Jagjit Singh vs State
2011 Latest Caselaw 3838 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                         RESERVED ON : 19.07.2011
                                                          DECIDED ON: 09.08.2011

+             CRIMINAL APPEAL NO. 232/1998 & Cr.l.M.A.3179/1998

       JAGJIT SINGH                                                    .... APPELLANT

                      Through : Sh. K.B. Andlay, Sr. Advocate with Mr. M.L.
                                Yadav, Advocate

                                     Vs.

       STATE                                                           ..... DEFENDANT

                      Through : Mr. Jaideep Malik, APP


       CORAM:

       MR. JUSTICE S. RAVINDRA BHAT
       MR. JUSTICE G.P. MITTAL

1.

     Whether the Reporters of local papers      YES
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?         YES

3.     Whether the judgment should be             YES
       reported in the Digest?


MR. JUSTICE S.RAVINDRA BHAT
%

1. The appellants, in these proceedings, impugn a judgment and order dated 28.04.1998 of the Additional Sessions Judge (hereafter "trial court") in S.C. No.49/1996 whereby they (i.e Jagjit Singh and co-accused Kulwant Kaur) were convicted of the offences punishable under Section 302 IPC, and acquitted for the charge under Section 498-A IPC. For the offence under Section 302 IPC, they were sentenced to undergo life imprisonment and fined a sum of ` 50,000 each. In default of payment of fine the convicts were directed to further undergo rigorous

Crl.A.No.232/1998 Page 1 imprisonment for 2 years each. The co-accused Kulwant Kaur, died during the pendency of this appeal, therefore her appeal has abated.

2. The prosecution allegations were that on the night intervening the 27th and 28th of August, 1988, Smt. Swaranjit Kaur (hereafter "the deceased") was murdered in furtherance of the common intention between Jagjit Singh (her husband) (hereafter "the appellant") and Kulwant Kaur, her mother-in-law. The prosecution alleged that her death was caused by their pouring kerosene oil on her and burning her. The deceased was taken to the JP Narayan Hospital by the appellant and her father-in-law, with extensive burns. The prosecution alleged that the deceased made certain statements, one to Dr Deepak Garbyal (Ex. PW-14/A) at the time of admission to the hospital, at about 1.20 A.M on 28-08-1988, where she and her husband jointly stated that she was accidentally burnt in an accident, while she was heating milk for her child; it was alleged that she made a statement Ex. CW-1/A to one Dr. Munish Shandilya, where she stated that her husband and mother-in- law had poured kerosene over her and set fire to her, and that her father in law had extinguished the fire. The prosecution also relied on another, a last statement made by the deceased to the S.D.M. Shahdara (Ex PW-15/A) at 8-15 AM on 28.08.1988. In this statement to the SDM she spoke about her marriage, on 13.10.1986 with the appellant, and about her one year old daughter. She also mentioned the circumstances surrounding her burning, stating that earlier she went to tie Rakhi to her brother, and when she returned, in the evening, her husband chided and beat her as he had not been invited by her parents. She also stated that her parents and parents-in-law did not share cordial relations. Later that night when she went down to the kitchen to fetch milk for her child, her husband and mother-in-law caught her, poured kerosene over her, and set fire to her. When she cried for help, her father-in-law put out the fire, and then her husband and father-in-law admitted her to the hospital.

3. The deceased passed away on 31.08.1988, and the cause of death, according to the death report (Exhibit PW- 15/E, Exhibit PW- 21/A) was "septicemic shock" which resulted from 75% deep burns. The appellants were charged for the offences punishable under Sections 302 and 498-A IPC; they pleaded not guilty, and claimed trial. After considering the submissions, the Trial Court convicted the two accused on the basis of the dying declarations made to Dr. Munesh

Crl.A.No.232/1998 Page 2 Shandilya (Ex. CW 1/A) and to the SDM, Shahdara Mr. Parimal Roy (Ex. PW 15/A) on the charge of murder under S. 302, but acquitted them for the charge punishable under Section 498A IPC.

4. Mr. K.B.Andley, learned counsel for the Appellant, urged that the findings in the impugned judgment are unsustainable, as they are based on inadmissible evidence. It was argued that the earliest in point of time, when the statement about the probable cause of death was recorded, was when the deceased had been taken to the hospital. Then, she did not implicate anyone, including her husband, the appellant. Instead, she clearly stated to the doctor (who recorded the statement) that the incident was the result of an accident, when her clothes caught fire, after she tried to heat the milk. This statement was made at the earliest point in time, and was clearly not the result of any tutoring that could have taken place after the deceased's relatives entered the picture. In not considering that this evidence was objective, and verifiable from the record, as opposed to the testimonies of witnesses who had been tutored about the incident, and the statements made after the deceased had been told what to tell, the defence submits that the Trial court committed an error.

5. Counsel urged that the first statement made by the deceased as to the cause of her burns, to Dr. Deepak Garbyal, exonerates the appellant, since, in this statement, she stated about accidentally catching fire whilst heating milk for her child, and that the appellant's family immediately put the fire out, with tap water. After this, the appellant admitted her to the hospital. The appellant also claims that the deceased had told this version of the story to several people including Jaspal Singh (DW-2) and Sukhvinder Kaur (DW-3). It was urged that this version should be believed since it was made immediately and before she came under the influence of her relatives. It was urged that in discarding the statement made by the deceased to Dr. Deepak Garbyal, the Trial Court had committed an error, since it was natural that the doctor made inquiries from the husband about the cause of her burns, and further, it was even corroborated by the deceased verbally, and not by nodding, as opined by the Trial Court. They urge that since it is not practice in dying declarations to make note of the degree of the burns, the fact that he had recorded the burns as being 30% as opposed to 75% should have been ignored, and most

Crl.A.No.232/1998 Page 3 importantly, that in making this statement, she had exonerated the appellant, before her relatives could meet her.

6. It was next urged that the Trial court gravely erred in not seeing that the so-called dying declaration allegedly recorded by Dr. Shandilya, was not even put forward by the prosecution during the trial. It was argued that though initially the prosecution had alleged about the statement, yet during the trial, no attempt to produce that witness was made; he was not available. Instead, the court took upon itself the task of having the so-called declaration allegedly made to Dr. Shandilya, placed on the record and proved by a record clerk, CW-1. The testimony of this witness was only to the effect that he recognized Dr. Shandilya's handwriting. Importantly, the said doctor had not even been seen by CW-1. He had not seen the statement of the deceased recorded by Dr. Shandilya, nor did he claim that to be the case. Therefore, the prosecution miserably failed to prove the "first" dying declaration presented in court. The Trial court's findings in this regard were, according to learned senior counsel, contrary to law.

7. The appellant faulted the impugned judgment, in believing the Prosecution's case that he and his mother poured kerosene over the deceased , set her on fire and killed her, on the grounds that the CFSL report mentioned that there was no sign of kerosene found on the deceased's clothing and hair samples, that the postmortem report states that the body was not smelling of kerosene; that no kerosene was lifted from the spot of the incident by the IO; and that the can of kerosene that was recovered was not from the courtyard, where the incident took place, but from a niche at the level of the 8th stair, away from the Courtyard.

8. It was contended that the dying declaration recorded by SDM Shahdara Parimal Roy (PW-15) was most suspect, on the ground that the signature of the deceased was obtained on the margin of the paper and therefore must have been obtained before hand; and that this SDM had a history of making reports that were suited to the police's version of the events; and that this dying declaration was not attested by a doctor. Counsel submitted that this goes against the ruling of several Supreme Court decisions which state that the recording of dying declarations in the hospital has to be done in the presence of a doctor, and after due certification from the Doctor that the person is capable of making such s statement. The Trial Court also did not consider the

Crl.A.No.232/1998 Page 4 possibility that Smt. Swaranjit Kaur might have been tutored, given that her relatives were around her all the time.

9. Learned APP submitted that the Trial Court did not err in believing the prosecution's case that the deceased was burnt by the appellant and his mother by pouring kerosene over her, since she had stated so in two dying declarations (Ex. CW1/A, Ex. PW 15/A). Without prejudice to this submission, even if it was assumed that there was no kerosene used, it is possible that the deceased, had mistaken the substance used to burn her, for kerosene. The APP urged that as far as the statement made by the deceased to Dr. Deepak Garbyal (Ex. PW-14/A) is concerned, where she stated that the cause of her burns was accidental, it was a very real possibility that she must have confirmed that statement made by her husband out of fear; and that therefore this statement must be discarded.

10. Dealing with the statement made by the deceased, to Dr. Munesh Shandilya, the learned APP submitted that this was proved since the Record Clerk of the Hospital, CW-1 had identified his signature on the document.With respect to the statement made by the deceased to the SDM Shahdara Parimal Roy, her signature was obtained in the margins after recording her statement, and it is a reasonable explanation that he had run out space after recording her statement and hence had to obtain her signatures on the margin.

11. PW-2: Shashi Bhushan had stated that he was present in the vicinity at the time of the incident (12/12.30 p.m). He heard screams from the house of the appellant. He looked through a slit in the letter box, where he said he could see the accused and his father, and a lady in a burnt condition. Then, he claimed that he made a hue and cry. On seeing people gathered there the appellant and his father took the Swaranjit Kaur to the hospital. The police were called. He stated that the police recovered a kerosene oil can from the crime scene (Ex. PW2/A). He deposed in Court, that in his original statement recorded by the Police at about 8 a.m on 28.8.1988, he had stated that he could hear the deceased shouting for help ("Bachao! Bachao!") and that he had witnessed the struggle going on between the appellant, his father and the deceased. He had allegedly also told the police, in his original statement, that the appellant, his father, and his brother put the injured into a car. However, none of this has been recorded in the statement made to the Police. The Trial Court considered his version before the Court an improvement Crl.A.No.232/1998 Page 5 over his previous statements made to the police with regard to the fact of his hearing the shouts for help. It also did not accept his testimony with regard to having seen the entire incident through the slit in the letter box for the reason, that, only the drawing room could be seen through the slit in the letter box, and according to this witness the drawing room door was shut. Since it was the prosecution's case that the incident took place in the Courtyard in front of the kitchen, across the drawing room, there is grave doubt cast upon the veracity of this witness's statement as to whether he actually saw the incident taking place. His version about how the burnt woman was taken to the hospital, who took her to the hospital, who informed the police, and what articles were recovered from the house were also considered improvements and therefore unreliable. Since he had also lied about his past criminal record, the Trial Court was of the opinion that his credibility as a witness was suspect.

12. Similarly, the Trial court felt wary in relying on the testimony of PW-5 Rakesh Kumar, who stated that on hearing cries, he went to the deceased's house, where he saw her burning. He stated that on seeing the public, the appellant, his brother, and his father started pouring water over the woman, after which the three of them took her to the hospital in their car. He also states that he saw kerosene sprinkled on the floor inside the house. He had lied about his past criminal record; besides, he made several improvements with regard to material evidence, such as whether or not he knew the name of the accused, whether he had stated that the police had recovered one match stick from the spot, whether a lot of kerosene oil was found spilt on the floor of the inner courtyard. The Court also noted the discrepancy in his initial position that he immediately saw the woman burning, on his reaching the spot, and his later statement that he saw her burning only after someone opened the door of the drawing room. Furthermore, he contradicted PW-2's version of the events (the latter said that he could see the incident through the slit in the letter box and made no mention of the act that it was only after the drawing room door was open that one could see inside).

13. PW-6: Smt. Bhupinder Kaur was the deceased's mother. She deposed that 6-7 months following the marriage of her daughter, her husband and in- laws started demanding ` 2,00,000/- in dowry, and consequently started ill- treating her by beating her up. More importantly she mentioned that when she visited the hospital on 28.8.1988, her daughter had told her that she

Crl.A.No.232/1998 Page 6 had made a call to her (PW-6) house which was answered by her brother, and, that, she had told him that she was being tortured and beaten by the Appellant and her mother- in- law. This is an improvement over the previous statement made by her to the SDM Shahdara (Ex. PW6/DB) she made no mention of the dying declaration allegedly made in her presence to her husband by her daughter on 28.8.1988, regarding the cause of her death. She also stated that her family had purchased a bus worth ` 2,00,000/- for her son Kulbir Singh after the marriage of Swaranjeet Kaur.

14. Similarly, PW-7, the deceased's brother made mention of the harassment for the sake of dowry, and a demand for ` 2,00,000/- by the accused/Appellant and his mother, as the witness had received a bus worth that amount as dowry from his wife's family. This statement is inconsistent with the statement in his cross examination where he stated that he had bought his bus, 6-7 months before his marriage, and is also inconsistent with PW-6's statement.

15. PW-8, the deceased's father is another important witness. He also spoke about the dowry demand for ` 2,00,000/- by the Appellants and of the subsequent ill-treatment of the deceased by her in-laws, after they allegedly came to know of PW-6's receiving the amount during his marriage. He deposed that on 27.8.1988, the deceased had visited them (her parents house) to celebrate rakhi, and had informed them that before coming there, she had been beaten by her in- laws. On 28.8.1988 he was informed of the incident of her burning. That night, he met his daughter, who was in a position to talk; she told him about having been burnt by the appellant and her mother- in- law. However, he had not mentioned this to the police in his original statement made to them under Section 161 CrPC. He also stated that this oral dying declaration had been made to him, in the presence of his wife. However, his wife, in her examination, made no mention of this material fact.

16. PW- 13: SI Suraj Bhan was on duty at the time of the incident. He stated that on being informed that Swaranjit had been taken to the hospital, he went there. Since she had been declared fit for statement, he had asked Dr. Munesh Shandilya to record her statement. The doctor then recorded her statement at 4 AM on 28.08.1988. To corroborate this and since the doctor who recorded the statement was unavailable, the Court summoned a witness, i.e. CW-1, Record Clerk Dhanvir Singh for identifying the signature of Dr. Munesh Shandilya.

Crl.A.No.232/1998 Page 7 The witness was introduced to identify the handwriting of Dr. Munesh Shandilya on Exhibit CW-1/A, which records a dying declaration. He identifies the signature on the document but does not identify on the handwriting on the rest of the document. Further, he stated that he will not be able to identify the Doctor's handwriting in Hindi. But the dying declaration is recorded by the Doctor in Hindi.

17. PW-15: Parimal Roy, SDM Shahdara recorded the statement of the deceased on 28.8.1988, (Ex. PW 15/A). He claims that he had ascertained that she was fit to make the statement. She narrated the sequence of events to him. She had stated that on the morning of 27.8.1988, she had gone to her brother's house for Rakhi. When she returned in the evening, her husband beat her for not having been invited to her brother's house. Her in- laws also scolded her and called her a woman without moral character. She then went upstairs. Later that night, when she came downstairs to take milk for her child, her husband and mother-in-law poured kerosene oil on her and set her on fire. When she started screaming, her father-in- law put out the fire, and took her to the hospital . He husband also accompanied them. When she was asked whether her in-laws and her parents had cordial relations, she replied in the negative. On the basis of this report, he asked the police to lodge the FIR. The defence counsel, to throw doubt over the credibility of the witness, alleged that he always went out of his way to help the police, and that in a previous case, a judge had passed strictures against him, saying that he had made a fabricated report in that matter, in order to save the police. The defence also alleged that he had obtained the signature of the deceased beforehand, and then recorded a version of the events as suited to the Police. (This allegation was made because the signature of the deceased on this dying declaration was squeezed into a margin of the page.)

18. PW- 24: Inspector Narinder Singh was the investigating officer (IO) in this case. His testimony is important with regard to the issue of the use of Kerosene oil in the commission of the offence. He stated that at the spot of the commission of the offence, he smelt the odour of kerosene oil, and also found one plastic can of kerosene oil lying on the stairs. He had seized the kerosene can by memo Ex. PW2/B. He also seized one match box containing burnt match stick vide memo Ex. PW 2/A. In cross-examination he stated that there were no articles lying next to

Crl.A.No.232/1998 Page 8 the kerosene can. However, in the photograph taken of the scene, the kerosene is abutted by other household articles.

19. It would now be necessary, in the light of the above material, to analyze the evidence and ascertain whether the Appellant's conviction and sentence were justified. The first circumstance, which the court has to consider is the dying declarations relied on by the Trial court. In Ex. PW- 14/A, the doctor, Deepak Garbyal recorded that the deceased Swaranjeet Kaur and her husband at the time of admission into the hospital, had stated that she caught fire while boiling milk for her child, and the burns were accidental. The Trial Court disbelieved this declaration since it was of the opinion that Dr. Deepak Garbyal was biased. It based its opinion on the fact that the doctor in this MLC, had reported that the deceased had only 30% burns, but in the post mortem report and also in the death summary, made by other doctors, it was recorded that the deceased had 75% burns (except on the scalp and the head). The other reason this testimony was disbelieved was that in the narration written down by Dr. Garbyal, what emerged was that the incident was narrated by the husband, who detailed the facts before the doctor, and the deceased contributed by affirming the facts. The Trial Court was of the opinion that affirmation by the injured, who was struggling for life, in the presence of her husband, would not qualify as a dying declaration. Further, since, in the record, the Doctor states that the deceased was then conscious and oriented, it is suspicious that she did not make the statement, but her husband made it. We do not find any infirmity with this reasoning. Placed in such a situation, the doctor's duty is first to do his utmost to save the patient, or at least alleviate her suffering. A physician cannot be, under these circumstances, expected to hold an elaborate inquiry about the genesis or history of the incident. There can be many reasons why at such instances, the truth may not be told, or told in entirety; not the least the fact that the culprit himself or herself may be present, or may be a prominent and guiding spirit behind the story recorded in the MLC. Therefore, the contents of the MLC, regarding the history of the incident, though relevant, cannot be determinative in such cases.

20. The second statement relied on by the Trial court is the one made by the deceased, to Dr.Munesh Shandilya. In this statement (Ex. CW-1/A) the victim told Dr. Munesh Shandilya that her husband and mother-in- law had poured kerosene over her and set fire to her. On hearing her scream, her father-in- law put out the fire, and her husband and her father-in- law

Crl.A.No.232/1998 Page 9 took her to the hospital. The Trial Court relied on this dying declaration. Interestingly, the prosecution had not relied on this declaration, since Dr Munesh Shandilya had apparently stopped working in the hospital. The Trial Court called for the Record Clerk of the Hospital (CW-1) to verify the handwriting and the signature of Dr Munesh Shandilya. The record clerk identified the signature,but could not identify the rest of the writing on the document. Further, he had even stated that he could not identify Dr. Shandilya's Hindi script handwriting. This will have to be considered as this dying declaration was written down in Hindi. It is thus apparent that the doctor who wrote the document was not available for examination by the Court, and as far as its authenticity is concerned, only the signature on the document has been identified by the Record Clerk, and not the rest of the document. Hence two questions arise- the first being whether the document was recorded by Dr. Munesh Shandilya; and whether the authenticity of the contents had been established. We are of the opinion that in the absence of the author, who allegedly heard the deceased mentioning the events, and recorded it, as she said it, the mere authentication of his signature - or even handwriting cannot be said to be proof of its contents. At best, CW-1 deposed that the document contained the handwriting and signatures of Dr. Shandilya; however, he could not possibly have testified that the good doctor truthfully recorded what was said in the document.

21. The appellant attacked the dying declaration made to the SDM Shahdara, PW-15 Parimal Roy, i.e. Ex. PW 15-A, submitting that that this SDM had a record of concocting police friendly reports, and it was possible that he obtained the burn victim's signature first and then filled in the details, as suited to the police's version. The Appellant claimed that this finds support in the fact that the signature of the victim was unusually placed at the margin of the report in a much smaller handwriting. However, the court is of the opinion that it is a plausible explanation that the signature was made on the margins of the paper, as the SDM could have run out of space in which to obtain the signature. The SDM in his cross-examination stated that the signature is at the end- margin of the paper.

22. The last in the series of dying declarations is the statement made to Mr. Mahinder Singh, father of the deceased. This statement was allegedly made to the father of the deceased, in the presence of his wife. However, his wife PW-6, made no mention of this crucial fact in her

Crl.A.No.232/1998 Page 10 evidence. Further, he had made no mention of this dying declaration in his original statement to the police. This casts a grave doubt as to the veracity of the witnesses' statements, and the dying declaration itself.

23. The discussion on Ex. PW-15/A, however, is not dispositive of the issue. While a court can rely on a dying declaration made, provided it is proved, there are certain essentials which have to be proved. The first is that the prosecution should establish that the maker was conscious of what he or she was saying; the second is that it is to be proved to have been made voluntarily, and the third is that the declaration should inspire confidence in the court as reflecting the truth of what is stated. The prosecution in this case, has been able to establish the first two ingredients. The question is whether the last essential, too, was proved. The importance of this aspect was highlighted by the Supreme Court, in State of Maharashtra v. Sanjay, (2004) 13 SCC 314, where it was held that:

"It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the court in its truthfulness and correctness (vide the observations of a five-Judge Bench in Laxman v. State of Maharashtra1). Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, "great caution must be exercised in considering the weight to be given to this species of evidence" (SCC p. 713, para 3). When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record."

This aspect was commented upon in other judgments, reported as Thurukani Pompaiah v State of Mysore AIR 1965 SC 939, State of Punjab v Parveen Kumar 2005 (9) SCC 769, etc.

24. It is necessary to consider the events alleged by the deceased in Ex. PW-15/A, particularly how she was set afire (after the Appellant poured kerosene on her). PW- 5 Rakesh Kumar mentioned that he saw kerosene lying on the floor, but this part of his evidence was an improvement over his previous statement made to the Police. PW-24, the investigating officer claims that he smelt Kerosene in the house and recovered a can of kerosene, a match box and match stick from the site, though no mention is made of the recovery of the match box and match stick in the recovery memo. This court also notes that the pictures taken of the scene show the kerosene can abutted by articles like a brush, bottle, mixie etc., i.e., in the presence of other

Crl.A.No.232/1998 Page 11 household articles. The IO in his initial examination said that the kerosene can was not lying next to other articles. His testimony with regard to the kerosene, is on shaky ground. He also says that no kerosene was found spilt on the floor, but that the smell of kerosene was present. This is in contradiction to the statement made by (PW-5) who deposed to having seen kerosene spilt on the floor.

25. The most important circumstance on this aspect is the CFSL Report which clearly stated that on analysis no presence of kerosene had been found in the articles sent for examination which included hair and cloth samples. Therefore, the only basis for considering the angle of burns by kerosene are the statements made by the IO(PW-24) and Rakesh Kumar (PW-5) which are contradictory to each other, and suspicious on other accounts. It is also common knowledge that kerosene has a distinctive smell the traces and residue of which persist, even after the fire is extinguished, unlike petrol, which is completely burnt, and the residue of which evaporates. Kerosene is, and has remained ubiquitous in urban lower middle class households throughout the country. It is unlikely that there can be any confusion about its smell. The lack of material corroboration of the deceased's statement regarding kerosene being poured on her, and her having been set afire therefore is a strong circumstance to disbelieve the veracity of the dying declaration. If one sees this, in the light of the contradictions in her parents' evidence, particularly, the absence of her mother's corroboration regarding the statement made to the father, it would be unsafe to rely on the dying declaration to rest a conviction.

26. As far as motive goes, PWs 6,7,8, and 18, the mother, brother, father and sister of the deceased have not been consistent in their statements and with each other's statement about the demand for ` 2,00,000/- in dowry. In relation to the bus acquired by PW-7, the trial court brushed aside the fact of dowry demand in determining the guilt of the accused. On examination of their individual depositions, several contradictory testimonies have emerged with regard to this issue. PW-6 (the mother) says that the demand for dowry was made after her son had received a bus worth ` 2,00,000/- as dowry. PW-7 (the son) initially says that he received the bus as dowry, and later says that the bus was bought 6-7 months prior to his marriage. PW-8 (the father) says that he had bought his son the bus himself out of his own funds and his daughter's in laws were under the mistaken impression that the bus had been gifted to his son as dowry at the

Crl.A.No.232/1998 Page 12 time of marriage. Further, none of the witnesses had made any mention of dowry demands in the inquest report, or before the SDM. The first time they had spoken about it was in the witness box. In these circumstances, the trial court's findings were justified.

27. The up-shot of the above discussion is that the prosecution could not establish the dying declaration made to Dr. Shandilya, since he did not depose during the trial. As far as the dying declaration recorded by PW-15 is concerned, though the prosecution could prove that it was made to him by the deceased and was accurately recorded, the truthfulness of the declaration itself could not be proved, in view of lack of evidence about use of kerosene, as well as contradictions and variations in the testimonies of the deceased's parents. The law undoubtedly is that a dying declaration can be relied on without corroboration if all the elements are established. However, the court would look for corroboration in material particulars, if there is doubt as to one or other fact. As there is no corroboration, and there is in fact, contradictory evidence about the dying declarations, narrated to the parents of the deceased, it would be unsafe to rest a conviction primarily on the dying declaration Ex. PW-15/A.

28. For the above reasons, we are of the opinion that the Appeal has to succeed. The bail and surety bonds furnished by the Appellant are hereby discharged. He is given the benefit of doubt; the Appeal is therefore, allowed.

S. RAVINDRA BHAT (JUDGE)

G.P.MITTAL (JUDGE) AUGUST 09, 2011

Crl.A.No.232/1998 Page 13