JAGGA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE extremely shocking nature of the case as put forward by the prosecution and accepted by the High Court - the same being attempted rape on a young girl which is protested, followed next day by setting of the girl to fire by pouring kerosene on her and on rescue effort being made to bolt the door from outside because of which the burn injuries ultimately lead to her death; and all these by taking undue advantage of the fiduciary capacity as the father of the girl, a tenant of the accused, had left her and his young boy in the care and custody of the latter during former's temporary absence -led us to issue a notice of enhancement in this appeal as the sentence awarded for the conviction under section 302 of the Indian Penal Code by the High Court, on reversing the order of acquittal passed by the trial Court, was imprisonment for life, whereas we felt that, if the prosecution case be true, the sentence to be awarded should be the extreme visualised by section 302, i.e. the sentence of death. But having heard learned counsel for the parties we have come to the conclusion that far from enhancing the punishment, the appellant deserves to be acquitted.

(2.) THE aforesaid is not only the reason of our disbelieving the prosecution story relating to attempted rape on Nihalo inasmuch as even P.W. 10, Devi Chand, has not said anything regarding this part of the prosecution case, depsite the fact that Nihalo had been brought to his house by his wife a day earlier to the occurrence. Now, if any rape would have been attempted on Nihalo, she would have definitely stated about the same, if not to Devi Chand at least to his wife. But Devi Chand's wife does not come forward to depose about the same, nor does Devi Chand say anything about it.

(3.) THE aforesaid infirmities are sufficient to throw doubt on the correctness of the statements which find place in dying declaration. It is a settled law that for a dying declaration to provide the basis for conviction, the same has to be beyond reproach. As the present dying declaration is not of such a status at all, we are of the view that the conviction of the appellant cannot be based on what has been recorded in the dying declaration.