Upholding conviction of rape & murder accused, P&H High Court says even if Forensic Report did not detect semen, it cannot have effect of belying victim’s dying statement

Read Order: Akshay v. State of Haryana

LE Correspondent

New Delhi, March 25, 2022: While dealing with an appeal filed by a person against his conviction in a matter of rape and murder of a minor, the Punjab and Haryana Haryana High Court while reiterating the strength of a dying declaration in the conviction of an accused, has held that the mere failure in detecting semen in an FSL Report would not have the effect of belying the statement made by the minor-deceased. 

About the statement of the deceased, the Court opined, “Her statement is reliable and gives a cogent explanation of the occurrence. The same has been recorded in accordance with the law. Author thereof has been examined, who has fully proved the contents. Medical opinion with respect to the condition of the deceased before and while making her statement is on record and the same has been proved in accordance with the law.”

Further, the Division Bench of Justices Ajay Tewari and Pankaj Jain also reiterated that it is settled law that if the Court is satisfied that the dying declaration is true and voluntary, the same can well be made the basis of conviction and needs no corroboration as held by the Supreme Court in State of Uttar Pradesh vs. Ram Sagar Yadav and Others, (1985) 1 SCC 552.

The appellant before the High Court was convicted and sentenced for the offences punishable under Sections 302, 452 of the Indian Penal Code and Section 4 of the POCSO Act by the trial Court vide its impugned judgment.

As per the prosecution, ‘A’, a minor, was brought to Government Hospital, Panipat. with a history of burn due to stove burst. She was admitted at PGIMS Rohtak on the same date. On the fifth day, she was found to be fit to make a statement and consequently, her statement was recorded wherein she stated that the appellant, her neighbour, committed rape upon her on finding her alone in her home. Further, in order to eliminate the risk of being caught, the appellant set her ablaze with kerosene. When her family members approached the spot, she narrated the entire incident to her father. 

After nine days of being admitted to the hospital, the victim succumbed to her burn injuries. The cause of the death was recorded as, “Antemortem Burns and its complications”. Eventually, the appellant was found guilty by the Trial Court in the above-stated FIR. 

The case of the appellant’s counsel was that the father of the deceased and her uncles did not support the prosecution version and the statement of the deceased was made sole basis of conviction. He, thus, contended that statement of the deceased could not be made the sole basis of awarding life imprisonment to the appellant. He, further, relied upon the FSL Report to submit that the only inference that could be drawn from the FSL Report was that the deceased was in fact not raped prior to her death. 

Relying upon the first MLR drawn up at Govt. Hospital, Panipat, the Counsel submitted that it was a case of burn due to stove burst and not as reported in the FIR. He claimed that it was a case of false implication of the accused and, thus, he prayed for the appellant’s acquittal. 

On the contrary, the State counsel argued that the statement of deceased ‘A’ recorded under Section 164 Cr.P.C. after her death, assumed the status of dying declaration. He also submitted that the statement was proved on record and, thus, the fact that the father and the uncles of the deceased retracted from the prosecution version, did not have any bearing on the present case. 

After considering the rival submissions, the Court opined that the statement of the deceased was recorded by the JMIC, Panipat after she was opined to be fit to make the statement by Dr Jitender Singh Chauhan. The Court also opined that the statement of the deceased and the fitness of her mental state while recording such statements were duly proved by the Judicial Magistrate and the Doctor respectively. Thus, the Court was in agreement with the State counsel on the argument that the statement so recorded became a dying declaration under Section 32 of the Indian Evidence Act after the deceased succumbed to her injuries.  

Next, the Court addressed the question of whether the statements of the father and uncles of the deceased would have any bearing on the present case. On this, the Court opined that neither the father nor any of the uncles of the deceased were present on the spot, thus, the fact of them having resiled from their statements could not have any effect on the statement of the deceased which had been proved on record, held the Court. 

Also, the Court asserted that there can be no dispute that the dying declaration itself can be the sole basis for conviction if found to be reliable, voluntary and truthful. 

Regarding the FSL Report, the Court held that the report did not in any manner advance the case of the appellant merely because as per the FSL Report semen was not detected, it cannot have an effect of belying the statement made by the deceased. 

Thus, the Court found nothing on record which could dent the statement made by the deceased ‘A’ and thus dismissed the appeal was dismissed.