The result of two inconsistent and contradictory dying declarations
In this case, the appellant approached the Supreme Court against a judgment of the High Court of Punjab and Haryana in which the High Court concurred with a judgment and order of conviction of the trial court against the appellant in an offence punishable under Section 304-B of the Indian Penal Code (IPC).
Facts of the Case
Deceased Manjit Kaur was married to the appellant Makhan Singh on 28th January 1996. It is the prosecution case that the appellant used to demand dowry from the parents of the deceased Manjit Kaur. It is further the prosecution case that, succumbing to the demands of the appellant, an amount of Rs.30,000/- was paid to him by the parents of the deceased Manjit Kaur. The appellant again demanded an amount of Rs.2 lakhs. According to the prosecution, the appellant had utilized the said amount for going to Moscow. However, after coming back from Moscow in March 1998, he again tortured deceased Manjit Kaur and asked her to bring Rs.6 lakhs as he wanted to go to the USA.
According to the prosecution, deceased Manjit Kaur, fed up with the torture, consumed a poisonous substance on 21st April 1998. Deceased Manjit Kaur was taken by the appellant initially to the Community Health Centre, Ladwa, and thereafter, she was referred to L.N.J.P. Hospital, Kurukshetra. From L.N.J.P. Hospital, deceased Manjit Kaur was taken to a private Nursing Home of Dr. H.K. Sobti (PW-1) at Kurukshetra, wherein she was admitted.
Ms. Vani Gopal Sharma, Judicial Magistrate, First Class, Kurukshetra (DW-1) recorded the dying declaration of the deceased Manjit Kaur (Ex. DO/C), wherein the deceased stated that she was suffering from fever and since many medicines were lying on the Angithi, by mistake, she took medicine of green color. It appears that thereafter, Kamlesh Kaur (PW-11) and Bhan Singh (PW-13), parents of deceased Manjit Kaur reached the hospital the next morning. On 24th April 1998, they made a request for recording the statement of deceased Manjit Kaur under Section 164 of the Cr.P.C. On such a request being made, Ms. KanchanNariala, Judicial Magistrate, First Class, Kurukshetra (PW-6) recorded the statement of deceased Manjit Kaur (Ex. PE) on 24th April 1998, wherein she stated that her husband had demanded Rs. 6 lakhs to go to the USA. According to the said dying declaration (Ex. PE), the appellant as well as his parents administered the said poisonous substance to deceased Manjit Kaur. On the basis of the second dying declaration (Ex. PE), an FIR was registered on 25th April 1998. After the said dying declaration (Ex. PE) was recorded, Sub-Inspector Gurdwaya Ram (PW-14), Investigating Officer (for short ‘IO’) recorded her oral statement (Ex. PV) on 28th April 1998. On 28th April 1998, the deceased Manjit Kaur was referred to PGIMS, Chandigarh, where she expired on 9th May 1998.
Upon completion of an investigation, though on verification by K.K. Rao, DSP (DW-2) who found the accused innocent, Sub-Inspector Gurdwaya Ram (PW-14), IO was of the opinion that there were sufficient grounds for trial and therefore, he filed the charge-sheet. Charges came to be framed for the offense punishable under Section 304-B of the IPC. At the conclusion of the trial, the trial court convicted the appellant under Section 304-B of the IPC. However, the trial court found that the other two accused, i.e., the parents of the appellant were entitled to get the benefit of the doubt and acquitted them. The appellant was sentenced to suffer rigorous imprisonment for a period of 10 years. In an appeal preferred by the appellant before the High Court, though the High Court confirmed the conviction under Section 304-B of the IPC, it reduced the sentence awarded to 7 years. Being aggrieved thereby, the present appeal.
Decision: –
In the present case, there are two dying declarations. The first one in point of time is recorded by Ms. Vani Gopal Sharma (DW-1) and the second one is recorded by Ms. KanchanNariala (PW-6). In her first dying declaration (Ex. DO/C), the deceased Manjit Kaur exonerated the appellant and his family members. In the second dying declaration (Ex. PE), she has implicated the appellant as well as his parents. In the first dying declaration (Ex. DO/C), she stated that she was having a fever and by mistake, she took another medicine green color. On a specific query being made to her by Ms. Vani Gopal Sharma (DW-1) as to whether she has suspicion of anyone, she has replied in the negative. The first dying declaration (Ex. DO/C) is also endorsed by Dr. Sobti (PW-1) stating therein that the patient remained conscious throughout her statement.
In her second dying declaration (Ex. PE), she stated that the appellant’s father and mother caught hold of her and the appellant forcibly administered the medicine.
It is pertinent to note that the prosecution had not examined Ms. Vani Gopal Sharma (DW-1), who had recorded the first dying declaration (Ex. DO/C), and therefore, the defense was required to examine her as DW-1. A perusal of her evidence would reveal that on ASI Ranjit Singh making a request, she went to the hospital of Dr. Sobti (PW-1) and asked her whether Mrs. Manjit Kaur was fit to make a statement, and thereupon, the doctor opined that she was fit to make the statement. Thereafter, she recorded the statement of the deceased Manjit Kaur. She stated that when she was recording the statement, nobody except Dr. Sobti (PW-1) was present there and everyone else was asked to go out. She stated that she found that the deceased Manjit Kaur was in a sound disposing mind but still she gave her some time to relax so that she could compose herself and could give statements voluntarily. She stated that she was satisfied that the deceased Manjit Kaur was prepared to make a statement voluntarily. Thereafter, her statement was recorded. After recording her statement, a right thumb impression of the deceased Manjit Kaur was taken. She deposed that deceased Manjit Kaur remained conscious throughout and she appended a certificate to that effect. She has also been deposed with regard to the certificate issued by Dr. Sobti (PW-1).
Ms. Vani Gopal Sharma (DW-1) was cross-examined by Additional Public Prosecutor. In her cross-examination, she reiterated that she had satisfied herself that the deceased Manjit Kaur was making a statement voluntarily, and only then, she recorded it and even satisfied herself after recording her statement.
Ms. KanchanNariala (PW-6), who recorded the second dying declaration (Ex. PE), has also stated that she had satisfied herself that deceased Manjit Kaur was making a voluntary statement. Attendants sitting by her side were asked to leave the premises. She stated that when she was recording the statement, except for deceased Manjit Kaur, none were present. She has admitted in her cross-examination that she did not consider obtaining a certificate of fitness from the Medical Officer to the effect that deceased Manjit Kaur was fit to make a statement. She has admitted that she did not obtain any opinion from any Medical Officer of L.N.J.P. Hospital, where she recorded the dying declaration. She has also admitted that Bhan Singh (PW-13) and Kamlesh Kaur (PW-11), father and sister of deceased Manjit Kaur were present in the hospital.
“In the present case, we are faced with two dying declarations, which are totally inconsistent and contradictory to each other. Both are recorded by Judicial Magistrates. A difficult question that we have to answer is which one of the dying declarations is to be believed.”
The first dying declaration (Ex. DO/C) is recorded by Ms. Vani Gopal Sharma (DW-1). A perusal of the said would reveal that prior to recording the statement of deceased Manjit Kaur, Dr. Sobti (PW-1) had examined whether she was in a fit state of mind and conscious to make the statement. After certification, Ms. Vani Gopal Sharma (DW-1) got herself satisfied as to whether deceased Manjit Kaur was voluntarily making the statement or not and thereafter, recorded her statement. The said dying declaration (Ex. DO/C) is also endorsed by Dr. Sobti (PW-1) with the remarks that the deceased Manjit Kaur was conscious throughout while making the statement. Ms. Vani Gopal Sharma (DW-1) has also deposed that even after making the statement, she confirmed from the deceased whether the statement was voluntarily made by her.
As against this, as far as the second dying declaration (Ex. PE) which was recorded by another Judicial Magistrate Ms. KanchanNariala (PW-6) after 3 days is concerned, it was recorded without there being examined by a doctor with regard to the fitness of the deceased Manjit Kaur to make the statement. Though the statement is recorded in L.N.J.P. Hospital and though doctors were available, Ms. KanchanNariala (PW-6) did not find it necessary to get the medical condition of the deceased examined by the doctors available in the hospital. It is further to be noted that Ms. KanchanNariala (PW-6) herself has admitted that Bhan Singh (PW-13) and Kamlesh Kaur (PW-11), father and sister of deceased Manjit Kaur were present in the hospital. The possibility of the second dying declaration (Ex. PE) being given after tutoring by her relatives cannot, therefore, be ruled out.
The appeal was allowed. The judgment dated 15th May 2009 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.1189-SB of 2002 and the judgment and order dated 13th/16th July 2002 passed by the trial court in Sessions Case No. 55 of 1998 were quashed and set aside. The appellant was acquitted of all the charges charged with and his bail bonds shall stand discharged.
Case Details
| Diary Number | 70851-2009 | Judgment |
| Case Number | Crl.A. No.-001290-001290 – 2010 | 16-08-2022 (English) |
| Petitioner Name | MAKHAN SINGH | |
| Respondent Name | THE STATE OF HARYANA | |
| Petitioner’s Advocate | SUDARSHAN SINGH RAWAT | |
| Respondent’s Advocate | ||
| Bench | HON’BLE MR. JUSTICE B.R. GAVAI, HON’BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA | |
| Judgment By | HON’BLE MR. JUSTICE B.R. GAVAI |
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