The Punjab and Haryana High Court has acquitted a rape convict, holding that the dying declaration on which the entire prosecution case rested did not inspire confidence, and that the failure of the investigating agency to have it recorded by a Judicial Magistrate despite adequate opportunity created a dent in the prosecution story. [2026 LiveLaw (PH) 278]

The Division Bench of Justice Rajesh Bhardwaj and Justice Deepak Manchanda observed that the omission "assumes greater significance in the facts of the present case particularly when prosecution itself seeks to base the conviction on dying declaration."

The FIR arose from a statement recorded at PGIMS, Rohtak on 02.08.2010. The prosecutrix alleged that the appellant came to her home while she was alone and forced himself upon her, that there was grappling and she was beaten, and that he committed the offence before others arrived. She thereafter consumed two tablets of aluminium phosphide with tea.

She was medico-legally examined at 7:22 p.m. the medical ruqa was sent at 8:35 p.m.; her statement was recorded at 9:45 p.m.; and the FIR under Sections 376 and 309 read with Section 34 IPC was registered at 12:30 a.m. on 03.08.2010. She died during treatment at 12:05 a.m. on 03.08.2010. The FSL report confirmed aluminium phosphide, and the cause of death was ascertained to be poisoning. Her statement thus assumed the character of a dying declaration.

The Additional Sessions Judge, Rohtak, by judgment and order dated 23.12.2013, convicted the appellant and sentenced him to twelve years' rigorous imprisonment with a fine of ₹40,000, directing payment of ₹1 lakh as compensation to the family of the deceased under Section 357 CrPC.

Senior Advocate Sunil Chadha, appearing for the appellant, assailed the declaration on multiple grounds including contradictions in the recording officer's own account, in which the Court found substance.

On the depositions of the doctors, the Court found that the prosecutrix was in critical condition and was being administered sedatives, her condition never improving before she suffered cardiac arrest. Dr. Ashok Chauhan  deposed in cross-examination that she was unconscious at the time of her medico-legal examination. Dr. Jatin Ahuja (PW-11) deposed that he had not endorsed on the statement that she remained fit throughout its recording, and the defence pointed to a cutting in the time entered.

Even assuming she was in a fit state of mind, the Court held, no effort whatsoever was made to have her statement recorded by a Judicial Magistrate.

 Dr. Pawan Mittal, who conducted the post-mortem, deposed that no injury was found on the body of the prosecutrix, including on either wrist. Dr. Dolly Sharma, who examined the appellant, deposed that there were no injury marks on his person, while accepting that the possibility of injuries on an accused in a rape case could not be ruled out, the Court noted.

Law On Dying Declarations

Setting out Section 32 of the Evidence Act and the maxim nemo moriturus praesumitur mentiri — no one at the point of death is presumed to lie, the Court reiterated that a dying declaration which is voluntary, truthful and reliable can by itself form the sole basis of conviction, corroboration being a rule of prudence rather than of law, applied where authenticity or reliability is doubtful.

Relying on Muthu Kutty v. State by Inspector of Police, (2005), Panneerselvam v. State of Tamil Nadu, (2008), Paniben v. State of Gujarat, (1992) and Satish Ambanna Bansode v. State of Maharashtra, (2009), the Court emphasised that since the accused has no power of cross-examination, the declaration must be of such a nature as to inspire full confidence, that the Court must guard against tutoring, prompting or imagination; that where a declaration is suspicious it should not be acted upon without corroboration; and that one suffering from the infirmity that the deceased was unconscious and could never have made a statement cannot form the basis of conviction.

Weighing the evidence against these principles, the Bench held that the declaration did not inspire confidence, and that once the declaration relied upon is not trustworthy it would not be safe to hold the appellant guilty.

Noting that the prosecution story suffered from several infirmities, inconsistencies and unexplained circumstances, the Court invoked the cardinal principle that where two views are possible, or the evidence gives rise to reasonable doubt, the benefit must go to the accused.

The appeal was allowed, the judgment of conviction and order of sentence set aside, and the appellant acquitted of all charges.

Title: Sandeep @ Kala v. State of Haryana

Appearances: Mr. Sunil Chadha, Senior Advocate with Mr. Aditya Jain, Mr. Raghav Chadha and Mr. Tara Dutt, Advocates for the appellant;

Ms. Shaveta Sanghi, DAG, Haryana.

Click here to read order