Thursday, 21 April 2016

How to appreciate dying declaration?

This Court in Atbir v. Government of NCT of Delhi  (2010) 9 SCC 1 has summarized the principles laid down earlier, as under:
“(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the
court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of
tutoring, prompting or imagination.
(iii) Where the court is satisfied that the
declaration is true and voluntary, it can base its
conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of
law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The
rule requiring corroboration is merely a rule of
prudence.

(v) Where the dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.
(vi) A dying declaration which suffers from
infirmity such as the deceased was unconscious
and could never make any statement cannot form
the basis of conviction.
(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is
not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the
dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied
that it is true and free from any effort to induce
the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal
impediment to make it the basis of conviction,
even if there is no corroboration.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 951 OF 2007
STATE (GOVERNMENT OF NCT OF DELHI) …… APPELLANT
VERSUS
NITIN GUNWANT SHAH …… RESPONDENT
Citation;  2015CriLJ4759, 2015(4)Crimes51(SC),  (2016)1SCC472,
Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been directed against
the judgment and order dated February 22, 2007 passed by the
High Court of Delhi at New Delhi in Criminal Appeal
Nos.519/2006 and 527/2006, whereby the High Court allowed
the criminal appeals filed by the respondents herein and acquitted
both of them.Page 2
2
2. The facts giving rise to these appeals, briefly stated, are that
in the morning of August 2, 1992, when one Lalit Suneja was
returning to his house after offering prayers to God, he was shot
dead by two unknown persons near to his house. A neighbour,
namely Nerendra Pal Naresh, who happened to pass through that
street, set the law into motion by informing the police. FIR
No.258/1992 was registered by the said Nerendra Pal Naresh at
P.S. Shakarpur, East Delhi, about the incident. During
investigation, the Investigating Officer came across a complaint
Ext. PW15/A1 lodged in the name of Lalit Suneja at P.S.
Nizamuddin, New Delhi. Investigation was thrown into the case
and the following story was disclosed by the prosecution:
3. Accused Nitin Shah was carrying on his business through a
proprietary concern M/s. Simnit Enterprises and he had employed
Lalit Suneja (deceased) as its distributor in the Northern Region.
Both the employer and the employee were at loggerhead for
sometime on account of some payment. When the matter could not
be settled, accused Nitin Shah requested his friend Om PrakashPage 3
3
Srivastava @ Babloo to eliminate Lalit Suneja and assured him to
provide cash likely to be spent in doing the act. Accused Om
Prakash Srivastava intrigued with co-accused persons to bring the
design to fruition and accordingly accused Manish Dixit was hired
to execute the task for Rs.1,00,000/-. On 2nd August, 1992,
accused Virender Pant @ Chhoto (since deceased) took accused
Manish Dixit on a motor-bike Yamaha bearing No.DL-1SD-4680,
to the spot. Accused Manish Dixit shot dead Lalit Suneja and fled
away from the spot on the same motor-bike described above being
driven by accused Virender Pant and reached to co-accused
Manjeet Singh who was waiting for them in a car bearing
No.DL-1CB-7874, at Yamuna Pusta near Bank Enclave. They
exchanged their vehicles and rushed to accused Om Prakash
Srivastava and returned him the motor bike and pistol used in the
crime. Accused Om Prakash Srivastava paid Rs.50,000/- to each of
the accused Virender Pant and Manjeet Singh for driving aforesaid
motor-bike and car, in order to facilitate accused Manish Dixit in
killing the deceased.
4. Police filed challan against accused Manish Dixit and ManjeetPage 4
4
Singh on 27th October, 1992. The names of accused Virender Pant,
Om Prakash Srivastava and Nitin Shah found place in column
No.2. Separate charge-sheets were filed against accused Nitin
Shah, Virender Pant and Om Prakash Srivastava on 23.1.1993,
15.03.1995 and 03.01.1996, respectively.
5. After considering the material on record and hearing the
counsel for the accused persons, the Trial Court by its order dated
6
th January, 2003 framed charges against Om Prakash Srivastava,
Nitin Shah and Manjeet Singh for offences punishable under
Sections 302/34 and 120B of the Indian Penal Code, 1860 (“IPC”
for short). The charges were read over and explained to the
accused persons, they pleaded not guilty and claimed trial.
Accused Virender Pant and Manish Dixit were reported to have
died during trial.
6. The Trial Court by its judgment and order dated 3rd July,
2006 convicted the respondents Nitin Shah and Om Prakash
Srivastava @ Babloo, for the offence punishable under Section 302
IPC read with Section 120B IPC and sentenced them to undergo
rigorous imprisonment for life and a fine of Rs.20,000/- each, and
in default of payment of fine, further imprisonment for six months
was awarded. However, Manjeet Singh was acquitted by the Trial
Court. Being aggrieved by the aforesaid judgment and order of the
Trial Court, the accused respondents filed two separate appeals
before the High Court of Delhi, being Criminal Appeal Nos.519 of
2006 and 527 of 2006. The High Court by the impugned judgment
and order allowed these appeals on the ground that there was
nothing on the record to show that any of the two respondents had
anything to do with the murder of Lalit Suneja and, consequently,
both the respondents were set at liberty.
7. The Appellant - State has challenged before us the judgment
of acquittal passed by the High Court of Delhi. Learned Counsel for
the appellant has inter alia raised the following ground in these
appeals. Whether a complaint disclosing that the complainant was
threatened to be killed in case the matter was not settled and thus
demanding action and security, is not a clear manifestation of
criminal conspiracy? Learned counsel appearing for the appellant
has time and again based his contention in and around the allegedPage 6
6
complaint Ext.PW15/A1. Also, since the whole case deals with the
alleged hatched up conspiracy to eliminate Lalit Suneja, any
alleged complaint by Lalit Suneja is of prime importance.
8. The Trial Court convicted the accused respondents on the
basis of the prosecution story revolving around the aforesaid
complaint Ext.PW15/A1. The High Court also dealt with the issue
and held that the Trial Court itself raised question on the
tampering of the said complaint as is apparent from the
overwriting done in numbering the said complaint in the Police
records, yet the Trial Court went on to rely on the said complaint.
The High Court has examined at length the said complaint and
reversed the finding of the Trial Court.
9. We shall at the very onset examine the said contention. The
Complaint Ext.PW15/A1 is alleged to have been filed by the
deceased Lalit Suneja in his own handwriting in Hindi and signed
in English, addressed to the SHO, Police Station Nizamuddin, New
Delhi. According to the prosecution, the said complaint forms the
basis of the case, whereby the entire events are the apprehensionsPage 7
7
made out in the said complaint, turned out to be true. The High
Court pointed out various discrepancies in the said complaint
which are worth considering. As has been held by the High Court,
the prosecution outrightly failed to prove the handwriting of the
said complaint. Neither any expert evidence was examined nor any
acquaintance was called to establish that the complaint was
written by deceased Lalit Suneja. In this light, the deposition of
Veena (PW1) wife of deceased Lalit Suneja, is also perused. She
denied the signature on the said complaint as that of her deceased
husband. The handwriting also could not be proved as PW1
deposed that she never saw her husband writing. The prosecution
also failed to prove the signature by forensic evidence. Apart from
the above, the said complaint is shown as Entry No.605/2 in
Register No.12 dated 23.7.1992. On examination, the High Court
rightly pointed out that there is overwriting which is visible to the
naked eye and apparently the original Entry 605 was changed to
Entry 604A to insert the document Ext. PW15/A1 in Register
No.12. This entry has also been commented by the Trial Court as
being manipulated and fabricated. Page 8
8
10. The High Court pointed out one another fact discrediting the
prosecution story, whereby the prosecution alleged that the
Investigating Officer (PW20) was provided with a photocopy of
Ext.PW15/A1 by PW15. However, in reality there was no such
copy in existence in the Police File. The assertion that the said
complaint was handed over to the Police Station on 23.7.1992
remains uncorroborated due to lack of contemporaneous Police
record. There exists no receipt of the said complaint on 23.7.1992
or on 2.8.1992. Hence the seizure by PW20 on 4.7.1992 is highly
doubtful as the Trial Court and so did the High Court had
concurrent finding as to tampering with Register No.12.
11. The prosecution story suffers another grave lacunae and that
is it outrightly failed to prove the surrounding circumstances. To
establish the threat of being killed, no corroborative evidence was
produced nor any statement of account was placed on record to
prove any outstanding amount to be paid by deceased Lalit Suneja
to respondent Nitin Shah. On the contrary, the deposition of Veena
(PW1) wife of deceased Lalit Suneja is important, who stated thatPage 9
9
she had never heard of any business relationship between her
husband and respondent Nitin Shah, nor she was aware of any
hostility between the two.
12. The learned counsel for the appellant placed reliance on the
testimony of the Police Officer Hanuman Dan (PW15) who alleged
that the complaint Ext.PW15/A1 was endorsed by the SHO
Nizammudin to inquire into the matter. PW15 also alleged to have
accompanied the deceased to a meeting at Jukasso Inn at
8.00 P.M. on 23.7.1992 and had also deputed two Constables Bir
Singh and Joginder. However, on perusal of the Roznamcha
Register on 23.7.1992, no departure entry of PW15 is made.
Instead, a departure entry at 1.30 P.M. and return of 10.00 P.M. is
entered. Thus, doubt is cast on the event whether any complaint
as Ext.PW15/A1 could have been handed over to PW15 since on
that day i.e. 23.7.1992, he was not in the Police Station between
1.30 P.M. and 10.00 P.M.
13. Another view which excludes the prosecution story is the
testimony of Veena (PW1) wife of deceased Lalit Suneja. She notPage 10
10
only deposed that the signature on the complaint Ext. PW15/A1
was not of the deceased, but she further deposed that there never
existed any enmity between Nitin Shah and her husband, or that
any complaint apprehending threat was filed by her husband. PW1
further deposed that her husband was having his business but the
employer-employee relationship never existed between her
deceased husband and Nitin Shah.
14. The Trial Court relied on the two applications filed by accused
Nitin Shah, one under Section 340 read with Section 195 of
Cr.P.C., and the other under Section 317(2) of Cr.P.C., in reaching
its judgment. The High Court rightly rejected the aforesaid two
applications on the ground that the same were not proved by the
prosecution. The prosecution was already suffering a weak case,
over and above the non-proving of Ext. PW15/A1. The prosecution
failed to prove other corroborative circumstances which included
non-recovery of the weapon used in the offence and the alleged
involvement of the car and motor-bike. The prosecution could not
have shored its boat by merely proving that the accused were
present in Delhi when the offence occurred. The vital links in thePage 11
11
prosecution story being already missing, the prosecution could not
prove a chain of events leading to a sole conclusion that the
accused were guilty beyond reasonable doubt.
15. The learned counsel for the appellant has pleaded various
questions of law which are already settled by this Court. However,
in the present case, the prosecution failed to make its base.
Therefore, we find no point in dealing with those issues. The
prosecution should first and foremost establish the complaint to be
made by the deceased Lalit Suneja himself. In light of this
argument, Section 32(1) of the Indian Evidence Act, 1872 is
reproduced below:
“Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant. —
Statements, written or verbal, of relevant facts made
by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or
whose attendance cannot be procured without an
amount of delay or expense which, under the
circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the
following cases:—
(1) when it relates to cause of death. —When the
statement is made by a person as to the cause of
his death, or as to any of the circumstances of thePage 12
12
transaction which resulted in his death, in cases in
which the cause of that person's death comes into
question. Such statements are relevant whether the
person who made them was or was not, at the time
when they were made, under expectation of death,
and whatever may be the nature of the proceeding
in which the cause of his death comes into
question.”
On bare perusal of Section 32(1) of the Evidence Act, it is clear
that the statement as to death must be made by the person himself
and if any discrepancy arises, the same cannot be relied upon.
This Court in Atbir v. Government of NCT of Delhi 1
 has
summarized the principles laid down earlier, as under:
“(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the
court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of
tutoring, prompting or imagination.
(iii) Where the court is satisfied that the
declaration is true and voluntary, it can base its
conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of
law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The
rule requiring corroboration is merely a rule of
prudence.
1
 (2010) 9 SCC 1Page 13
13
(v) Where the dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.
(vi) A dying declaration which suffers from
infirmity such as the deceased was unconscious
and could never make any statement cannot form
the basis of conviction.
(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is
not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the
dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied
that it is true and free from any effort to induce
the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal
impediment to make it the basis of conviction,
even if there is no corroboration.”
This Court has in a catena of judgments laid down the parameters
to gauge the veracity of a dying declaration and in the present
case, the complaint Ext. PW15/A1 thus fails to adhere to these
guidelines.
16. The prosecution relies upon the existence of criminal
conspiracy, which resulted into the death of Lalit Suneja. This
Court has time and again laid down the ingredients to be made out
by the prosecution to prove criminal conspiracy. It is now,
however, well settled that a conspiracy ordinarily is hatched in
secrecy. The Court for the purpose of arriving at a finding as to
whether the said offence has been committed or not may take into
consideration the circumstantial evidence. However, while doing
so, it must be borne in mind that meeting of mind is essential;
mere knowledge or discussion would not be sufficient. Yet, the
prosecution has failed to prove the evidence which establishes any
prior meeting of mind of the accused. The prosecution merely
proved that all the accused were present in Delhi on the date of
occurrence, and that the alleged motor-bike and the car used in
incident belonged to respondent No.2, Om Prakash Srivastava @
Babloo. The High Court rightly dismissed this argument, as the
involvement of the said vehicles in commission of the crime were
never proved. Neither any prior meeting of mind of the accused was
proved, nor any action, individually or in concert, was proved
against any of the accused. Needless to say that the entire
foundation of the prosecution story was never established.
17. Thus, in the light of the above discussion, we are of the view
that the present appeals are devoid of merits, and we find no
grounds to interfere with the judgment delivered by the High
Court. The appeals are, accordingly, dismissed.
…....................................J
 (Pinaki Chandra Ghose)
…...................................J
 (R.K. Agrawal)
New Delhi;
September 16, 2015.
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