The Supreme Court has granted bail to a man in a murder case on the ground that the non-recording of the deceased’s statement in presence of the Magistrate or actual ascertainment of her fitness to make statements by doctors remains unexplained.

The Court was deciding a criminal appeal filed by the appellant against the judgment and order of conviction passed by the Delhi High Court whereby it confirmed the appellant’s sentence of life imprisonment under Section 302 of IPC as awarded by the Additional Sessions Judge.

The two-Judge Bench comprising Justice Abhay S. Oka and Justice Sanjay Karol held, “It is undisputed that the deceased was in a position to speak up until six days prior to her death when she was put on life support. Yet the non-recording of the deceased’s statement in the presence of the Magistrate or actual ascertainment of her fitness to make statements by doctors remains unexplained.”

The Bench noted that apart from the alleged dying declarations of the deceased, there is no evidence on record to point to the guilt of the appellant/convict.

“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, we do not find even a scintilla of evidence by which we may uphold the judgments of the courts below”, further said the Court.

Advocate Kamini Jaiswal appeared on behalf of the appellant/convict while ASG Aishwarya Bhati appeared on behalf of the respondent/State.

In this case, the appellant and deceased were colleagues in a company where the former was a Customer Care Executive and the latter the Team Leader/Operations Manager. One night in 2007, the deceased was found engulfed in flames near a school and despite the efforts to save her at two different hospitals, she passed away. It was recorded that a friendship had developed between these two persons, and the convict-appellant would often drive her home after work, which would end at around midnight. Allegedly, due to a quarrel in regards to her affections being not for him but instead for their boss, he took her to an open site near a school and, in the midst of an argument, set her on fire.

On the way to the hospital, the deceased one of the witnesses that the appellant had set her ablaze. Her statement was recorded, based on which an FIR under Section 307 IPC was registered. The convict-appellant was arrested and upon completing the investigation, a challan was presented to the Trial Court for proceeding against him. The Trial Court convicted the appellant and then the High Court agreed with the conclusions arrived at by the Trial Court and observed that the appeal was devoid of merits.

The Supreme Court in view of the above facts noted, “… can it be said that there was a reasonable apprehension of death, making the statements admissible as dying declarations? … The convict-appellant was not seen at the spot of the crime, nor has the last seen theory been invoked by the prosecution to establish that the deceased and he were together at the time and place of the incident.”

The Court said that the factors and the fact that the crime in question occurred at an open public access place cast doubt on the prosecution case.

“For instance, nothing on record indicates- the ownership of a vehicle by the convict-appellant; any disagreement or animosity between the convict-appellant and the deceased, that is of such an extreme nature as to set her on fire; any connection between the convict-appellant and the inflammable substance used to kill the victim such as the record of purchase or statement of any person to show such substance to be in possession of the convict-appellant, etc.”, observed the Court.

The Court while considering other circumstances that may or may not point to the guilt of the convict-appellant, concluded that it found gaps unexplained in the prosecution case, which cast sufficient doubt as to leave the case short of the threshold of beyond reasonable doubt.

Accordingly, the Apex Court allowed the appeal and granted bail to the appellant.

Cause Title- Abhishek Sharma v. State (Govt. of NCT of Delhi) (Neutral Citation: 2023 INSC 924)

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