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

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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.

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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. 

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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,

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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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