording the dying declaration. No persons unconnected with the police or the parties were requested to witness the dying declaration. These circumstances CRL. A.189/94 Page No.8 of 21 in themselves create a great deal of doubt as to the alleged making of the dying declaration Exhibit PW20/A.
11. However, there are further circumstances which go to show that the statement Exhibit PW20/A cannot be regarded as the true and correct dying declaration of the deceased Ashraf Jahan. For this purpose, it would be necessary to examine the testimony of PW21 Dr K. D Jassal in some detail. He is the doctor who is said to have given his certificate of fitness at 12:15 pm, which is recorded in the MLC Exhibit PW11/A.
12. In his examination-in-chief he stated that on 09.05.1991 he was posted at JPN Hospital as a Resident Doctor. He had examined the patient, namely, Ashraf Jahan at about 12:10 pm and had found her fit for statement. He stated that his endorsement in Exhibit PW11/A is marked as Exhibit PW21/A. He stated that the Investigating Officer questioned the patient Ashraf Jahan in his presence and the answers given by the patient were given to some associate police officer who was recording the same. Importantly, he stated that he was present throughout the recording of the statement and that the patient was fit to make the statement throughout. He also stated that he had gone through the statement Exhibit PW20/A and that he recalled that the statement made by the patient in his presence ―was of this type‖. In his CRL. A.189/94 Page No.9 of 21 cross-examination, he stated that in the burns ward he administered I.V. fluid and then antibiotics and the injections fortwin and phenergan. He admitted that the injection fortwin causes sedation. With regard to the condition of the patient, he stated in his cross-examination that he did not make any memorandum regarding pulse, blood pressure, rate of respiration or other important facts regarding fitness of the patient. He did not make any note as to whether the patient was conscious, oriented or responding to verbal commands properly or not. According to him, the patient's pulse was not recordable, the general condition was poor, blood pressure was low and neck veins had collapsed. The patient was in a dehydrated condition. There were 98% burns of full thickness including 100% burns on the scalp region. Only 2% portion of the lower extremities, that is, legs were spared. He admitted that depending on the severity, if the brain, lungs, kidneys, liver and spleen were congested, then the patient was in a very critical state. He also admitted that the patient was under shock (hypovolemic shock) and under stress and strain. He admitted that the statement was not read over to the injured. In fact, the statement was not even read over to him. He had not written on the statement that he had read the statement before signing it. He could not tell as to what questions were asked by the Investigating Officer on which the patient responded to by gestures or signs. He did not remember as to how much time the Investigating Officer took in recording the statement nor could he tell whether the CRL. A.189/94 Page No.10 of 21 patient spoke in Hindi or Urdu. He stated that he had not mentioned and, therefore, he could not tell as to whether the patient was fit at the time when the statement was recorded. He could not even say if the patient was under the influence of or was being tutored by someone for making the statement. He admitted that if the patient had undergone sedation, then the patient may not respondent coherently or may not even respond. He also admitted, as did the other witnesses, that there was ample opportunity and time with the Investigating Officer of this case to call for the SDM for recording the statement. With regard to his endorsement on the statement, he stated that he only made the endorsement as the police officers approached him as the condition of the patient was serious. He further stated that the thumb impression of the patient was not attested by him.
13. From the above testimony of this very material witness, it is apparent that the entire case of the prosecution with regard to the fitness of Ashraf Jahan in making the statement stands demolished by virtue of his cross-examination. It is also obvious that the condition of the patient was critical. She had been heavily sedated and may not even have been in a position to say anything. It is obvious that the statement was not even read over to the injured or to the said doctor. Although in Exhibit PW20/A, it is recorded otherwise. Most importantly, this witness, i.e., PW21 Dr K. D. Jassal has stated that he CRL. A.189/94 Page No.11 of 21 could not tell as to whether the patient was fit at the time when the statement was recorded. Nor could he say if the patient was under the influence of or was being tutored by someone for making the statement.
14. In view of the testimony of PW21, it cannot be said with certainty that the patient was fit for making the statement when she is alleged to have made the statement. Although, the MLC Exhibit PW11/A carries the endorsement Exhibit PW21/A that the patient was fit for statement at 12:10 p.m, it is nowhere indicated as to when the statement was actually recorded. It is quite possible that though the victim may have been fit for making a statement at 12:10 pm, at a subsequent point of time, she may not have been fit enough to make any statement whatsoever. It is in this connection that the evidence of PW21, which has been elicited from him in his cross-examination, that he could not tell whether she was fit at the time when the statement was recorded, assumes great significance. The only conclusion that can be reasonably derived is that it is not free from doubt that Exhibit PW20/A is the true and correct dying declaration of the deceased Ashraf Jahan.
15. We may also note that the prosecution has undertaken the unsatisfactory approach of proving the MLC and the post mortem report through record clerks and not by the concerned doctors. Such a practice had been deprecated by courts time and again. The fact that CRL. A.189/94 Page No.12 of 21 doctors are not examined to prove the MLC and the post mortem report certainly affects the probative value of these documents. The following passage appearing in a decision of a Division Bench of this Court in the case of Chander Dev Rai v. The State: 2009 (1) JCC 67 would be instructive:-
―24. The FSL reports also completely exonerate the appellant. Even their probative value is not sufficient as they have not been proved to the satisfaction of the Court as they have been proved by a record clerk. In Sher Singh (Supra) it was held that before the documents like post mortem report and other reports are proved by a person other than the person who had prepared them, a thorough enquiry is to be done by the investigating officer by going personally to the concerned hospital and making efforts to trace the addresses of the doctor. Even if the persons who had prepared the documents are not traceable, it was held, that it is not proper to examine a clerk or a record keeper.
In such cases another doctor working in the hospital who is acquainted with the handwriting and signatures of the doctor who prepared the same should have been examined. In the present case only a record keeper was examined and the said person was again examined for proving the back of the medical report. He has simply stated that he can identify the signatures and handwriting of the concerned doctors. No semblance of effort seem to have gone into tracing the doctors who had recorded the MLC and conducted the gynecological examination of the prosecutrix. Prosecution witness simply making the statement that the said doctor is not available or has left the service is not sufficient. Invariably before a doctor or for that matter any other person is employed he is enjoined to give permanent address to the employer. Same must have been the case here but the prosecution as usual has chosen a short cut of adducing the record keeper to prove the documents like MLC, medical examinations by simply stating that doctors are not available. This affects the probative value of these documents.‖ CRL. A.189/94 Page No.13 of 21 The defence had suggested the alternative theory of suicide. Therefore, the examination of the doctor who conducted the post mortem examination was all the more crucial for the purposes of establishing whether the death of Ashraf Jahan was homicidal or suicidal. The non- examination of the doctor who conducted the post mortem examination is also a circumstance which certainly goes against the prosecution and weakens their case.
16. While on the question of suicide we may note the rather unsatisfactory analysis placed on this theory by the Trial Court. The observations with regard to the theory of suicide propounded by the defence, as recorded in the impugned judgment, are as under:-
―At this juncture, it becomes imperative to refer to another contention on behalf of the defence and that is the theory of suicide by the deceased. In order to rule out the incident as homicidal and to show that it was suicidal, it has also been contended that the presence of accused is doubtful and the behavior of the deceased in un-natural. Both aspects have already been dealt with appropriately and I need not dilate on this aspect any more. Had it been a suicidal case, there is no occasion for deceased to pour kerosene oil and set herself on fire because of the presence of the plastic can at the place of occurrence. The presence of plastic can apart from the can Ex. P1, the photographs on record show the presence of more than one plastic can and other household articles. This invariably establishes that the place was being utilized by the deceased and other member of her family for the purpose of storing the house- hold articles. The theory of suicide has to be ruled out for the simple reason that in the case of suicide, the deceased could have taken only one plastic can containing kerosene oil and there was no question of the presence of other CRL. A.189/94 Page No.14 of 21 plastic cans. Had the deceased committed suicide, she would not have named the accused twice in the hospital.‖ A great deal of significance has been attributed by the Trial Court to the fact that there were more than one can of kerosene oil present at the place of occurrence. We are unable to understand or comprehend what the Trial Court meant by -- ―the theory of suicide has to be ruled out for the simple reason that in the case of suicide the deceased could have taken only one plastic can containing kerosene oil and there was no question of presence of other plastic cans‖. The Trial Court, in any event, completely lost sight of the fact that in the so-called dying declaration itself it has been alleged that Ikramuddin came down from the roof of the house and sprinkled kerosene oil on Ashraf Jahan. The said kerosene oil was kept in a plastic can in her house. It is not even her case that Ikramuddin brought any plastic can filled with kerosene oil with him when he allegedly entered the victim's house. The analysis of the Trial Court on this aspect of the matter is completely off the track.
17. We may also note that the manner of the offence and the sequence of events leading up to the alleged murder as indicated in the prosecution version do appear to be quite bizarre. The case of the prosecution is that earlier the appellant Ikramuddin and the deceased Ashraf Jahan had a long standing love affair and two days prior to the CRL. A.189/94 Page No.15 of 21 fateful day Ikramuddin had even consented to marry Ashraf Jahan. But a day later, he took a complete somersault and refused to marry her. Thereafter, her marriage was hurriedly arranged with someone else the very next day, that is, on 09.05.1991 itself. In these circumstances, what would have been the reason for Ikramuddin to suddenly decide to commit the murder of Ashraf Jahan whom he had rejected himself the previous day? It is in this background that the theory that the suicide becomes a plausible alternative. It is quite possible that Ashraf Jahan being spurned and rejected by her erstwhile paramour and coupled with the dismal future of being married to some unknown person, may have become so depressed that she felt that the only way out of the situation was by taking her own life. We do not know what really happened but, this is definitely a plausible theory.
18. Coupled with these circumstances, we find that the other witnesses namely PW1 Gulfam and PW16 Nusrat Jahan have not been very forthcoming. It is strange that neither of them have been able to disclose the name of the bridegroom who was to marry Ashraf Jahan on 09.05.1991. We must remember that PW16 Nusrat Jahan is Ashraf Jahan's sister and it is unimaginable that she would not know as to who the bridegroom was to be. In her cross-examination PW16 Nusrat Jahan has stated that she did not know as to whether Ashraf Jahan wanted to marry Ikramuddin and that it was correct that on that day, CRL. A.189/94 Page No.16 of 21 that is, 09.05.1991 Ashraf Jahan was getting married but she did not know the name of the groom but that he was the son of her distantly related aunt. It is apparent that the said witness had not come out with the truth.
19. It is also in evidence that PW1 Gulfam who was the brother- in-law of the deceased Ashraf Jahan had come to Ashraf Jahan's house, one day prior to 09.05.1991, in connection with the marriage of Ashraf Jahan which was to take place on that date. Curiously, in his cross- examination this witness has stated that he did not know as to which boy Ashraf Jahan was going to marry and he also did not know the time of the marriage. He was simply informed by his in-laws that Ashraf Jahan was getting married on 09.05.1991 and that his sister-in-law Nusrat Jahan had come to his house to inform about the marriage two days prior to the incident. It is indeed very surprising that Nusrat Jahan who allegedly went to invite Gulfam for the wedding did not know the name of the bridegroom or who the bridegroom-to-be was. It is customary in India that whenever a marriage invitation is extended on behalf of a bride's family, the very first questions that are often put are :- (i) Who is the boy? (ii) What does he do? Strangely, neither the bride's sister Nusrat Jahan, who went to invite the brother-in-law Gulfam nor the brother-in-law Gulfam, who arrived at the house one day prior and stayed there overnight, had any idea about the CRL. A.189/94 Page No.17 of 21 bridegroom's name or identity. It is obvious that these witnesses are withholding information.
20. Apart from this there are other contradictions. PW1 Mohd. Gulfam stated that he and PW16 Nusrat Jahan took the injured Ashraf Jahan to hospital. PW16 Nusrat Jahan also makes the same statement that she and Mohd. Gulfam removed Ashraf Jahan to JPN hospital. However, Ashraf Jahan's now estranged husband PW4 Niyabuddin stated that he ―alone‖ removed the injured Ashraf Jahan to the hospital. Although this witness has been declared hostile by the prosecution it is an admitted position that PW4 Niyabuddin took the injured Ashraf Jahan to the hospital. This is so recorded in the MLC Exhibit PW11/A. Then, PW1 Gulfam stated that the police recorded the statement of the injured in his presence. On the other hand, PW16 Nusrat Jahan also claimed that the statement was recorded by the police in her presence. But then she explained this by stating that she was present outside the room. She went further to state that at that point of time Gulfam was also present outside the room. Interestingly, she stated that the police and Niyabuddin were present inside the room and she and Gulfam had no conversation with the doctor. It is, therefore, clear that PW1 and PW16 were not inside the room where the statement of Ashraf Jahan was allegedly recorded. But, from the testimony of PW16 Nusrat Jahan, it appears that it was Niyabuddin who was present inside the CRL. A.189/94 Page No.18 of 21 room. However, PW4 Niyabuddin in his cross-examination by the defence counsel revealed that the police were trying to put questions to Ashraf Jahan but she was not in a condition to say anything to the police. Interestingly, PW4 Niyabuddin stated that it was Nusrat Jahan who made her statement to the police which was then got thumb- marked from Ashraf Jahan. These factors also tend to cloak the purported dying declaration Exhibit PW20/A with a great deal of suspicion.
21. We may also note that the Supreme Court has frowned upon the practice of the investigating officer recording dying declarations. In Smt. Laxmi v. Om Prakash and Ors.: 2001 (4) SCALE 241, the Supreme Court observed as under:-
―30. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was o other alternative left except the statement being recorded by the investigating officer or the police officer later on relied on as dying declaration. In Munnu Raja and Anr. Vs. The State of Madhya Pradesh - AIR 1976 SC 2199, this Court observed - "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 be encouraged". The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations CRL. A.189/94 Page No.19 of 21 of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh Vs. State of Punjab AIR 1979 SC 1173 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof 'that better and more reliable methods of recording dying declaration of injured person' were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.‖
22. Furthermore, in P. Mani v. State of Tamil Nadu: 2006(2) SCALE 482, the Supreme Court observed as under:-
―14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, 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. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must CRL. A.189/94 Page No.20 of 21 be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.‖
23. Considering the said decisions of the Supreme Court the question which has to be answered in this appeal is whether Exhibit PW20/A is of an impeccable character or not? In view of the discussion above, we are of the view that Exhibit PW20/A cannot be regarded as the dying declaration of the deceased Ashraf Jahan. In any event, it does not fall within the category of an impeccable dying declaration. Consequently, it cannot form the foundation of a conviction.
24. For all these reasons, we feel that there is a great deal of doubt in the prosecution case and the benefit of such doubt has to be given to the appellant. Therefore, the impugned judgment and order on sentence are set aside. The appellant is acquitted of the charge of the offence punishable under Section 302 IPC. Since the appellant is on bail, the bail bond stands cancelled and the surety stands discharged. The appeal is allowed.
BADAR DURREZ AHMED, J P. K. BHASIN, J April 29, 2009 SR CRL. A.189/94 Page No.21 of 21