CRA-D-52-DB v. State of Punjab

SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M)

13. PW-7/Dr. Vijay Obed deposed that PW ed that the victim was admitted on October 06, 201 6, 2012 at 2:44 pm. She was brought rought by her mother with alleged history of flame flame burns of about 96%. The victim e victim was found to be pregnant and was admini administered intravenous I/V fluids. uids. Dressings were done for the burn wounds an nds and she aborted spontaneously d ously during her operation in the hospital on Oct October 07, 2012 at 4:00 am. The . The victim died on October 12,

14. PW-8/Dr. Seema Chopra had con PW ad conducted a DNA test on the appellant. PW-8/B learned Judicial Magistr PW agistrate 1st Class deposed with regard to record recording of statement of the victim an ctim and handing over the same to the Investigating igating Officer.

15. PW-9/ASI Sukhwinder Singh de PW deposed that blood/semen of the appellant w lant was sent for DNA testing to F o FSL, Chandigarh and FSL, Madhuban, Har n, Haryana but the same were returne returned due to certain objections and were deposi deposited with MHC, concerned.

16. PW-13/Harjit Singh- H.S. Nanda PW Nanda (property dealer) deposed that Gopi Ghai hai used to work for him. Once he nce he and Gopi Ghai were going out of city by c y by car when he had stopped at a pe t a petrol station for filling petrol and he heard the ard the appellant talking on the phone phone by holding himself out to be Raj.

17. Therefore, the prosecution tried to The ied to bring home the guilt of the appellant by stre strenuously arguing that the appell appellant Gopi Ghai and Raj were one and the sam he same person and since the victim ha ctim had stated so in her statement recorded under under Section 161 Cr.P.C given befo n before the Investigating Officer SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) and statement ment recorded under Section 164 164 Cr.P.C before the Judicial Magistrate 1st C Class, the charges against the app he appellant were proved. CASE OF THE THE DEFENCE

18. In the statement recorded under In under Section 313 Cr.P.C, the appellant denied denied the prosecution case, pleaded eaded innocence and alleged false implication agai n against him. Furthermore, he also le also led defence evidence.

19. One Chanchal Singh was examine On xamined as DW-1 who had been Municipal Coun Councillor from 1997 to 2002 of th of the area New Kailash Nagar. He deposed that ed that the appellant was only known a own as Gopi Ghai and not by any other name.

20. One Rakesh Kumar, who was th On as the Councillor from 2007 to 2012 of Ward N ard No.3, was examined as DW-2. H . He deposed that he knew the appellant for the for the last 8-9 years and stated that t that the appellant was not known by any other sub her sub name.

21. One Sunil Dutt who was examine On amined as DW-3 deposed that he was appellant’s llant’s neighbour and the appellant di lant did not have any other name except for “Gop Gopi Ghai”.

22. DW-4 Jasbir Kaur/paternal aunt (b DW unt (bua) of the appellant deposed that appellant is llant is son of her real brother. She fu She further deposed that father of the appellant us lant used to sell tea in front of the of the office of Harjit Singh Nanda (PW-13). The sa The said Harjit Singh Nanda was also as also known as Raj and Raja and neither the app e appellant nor appellant’s father wo her worked for said Harjit Singh Nanda. She furt he further deposed that from the child childhood, appellant was known as Gopi Ghai an and not by any other name. SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) REASONING O NG OF THE TRIAL COURT

23. The learned trial Court held that a The that argument of defence counsel with regard to D rd to Dr. Davinder Kumar (PW-6) no 6) not being present at the time when statement ement of deceased was recorded unde d under Section 161 Cr.P.C by the Investigating Of ing Officer, indicating that the same w same was falsely prepared and his signatures were were later procured, was devoid of a id of any merit since the doctor at the request of st of the Investigating Officer, gav gave certificate declaring the deceased-victim victim fit to make the statement. There . Therefore, the victim’s statement under Section ction 161 Cr.P.C was relied upon by pon by the trial Court as cogent evidence. As the victim was in a fit state of ate of mind, therefore, the Court below came to me to the conclusion that it was imm as immaterial whether or not the doctor was pres s present there. Furthermore, in view n view of the trial Court it was a settled prepositi eposition of law that in every case it case it could not be held that the police official was a false witness and the testim testimony of the police could not be relied upon. upon. If the statement of deceased in sed inspired confidence, the same could be relied u elied upon to convict the accused.

24. The trial Court had formulated The ulated the following points for determination and proceeded to answer them in em in the following manner: “1) Whether it was accused Go deceased/victim by setting he kerosene oil on her? Gopi Ghai who murdered the her ablaze after sprinkling 2) Whether accused Gopi Ghai deceased/victim and thereafter intention to cause death or with so imminently dangerous that it m her death? hai poured kerosene oil on the after set her ablaze with the ith the knowledge that the act is t it must in all probability cause 3) Whether the accused has c section 3 (xii) of the Scheduled (Prevention of Atrocities Act), 19 as committed an offence under led Caste and Scheduled Tribes t), 1989?” SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) Point No.1

25. For consideration of this point, tw For two dying declarations of the deceased victim victim were relied upon i.e Exhibit PW ibit PW-2/C and Exhibit PW-8/C. Exhibit PW-2/C 2/C was recorded by the Investigat estigating Officer whereas Exhibit PW-8/C was re as recorded by the Magistrate. Both . Both the dying declarations are reproduced here d hereinafter: Exhibit PW-2/C-Statement under S “Ex der Section 161 Cr.P.C. Stated that I am resident o working as maid. Today, at about work, my friend Gopi Ghai with since last one year and who is property dealer, Waraich Market, K near the plot located in our street. my dupatta and spread the keros hand and set fire on me and fled aw denied to marry me after promise marry me therefore he has set f Kerosene. I was admitted to Civ Ker where I am under treatment. State you in the presence of doctor whi admitted correct.” nt of above said address. I am out 6 AM, when I was going on with whom I have relationship o is working with H.S.Nanda ket, Kailash Nagar road had met reet. He had tied my mouth with erosene by bottle holded in his d away from the spot. Now Gopi mise so and I compelled him to set fire on me after spreading Civil Hospital by Ambulance Statement has been recorded to which to read over to me and Exhibit PW-8/C-Statement under Se Exh er Section 164 Cr.P.C “ Two boys had followed m therefore I got beat them. He serve of Raj I do not know the name of of R me. me. They strangulated my throat. T me after spreading kerosene. They the corner of the street. They fled mouth was folded with the cloth. M mouth.” d me. They used to tease me erved with H.S Nanda. His name e of the other boy. They caught at. Therefore they set up fire on hey set up fire in a plot lying on fled away after set up fire. My th. My duppatta was tied on my

26. The learned defence counsel had The l had pointed out that there was apparent contra contradiction in the aforesaid dyin dying declarations and during investigation it ion it was nowhere proved that Gopi opi Ghai and Raj were one and the same person person. The trial Court held that such t such contentions were devoid of merit as there w here was strong circumstantial eviden evidence to show that Gopi Ghai SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) and Raj were o ere one and the same person. The v The victim was consistent in her dying declaratio laration in stating that she was caught caught hold of and her mouth was tied with her ow her own dupatta and she had been set en set ablaze by pouring kerosene oil in a plot near ot nearby her street.

27. The trial Court further relied on The d on the circumstantial evidence which was soug s sought to be established by the testim testimony of PW-13/H.S. Nanda- property dealer dealer who deposed that Gopi Ghai hai-appellant was working with him for the la the last three years and one day e day while the appellant was accompanying P ying PW-13/H.S. Nanda in his car, h car, he had stopped the car in a petrol station fo for filling petrol. It was then that n that the appellant had received a call on his phon s phone and communicated with the ca the caller by representing himself as Raj. Upon en pon enquiry by PW-13 why he used used the name Raj, the appellant did not give any ve any reply and disconnected the call he call. The trial Court further held that the testimo estimony of PW-13 was a very releva relevant piece of evidence as the same proved the ed the fact that Gopi Ghai and Raj w was one and the same person. Even though the the Investigating Officer did not jo not join H.S. Nanda/PW-13 in the investigation bu but since the property dealer/H.S.N H.S.Nanda appeared and deposed in the Court as as PW-13, the argument of the def he defence counsel was held to be of no substance. stance. PW-13 was also not cross-exam examined by the defence, on the issue whether o ther or not there was any other emp er employee by the name of Raj working for him for him. Since the property dealer-H H.S. Nanda (PW-13) himself deposed that Go Gopi Ghai represented himself as elf as Raj, therefore, the appellant got connected to cted to the commission of offence dire ce directly.

28. The trial Court also disbelieved The lieved the argument of defence counsel that PW hat PW-13/H.S. Nanda- property dea ty dealer also known as Raj was being saved by ed by the police since he was a rich p rich person and the appellant was SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) being falsely im ely implicated as no suggestion was put by learned counsel for the appellant in that in that regard to PW-13. Furthermore, rmore, it held that the argument on behalf of the a the appellant was completely demo demolished as the victim in her dying declaratio larations stated that the appellant was nt was working with H.S. Nanda. Had the offence ffence being committed by H.S. Nan S. Nanda, the victim would have recorded so in so in her statement instead of stat f stating that the appellant was working with H ith H.S. Nanda.

29. The Court below held that the testi The e testimony of PW-1/father of the victim and PW d PW-4/aunt (Chachi) of the victim w ctim with regard to her love affair with the appella appellant was a very important piece piece of circumstantial evidence which could no uld not be ignored. Both the witnesse itnesses have deposed that despite there being an g an affair between the victim and and the appellant, the accused- appellant refuse refused to marry the victim since he ce he belonged to a higher caste. Considering the ng the victim to be an obstruction in h on in his life, he set her ablaze by pouring kerosen erosene oil. The factum of love affair affair between the victim and the appellant also ca also came on record in the dying decla declarations.

30. The trial Court held that there wa The ere was no evidence on record to show that the re the relationship between the victim a ctim and the appellant came to an end once the pa the parents of the appellant refused to sed to get their son married to the victim and the f d the father of the victim forbade her her to maintain any relationship with him. The . The testimony of the doctor sho or showed that the victim was approximately ately 16 weeks pregnant. In the even e event the victim had developed relationship with with anyone else apart from the ap the appellant then she would have revealed the sam the same to her parents since she had he had enough courage to declare her relationship nship with the appellant to her parent parents. Therefore, the possibility SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) of involvement ement of any other person in impregn egnating the victim was ruled out.

31. Furthermore, the trial Court went Fur t went on to hold that since the appellant had be had been rounded up on the very day ry day itself as per the testimonies of PW-1 and PW and PW-4, there was no chance of fa e of false implication. It held that the dying declar declaration recorded before the Magi Magistrate had more evidentiary value and after after recording the said declaration, ration, an FIR was lodged by the Investigating Of ing Officer. The dying declaration Ex tion Exhibit PW-8/C was recorded by the Magistra agistrate at 1:45 pm in which the victi victim disclosed the name of the appellant as Ra as Raj, working with H.S. Nanda. From the testimony of the PW-4 (Chachi), chi), it appeared that the appellant w llant was rounded up by the police on the same da me day of occurrence by the time sh me she reached the police station between 4-5 pm 5 pm. Therefore, it could not be pres e presumed that within two hours of recording the ing the dying declaration of the victim victim, the Investigating Officer could implicate licate the accused-appellant by conco concocting a full-fledged story of love affair betw r between the appellant and the deceas deceased and of setting her ablaze by the appellan pellant. Therefore, it came to the c the conclusion that it was more probable that tw that two names that had come up in tw in two different statements of the deceased victim ictim were of the same person. The . The Investigating Officer during his cross-examin examination also stated that the appel appellant during his interrogation had admitted th that he was known as Raj also. E lso. Even though the statement of the accused-app appellant recorded in custody, is dy, is not admissible under the Indian Evidence idence Act, 1872 but as the Investigat estigating Officer while appearing before the Cour Court deposed that in front of him a him and other senior officers, the deceased on Oc on October 11, 2012 revealed that sh that she used to call the appellant SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) Gopi Ghai as s Raj out of love and affection fection, the said deposition was corroborated by ted by the testimony of PW-13.

32. Moreover, the trial Court discar Mo carded the evidence given by DW-1 and DW d DW-2 since they were local Coun Councillors and were unable to answer any pers y personal questions regarding Gopi opi Ghai-appellant. DW-3 who stated that he li t he lived near the house of Gopi Gh Ghai, did not know the house number of the f the appellant and admitted that h that he was not summoned as a witness and ha nd had come to depose on the ask he asking of one Bittu Pradhan. Therefore, it hel , it held that that the testimonies of DW of DW-1 to DW-3 did not inspire confidence. Fur e. Furthermore, as DW4 was a patern ternal aunt of the appellant her testimony was d was discarded, being an interested sted witness. The trial Court also held that the f the fact that DNA testing could ould not be conducted by FSL Chandigarh and rh and by FSL Madhuban and the sa the samples were returned to the MHC and gotte gotten lost from the refrigerator of p r of police malkhana also did not favourably help y help the appellant’s case. The he argument raised by defence counsel with reg ith regard to intentional loss of sampl sample as the police apprehended mismatch, was was of no substance as had that bee at been the case then the samples would not have t have been sent to two different Foren t Forensic Science Laboratories, in the first place.

33. The trial Court refused to accept The accept the contention of defence counsel regardi egarding the investigation being def defective as no entrance was shown to the v the vacant plot in the site plan pre an prepared by the Investigating Officer, where here the alleged occurrence had tak taken place. It held that even though no entra entrance to the vacant plot where the ere the occurrence took place was shown in the si the site plan, but considering the tes the testimonies of PW-1/father as well as PW-2/i 2/investigating Officer, it has co has come to light that the wall SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) surrounding the ng the vacant plot was demolished a shed at one place and therefore it could be easily easily inferred that the victim and th and the appellant entered the plot through the dem e demolished place on the wall.

34. In the present case, though there In there was no direct evidence to connect the app he appellant with the murder of the v f the victim but there was strong circumstantial e ntial evidence which connected the ap the appellant to the offence. The testimony of P of PW-13/H.S.Nanda clearly indica indicated that the appellant was working under h nder him and he portrayed himself as self as Raj to someone else while conversing on h g on his mobile phone. No suggestion estion was put to him whether any other person w son was working under him by the the name of Raj. The dying declaration give n given to the Magistrate clearly im rly implicated Raj and one other person working orking under H.S. Nanda and not the ot the property dealer H.S.Nanda himself. The t The testimonies of PW-1 and PW d PW-4 along with the dying declarations ind ns indicated that the appellant had a m ad a motive to pour kerosene over the victim and s and set her ablaze.

35. The trial Court also held that the in The the investigation was very poor as despite the victi e victim stating that two boys workin orking under H.S. Nanda had set her ablaze, the n he name of second accused did not id not see the light of the day and no effort was m was made by the Investigating offic g officer to trace out the second accused. Further urthermore, H.S. Nanda was never jo ver joined in the investigation and no statement w ent was recorded by him under Sec er Section 161 Cr.P.C during the entire investigat estigation. No direct evidence was co was collected by the investigating officers during uring the investigation to establish blish that the appellant was also known as Raj. E Raj. Even though PW-11/the other I ther Investigating Officer who had conducted partia partial investigation, during his testi is testimony in the Court deposed that the victim h ictim had disclosed to him in the pres e presence of other senior officers SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) that she used to used to call the appellant Raj out of out of love and affection but no statement of the of the deceased to that effect was re was recorded by the Investigating Officer. Further urthermore, the site plan was defect defective and did not reflect the accurate picture icture of the place of occurrence as t as there was no opening to the plot. The trial C trial Court held that the quality of inve of investigation showed very sorry state of affairs s and a copy of the judgment was t was sent to the Commissioner of Police to take take appropriate action against the t the investigating officers being PW-2 and PW PW-11.

36. It further went on to hold that the It f hat the conduct of the persons in charge of the the Forensic Science Laboratories tories Chandigarh and Madhuban also indicated a ated a depressing state of affairs as s as such important samples which had been sent f sent for DNA sampling should not ld not have been returned by the FSLs for technic technical reasons. POINT NO.2

37. On point No.2, the trial Court he On urt held that the accused had the mens rea of mu of murdering the victim since he br rought kerosene to the vacant plot, tied the vic the victim’s mouth with chunni to pre to prevent anyone witnessing the occurrence or h e or hearing her shrieks and then spri en sprinkling kerosene oil all over and setting her g her ablaze with the intention to ion to kill the victim who was pressuring the the appellant to marry her. The r. Therefore, the appellant was convicted for co for committing the offence under Sect er Section 302 IPC. POINT NO.3

38. Since there was no evidence on Sin ce on record indicating that the appellant used h used his dominant position due to his to his caste and sexually exploited the deceased, he sed, he was acquitted of having comm committed offence under Section 3 of the SC/ST A C/ST Act. SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) ANALYSIS OF OF EVIDENCE

39. After the evidence of Dr. Dav A . Davinder Kumar (PW-6) was complete, the pr the prosecution made an application u ation under Section 311 Cr.P.C for recalling the w the witness. The said application cation was allowed by learned Additional Sess l Sessions Judge on August 12, 2013 , 2013. From the initial statement of PW-6 given o given on May 29, 2013, it appears that rs that he had declared the patient to be fit to make o make statement at around 12:00 noo 00 noon. Furthermore, he declared the patient to b t to be fit to make the statement at ent at about 12:56 pm before the Magistrate. The e. The big toe of the right foot impr t impression was marked at point ‘B’. He certifie ertified that the victim remained fit t d fit throughout the period when her statement w ent was recorded by the Magistrat gistrate. The said certificate was given by him at him at 1:04 pm.

40. PW-6 further deposed in the cross PW cross-examination that the victim was admitted in tted in the female ward which was o was on the first floor. He was on emergency duty y duty that day on the ground floo d floor. When the Investigating Officer recorded corded the statement of victim under under Section 161 Cr.P.C he was not present and nt and only attested the statement af ent after it was recorded by the Investigating O ing Officer. The said attestation was n was done by him when he was present in the e the emergency department on the gr the ground floor. However, when the Judicial Ma ial Magistrate recorded the statement tement of victim, he was present throughout with t with the Magistrate.

41. Upon being recalled as a witness Up itness on August 24, 2013, PW-6 deposed that th that the Investigating Officer-PW2 PW2 did not get any statement recorded by him by him regarding the statement made de by the deceased in front of the Investigatin tigating Officer-PW2. At that stage, stage, prosecution requested the Court to declar declare PW-6 hostile as allegedly he dly he was suppressing the truth. SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) The said reques request was allowed by the trial Cour l Court. The Investigating Officer ASI Baljinder S nder Singh-PW2 reiterated that the sta the statement of deceased Exhibit PW-2/C was ma as marked by the big toe on her right r right foot which was attested by the doctor/PW r/PW-6 at point ‘A’.

42. In cross-examination conducted In ucted by the Additional Public Prosecutor for th r for the State, PW-6 deposed that he n at he never suffered any statement to the police wh which was marked as ‘A’. Had he ad he suffered a statement before the police marke marked ‘A’, then his signatures woul s would have been obtained by the police on it. It It was neither a fact nor had he s d he stated to the police that the victim deposed posed that around 6:00 am, she was g was going to work and appellant- Gopi Ghai with with whom she was having relatio relationship for the past one year worked with H. H.S. Nanda, tied her mouth with d with dupatta, poured kerosene oil upon her, set he set her on flames and ran away. He h He had not suffered a statement stating that sinc at since the victim was forcing the app he appellant to marry her, she had been burnt by t by the appellant and it was true that e that a doctor was required to be present with the ith the police at the time of recording rding the statement of patient who suffered 96% b 6% burn injuries but he was not pre ot present during such recording. The Investigatin stigating Officer had informed him him that he was waiting at the hospital for the or the Duty Magistrate to arrive for re for recording the statement under Section 164 Cr.P 64 Cr.P.C.

43. It is not lost to the mind of this Cou It is is Court that only in the purported statement record recorded before the Investigating Offi g Officer-PW2 under Section 161 Cr.P.C the victi e victim mentioned the name of Gopi opi Ghai-appellant working for H.S. Nanda. In da. In the statement recorded under Se der Section 164 Cr.P.C before the Magistrate, ther e, there is no mention of Gopi Ghai hai-appellant working for H.S. Nanda. The vic he victim in statement under Section ection 164 Cr.P.C mentioned two SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) persons who tea ho teased her and she had beaten them en them up. One person out of the said two person persons was Raj who worked for H. for H.S. Nanda. The victim never revealed having having any love affair/relationship w ship with Raj. The Investigating Officer neither either tried to record any statement ement of H.S. Nanda during the course of invest investigation nor brought any evidenc idence on record to show whether any person by on by the name of Raj was work s working for H.S. Nanda. No investigation ha ion has also been made with regard regard to identity of the second person who acco o accompanied the said Raj on the dat the date of occurrence.

44. From the evidence of PW-1/father Fro father of the victim, it appears that his daughter w ter was aged about 17 years and ha nd had love affair with one boy named Gopi Gh Ghai for the past one year. The sa The said boy named Gopi was the accused before efore the trial Court and appellant ellant herein. The appellant had refused to marry marry the victim on the ground that d that he belonged to Khatri caste whereas the vic the victim belonged to Valmiki caste i caste. The victim used to go to work at 6:00 am :00 am and get back from work at 8:30 at 8:30 am after getting milk from Mangal dairy. I airy. It is the appellant who murdere urdered his daughter in a plot by pouring kerosen erosene oil on her and setting her ab her ablaze. He had identified the dead body of his of his daughter.

45. In cross-examination, he deposed In eposed that he was not at home when he receiv received a telephonic message from e from his brother regarding the incident and rea nd reached home within half an hou an hour. By that time he reached home, the dead dead body of his daughter had been been taken by the police and he had seen the d the dead body of his daughter in t r in the civil hospital only. His daughter had in had informed him about her relation elationship with the appellant but when he had app approached the boy’s parents for h s for her marriage, his request was not accepted. A . After that he had warned his d his daughter not to keep any SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) relationship with ip with the appellant. He admitted tha ted that his daughter was alive and she was admitte dmitted to the Civil Hospital and the a d the appellant was arrested on the same day. The p . The police had also assured that the r at the remaining persons would be arrested later on ater on. He stated that after seeing his g his daughter he turned back and did not talk to h lk to her as she was badly burnt, even even though she was in a position to speak. He sta He stated that he was not aware whe re whether or not in the statement made before the ore the Magistrate, his daughter had n had named Gopi Ghai nor had he ever met H.S. H.S. Nanda nor was he aware as to e as to whether his daughter had beaten up the the two boys with chappal, whic , which were referred to in the statement record recorded under Section 164 Cr.P.C. r.P.C. He further deposed that the plot that has bee as been referred to as the place of occ of occurrence was bounded by six feet high bound boundary wall and there was no door o door or window to the same but a portion of the bo the boundary wall was broken from t from the side. It was also true that the plot was sur as surrounded by residential house o ouse on all the sides. Admittedly, the police had e had not recorded any statement f ent from the people who were residents of the of the area surrounding the plot. He a . He also deposed that he was not aware as to wh to whether his daughter reached the h the house where he was working as maid, on the d n the date of occurrence.

46. From the statements made by the Fro by the victim’s father, it appears that the victim victim was in a relationship with G Gopi Ghai-appellant and the appellant refuse refused to marry her. Therefore, he re, he surmised that it was Gopi Ghai who was r was responsible for sprinkling keros kerosene oil on his daughter and setting her abla r ablaze even though in her dying de ing declaration under Section 164 Cr.P.C, the victi e victim had stated two boys had foll ad followed her and she beat them up with chappa happals for harassing her. Out of said of said two boys, one boy named Raj worked for ed for the property dealer- H.S. Nanda Nanda, both boys were responsible SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) for gagging her g her mouth with duppatta, poured ke red kerosene oil on her and set her ablaze. Nowher owhere from the statement under S nder Section 164 Cr.P.C can be proved that Go Gopi Ghai and Raj are one and t and the same person or that the victim had any d any relationship with the boy calle called Raj who worked for H.S. Nanda.

47. PW-2/ASI Baljinder Singh depo PW deposed that after getting the Certificate of F e of Fitness from PW-6/Dr. Davinde avinder Kumar, he recorded the victim’s stateme tatement under Section 161 Cr.P.C an P.C and the same was exhibited as Exhibit PW-2/C 2/C. The said statement was sta stated to be recorded in the presence of PW of PW-6, who had signed the statemen tement at point ‘A’.

48. It is of great significance to note It i note that during the initial cross- examination on on on May 29, 2013, the doctor did or did not state that the statement under Section 1 tion 161 Cr.P.C was recorded in his n his presence. Thereafter, he was recalled as a wi s a witness in August, 2013, when he en he was declared hostile. PW-6 Dr. Davinder K der Kumar categorically stated that n that neither the police requested for his presence esence during the recording of stateme tatement under Section 161 Cr.P.C nor was he pres e present at that time when the said said statement was recorded. He was on the grou e ground floor in the emergency dep cy department whereas the victim was admitted on tted on the first floor in the female w ale ward. Had the statement been recorded in the in the presence of doctor, his signatu ignatures would have appeared at point ‘A’ of the of the statement where the victim purp m purportedly made an impression with the right bi ight big toe.

49. PW-2 deposed that he recovered on PW ered one pair of chappals from the street where the ere the prosecutrix’s house was situat situated. He conducted a raid on October 06, 201 6, 2012 (date of occurrence) at the ho the house of the appellant but he was not present resent there. On October 08, 2012, h 012, he again conducted a raid at SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) the house of the of the appellant but after seeing the p g the police, he ran away. He was apprehended in ed in the street with the help of th of the police officials. He was arrested on Oct n October 08, 2012 and produced in ced in the Court on the next date when he was re was remanded to police custody. On . On October 10, 2012, a request was made for co for conducting a pregnancy test of the t of the prosecutrix and to conduct a test to find out ind out whether or not the victim was r was raped. On October 15, 2012, the blood sampl sample of the appellant was taken fo ken for conducting DNA test in a sealed conditio ndition. However, the same could could not be done by the FSL, Chandigarh as rh as it did not have the kit for co for conducting such test and the sample from FS om FSL, Madhuban was returned si ned since permission from DGP, Haryana was re was required to be obtained. Since th ince the said permission was not obtained, the sa the sample was sent back to the MHC MHC and the same got lost from the refrigerator o erator of the malkhana.

50. From the cross-examination of Fro n of PW-2, it appears that the chappals which which were purportedly recovered vered from the street where the victim’s house ouse belonged had not been put in a se in a sealed parcel but were kept in an open plastic plastic envelope. The said chappals w pals were stated to be recovered from the street a street and not from the vacant plot wh lot which was the alleged place of occurrence. No No particulars were mentioned on t ed on the said chappals and only a chit was pasted pasted with tape mentioning the FIR n FIR number. Admittedly the said chit could be re be removed and re-affixed. PW-2 f 2 further admitted that it was correct that the at the name of Gopi Ghai was not s not mentioned in the statement recorded by the by the Magistrate under Section 164 n 164 Cr.P.C but volunteered to state that the of the offender was working with H.S. N H.S. Nanda. However, he did not record any state y statement of H.S. Nanda in the ca the case nor collected any record from his office office in order to prove that the appell appellant Gopi Ghai was working SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) in his office. He ice. He again reiterated in cross-exami examination that Exhibit PW-2/C was recorded by ded by him as well as by the doctor doctor and apart from it, no other statement of the of the victim was recorded by the do the doctor. He denied the fact that nothing was ask as asked by PW-6/Dr. Davinder Kum r Kumar to the prosecutrix and the doctor merely s rely stated that the prosecutrix had d had deposed only in the presence of the Investiga estigating Officer. He denied that do that doctor was not present at the time when Exhi n Exhibit PW-2/C was recorded.

51. t clearly transpires from the c It the cross-examination that the Investigating Of ing Officer did not collect any docume ocumentary evidence to show that Gopi Ghai and and Raj were the one and the same e same person. It was only on the basis of the voluntary statement of acc f accused-appellant during his interrogation it w it was disclosed that he was also k also known as Raj. Thereafter, the appellant was a was arrested and challaned. PW-2/In 2/Investigating Officer deposed that the appellan ppellant was not arrested on the date date of occurrence. Even though the police had had visited the office of H.S. Nand . Nanda, who was also known as Harjit Singh R gh Raja, no effort was made to re to record his statement. It also transpires from from the cross-examination that H.S. t H.S. Nanda, known as H.S. Raja was a rich perso person and the appellant-Gopi Ghai hai was a labourer even though he denied being being pressurized by influential poli al political members for arresting the appellant.

52. PW-4, Nisha/aunt (Chachi) of th PW of the victim deposed that the appellant- Gopi opi Ghai had poured kerosene oil o e oil on her niece (victim) as she had love affair w affair with him and he did not want to ant to marry her as she belong to a scheduled caste caste and appellant belong to a to a khatri caste. In her cross- examination, sh on, she stated that she was not awar t aware as to who had taken the deceased to C to CMC Hospital. She was not awar t aware as to whether Gopi Ghai SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) worked for H.S. r H.S. Nanda as she did not know wh ow who H.S. Nanda was. She also stated that she h t she had visited the police station w tion with other mohalla people on October 06, 20 6, 2012 (the date of occurrence) an ce) and saw the appellant in the police station on tion on the same day. The accused-ap appellant was behind the bars in the police sta ice station at that time. The deceased eased never disclosed about being followed by two by two boys whom she had beaten up ten up. The deceased could speak slowly and slig d slightly during the initial period an riod and when she was shifted to CMC Hospital, spital, she could speak clearly. She ad She admitted that even though the deceased record recorded the name of Raj in her st her statement but she had never spoken to her ab her about the boy named Raj and she nd she was unaware as to who Raj was and where h here he belonged. The deceased only d only talked about one boy to her. She further state er stated that the deceased did not ha ot have any dispute with any boy and she had nev ad never met the appellant-Gopi Ghai hai. She had seen Gopi Ghai for the first time i time in the police station on Octo October 06, 2012 (the date of occurrence).

53. There are material inconsistencies The tencies in the evidence of PW-1, PW-4 vis-à-vis the evidence of PW-2. I

2. Investigating Officer/PW-2 repeatedly state stated that even though there was e was a raid in the house of the appellant on the on the date of occurrence but he could could not be apprehended then. It was only on Oct on October 08, 2012, that the accused cused-appellant was apprehended. However, both both PW-1 (father of the victim) and m) and PW-4 (aunt of the victim) had deposed tha sed that when they went to the police olice station on October 06, 2012 (the date of occ of occurrence) the police had already lready apprehended the appellant. They have seen e seen the appellant inside the poli e police lock up and the police assured them that the rest of the accused will d will be apprehended soon. The contradictory de tory deposition raises a reasonable dou le doubt in the mind of this Court SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) about the identi identity of the person being establish tablished. PW-4 admittedly never met the appella ppellant. PW-1 had deposed that he at he had been to the appellant’s house for marria marriage proposal of his daughter but ter but also has not stated whether he knew the ap the appellant personally or had seen seen him before. Therefore, the statements of pr s of prosecution witnesses suffer from r from material inconsistencies in connecting Gop Gopi Ghai to the commission of the of the offence.

54. PW-13 H.S. Nanda was admitte PW dmittedly not questioned during investigation ev ion even though in the statements re ents recorded under Sections 161 and 164 Cr.P.C Cr.P.C, the victim specifically mentio mentioned that perpetrators of the crime worked f rked for H.S. Nanda. The said H.S. H.S. Nanda was produced as a witness during uring the course of trial upon an n an application moved by the prosecution und under Section 311 Cr.P.C seeki seeking his summoning, being allowed. He dep He deposed that the appellant Gopi Gh Ghai used to work for him for the past three y three years at his marriage palace a lace and prior thereto, his father worked for him r him at his property dealing office. H ffice. He used to call the appellant by the name of me of Gopi Ghai. However, one day e day while going to the city, the appellant accom accompanied him in a car when th hen the appellant-Gopi Ghai had received a call. a call. He was unaware as to who ha ho had made the said call but the appellant-Gopi opi Ghai held himself out as Raj w Raj while speaking on the phone. Upon enquiry a uiry as to why he was holding himse himself out as Raj, the appellant refused to reply reply and immediately disconnected ected the phone. To this extent he was only a chan a chance witness.

55. In cross-examination, he admitted In dmitted that he had not recently dealt with any p any property, however, long time ba me back the appellant helped him to sell one of hi his properties. Even though he wa he was an income tax assesee, he did not show th how the names of his employees or es or the expenditure relating to SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) them in his inc his income tax returns. He never ma ver maintained any record of his employees and t s and therefore, there was no record re cord relating to employment of the appellant with h with him. He further admitted that he hat he did not remember the exact name of the petr he petrol pump where he overheard th ard the telephonic conversation of the appellant b lant but it was situated on G.T. Ro T. Road, Basti Jodhewal chowk. However, he ha he had no record to show the purchas urchase of diesel on the date of the said conversatio ersation. Moreover, the witness could could not also remember the time frame when the en the said conversation took place.

56. PW-13 further disclosed that the PW at the police had not met him in connection with with the death of the victim. Then Then he volunteered to state that the police had v had visited him to enquire about the ut the appellant and asked him if the appellant w lant worked under him. The police ha lice had taken the appellant away from the palace palace/banquet hall and at the time time of getting apprehended, the appellant had c had called him from the palace. W ace. When he visited the police station, the poli e police had informed him about th out the occurrence. However, he could not reme t remember whether the appellant w lant was arrested on October 06,

2012. It was als also revealed in his cross-examina amination that he was owner of a banquet hall/pal all/palace and the employees worked orked there on ad hoc/daily basis, depending upon upon the requirement. From the sta he statements made by PW-13, it appears that the at the police enquired of him only wi with respect to appellant-Gopi Ghai and no enquiries were made regarding rding any other employee by the name of Raj, even though in the statement r ent recorded under Section 164 Cr..P.C, the vic he victim categorically mentioned abo ed about two boys, one of whom was Raj, the po he police neither made any enquiry r quiry regarding the identity of the said person nor n nor tried to find out who the seco e second person was. It creates a strong impressio pression on the mind of this Court th ourt that the Investigating Officer SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) was bent upon upon connecting the appellant to the to the offence as it has come on record that the a t the appellant had a relationship with p with the victim.

57. PW-13 on the one hand stated that PW ed that the labourers/workers were employed on da on daily basis as and when required quired whereas on the other hand, he categorically rically stated that the appellant worke worked for him for the past three years. It seem seems quite unlikely that he d he distinctly remembered conversation be ion between one of his daily labourer bourers and a third party that was held at a point point in time of which he has no re no recollection of. PW-13 in his cross-examinati mination stated that Gopi Ghai was tak was taken away by the police from his palace and u and upon receiving a call from the ap the appellant, he visited the police station. Howeve owever, PW-2/Investigating Officer in ficer in his statement stated that on October 08, 2 012, when the Investigating Offi g Officer along with other police officers reached eached the appellant’s house, the appe e appellant tried to run away and he was apprehe pprehended from the street nearby. arby. The inconsistencies in the statement raise raise a suspicion as to the presence sence of the appellant ever at the banquet hall o hall of PW-13. The version of PW of PW-2 and PW-13 is again inconsistent wit nt with the submissions made by PW y PW-1 (father of the victim) and PW-4 (aunt of t nt of the victim) to state that on the da the date of occurrence i.e October 06, 2012, when when they reached the police station t ation they found the appellant was already in custo custody and the police assured them them the other accused would be apprehended sh ed shortly and PW-4 had seen the ap the appellant for the first time in the custody on O y on October 06, 2012.

58. The defence had produced four wit The ur witnesses in order to prove that the appellant an lant and Raj were not one and the sa the same person. DW-1/Chanchal Singh deposed t osed that he was Municipal Councillo llor from 1997 to 2002 of the ward where the re the house of appellant was situate situated. He knew appellant-Gopi SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) Ghai since 1997 e 1997 and he used to visit the house house of appellant’s neighbour. It is neighbour Bi our Bittu who had introduced the ap the appellant to him. He further deposed that the hat the appellant-Gopi Ghai was not kn not known by the name of Raj.

59. DW-2 deposed that he remained DW ained Municipal Councillor from 2007 to 2012 of 012 of Ward No.3 and the appellant re llant resided near his ward. He had known the appe e appellant for the past 8-9 years and t s and the appellant was not known by any other na ther name apart from Gopi Ghai. He . He stated that since he was a cricket player a ayer and the children of his area were a were his fans even they did not play cricket. Th et. The appellant was also his fan ev fan even though he did not play cricket.

60. DW-3, a neighbour was examined DW mined who deposed that his house was in Ward No ard No.3 and the appellant lived near h near his house. The appellant was only known by t n by the name of Gopi Ghai and not b d not by any other name. In cross- examination, he on, he volunteered to say that the ap the appellant lived on rent in the house of Bittu Bittu and his house was only 200 y 200-300 yards away from the appellant’s hou house. The appellant was living living on the ground floor. The appellant’s siste s sister was married. His grandfathe dfather had died and his parents were living in th g in the same house. He had known th own the appellant for the last 8-10 years and the ap the appellant studied at Dhillon Publ n Public School. He categorically deposed that Go Gopi Ghai was not known by the n y the name of Raj.

61. DW-4 deposed that the appellant DW pellant was the son of her own brother and live nd lived 2-3 streets away from her ho her house. The appellant’s father used to sell tea ll tea in front of the office of H.S. Na .S. Nanda and said Harjeet Singh Nanda was also as also known as Raj/Raja. Neither t ither the appellant nor his father worked with H ith H.S. Nanda and since his childh childhood, the appellant was not called by any any name other than Gopi. In her er cross-examination also, she SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) stood on her gro her ground and affirmed the statemen tements made in her examination- in-chief.

62. All the four defence witnesses affi All es affirmed that the appellant had only one name name i.e. Gopi and was not called by led by the name of Raj. Out of all the four defence efence witnesses, there were three inde independent ones who were not the family mem y members of the appellant. Out of th t of the three, two witnesses had been Municipal nicipal Councillors of the same loc locality (DW1), neighbouring locality (DW2) DW2). The learned trial Court he urt held that there was strong circumstantial e ntial evidence on record to establish tablish that the accused-appellant Gopi Ghai and and Raj were one and the same p ame person. To the mind of this Court, it is not c s not comprehensible how that strong trong circumstantial evidence was established by t by the trial Court. The only two pie wo pieces of evidence connecting Gopi Ghai to th to the occurrence were (a) the state e statement under Section 161 of the Cr.P.C. of C. of the victim; and (b) the depos deposition of PW-13/H.S.Nanda (property dealer dealer). The statement recorded under under Section 161 Cr.P.C Exhibit PW-2/C was no as not admissible in evidence. Furthe Further, in the present case it was recorded in the in the hospital only in front of the po the police and not in front of any doctor. PW-6/ /Dr. Davinder Kumar himself d self deposed that neither had he recorded any sta any statement nor was any statement r ment recorded in his presence nor had he signed a ned at point ‘A’ of the statement. Th Therefore, it is perplexing that the trial Court s ourt sought to rely on Exhibit PW-2/ 2/C, which is inadmissible as evidence to brin to bring home the guilt of the appellan pellant.

63. From the perusal of Exhibit PW- Fro -8/C, it appears that two boys were following wing the victim on October 06, 2012 , 2012 and since they were teasing her, she had bea ad beaten them up with slippers. The s. Thereafter, they caught hold of her, strangulated gulated her, tied her mouth with the h the duppatta, sprinkled kerosene SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) oil and set her a t her ablaze. Out of said two boys, on oys, one was Raj who worked for H.S. Nanda. Th da. The said statement was recorded u rded under Section 164 Cr.P.C by the Magistrate i strate in front of PW-6 Dr. Davinder vinder Kumar. The police neither tried to interrog terrogate said PW-13/H.S. Nanda wi nda with regard to the employees working under under him nor with regard to th to the identity of Raj, during investigation. They only enquired regarding ding the appellant-Gopi Ghai to H.S. Nanda and da and dropped the proceedings agai against Raj. There is vital link evidence missin missing, connecting the appellant to t nt to the perpetrator of the crime. No material wa ial was brought on record by the pol he police to connect Raj with the appellant. How How the Investigating Officer cam came to the conclusion during investigation th ion that the appellant and Raj are on are one and the same person, is puzzling withou without causing any investigation on ion on that subject. Significantly, nowhere in the s in the statement recorded under Sectio Section 164 Cr.P.C. did the victim state that she wa she was in a relationship with Raj and aj and he had refused to marry her. Strenuous relian reliance was placed on the statement ement recorded under Section 161 Cr.P.C of the vi victim which was purportedly rec dly recorded in front of the doctor which was com s completely denied by the doctor. ctor. Relying on an inadmissible piece of evidenc vidence, the trial Court had come to me to the conclusion that Raj and the appellant a nt are one and the same person j rson just because from both the statements it app s it appeared that the appellant-Gopi G pi Ghai and Raj worked for one H.S. Nanda.

64. PW-13/H.S. Nanda had himself d PW self deposed that neither had he maintained any d any record of the persons/employe mployees working at his banquet hall/palace, no nor at the real estate’s office from ce from where he deals with his properties. All t All the persons were working on a a daily basis/ad hoc basis for him. In the sai he said circumstances, how PW-13 13 deposed that the appellant SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) worked for him r him for the past three years also rais lso raises doubt in the mind of this Court. No det o details have been given as to as to where the appellant had accompanied PW-13 and when the said conv d conversation was made by the appellant over p over phone holding himself out to be to be Raj. The statements of PW- 13 in that rega t regard are completely vague. The sa same raises serious doubts in the mind of this of this Court as the identity of the pe the perpetrator being established. The Investigati stigating Officer admittedly cause caused no investigation as to determine the id the identity of the appellant and also nd also collected no records from the office of PW of PW-13/H.S. Nanda to check wheth whether the appellant was in PW- 13’s employme loyment. The fact that the PW-13 inc 13 incorrectly deposed regarding the appellant b llant being apprehended from his his palace is evident as the Investigating Of ing Officer deposed that the appellant ellant on October 08, 2012, while trying to escape scape from his house, was apprehende ehended from the streets.

65. The trial Court came to the conclu The conclusion that once H.S. Nanda/ PW-13 deposed eposed that the appellant and Raj w were one and the same person and the appellan pellant had worked for him for the pa the past three years, the argument raised by the d the defence counsel became of no of no relevance as the defence counsel did not id not put any question to PW-13 with 3 with regard to the issue whether there was any o any other person working under him er him known as Raj and did not put any suggest uggestion in that regard. It further we er went on to hold the arguments raised by lear learned defence counsel were d ere demolished due to dying declarations of t of the victim.

66. It is trite law that the prosecution It i cution has to prove its case first before the defen defence is required to demolish it. In h it. In the present case, the chain of circumstantia stantial evidence is wholly incomplete mplete. Statement recorded under Section 161 Cr 61 Cr.P.C is inadmissible in evidenc vidence. Statement under Section SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) 164 Cr.P.C.-PW PW-8/C does not even mention the the appellant’s name. Only the name of one Ra ne Raj is mentioned therein. One pro ne prosecution witness i.e PW-13 only deposed that the appellant held himself mself out as Raj in a telephonic conversation the ion the particulars of which he could could not give. The said witness was not even jo ven joined in the investigation and co could not produce any record to show that the r him. at the appellant was working for him.

67. As opposed to that, four defence As fence witnesses were produced to demolish the pr the prosecution case. Why the trial C trial Court refused to believe the evidence of the of the three independent defence wi nce witnesses is also beyond the comprehension nsion of this Court. The testimony of ny of DW-4 was discarded as she was aunt of the of the appellant and could have been a been an interested witness but the testimonies of es of PW-1/father of the victim and im and PW-4/aunt of the victim respectively we were accepted in toto even though though they were relatives of the victim and coul d could have been interested witness itnesses. The trial Court on one hand held that th that the investigation was defective a ctive and there were serious lapses in the same and and on the other hand, it held that d that the prosecution was able to prove the case ase beyond any reasonable doubt doubt even though the vital link evidence was m was missing. The DNA sample was l was lost from the custody of the police which wa h was a grave act of misconduct on t ct on the part of the police. CASE LAWS

68. In “Bhim Singh and another v. St In “ v. State of Uttarakhand” (2015) 4 SCC 281, it it has been held that where con re conviction is to be based on circumstantial e ntial evidence there should not be ot be any snap in the chain of circumstances. nces. If there is a snap in the chain chain, the accused is entitled to benefit of doubt doubt. If some of the circumstances in nces in the chain can be explained SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) by any other rea her reasonable hypothesis, then also th also the accused will be entitled to the benefit of do it of doubt.

69. Further reliance is place on a judg Fur a judgment passed by Apex Court in “Darshan Sin n Singh v. State of Punjab” in Crim iminal Appeal No.163 of 2010, relevant extract xtract whereof is reproduced herein be rein below: “xxx “xx to the incident. The case of the There is no eye-witness to t 9. 9. stantial evidence. The normal prosecution rests on circumstan ircumstantial evidence is that the approach in a case based on circum inference of guilt is sought to be circumstances from which an infer firmly established; that those drawn must be cogently and firm a definite tendency unerringly circumstances should be of a d t of the guilt of pointing ively should form a chain so circumstances taken cumulatively cape from the conclusion, that complete that there is no escape the crime was committed by the within all human probability, the c ncapable of explanation on any accused and they should be incap f the guilt of the accused and hypothesis other than that of the inconsistent with his innocence. the accused; towards xx”

70. In the case of “Uttam v. The State In t State of Maharashtra” (2022) 8 SCC 576, the A , the Apex Court held that where ther re there are more than two dying declarations, ea ns, each one must be examined with d with care and caution and only after satisfying fying itself as to which dying declara declaration seems to be free from suspicious circ s circumstances and made volunta oluntarily, the same should be accepted. Relev Relevant extract thereof is reproduced duced herein below: “xxx “xx

19. It is thus clear that in cases 19 there exist more than one dying de must be examined with care an satisfying itself as to which of the to be free from suspicious circum to b voluntarily, should it be accep judgments quoted above, it is not n a dying declaration ought to be a d evidence, ocular or otherwise. It ases where the Court finds that g declarations, each one of them e and caution and only after the dying declarations appears cumstances and has been made ccepted. As observed in the not necessary that in every case, be corroborated with material . It is more a rule of prudence SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) that courts seek validation of th attending facts and circumstances on record. For the very same reaso that the declarant was fit to make rule of caution to establish the tr made by the deceased. of the dying declaration from ces and other evidence brought eason, a certificate by the doctor ake a statement is treated as a he truthfulness of the statement xx”

71. After examining the statements re Aft ents recorded under Sections 161 and 164 Cr.P.C Cr.P.C, this Court is of the consider nsidered view that second dying declaration/state n/statement under Section 164 Cr.P.C r.P.C made before the Magistrate inspires more c ore confidence as the statement re ent recorded under Section 161 Cr.P.C seems to ems to be pre-meditated and well stru ell structured and not recorded in front of the doct e doctor. The statement under Section ection 161 Cr.P.C cannot be made the sole basis of asis of conviction in this case.

72. In the case of “Irfan alias Naka In aka v. State of Uttar Pradesh” 2023 SCC Onlin Online SC 1060, the three Judge Ben ge Bench of Apex Court held that the Courts in Ind s in India followed a pattern whereby t ereby they were required to satisfy themselves as s as to the reliability and truthfuln thfulness of a dying declaration before placing acing reliance upon it. A dying de ing declaration while carrying a presumption of ion of being true must be wholly relia ly reliable and inspire confidence. Where there is ere is any suspicion as to the veracity racity of the same or the evidence on record show shows that the dying declaration i tion is not true, it will only be considered as a d as a piece of evidence but cannot be not be the sole basis of conviction. Several factors w ctors which have to be examined are r d are reproduced herein below: “x

62. There is no hard and fast r 62. dying declaration should be accep to decide circumstances of the case and truthfulness of the same. Certain fa ast rule for determining when a ccepted; the duty of the Court is facts and surrounding nd be fully convinced of the in factors below reproduced can this question SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) be considered to determine the sa affect the weight of the dying admissibility: - e same, however, they will only ying declaration and not its (i) (i) Whether the person making the s of death? of d the statement was in expectation (ii) Whether the dying declaration (ii) opportunity? “Rule of First Opport ation was made at the earliest portunity” (iii) Whether there is any reasona (iii) dying declaration was put in the mo sonable suspicion to believe the e mouth of the dying person? (iv) Whether the dying declaration (iv) tutoring or leading at the instance party? tion was a product of prompting, ance of police or any interested (v) Whether the statement was not r (v) not recorded properly? (vi) (vi) Whether the dying declarant observe the incident? rant had opportunity to clearly (vii (vii) Whether, the dying declar throughout? claration has been consistent the dying dec (viii) Whether, (vii manifestation/fiction of the dying p he thinks transpired? declaration is a ng person’s imagination of what itself (ix) Whether, the dying declaration (ix) tion was itself voluntary? (x) (x) In case of multiple dying dec one inspires truth and consiste declaration? declarations, whether, the first sistent with the other dying (xi) (xi) Whether, as per the injuries, it for the deceased to make a dying de s, it would have been impossible ng declaration?

63. It is the duty of the prosecu 63. against the accused beyond the re of d of doubt must always go in favour o dying declaration is a substantive p on provided it is proved that th truthful and the victim was in a fit enough for the court to say tha reliable as the accused is named in assailant. secution to establish the charge e reasonable doubt. The benefit our of the accused. It is true that ive piece of evidence to be relied t the same was voluntary and a fit state of mind. It is just not that the dying declaration is d in the dying declaration as the xx”

73. In that case, the Apex Court set In rt set-aside the conviction of the appellant even t even though there were dying declarat eclarations by two deceased which SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M) were sought to b ht to be corroborated by the appellant pellant’s sister- Soni and held that the prosecution ution had failed to prove its case beyo beyond reasonable doubt.

74. Since the appellant had married se Sin ried second time and his brothers Irshad (decease eceased), Nausahd (deceased) and his nd his son Islamuddin (deceased) were opposed to it, it was held by the trial C trial Court that the appellant had locked the room e room in which three of them were sl ere sleeping and set them on fire. The Apex Cour Court after examining the dying dec ng declaration of Irsahd (brother) and Islamudin ( udin (son), came to the conclusion tha ion that the prosecution’s case was doubtful and ben nd benefit of doubt had to be given to ven to the accused.

75. In the present case also, there is su In t re is substantial doubt whether the statement was m was made by the victim in expectation ctation of her death or whether the statement was was recorded properly by the Inve e Investigating Officer or was a product of prom prompting or tutoring or leading at ing at the instance of the police. The two dying d ying declarations were not consistent istent with each other and the first dying declaratio laration does not inspire truth nor is nor is consistent with other dying declaration. FINDINGS OF S OF THE COURT

76. Under Article 21 of the Constitu Un onstitution of India, the life and liberty of a pers a person is required to be protected. D cted. Due to the lapses on the part of police, there there is every chance of an innocent nocent person would be convicted and incarcerated cerated and the Courts should be consc conscious of the life and personal liberty of a citiz a citizen. Article 21 of the Constitution of Art ion of India is reproduced here under: SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh “ No person shall be depriv “ liberty except according to procedu prived of his life or personal cedure established by law.” CRA-D-52-DB DB-2014 (O&M)

77. In the present case the prosecution In ecution has been able to establish that the appella appellant had a love affair with the th the victim and the victim got pregnant due to due to that reason and the victim was was pressurising the appellant to marry her but but there was no material on re on record which connected the appellant to the to the person named Raj who along w long with another person were the perpetrators of rs of the crime. The structured manne manner, in which statement under Section 161 Cr. 61 Cr.P.C has been written, raises a ses a serious doubt in the mind of this Court as to t as to whether any such statement wa ent was ever made by the victim. There was a gra s a grave apprehension that a concerted ncerted effort was made to connect the appellant to lant to crime and bring home his guilt s guilt by establishing his identity as Raj as the app the appellant may have been in a relati relationship with the victim.

78. Even if the deposition of DW-4 Eve 4 was discarded by the trial Court for being being an interested witness, there w ere was no reason to discard the evidence given given by DW-1 to DW-3 who were were independent witnesses and rely on depositio position of PW-13/H.S. Nanda only when the same suffered from material inconsi nconsistencies. Statement of PW-13 w 13 with regard to the appellant being Raj was j was also vague and without an out any particulars whatsoever. Therefore, the li , the link evidence is incomplete. ION CONCLUSION

79. Therefore, this Court holds that th The that the chain of events was not complete so as so as to prove the guilt of the appel appellant beyond any shadow of reasonable doub e doubt. The prosecution has been un en unable to bring home the guilt of the appellant pellant. Consequently, the appeal is eal is allowed. This Court acquits the accused-app appellant and he shall be released eased forthwith, if not required to be detained for a d for any other offence. SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-52-DB DB-2014 (O&M)

80. Pending criminal miscellaneous Pen eous application(s), if any, also stand disposed o osed of. (ANUPINDER JUD DER SINGH GREWAL) JUDGE (LAPITA BANERJI) JUDGE DECEMBER 0 Shalini BER 05, 2024 Whether speakin Whether reporta speaking/reasoned : reportable : Yes Yes SHALINI BHATIA 2024.12.05 17:47 I attest to the accuracy and integrity of this document. High Court, Chandigarh