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Synopsis

The Supreme Court has recently freed a man of charges of killing his superior woman colleague in a telecom firm by setting her afire after pouring petrol. Court discarded four dying declarations due to gaps and found no other materials to prove the allegations.

A bench of Justices Abhay S Oka and Sanjay Karol allowed an appeal filed by one Abhishek Sharma, then a customer care executive, against the Delhi High Court as well as the trial court's judgments which convicted him of murder of operation manager 22-year-old Mandeep Kaur around midnight on September 20-21, 2007.

The prosecution claimed that a friendship had been developed between the two and the accused used to drop the deceased at home. However, on the day of the incident, a quarrel took place on the way home between the two, as the victim showed her liking towards their boss instead of the accused and the accused took her to an open space, and set her afire in the midst of arguments.

The court, however, pointed out that apart from alleged dying declarations, there was no evidence on record to point to the guilt of the convict-appellant. 

"It is an established principle that a dying declaration, if it is free of tutoring, prompting, etc can form the sole basis of conviction," the bench said. 

However, having perused the record minutely, the bench said, "We do not find even a scintilla of evidence by which we may uphold the judgments of the courts below."

The court pointed out that for instance, nothing on record indicated the ownership of a vehicle by the convict-appellant; any disagreement or animosity between the convict-appellant and the deceased, that was 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. 

"These factors and the fact that the crime in question occurred at an open public access place cast doubt on the prosecution case," it said.

The bench further said that the convict-appellant was not seen at the spot of the crime, nor had 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. 

Further, the bench said, "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." 

With regard to four dying declarations, the first one was recorded by the police officer who was on PCR duty and took the victim to the LNJP hospital, the second one by the doctor who examined the victim and prepared MLC, the third one by a police Sub Inspector based on which the FIR was lodged and the last by the victim to her mother.

In the first dying declaration, the court noted the statement --naming the accused -- was recorded in third person. Undoubtedly, Section 32 Indian Evidence Act is an exception to the rule of hearsay, however, the same would not be applicable in the present case, the court said.

Regarding the second one by the doctor, the court said that it stated the presence of burn injuries and that the same was caused by Abhishek, which, arguably, was insufficient. There is no particular identification of the convict-appellant, nor is there a mention of the means through which the injuries were inflicted (petrol), the court said.

It also noted that suspicion of interpolation and subsequent insertion of the name of the accused could not be ruled out.

About the third dying declaration, the court said that though it was detailed and was used to lodge the FIR, there were no positive statements by the medical team about the victim's fitness, raising a cloud of doubt around it. "In the absence of a positive statement by the medical team responsible for her treatment, it cannot be stated, with certainty, that the medicines administered had no effect of impairing the mental fitness of the deceased," the bench said. 

The fourth dying declaration recorded before the mother of the victim was itself denied before the court by her. "Assuming that she actually made such a statement, we are of the view that still, such a statement, in no manner can be said inculpatory towards the accused, for it is lacking in particulars with regard to the person mentioned therein, i.e., Abhishek Sharma and having no linkage for the same which could lead to the accused person," the court said. It also found no independent corroboration of it.

Case Title: Abhishek Sharma Vs State (Govt of NCT of Delhi)