Punjab & Haryana HC Acquits Rape-Abetment Accused After Finding Police-Recorded Dying Declaration Unreliable

A Division Bench set aside a 12-year sentence, holding that a dying declaration recorded by an unauthorised police officer, riddled with time contradictions and unsupported by both key witnesses, could not safely ground conviction.

The High Court of Punjab and Haryana at Chandigarh, in a judgment delivered on 17 July 2026, acquitted Sandeep @ Kala of charges under Sections 452, 376 and 306 of the Indian Penal Code, setting aside a 12-year rigorous imprisonment sentence imposed by the Additional Sessions Judge, Rohtak, on 23 December 2013. The Division Bench of Justice Rajesh Bhardwaj and Justice Deepak Manchanda found that the entire prosecution case rested on a dying declaration recorded by ASI Naresh Kumar, a document so afflicted by internal contradictions, questions about the deceased’s fitness of mind, and the absence of Magistrate-recorded evidence, that it could not inspire the confidence required to sustain a conviction. Both the key prosecution witnesses — the deceased’s husband and the very officer who recorded the statement — turned hostile at trial, leaving the prosecution with no independent corroboration.

The Incident and the Trial Court’s Conviction

The FIR in the case was registered on the statement of the prosecutrix, identified in the record as “S”, wife of Subhash. Her statement was recorded at PGIMS, Rohtak on 2 August 2010 at 9:45 p.m. She alleged that the appellant, Kala, had entered her home when she was alone, grappled with her, and committed rape on her. Before others could arrive, she consumed two tablets of Aluminium Phosphide (sulphas) with tea. Her husband Subhash (PW-13) shifted her to hospital, where she was medico-legally examined at 7:22 p.m. on 2 August 2010. A medical ruqa was dispatched by doctors to the police at 8:35 p.m. Despite treatment, she suffered a cardiac arrest at approximately 11:30 p.m. on 2 August 2010 and died at 12:05 a.m. on 3 August 2010. The FSL report confirmed Aluminium Phosphide in the samples, and cause of death was recorded as poisoning. The FIR, initially under Sections 376 and 309 read with Section 34 IPC, was later converted, and the appellant was ultimately tried under Sections 452, 376 and 306 IPC.

The prosecution examined 21 witnesses and produced documentary evidence. The trial court found the charges proved and sentenced the appellant to 12 years of rigorous imprisonment, directing him also to pay a fine of Rs 40,000 and Rs 1 lakh as compensation to the deceased’s family under Section 357 of the Code of Criminal Procedure. The appellant challenged the conviction and sentence before the High Court.

What the Appellant Argued

Senior Counsel for the appellant, Mr Sunil Chadha, argued on several fronts. The statement of the prosecutrix — treated as a dying declaration after her death — was recorded by ASI Naresh Kumar (PW-14), a police official, without any authorisation from his superior officer and without a Magistrate being involved. The defence pointed to a specific alteration in exhibit Ex.PK/1, where the recorded time appeared to have been changed from 9:45 p.m. to 9:25 p.m., with a visible cutting. This was drawn from the deposition of Dr Jatin Ahuja (PW-11), who also deposed that he did not endorse on the statement that the patient remained fit throughout its recording and that the prosecutrix’s condition had not improved despite treatment.

The defence further relied on the deposition of Dr Ashok Chauhan (PW-12), who had conducted the medico-legal examination at 7:22 p.m. and deposed that the prosecutrix was unconscious at that time. Dr Pawan Mittal (PW-10), who conducted the postmortem, deposed in cross-examination that no injury was found on the body of the prosecutrix, including on both her wrists. Dr Dolly Sharma (PW-6), who examined the appellant, found no injury marks on him either, though she acknowledged in cross-examination that injury in cases of rape cannot always be ruled out. The defence argued that the combined effect of these depositions cast a serious shadow on whether the prosecutrix was ever in a fit state of mind to make a coherent and voluntary statement. The appellant’s Section 313 CrPC statement raised the plea of family enmity between the two households.

The Prosecution’s Defence of the Declaration

The State, represented by Ms Shaveta Sanghi, DAG, Haryana, maintained that the dying declaration was recorded in accordance with law. The doctor’s opinion on the fitness of the prosecutrix was obtained before ASI Naresh Kumar recorded her statement, and the statement itself was consistent with other material recovered during investigation. Broken bangles were recovered from the place of occurrence, corroborating the prosecutrix’s account of a struggle. Semen was detected on the mattress (gadda). The State also relied on the settled principle that when a witness turns hostile, only the part of the deposition inconsistent with the prosecution case is affected; the consistent portions remain available for reliance. On this basis, the State argued there was no perversity in the trial court’s assessment and the appeal deserved to be dismissed.

The Court’s Examination of the Dying Declaration

The Division Bench identified the central question as whether the statement of the prosecutrix, Ex.PL, was of such quality as to inspire full confidence and serve as the sole basis for conviction. The court examined Section 32 of the Indian Evidence Act, 1872, which renders the statement of a deceased person as to the cause of death or the circumstances of the transaction that resulted in death relevant as a substantive piece of evidence.

The bench drew on the Supreme Court’s decision in Muthu Kutty & Anr. v. State By Inspector of Police, (2005) 9 SCC 113, as relied upon in Panneerselvam v. State of Tamil Nadu, (2008) 17 SCC 190, for the proposition that a dying declaration can be the sole basis of conviction only if it inspires the full confidence of the court. The court must be satisfied that the deceased was in a fit state of mind, that the declaration was voluntary, and that it was not the product of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. The bench also noted that nemo moriturus praesumitur mentiri — no one at the point of death is presumed to lie — is the legal maxim underpinning the admissibility of such declarations, but emphasised that the maxim does not displace careful judicial scrutiny in each case.

Applying these principles, the bench found several critical infirmities in Ex.PL. ASI Naresh Kumar (PW-14) deposed that he received the ruqa at 8:35 p.m. and also deposed that he started recording the statement at 8:45 p.m. Yet he separately stated that he only reached the hospital at 9:25 p.m. These two positions cannot coexist and cast doubt on the authenticity of the recording process. ASI Naresh Kumar also admitted in cross-examination that he had not obtained any permission from his superior officer before recording the statement and that he did not find it necessary to have the statement recorded by a Magistrate, citing the prosecutrix’s critical condition. The court found that this omission assumed “greater significance” given that the prosecution sought to base its entire conviction on that declaration.

The medical evidence added to these doubts. The prosecutrix was in a critical condition and was being administered sedatives. Dr Jatin Ahuja (PW-11) did not certify that she remained fit throughout the recording of her statement. The court found it seriously doubtful, in the light of the overall medical evidence, that the prosecutrix was in a position to make a statement in such a state of mind. Even taking the doctor’s endorsement of fitness at face value, no effort was made to summon a Judicial Magistrate despite adequate time and opportunity. The bench treated this as a significant gap, particularly since prosecution was relying on the declaration as the sole foundation of guilt.

Hostile Witnesses and the Absence of Independent Support

The bench noted that the two most material witnesses for the prosecution — Subhash (PW-13), the deceased’s husband, who had taken her to the hospital and was present throughout, and ASI Naresh Kumar (PW-14), who recorded the declaration — did not support the prosecution case and were declared hostile. In cross-examination, ASI Naresh Kumar himself suggested that he knew Subhash personally and had prepared statement Ex.PL on Subhash’s asking to falsely implicate the appellant. While the court acknowledged the legal principle that a hostile witness’s entire deposition is not automatically discarded and consistent portions may be relied upon, the circumstances here meant that the prosecution was left without independent support for the declaration.

Physical evidence from the scene — the broken bangles and the semen detected on the mattress — was before the court, but the bench’s reasoning made clear that in the absence of a reliable dying declaration, this corroborative material could not independently sustain the conviction in the manner the prosecution had framed its case.

Outcome

The Division Bench concluded that the dying declaration Ex.PL did not inspire confidence and that it would not be safe to hold the appellant guilty on its basis. The prosecution story was found to suffer from “several infirmities, inconsistencies and unexplained circumstances.” Applying the cardinal principle that where two views are possible or where evidence gives rise to reasonable doubt, the benefit must be extended to the accused, the court held that the appellant was entitled to the benefit of doubt.

The appeal was allowed. The judgment of conviction and order of sentence dated 23 December 2013 passed by the Additional Sessions Judge, Rohtak, were set aside. Sandeep @ Kala was acquitted of all charges framed against him.