The division bench of Justice Abhay S. Oka And Justice Sanjay Karol said that a perusal of the dying declaration shows it to have been recorded in the third person, that is to say, that ASI Anoop Singh had reported on the incident of the victim being burned and that she had told him that her friend Abhishek Sharma had done so. Undoubtedly, Section 32 IEA is an exception to the rule of hearsay, however, the same would not be applicable in the present case.
The bench observed that the statement before the court is that the operator came into ‘DO room’ and reported that ASI Anoop Singh had found a girl burning, and it is to him that she stated that Abhishek Sharma, convict-appellant, had done this to her. So, as is evident, this statement is three degrees removed from the deceased and thereby unprotected by this exception as the statements far removed from the original maker of the statement cannot be exempted more so when reliance on the same results in a penal consequence.
“It is true that a dying declaration is not to be discarded on account of brevity, but it is equally true that it must contain the proximate cause of the deceased’s condition and the reason therefor. Here, it states the presence of burn injuries and says that the same was caused by Abhishek, which, arguably, is insufficient. There is no particular identification of the convictappellant, nor is there a mention of the means through which the injuries were inflicted (petrol)”, the court obserevd.
Abhishek Sharma and Mandeep Kaur were colleagues at M/s Sai Telecom at Saraswati Vihar, Delhi where the former was a customer care executive and the latter the team leader/operation manager. On the intervening night of 20-21st September 2007, the deceased was found engulfed in flames near the Queen Mary School, Model Town, Delhi. Despite efforts to save her at two different hospitals, namely LNJP Hospital and Maharaja Agrasen Hospital, she passed away on 03 October 2007.
It was observed by the court that there is no evidence on record to show what transpired in the investigation of the police from the time of DD-I when, allegedly, the police came to know of the convict-appellant having committed this crime against the deceased and when he was finally arrested at 8 PM.
It was also observed that regarding DD-III, it is found that the mental state in which it is made cannot be ascertained as there is no discussion on the treatment given to the deceased. In the absence of such clarification, such a statement cannot be relied on without corroboration.
The court noted that apart from the alleged dying declarations of the deceased, there is no evidence on record to point to the guilt of the convict-appellant.
The apex court stated that it is an established principle that a dying declaration, if it is free of tutoring, prompting, etc. can form the sole basis of conviction. However, having perused the record minutely, it did not find even a scintilla of evidence by which it may uphold the judgments of the courts below.
The court found gaps unexplained in the prosecution case, which cast sufficient doubt as to leave the case short of the threshold of beyond reasonable doubt.