Delhi High Court

Ikramuddin vs The State on 29 April, 2009

Author: Badar Durrez Ahmed

           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

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

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

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

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

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

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

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

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

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

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

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

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.‖

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

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

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,

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

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

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

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

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