MAKHAN SINGH versus THE STATE OF HARYANA

Citation: [2022] 13 S.C.R. 357 · Decided: 16-08-2022 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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MAKHAN SINGH
v.
THE STATE OF HARYANA
(Criminal Appeal No. 1290 of 2010)
AUGUST 16, 2022
[B. R. GAVAI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Evidence – Two dying declarations – In first dying declaration
recorded by DW-1, deceased exonerated appellant and his family –
However, in the second dying declaration recorded by PW-6,
deceased implicated appellant and his parents – Trial Court
convicted appellant u/s. 304-B of the IPC and sentenced him to 10
years rigorous imprisonment – High Court reduced the sentence
from 10 years to 7 years – On appeal, held: In the first dying
declaration, PW1-doctor had examined deceased whether she was
in fit state of mind and conscious to make statement – After
certification, DW-1 also satisfied herself as to whether deceased
was voluntary making statement or not – However, the second dying
declaration was recorded without there being examination by a
doctor with regard to the fitness of the deceased – Further, PW6
herself admitted that PW13 (father of deceased) and PW11 (sister
of deceased) were present in the hospital – The possibility of the
second dying declaration being given after tutoring by her relatives
cannot therefore be ruled out – DW-2(DSP) had stated in his
deposition that the statement was made by the deceased after being
tutored by her relatives – Also, prosecution had not examined DW1
and DW2 – Therefore, in the facts and circumstances of the case,
the first dying declaration considered more reliable and trustworthy
than the second dying declaration – Accordingly, appellant acquitted
of all the charges.
Allowing the appeal, the Court
HELD: 1. The first dying declaration (Ex. DO/C) is recorded
by DW-1. A perusal of the said would reveal that prior to recording
the statement of deceased, PW-1 had examined as to whether
she was in a fit state of mind and conscious to make the statement.
After certification, DW-1 got herself satisfied as to whether
[2022] 13 S.C.R. 357
357
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
deceased was voluntarily making the statement or not and
thereafter, recorded her statement. The said dying declaration
(Ex. DO/C) is also endorsed by PW-1 with the remarks that
deceased was conscious throughout while making statement.
DW-1 has also deposed that even after making the statement,
she confirmed from the deceased as to whether the statement
was voluntarily made by her. [Para 16][365-A-C]
2. As against this, as far as the second dying declaration
(Ex. PE) which was recorded by another Judicial Magistrate PW-6
after 3 days is concerned, it was recorded without there being
examination by a doctor with regard to the fitness of the deceased
to make the statement. Though the statement is recorded in
Hospital and though doctors were available, PW-6 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 PW-6 herself has admitted that PW-13) and PW-11, father
and sister of deceased 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. [Para 17][365-D-
E]
3. It is also relevant to note that the prosecution had not
examined DW-1 and DSP (DW-2). 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, was improper. [Para
19][365-H; 366-A]
4. Therefore, this Court finds 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. [Para 20][366-B-C]
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Harjit Kaur v. State of Punjab (1999) 6 SCC 545 : 1999
(5) JT 317; Sayarabano v. State of Maharashtra (2007)
12 SCC 562 : [2007] 2 SCR 354; Sher Singh v. State of
Punjab (2008) 4 SCC 265 : [2008] 2 SCR 959;
Munnawar v. State of U.P. (2010) 5 SCC 451; Lakhan
v. State of M.P. (2010) 8 SCC 514 : [2010] 9 SCR 705;
Shudhakar v. S

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