Full Judgment Text
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CASE NO.:
Appeal (crl.) 464 of 1999
PETITIONER:
RONAL KIPRONO RAMKAT
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT: 31/07/2001
BENCH:
DR. A.S. ANAND C.J & R.C. LAHOTI & SH1VARAJ V. PATIL
JUDGMENT:
JUDGMENT
2001 Supp(1) SCR 65
The Judgment of the Court was delivered by
SHIVARAJ V. PATIL, J. This appeal by special leave, is aggrieved by and
directed against the judgment and order of the High Court of Punjab and
Haryana dated 4.9.1997, upholding the order of conviction and sentence
passed on the appellant by the trial court.
The appellant was tried by the Additional Sessions Judge, Ambala, for the
offences under Section 376 read with Section 511 IPC and for an offence
under Section 302 IPC. The prosecution case, as unfolded during trial is
that at about 1.30 P.M. on 17.11.1993, Betty, the deceased, informed her
friend Caroline (Pw-4) that Ramkat Ronald (the accused), the appellant, who
was Betty’s friend, wanted her to see him at his house No. 823, Sector 2,
Panchkula. Accordingly Betty went to the said house. At about 2.30 P.M.,
Caroline informed Elisha Siele (PW-5), Betty’s brother that his sister had
been stabbed in house No. 823, Sector 2, Panchkula. She did not inform who
gave that information to her. PW-5 then rushed to the place and found the
appellant and the deceased lying in a pool of blood and that Betty managed
to tell him that the accused had tried to rape her and on her resistance,
he had stabbed her on the neck and head with a kitchen knife. PW-5
alongwith Kennith put Betty in a Maruti Car and rushed her to the
Government hospital, Sector 6, Panchkula. The doctor found Betty in a
serious condition and referred her to the P.G.I. Hospital, Chandigarh,
where she was found to be dead on arrival. ASI Pale Ram (PW-10) reached
P.G.I. Chandigarh and took the report (Exbt.P-E) from the PW-5 at 7.00 P.M.
which formed the basis of formal first information report registered at
7.30 P.M. in the police station, Panchkula for the offences under Section
376 read with Sections 511 and 302 of the IPC. The case was investigated by
Inspector Kanhiya Lal (PW-11) and charge-sheet was filed.
The trial court found the appellant guilty and convicted him for the
offences already mentioned above and passed consequent sentence on him. The
appellant failed before the High Court in the appeal filed by him. Hence,
this appeal.
The learned counsel for the appellant contended that the trial court as
well as the High Court have concurrently and manifestly erred in holding
the appellant guilty. The so-called dying declaration said to have been
made by the deceased could not be accepted as truthful for several reasons.
Admittedly, there are no eyewitnesses to the incident. Beside, material
witnesses also were not examined. We were taken through the evidence in
support of these submissions. The learned counsel for the State made
submissions supporting the impugned judgment and order.
There are no eyewitnesses to the incident. The prosecution, to support its
case mainly relied on the oral dying declaration said to have been made by
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the deceased to PW-5 and the evidence of PWs 4-5. The defence of the
appellant was that the deceased and he were friends and they had love
affair among them. The deceased came to his house on that fateful day. Some
unknown person came and assaulted the deceased and in the process to save
her he was also assaulted and suffered injuries. According to him, Betty
died on the spont itself. PW-5 was not tolerant of the love affair between
him and the deceased and that a false case was foisted against him after
due deliberation and consultation.
We are conscious if dying declaration passes the test of reliability and
truthfulness it can form basis of conviction even without further
corroboration. But in the case on hand, after examining the during
declaration in all its aspects, having due regard to surrounding
circumstances, we find it unreliable as it suffers from number of
infirmities stated hereinafter.
PW-5 was the first informant, who gave report Exh. P-E in which it is
stated that on 17.11.1983 Betty informed PW-4, her friend, that the
appellant wanted to see her (deceased) briefly. The deceased left alone at
about 1.30 P.M. to House No. 823, Sector 2, Panchkula, where the appellant
has been staying. On the contrary both PW-4 and PW-5 in their evidence
stated that the deceased went to the house of the appellant of her own
accord to say goodbye to him. This changes the complexion of the entire
case. PW-5 stated that PW-4 informed him at about 2.30 P.M. on 17.11.1993
that she had received information that the deceased had been stabbed in
house No. 823 but the name of the informant was not given. PW-4 in her
evidence stated that one Petric informed her about the incident. Apart from
this contradiction the said Petric was also not examined. PW-5 stated that
on getting information from PW-4 he along with Kennith went to the house of
the appellant and found the deceased in a naked condition lying in a pool
of blood on the floor in the corridor of the room, which was in the
occupation of the appellant. He himself and Kenith took the deceased in a
nearby Maruti car. The said Kennith has also not been examined. There is
one other disturbing feature. From the perusal of Exh. P-E, the complaint
given by PW-5, it is clear that the last words, that the appellant had also
tried to commit suicide by stabbing himself in the stomach, appears to have
been inserted later, in the space between the lines when compared with the
rest of the document. The High Court also found it so but lightly brushed
aside this infirmity saying "it cannot be concluded as after thought and
added later on as there are similar additions in other parts of the
document as well". It is stated in Exh. P-E that "Betty managed to tell me
that Ramkat tried to rape her but she refused, so Ramkat stripped and
stabbed her with kitchen knife on neck and head". After giving the details
in the last but one paragraph of Exh. P-E it is stated, "She died due to
deep head injuries caused by Ramkat. Ramkat also tried to kill himself
stabbing on the stomach". This portion of the statement appears to be the
assessment of PW-5 and not a part of dying declaration. Ramkat tried to
kill himself by stabbing by knife on the stomach are also additions made in
Ext. P-E as already stated above. In the absence of explanation as to the
serious nature of injuries sustained by the appellant giving rise to
serious doubt as to the very genesis of the incident, the said portion of
the statement appears to have been inserted after deliberation and
consultation. This insertion probabilises the defence version that the
appellant and the deceased were in love. The very fact that the deceased
was totally naked and underclothes of both the deceased and the appellant
were found in the same room probabilises the theory of inter-course by
consent and negatives the story of rape. PW-5 did not tolerate his sister
having sex with Ramkat and that might have lead to an attack on both of
them on that day.
Dr. Deepak Bakshi (PW-8), who examined the appellant, found several serious
incised wounds on him including the one on the right interior superior
iliac spine in the right lumber region. Looking to the seriousness,
location and nature of injuries, in particular, the incised wound in the
lumber region, it could not be said that they could be self-inflicted
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injuries. It is in the evidence of PW-5 that the appellant tried to kill
himself by jumping from the upper floor. The doctor, of course, says that
the possibility of injury Nos. 6 and 7 found on the appellant could not be
ruled out by fall from upper floor. It is difficult to believe how the
appellant with several serious injuries could walk to the upper floor and
jump from there and that apart in the earliest version given in the Exh. P-
E there is no mention about the appellant’s jumping from the upper floor.
In view of the injuries found on the deceased and the defence taken by the
appellant that she died on the spot and in the absence of any other
evidence except the statement of PW-5 it is difficult to accept that the
deceased was alive or at any rate she was in a position to make the
statement to PW-5 as sought to be made out. The theory that the appellant
tried to kill himself does not appear to be probable as both PW-4 and PW-5
admitted that the deceased and the appellant knew each other; the deceased
voluntarily went to the house of the appellant to say goodbye, since she
was going back to her country. PW-4 did state before the police that the
appellant and the deceased had love affair, however, she denied this in the
court in her deposition having made such a statement.
In this background it appears improbable that the appellant forcefully
tried to rape the deceased. It appears that both the appellant and the
deceased may have been in a compromising position and were surprised and
attacked by an assailant. Since the injuries found on the appellant could
not be said to be self-inflicted, as already noticed above, his defence,
that he sustained injuries at the hands of unknown person when he tried to
save the deceased, appears to be probable. The trial court expected the
appellant to establish his defence by the same standard that the
prosecution should establish the guilt of an accused beyond reasonable
doubt. It was enough to show that the defence was probable in the given
circumstances. In this case the defence statement is probabilised by the
surrounding circumstances and the evidence brought on record. The so-called
dying declaration does not appear to be in the words of the deceased. It
does not inspire confidence. There was considerable delay in registering
the FIR and the explanation given for the delay is not convincing. The
incident took place between 1.30 to 2.30 P.M. and FIR reaches the
jurisdictional Magistrate at the same place at 10.00 P.M. Further, except
the interested statement of PW-5 there is no other evidence to corroborate
the dying declaration. The material witnesses Petric and Kennith, named
above, who could have thrown light in this regard, were also not examined
for reasons but known to the prosecution.
Having regard to all these infirmities, improbabilities and contradictions
found in the case we are of the view that it is unsafe to act upon the said
dying declaration. In view of what is stated above the impugned judgment
and order does call for interference. Hence the appeal is allowed. The
impugned judgment and order is set aside. The appellant shall be set at
liberty forthwith if not required in any other case.