MAKHAN SINGH VERSUS THE STATE OF HARYANA

MAKHAN SINGH VERSUS THE STATE OF HARYANA

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION 
CRIMINAL APPEAL NO. 1290 OF 2010
MAKHAN SINGH           ...APPELLANT(S)
VERSUS
THE STATE OF HARYANA     ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. The appellant­Makhan Singh has approached this
Court being aggrieved by the judgment dated 15th May 2009
passed   by   the   High   Court   of   Punjab   and   Haryana   at
Chandigarh   in   Criminal   Appeal   No.1189­SB   of   2002   vide
which the High Court, though reduced the sentence awarded
from 10 years to 7 years, but concurred with the judgment
and order of conviction dated 13th/16th  July 2002 recorded
by the trial court in Sessions Case No. 55 of 1998 for the
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offence punishable under Section 304­B of the Indian Penal
Code, 1860 (for short ‘IPC’). 
2. Deceased Manjit Kaur was married to the appellantMakhan 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 USA.
According to the prosecution, deceased Manjit Kaur, fed up
with   the   torture,   consumed   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
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was taken to a private Nursing Home of Dr. H.K. Sobti (PW­1)
at Kurukshetra, wherein she was admitted.
3. Ms. Vani Gopal Sharma, Judicial Magistrate, First
Class, Kurukshetra (DW­1) 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 colour.  It appears that thereafter, Kamlesh
Kaur (PW­11) and Bhan Singh (P)W­13), parents of deceased
Manjit Kaur reached the hospital on 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.   Kanchan
Nariala, Judical Magistrate, First Class, Kurukshetra (PW­6)
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 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
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declaration   (Ex.  PE),  an   FIR   was  registered  on   25th  April
1998.  After the said dying declaration (Ex. PE) was recorded,
Sub­Inspector Gurdwaya Ram (PW­14), Investigating Officer
(for short ‘IO’) recorded her oral statement (Ex. PV) on 28th
April 1998. On 28th  April 1998, deceased Manjit Kaur was
referred to PGIMS, Chandigarh, where she expired on 9th May
1998.
4. Upon   completion   of   investigation,   though   on
verification by K.K. Rao, DSP (DW­2) who found the accused
innocent, Sub­Inspector Gurdwaya Ram (PW­14), IO was of
the opinion that there were sufficient grounds for trial and
therefore, he filed the charge­sheet.   Charges came to be
framed for the offence punishable under Section 304­B of the
IPC.  At the conclusion of the trial, the trial court convicted
the appellant under Section 304­B of the IPC.  However, the
trial court found that the other two accused, i.e., the parents
of the appellant were entitled to get benefit of 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
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High Court confirmed the conviction under Section 304­B of
the IPC, it reduced the sentence awarded to 7 years.  Being
aggrieved thereby, the present appeal.
5. We have heard Shri R.K. Rathore, learned counsel
appearing on behalf of the appellant and Shri Piyush Hans,
learned counsel appearing on behalf of the State.
6. Shri Rathore submitted that the trial court and the
Appellate Court have failed to take into consideration that in
the very first dying declaration (Ex. DO/C), deceased Manjit
Kaur had stated that she had consumed the medicine by
mistake.   He   therefore   submitted   that   the   death   was
accidental.     He   further   submitted   that   the   second   dying
declaration (Ex. PE), which was recorded after 3 days, had
been   recorded   after   the   parents   of   deceased   Manjit   Kaur
instigated her to implicate the appellant.  He submitted that
in   case   of   conflicting   dying   declarations,   the   accused   is
entitled to get benefit of doubt.  He therefore submitted that
the order of conviction deserves to be set aside.
7. Shri Hans vehemently submitted that each of the
dying declarations has to be appreciated independently.  He
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submitted that the courts below have rightly found that the
first dying declaration (Ex. DO/C) was given by the deceased
Manjit Kaur under the influence of her husband, whereas the
second   dying   declaration   (Ex.   PE)   was   given   by   her
independently out of her free will.  He further submitted that
in view of the concurrent findings of fact, this Court should
not   interfere.   Shri   Hans   has   relied   on   the   following
authorities in support of his submission:
Harjit Kaur v. State of Punjab1
, Sayarabano v. State of
Maharashtra2
,  Sher   Singh   v.   State   of   Punjab3
,
Munnawar   v.   State   of   U.P.4
,  Lakhan   v.   State   of  M.P.5
,
Shudhakar   v.   State   of  M.P.6
,  Raju   Devade   v.   State   of
Maharashtra7
,  Kashmira Devi v. State of Uttarakhand8
and State of U.P. v. Veerpal9
8. The law with regard to dying declaration has been
summarized by this Court in the case of  Lakhan  (supra),
1 (1999) 6 SCC 545
2 (2007) 12 SCC 562
3 (2008) 4 SCC 265
4 (2010) 5 SCC 451
5 (2010) 8 SCC 514
6 (2012) 7 SCC 569
7 (2016) 11 SCC 673
8 (2020) 11 SCC 343
9 (2022) 4 SCC 741
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wherein the Court considered various oral judgments on the
issue and observed thus:  
“21. In view of the above, the law on the issue of
dying declaration can be summarised to the effect
that in case the court comes to the conclusion that
the dying declaration is true and reliable, has been
recorded by a person at a time when the deceased
was   fit   physically   and   mentally   to   make   the
declaration and it has not been made under any
tutoring/duress/prompting; it can be the sole basis
for recording conviction. In such an eventuality no
corroboration is required. In case there are multiple
dying   declarations   and   there   are   inconsistencies
between   them,   generally,   the   dying   declaration
recorded by the higher officer like a Magistrate can
be   relied   upon,   provided   that   there   is   no
circumstance giving rise to any suspicion about its
truthfulness.   In   case   there   are   circumstances
wherein   the   declaration   had   been   made,   not
voluntarily and even otherwise, it is not supported
by the other evidence, the court has to scrutinise
the facts of an individual case very carefully and
take a decision as to which of the declarations is
worth reliance.”
9. It could thus be seen that the Court is required to
examine  as to  whether the dying declaration  is true and
reliable; as to whether it has been recorded by a person at a
time when the deceased was fit physically and mentally to
make the declaration; as to whether it has been made under
any tutoring/duress/prompting.  The dying declaration can
be the sole basis for recording conviction and if it is found
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reliable and trustworthy, no corroboration is required.   In
case   there   are   multiple   dying   declarations   and   there   are
inconsistencies between them, the dying declaration recorded
by the higher officer like a Magistrate can be relied upon.
However,   this   is   with   the   condition   that   there   is   no
circumstance   giving   rise   to   any   suspicion   about   its
truthfulness.   In case there are circumstances wherein the
declaration has not been found to be made voluntarily and is
not supported by any other evidence, the Court is required to
scrutinize the facts of an individual case very carefully and
take   a  decision   as  to   which   of   the  declarations   is  worth
reliance.
10. In the present case, there are two dying declarations.
The first one in point of time is recorded by Ms. Vani Gopal
Sharma   (DW­1)   and   the   second   one   is   recorded   by   Ms.
Kanchan Nariala (PW­6).  In her first dying declaration (Ex.
DO/C), deceased Manjit Kaur has 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
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that she was having fever and by mistake, she took another
medicine of green colour.  On a specific query being made to
her by Ms. Vani Gopal Sharma (DW­1) as to whether she has
suspicion on anyone, she has replied in the negative.   The
first dying declaration (Ex. DO/C) is also endorsed by Dr.
Sobti   (PW­1)   stating   therein   that   the   patient   remained
conscious throughout her statement.
11. In her second dying declaration (Ex. PE), she has
stated that the appellant’s father and mother caught hold of
her and the appellant forcibly administered her the medicine.
12. It is pertinent to note that the prosecution had not
examined Ms. Vani Gopal Sharma (DW­1), who had recorded
the   first   dying   declaration   (Ex.   DO/C)   and   therefore,   the
defence was required to examine her as DW­1.  A perusal of
her evidence would reveal that on ASI Ranjit Singh making a
request, she went to the hospital of Dr. Sobti (PW­1) 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 deceased Manjit Kaur.   She stated that when
9
she was recording the statement, nobody except Dr. Sobti
(PW­1) was present there and everyone else was asked to go
out.   She stated that she found that deceased Manjit Kaur
was in sound disposing mind but still she gave her sometime
to relax so that she could compose herself and could give
statement voluntarily.  She stated that she was satisfied that
the deceased Manjit Kaur was prepared to make statement
voluntarily.   Thereafter, her statement was recorded.   After
recording her statement, right thumb impression of 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 deposed with regard to
the certificate issued by Dr. Sobti (PW­1).
13. Ms. Vani Gopal Sharma (DW­1) was cross­examined
by Additional Public Prosecutor.   In her cross­examination,
she   has   reiterated   that   she   had   satisfied   herself   that
deceased Manjit Kaur was making statement voluntarily and
only then, she recorded it and even satisfied herself after
recording her statement.
10
14. Ms.   Kanchan   Nariala   (PW­6),   who   recorded   the
second dying declaration (Ex. PE), has also stated that she
had satisfied herself that deceased Manjit Kaur was making a
voluntarily statement.   Attendants sitting by her side were
asked to leave the premises.  She stated that when she was
recording the statement, except deceased Manjit Kaur, none
were present.   She has admitted in her cross­examination
that she did not consider obtaining 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 (PW­13) and Kamlesh Kaur
(PW­11),   father   and   sister   of   deceased   Manjit   Kaur   were
present in the hospital.
15. 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. 
11
16. The first dying declaration (Ex. DO/C) is recorded by
Ms. Vani Gopal Sharma (DW­1).  A perusal of the said would
reveal   that   prior   to   recording   the   statement   of   deceased
Manjit Kaur, Dr. Sobti (PW­1) had examined as to whether
she was in a fit state of mind and conscious to make the
statement.     After   certification,   Ms.   Vani   Gopal   Sharma
(DW­1) 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 (PW­1)
with the remarks that deceased Manjit Kaur was conscious
throughout while making statement. Ms. Vani Gopal Sharma
(DW­1)   has   also   deposed   that   even   after   making   the
statement, she confirmed from the deceased as to whether
the statement was voluntarily made by her.
17. As   against   this,   as   far   as   the   second   dying
declaration (Ex. PE) which was recorded by another Judicial
Magistrate   Ms.   Kanchan   Nariala   (PW­6)   after   3   days   is
concerned, it was recorded without there being examination
by a doctor with regard to the fitness of the deceased Manjit
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Kaur   to   make   the   statement.     Though   the   statement   is
recorded   in   L.N.J.P.   Hospital   and   though   doctors   were
available,   Ms.   Kanchan   Nariala   (PW­6)   did   not   find   it
necessary   to   get   the   medical   condition   of   the   deceased
examined from the doctors available in the hospital.   It is
further to be noted that Ms. Kanchan Nariala (PW­6) herself
has admitted that Bhan Singh (PW­13) and Kamlesh Kaur
(PW­11),   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.  
18. Not   only   that,   it   is   also   relevant   to   refer   to   the
testimony   of   K.K.   Rao   (DW­2),   who   was   the   Deputy
Superintendent   of   Police   (DSP).     He   has   stated,   in   his
deposition, thus:
“However, no witness supported the version detailed
Mrs. Manjit Kaur in that statement.   According to
my   investigation   the   said   statement   dated
24.4.1998   was   made   by   Mrs.   Manjit   after   being
tutored by her relatives and it did not contain the
true version of the incident.”
19. It is also relevant to note that the prosecution had
not examined Ms. Vani Gopal Sharma (DW­1) and K.K. Rao,
13
DSP (DW­2).  It therefore creates a serious doubt with regard
to fairness and impartiality of the IO.  Apart from that, it is to
be noted that on the basis of very same evidence, the trial
court, by giving benefit of doubt, has acquitted the father and
mother of the appellant. In that view of the matter, conviction
of the appellant on the very same evidence, in our view, was
improper.
20. We   therefore   find   that   in   the   facts   and
circumstances of the present case, the first dying declaration
(Ex. DO/C) will have to be considered to be more reliable and
trustworthy as against the second one (Ex. PE).  In any case,
the   benefit   of   doubt   which   has   been   given   to   the   other
accused by the trial court, ought to have been equally given
to   the   present   appellant   when   the   evidence   was   totally
identical against all the three accused.
21. Before   we   part   with   the   judgment,   we   place   on
record our appreciation for the painstaking efforts made by
Shri Piyush Hans, learned counsel appearing on behalf of the
State for supporting the conviction.
22. In the result, we pass the following order:
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(i) The appeal is allowed;  
(ii) The judgment dated 15th  May 2009 passed by the
High Court of Punjab and Haryana at Chandigarh in
Criminal   Appeal   No.1189­SB   of   2002   and   the
judgment and order dated 13th/16th July 2002 passed
by the trial court in Sessions Case No. 55 of 1998 are
quashed and set aside;
(iii) The appellant is acquitted of all the charges charged
with and his bail bonds shall stand discharged.
23. Pending application(s), if any, shall stand disposed of
in the above terms. 
…..….......................J.
[B.R. GAVAI]
…….................................................J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
AUGUST 16, 2022.
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