Supreme Court of India
TARUN SHARMAversusSTATE OF HARYANA
- Citation
- 2025 INSC 1139
- Decided
- 1 September 2025
- Disposal
- Appeal(s) allowed
- Bench
- VIKRAM NATH
Holding
A dying declaration that is not proved to be made by a fit, conscious declarant and is unsupported by corroborative evidence cannot form the foundation of a conviction, and procedural violations of fair‑trial rights further invalidate the judgment.
Summary
The case concerned the conviction of Tarun Sharma under Section 302 IPC for the murder of Munish Kumar, based primarily on a dying declaration recorded by a police Sub‑Inspector. The Supreme Court examined whether the dying declaration was reliable, given that the victim had been unconscious for most of the period, the fitness certificate was unverified, the recording officer did not note his satisfaction, and no medical records or scientific link to the recovered knife were produced. It also considered the procedural fairness of the High Court’s hearing, which appointed an amicus curiae on the same day without giving sufficient time for preparation, violating the right to a fair trial under Article 21. Applying principles on the admissibility of dying declarations and hostile witnesses, the Court found material infirmities that rendered the primary evidence unreliable. Consequently, the conviction was set aside and the appellant was acquitted, with the appeal allowed.
Issues considered
- Whether a dying declaration can be the sole basis for conviction when the deceased was unconscious and the fitness of the declarant is not established.
- Whether the prosecution failed to satisfy evidentiary requirements regarding the fitness certificate and medical corroboration under the Evidence Act.
- Whether the recovered knife without scientific corroboration can be relied upon as substantive evidence.
- Whether the High Court’s procedure of appointing an amicus curiae and hearing the appeal on the same day without adequate preparation violated the right to a fair trial under Article 21.
- Whether testimony of hostile witnesses can be partially relied upon in a criminal trial.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023s. 348
- Bharatiya Sakshya Adhiniyam, 2023s. 165, s. 168
- Code of Criminal Procedure, 1973s. 311, s. 374(2)
- Constitution of Indias. Article 21
- Evidence Act, 1872s. 165, s. 168
- Indian Penal Code, 1860s. 302, s. 323, s. 324, s. 34, s. 506
Headnote
Issue for Consideration Conviction of the appellant u/s.302, IPC based on the statement/ dying declaration (Exh. P-34) of the deceased, if ought to be set aside. Headnotes† Evidence – Dying declaration – When cannot be relied upon – Penal Code, 1860 – s.302 – of injured victim’s statement (Exh.P 34) – Victim died, s.302 was added to the case – Appellant along with co-accused persons was arrested – Trial court acquitted the co-accused persons however, the appellant was convicted u/s.302 – Conviction affirmed by High
Subjects
Dying declarationSerious lapses surrounding the recording of the statement/dying declarationDeceased remained unconsciousNot in a condition to speakFitness certificateFitness certificate doubted/doubtfulDoctor who issued fitness certificate not examinedDisclosure statementRecoveryInconsequential recovery of the knifeNo scientific corroborationApproach adopted by the High Court in dealing with the criminal appealGrant of adequate time and opportunity to counselPrinciples of fair trialRight to fair trialEffective hearingEffective representationAmicus curiaeNot affording sufficient time for preparation or consultationPunishment of life imprisonment or capital sentenceRecovery inconsequentialEye-witnesses turned hostileTestimony of hostile witnessesEvidentiary value of recovery
Judgment
[2025] 9 S.C.R. 1273 : 2025 INSC 1139
Tarun Sharma
v.
State of Haryana
(Criminal Appeal No. 3810 of 2025)
01 September 2025
[Vikram Nath and Sandeep Mehta,* JJ.]
Issue for Consideration
Conviction of the appellant u/s.302, IPC based on the statement/
dying declaration (Exh. P-34) of the deceased, if ought to be set
aside.
Headnotes†
Evidence – Dying declaration – When cannot be relied upon –
Penal Code, 1860 – s.302 – FIR u/ss.323, 324, 506 r/w 34, IPC
was registered on the basis of injured victim’s statement
(Exh.P 34) – Victim died, s.302 was added to the case –
Appellant along with co-accused persons was arrested – Trial
court acquitted the co-accused persons however, the appellant
was convicted u/s.302 – Conviction affirmed by High Court –
Interference with:
Held: 1.1 Prosecution could neither prove the faithful recording
of the statement/dying declaration nor they could prove it to be
an unimpeachable document – Such a doubtful piece of evidence
cannot be made the foundation of conviction of the appellant.
[Para 64]
1.2 There are material infirmities in the case of prosecution – It
was categorically stated by PW-1 (brother of the deceased) and
corroborated by the Doctors (PW-9 and PW-10) who treated the
deceased, that the deceased remained unconscious almost fully
from the time of the assault on until his death, and was never
in a condition to speak – Hence the fitness certificate becomes
doubtful. [Paras 63]
1.3 Prosecution failed to identify or examine the doctor who had
issued the fitness certificate, which creates grave doubt about the
* Author
1274 [2025] 9 S.C.R.
Supreme Court Reports
authenticity of the fitness certificate – Furthermore, non-examination
of the said doctor, deprived the defence an opportunity to discredit
the fitness certificate. [Paras 63]
1.4 No contemporaneous medical record relating to the treatment
of the deceased at the hospital was produced nor proved during
trial, leaving the Court without corroborative material to assess the
fitness of the injured to make a statement. [Para 63]
1.5 The statement/dying declaration itself suffers from serious
infirmities as it bears no time of recording, and the recording officer,
SI (PW-17), failed to record his own satisfaction that the injured
was fit to make such statement. [Para 63]
1.6 Even the prosecution and trial Court did not fully accept the
version set out in the statement/dying declaration, inasmuch as
one of the named assailants, was not charge sheeted, and another,
(accused No. 3), was acquitted by the trial Court. [Para 63]
1.7 PW-1, who was present with the deceased at the time of the
incident, categorically deposed that the accused present in Court
had not caused any injuries to the deceased and further stated
that the assailants could not be identified due to darkness, thereby
significantly contradicting the version set out in the statement/dying
declaration. [Para 63]
1.8 Prosecution miserably failed to establish the complicity of the
appellant for the commission of the crime – There are serious
lapses surrounding the recording of the statement/dying declaration
coupled with the material contradictions between its contents and
the ocular testimony as well as the inconsequential recovery of
the knife (purportedly used for causing injuries to the deceased)
which is discredited for want of scientific corroboration – Impugned
judgments set aside – Appellant acquitted. [Para 66]
Judicial Deprecation – Adjudication of criminal appeal –
Constitution of India – Art.21 – Right to fair trial – In the
present case, High Court proceeded to take up the main
appeal itself for hearing on merits when the matter was listed
only for consideration of an application regarding renewal
of the registration certificate of the Alto car seized during
investigation – Since the counsel engaged by the appellant-
accused was not available, the Court appointed an amicus
[2025] 9 S.C.R. 1275
Tarun Sharma v. State of Haryana.
curiae and, without granting a reasonable opportunity to
prepare the matter, it heard the appeal on merits and reserved
judgment on the very same day:
Held: Approach adopted by the High Court is short of standards
of fairness and is particularly more disturbing and unjustified as
the accused was sentenced to life imprisonment – Deprecated –
The hearing in a criminal trial or appeal must be an effective
hearing – This necessarily presupposes not only the presence of
counsel but also the grant of adequate time and opportunity for
such counsel, whether engaged by the accused or appointed as
an amicus curiae, to properly prepare and present the case – To
appoint an amicus and proceed to hear the matter on the very
same day, without affording sufficient time for preparation or
consultation, renders the safeguard of effective legal representation
to an empty formality and undermines the very essence of the
right to fair trial enshrined under Art.21 – Word of caution to
Courts – In criminal trials and appeals, especially those involving
punishment of life imprisonment or capital sentence, the concerned
Courts must not treat the appointment of an amicus curiae as an
empty formality – Such counsel must be afforded sufficient time
to peruse the record, meet the accused, and prepare the defence
effectively – The principles of fair trial and effective representation
are not procedural gimmicks but foundational guarantees of
criminal justice system, which cannot be compromised or breached.
[Paras 33, 38, 39]
Evidence – Recovery – Of knife – No scientific corroboration –
Evidentiary value – Conviction of the appellant u/s.302, IPC –
Apart from the statement/dying declaration (Exh. P-34), Trial
Court and the High Court also relied on the recovery of the
knife made in furtherance of the disclosure statement (Exh.
P-24) of the accused-appellant:
Held: The evidentiary value of this recovery is undermined by
the fact that the FSL report (Exh. P-1) did not indicate any blood
group on the said weapon, nor was any serological report produced
to establish that the blood allegedly found on the knife matched
with that of the deceased – In the absence of such scientific
corroboration linking the recovered knife with the deceased, the
recovery remains inconsequential – Otherwise also mere recovery
of a weapon, even if stained by the same blood group as that of
1276 [2025] 9 S.C.R.
Supreme Court Reports
the deceased cannot by itself establish the guilt of an accused,
particularly where the prosecution’s primary evidence, namely
the statement/dying declaration (Exh. P-34) suffers from serious
infirmities. [Para 65]
Evidence of hostile witness – Admissibility/reliability –
Principles governing, discussed. [Paras 45-48]
Case Law Cited
Chaluvegowda v. State (2012) 13 SCC 538; Mohd. Sukur Ali v.
State of Assam [2011] 3 SCR 209 : (2011) 4 SCC 729; Anokhilal v.
State of Madhya Pradesh [2019] 18 SCR 1196 : (2019) 20 SCC
196; C. Muniappan v. State of T.N [2010] 10 SCR 262 : (2010) 9
SCC 567; K.P. Tamilmaran v. State, 2025 SCC OnLine SC 958;
Laxman v. State of Maharashtra [2002] Supp. 1 SCR 697 : (2002)
6 SCC 710; Atbir v. Govt. (NCT of Delhi) [2010] 9 SCR 993 :
(2010) 9 SCC 1; Raja Naykar v. State of Chhattisgarh (2024) 3
SCC 481 – relied on.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Constitution
of India; Bharatiya Sakshya Adhiniyam, 2023; Bharatiya Nagarik
Suraksha Sanhita, 2023.
List of Keywords
Dying declaration; Serious lapses surrounding the recording of the
statement/dying declaration; Deceased remained unconscious;
Not in a condition to speak; Fitness certificate; Fitness certificate
doubted/doubtful; Doctor who issued fitness certificate not
examined; Disclosure statement; Recovery; Inconsequential
recovery of the knife; No scientific corroboration; Approach
adopted by the High Court in dealing with the criminal appeal;
Grant of adequate time and opportunity to counsel; Principles
of fair trial; Right to fair trial; Effective hearing; Effective
representation; Amicus curiae; Not affording sufficient time for
preparation or consultation; Punishment of life imprisonment
or capital sentence; Recovery inconsequential; Eye-witnesses
turned hostile; Testimony of hostile witnesses; Evidentiary value
of recovery.
[2025] 9 S.C.R. 1277
Tarun Sharma v. State of Haryana.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3810 of 2025
From the Judgment and Order dated 24.09.2024 of the High Court
of Punjab & Haryana at Chandigarh in CRAD No. 1161 of 2013
Appearances for Parties
Advs. for the Appellant:
Ajay Tewari, Sr. Adv., Abhimanyu Tewari, Siddhant Saroha, Sidhant
Awasthy, Aniket Kumar Parcha.
Advs. for the Respondent:
Lokesh Sinhal, Sr. A.A.G., Akshay Amritanshu, Nikunj Gupta,
Ms. Ishika Gupta, Ms. Drishti Rawal, Ms. Drishti Saraf, Sarthak
Srivastava, Mayur Goyal, Ms. Aakanksha, Ms. Seema Sindhu,
Ms. Kirti, Sarthak Arya.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1. Heard.
2. Leave granted.
3. This appeal by special leave takes exception to the judgment dated
24th September, 2024 passed by the Division Bench of High Court
of Punjab and Haryana 1 in CRA-D-1161-DB-2013 whereby the
appeal preferred by the appellant under Section 374(2) of the Code
of Criminal Procedure, 19732 was dismissed and the judgment and
order dated 26th August, 2013 passed by the Additional Sessions
Judge, Ambala3 in Sessions Case No. 11-SC of 2012 was affirmed.
4. By the aforesaid judgment, the trial Court convicted the accused-
appellant for the offence punishable under Section 302 of the
1 Hereinafter being referred to as the “High Court”.
2 For short, “CrPC”.
3 Hereinafter being referred to as the “trial Court”.
1278 [2025] 9 S.C.R.
Supreme Court Reports
Indian Penal Code, 18604 and sentenced him to undergo rigorous
imprisonment for life and to pay a fine of Rs.5000/-, in default, to
further undergo simple imprisonment for three months.
Brief Facts: -
5. Succinctly stated, the case of the prosecution is that on 1st April,
2012, an information was received at the police station Mullana at
around 05:30 PM regarding admission of one Munish Kumar into
GMCH Sector 32, Chandigarh in an injured condition. On receipt of
this information, Sub-Inspector, Somnath (PW-17), along with Head
Constable, Dharam Pal (PW-11) proceeded to the said hospital where
they were apprised that injured Munish Kumar had been shifted to
the PGI, Chandigarh for treatment. Accordingly, the police officials
proceeded to the PGI, Chandigarh and filed an application (Exh.
P-32) before the concerned Medical Officer seeking opinion regarding
the fitness of Munish Kumar to give a statement. It is stated that the
Medical Officer recorded his opinion (Exh. P-33) declaring the injured
Munish Kumar to be fit for making a statement. Thereupon, the Sub-
Inspector, Somnath (PW-17), proceeded to record the statement of
the injured Munish Kumar (Exh. P-34) wherein he alleged inter alia
as below: -
“He was a resident of Village Jahangirpur, P.S. Mullana
and was doing a private job. On 31st March, 2012, at
about 10:00 PM, he and his brother Amit were returning to
their village from Ambala by car. When they reached near
Mullana, they were intercepted by a Scorpio car and an
Alto car. Three persons alighted from one of the vehicles,
two of whom were alleged to be Bittoo and Sanjay and
the other person was connected to Krishna Transport who
went by the name of Tarun Sharma. He did not know the
identity of the other man. These persons broke into his
car and launched an attack on him. Tarun Sharma inflicted
a knife blow on the right side of his stomach whereas
Sanjay inflicted a knife blow on his head. Bittoo and the
other bearded person held him down. The assailants beat
him up mercilessly. Amit was kept confined in the car.
4 For short, “IPC”.
[2025] 9 S.C.R. 1279
Tarun Sharma v. State of Haryana.
The assailants took away his mobile and the purse. Amit
called his friends who got Munish admitted at the CHC,
Mullana from where he was shifted to the Government
Hospital, Ambala Cantt and then to General Hospital,
Ambala City. Subsequently, he was referred to GMCH,
Sector-32, Chandigarh and thereafter was referred to PGI
Chandigarh.”
6. The aforesaid statement of the injured Munish Kumar was treated to
be the first information report of the incident and based thereupon,
an FIR No. 58 dated 1st April, 2012 came to be registered at P.S.
Mullana for the offences punishable under Sections 323, 324, 506
read with Section 34 of the IPC.
7. The investigation was undertaken by Sub-Inspector, Somnath (PW-
17). Munish Kumar expired on 14th April, 2012, upon which offence
punishable under Section 302 IPC was added to the case. Inquest
panchnama was drawn and thereafter, postmortem was carried out
on the dead body of the deceased and statements of witnesses
were recorded. The accused Tarun Sharma (accused No.1/appellant
herein), Sandeep Sharma (accused No. 2), Balwinder Singh (accused
No. 3) and Deepak Bhardwaj (accused No. 4) were arrested. It is
alleged that, acting in furtherance of information/disclosure statement
(Exh. P-24) dated 11th April, 2012, the accused-appellant proceeded
to point out the knife purportedly used for causing injuries to Munish
Kumar. The said knife was recovered and seized vide seizure memo
(Exh. P-6).
8. It is relevant to mention that, at a later stage of investigation, the
prosecution tried to claim that Ashok Kumar (PW-2) was also
present in the same vehicle in which the deceased Munish Kumar
was travelling.
9. Upon conclusion of investigation, Sub-Inspector, Randhir Singh
(PW-25), found Sanjay to be innocent and hence he was not charge
sheeted in the case.
10. Chargesheet was filed against Tarun Sharma (accused No. 1/
appellant herein), Sandeep Sharma (accused No. 2), Balwinder
Singh (accused No. 3) and Deepak Bhardwaj (accused No. 4) for
the offences punishable under Sections 323, 324, 302, 506 read
with Section 34 of the IPC.
1280 [2025] 9 S.C.R.
Supreme Court Reports
11. The case was committed and made over to the Court of the Additional
Sessions Judge, Ambala for trial. Charges were framed against the
accused persons for the offence punishable under Section 302 read
with Section 34 IPC who pleaded not guilty and claimed trial.
12. The prosecution examined 25 witnesses (as per table below) and
exhibited certain documents to prove its case.
PW-1 Amit Bakshi (Brother of deceased Munish Kumar)
PW-2 Ashok Kumar
PW-3 Ved Prakash
PW-4 Om Prakash
PW-5 Narinder Singh
PW-6 Head Constable Ram Saran
PW-7 Sub-Inspector Yameen
PW-8 Shashi Sharma
PW-9 Dr. Vijay Vivek
PW-10 Dr. Nand Kumar Jha
PW-11 Head Constable Dharam Pal
PW-12 Head Constable Dharamveer
PW-13 Additional Sub-Inspector Baldev Singh
PW-14 Additional Sub-Inspector Girdhari Lal
PW-15 Head Constable Bahadur Singh
PW-16 Head Constable Amit Kumar
PW-17 Sub-Inspector Somnath [Recording officer of Dying
Declaration (Exh. P34)]
PW-18 Dr. Amandeep Singh
PW-19 Constable Gurmeet Singh
PW-20 Sub-Inspector Balwant Singh
PW-21 Kuldeep Singh
PW-22 Additional Sub-Inspector Rajinder Singh
PW-23 Head Constable Dhoom Singh
PW-24 Sub-Inspector Rishi Kumar
PW-25 Inspector Randhir Singh
[2025] 9 S.C.R. 1281
Tarun Sharma v. State of Haryana.
13. The accused were questioned under Section 313 CrPC and upon
being confronted with the circumstances appearing against them in
the prosecution evidence, they denied the same and claimed to be
innocent. However, no evidence was led in defence.
14. It may be stated here that the star prosecution witnesses Amit Bakshi
(PW-1), brother of the deceased Munish Kumar, and Ashok Kumar
(PW-2), did not support the prosecution case and were declared
hostile.
15. Likewise, Ved Prakash (PW-3), Om Parkash (PW-4) and Narinder
Singh (PW-5) who were also projected as eye-witnesses did not
support the prosecution case.
16. Dr. Vijay Vivek (PW-9) deposed that on 31st March, 2012, he was
serving as a Medical Officer at the Community Health Centre,
Mullana. At about 10:05 PM, injured Munish Kumar was brought
to the emergency ward by his relative with the complaint of having
been assaulted on Devi Mandir Road. On examination, the injured
Munish Kumar was found to be drowsy due to probable alcohol
consumption, and smell of alcohol was also present in his breath.
The condition of the patient was serious, and he was complaining
of darkness before his eyes. His blood pressure was found to be
low. The doctor noticed two clean lacerated wounds, one measuring
4 cm on the right lateral side of the chest, and the other measuring
3 cm on the lower lip, placed obliquely on the left lateral side.
Considering the serious condition of the patient, he was referred
to the General Hospital, Ambala City for expert opinion and further
management.
17. Dr. Nand Kumar Jha (PW-10) deposed that on 1st April, 2012 at about
01:15 AM, injured Munish Kumar was brought to the emergency
ward by his father, Sardari Lal, and was admitted in the casualty
ward of the Trauma Centre at the General Hospital, Ambala City.
He examined Munish Kumar and found a stab wound 4 cm x 2
cm, obliquely placed on posterior axillary line on the lower lateral
side of right chest, with oozing of blood. Two more injuries were
observed: one on the lower jaw, and another on the posterior part
of the parietal region, both with oozing of blood. Munish Kumar was
referred to GMCH, Sector-32, Chandigarh for ultrasonography and
further management.
1282 [2025] 9 S.C.R.
Supreme Court Reports
18. Head Constable Dharam Pal (PW-11) deposed about the disclosure
statement made by the accused-appellant (Exh. P-24) leading
to the recovery of a knife seized vide seizure memo (Exh. P-6).
Likewise, the witness (PW-11) also stated about the recovery of
a Danda and other weapons at the instance of Sandeep Sharma
(accused No.2).
19. ASI Baldev Singh (PW-13) deposed about the disclosure statements
made by the accused-appellant and the recoveries made in pursuance
thereof.
20. We may note at this stage that though the Investigating Officer
claims to have effected recoveries of weapons at the instance of
the accused, the fact remains that the prosecution did not place on
record or prove any serological report for connecting the recovered
weapons with the deceased based on blood group matching.
21. Since the eye-witnesses Amit Bakshi (PW-1) and Ashok Kumar (PW-
2) turned hostile, the substratum of the prosecution case hinges on
the statement/dying declaration (Exh. P-34) of deceased Munish
Kumar purportedly recorded by Sub-Inspector, Somnath (PW-17).
22. In this backdrop, the evidence of Sub-Inspector, Somnath (PW-17),
is considered most relevant for disposal of the appeal and hence,
the relevant portion of the same are extracted hereinbelow: -
“That on 31.3.2012, I was posted as SI Police Station
Mullana. On that day, I received rukka from PGI Sector- 32,
Chandigarh regarding admission of injured Munish Kumar.
On this information I along with HC Dharampal reached in
PGI, Chandigarh. I moved an application Ex P32 seeking
opinion of the doctor as to whether the injured was
fit to make statement or not and who vide his opinion
Ex P33 declared injured fit to make statement. Amit
Kumar brother of injured Munish Kumar was also present
near Munish Kumar. In his presence Injured Munish
Kumar volunteerly got recorded his statement which is Ex
P34 (Objected to). He signed this statement at point A.
Thereafter, I made endorsement under neath his statement
which is Ex P35 (objected to) and send the rukka through
HC Dharampal to the police station for registration of the
case. On the basis of which formal FIR E P36 was recorded
[2025] 9 S.C.R. 1283
Tarun Sharma v. State of Haryana.
by ASI Rishi Kumar. I identify his signature as I have seen
him writing and signing during my official duties. He also
made his endorsement Ex 237 on the rukka.
On 11.4.2012, I arrested accused Tarun Kumar present in
the court today. On my interrogation accused Tarun Kumar
suffered a disclosure statement Ex P24 to the effect that
the knife with which he had caused injuries to Munish
Kumar, had been kept concealed by him in the drawer
of the table lying in his shop and he could get the same
recovered after demarcation. This disclosure statement
was signed by accused as well as by HC Dharam Pal.
Accused Tarun Sharma led the police party to his shop
and after demarcation got recovered one knife (Chhuri)
the sketch of the same Ex P7 was prepared and it was
converted into a parcel and sealed with the seal of SN
and it was taken into possession vide memo Ex P6. The
sketch and recovered memo was attested by accused,
Ved Parkash and HC Dharampal.”
(Emphasis supplied)
23. In cross-examination the witness (PW-17) stated as below: -
“I had received Telephonic Message from police post of
GMCH, Sector-32, Chandigarh on 31.3.2012 at about 1.30
PM. Prior to it no information was received from either
CHC Mullana or Civil Hospital, Ambala. I had received
these rukkas from the doctors of CHC Mullana and Civil
Hospital Ambala again said only from CHC Mullana. I had
never visited Civil Hospital, Ambala I did not receive or
collect any medical report of deceased from Civil Hospital
Ambala city. Information which was received in the night
from GMCH, Chandigarh was recorded in DDR of Police
Station, Mullana. I cannot produce DD entry which was
recorded in this regarded I have seen court file the same
is not available there also. It was not made Spart of charge
sheet of the case.
It has come to my notice that Injured was referred to Civil
Hospital, Ambala by the medical officer of CHC Muliana.
1284 [2025] 9 S.C.R.
Supreme Court Reports
I cannot tell at what time, by whom deceased was
referred GMCH, Sector 32, Chandigarh and what time
he reached there. I had received the police information
with regard to this case from CH Ambala City during the
course of investigation on 1.4.2012 I had received this
rukka 10.00/11.00 am from Police Post Civil Hospital
Ambala City. I am not sure if I collected this rukka
from Police Post Sector -7, Ambala City. Despite the
information from GMCH, Sector-32 Chandigarh at 11.30
AM on 31.3.2012 I did not proceed to that Hospital.
None from the family of the deceased or any of his
friend or relative met me till the time I proceeded to
Chandigarh on 1.4.2012. From the information which was
received by me on 31:3.2012 at 11.30 PM. I came to know
the name of injured, place of resident and also name of
the person who had taken into hospital. Despite this fact
I did not visit to the house of injured which is situated in
village Jhahangirpur. Village Jhahangirpur falls within the
jurisdiction of police Station Mullana.
I remained associated the investigation of this case for a
period about one month. I have seen Ex.P4 which is the
statement of Shri Ashok Bakshi. Statement of Ashok Bakshi
was recorded on 22.6.2012. Ashok Bakshi was never
brought or appear before me to make statement. This
fact was not brought before me and Ashok Bakshi was
in the car of Munish Baxshi. I cannot say Sh. Ashok
Bakshi had stated in statement u/s 161 Cr.P.C. that
he was with Munish Bakshi in his car on 31.3.2012
and he had not stated that Amit Bakshi was with him/
them. I have seen hand written statement of Ashok Bakshi
in the police file which is original statement and Ex P4
is the computerized copy of the same. Name of any of
other accused except the name mentioned in the FIR was
given to me by Amit Bakshi or Ashok Bakshi or any of the
family members of Munish Bakshi. The involvement of
Deepak or Balwinder Singh was not disclosed to me
by any of the witness.”
(Emphasis Supplied)
[2025] 9 S.C.R. 1285
Tarun Sharma v. State of Haryana.
24. As is discernible from the above statement, the witness (PW-17) was
responsible for moving the application (Exh. P-32) seeking opinion of
the Medical Jurist regarding the fitness of the injured Munish Kumar
to make a statement. Important it is to note that neither the witness
(PW-17) disclosed the name of the doctor who issued the fitness
certificate (Exh. P-33) nor did he himself record his own satisfaction
regarding the fitness of the injured Munish Kumar before recording
the statement/dying declaration (Exh. P-34).
25. Dr. Amandeep Singh (PW-18), along with Dr. Kulbir Singh Bal and
Dr. Sanjay, conducted post-mortem examination on the body of
deceased Munish Kumar on 15th April, 2012 and issued the post
mortem report (Exh. P-43). On external examination, a tracheotomy
wound was found on the front of the neck. There were also surgical
wounds corresponding to laparotomy, drainage, and chest tube
insertion. The doctors noted a stitched wound admeasuring 5 cm in
length with 5 stitches, located on the right side of the chest, about
28 cm below the axilla and 29 cm to the right of the midline, placed
obliquely. On dissection, the track of the wound was found to extend
medially, cutting through the underlying subcutaneous tissues and
muscles, passing through the intercostal space between the 8th
and 9th ribs, piercing the pleura, cutting through the diaphragm,
and ultimately injuring the right lobe of the liver on its superolateral
aspect. The doctors opined the cause of death to be result of
stab injury to the liver and its consequences (haemorrhagic and
septicaemic shock).
26. The other witnesses examined by the prosecution were more or
less formal and their testimony does not have any bearing on the
outcome of the case and thus, we need not refer to their evidence.
27. The trial Court held that the statement/dying declaration of the injured
Munish Kumar (Exh. P-34) was recorded after due compliance of
the procedural protocol. The concerned Medical Officer recorded his
satisfaction (Exh. P-33) to the effect that injured Munish Kumar was
in a fit condition to make the statement/dying declaration (Exh. P-34).
28. The trial Court found no plausible evidence against Sandeep
Sharma (accused No.2), Balwinder @ Bittoo (accused No.3) and
Deepak Bhardwaj (accused No. 4), thereby acquitting them of the
charges, however, the appellant herein was held guilty for the offence
punishable under Section 302 of the IPC vide judgment dated 26th
1286 [2025] 9 S.C.R.
Supreme Court Reports
August, 2013, and was sentenced to imprisonment for life vide order
of sentencing of the even date.
29. The accused-appellant preferred an appeal before the High Court.
The matter was listed on 18th September, 2024, for passing an order
on an application seeking release of the registration certificate of
the seized Maruti Alto car for the purpose of renewal. However, the
High Court insisted for hearing the appeal on that very date. Since
the engaged counsel was unavailable, the Division Bench proceeded
to appoint an amicus curiae to represent the accused-appellant in
the criminal appeal and concluded the hearing and reserved the
judgment on 18th September, 2024 itself.
30. The appointed amicus was neither furnished with the case records
from the lower Court nor afforded reasonable time to prepare the
matter or consult with the accused-appellant. The appeal was finally
dismissed by the impugned judgment dated 24th September, 2024,
which is the subject matter of challenge in the present appeal.
Findings and Conclusion: -
31. We have heard and considered the submissions advanced by learned
senior counsel Shri Ajay Tewari representing the accused-appellant
and Shri Lokesh Sinhal, Sr. AAG appearing for the State of Haryana
and have gone through the impugned judgments and the materials
placed on record.
32. Before dealing with the merits of this case, we are compelled to
address a matter of serious concern regarding the approach adopted
by the High Court in dealing with the criminal appeal.
33. On 18th September, 2024, when the matter was listed only for
consideration of an application regarding renewal of the registration
certificate of the Alto car seized during investigation, the High Court
on the very same day proceeded to take up the main appeal itself
for hearing on merits. Since the counsel engaged by the accused-
appellant was not available, the Division Bench appointed an amicus
curiae and, without granting a reasonable opportunity to prepare
the matter, it proceeded to hear the appeal on merits and reserved
judgment on the very same day. This approach of the High Court is
particularly more disturbing and unjustified in the present case where
the accused had been sentenced to life imprisonment.
[2025] 9 S.C.R. 1287
Tarun Sharma v. State of Haryana.
34. At the very outset, we must hold that the course adopted by the
High Court fell short of the standards of fairness expected in the
adjudication of a criminal appeal. In the circumstances noted above,
the High Court ought to have acted pragmatically and adjourned
the matter to another date so as to secure the presence of the
accused-appellant’s counsel, or, at the very least, it should have
afforded the newly appointed amicus a reasonable opportunity to
inspect the record, study the relevant documents, and consult with
the accused-appellant so as to prepare the case effectively.
35. In Chaluvegowda v. State5, a similar situation arose wherein the
amicus appointed by the High Court on an earlier date was not
available on date fixed for hearing, Therefore, the Court appointed a
new amicus and on the very same day heard the appeal and reserved
the judgment. This Court set aside the judgment and remitted the
matter back to the High Court for fresh hearing with the following
observations:
“19. The right to be represented by a lawyer must not
be an empty formality. It must not be a sham or an
eyewash. The appointment of an amicus curiae for the
defence of an accused person must be in true letter
and spirit, with due regard to the effective opportunity
of hearing that is to be afforded to every accused
person before being condemned. The due process of
law incorporated in our constitutional system demands that
a person not only be given an opportunity of being heard
before being condemned, but also that such opportunity
be fair, just and reasonable.
25. In our considered view, the appellant-accused
were not given an effective opportunity to defend
themselves in a case as the one involved here, carrying
the possibility of a substantial prison sentence.
Therefore, we say, the procedure adopted by the High
Court is not only contrary to the Rules as quoted
above, and also contrary to the fair trial which is the
first imperative of dispensation of justice. Therefore,
it is difficult for us to sustain the impugned judgment and
5 (2012) 13 SCC 538.
1288 [2025] 9 S.C.R.
Supreme Court Reports
order [State v. Chaluvegowda, Criminal Appeal No. 777
of 1996, order dated 17-10-2001 (KAR)] passed by the
High Court.”
(Emphasis Supplied)
36. In Mohd. Sukur Ali v. State of Assam6, the counsel engaged by
the accused was not present on the date of hearing of the appeal,
wherein this Court observed the following:
“17. We reiterate that in the absence of a counsel, for
whatever reasons, the case should not be decided
forthwith against the accused but in such a situation
the Court should appoint a counsel who is practising
on the criminal side as amicus curiae and decide the
case after fixing another date and hearing him. If on
the next date of hearing the counsel, who ought to have
appeared on the previous date but did not appear, now
appears, but cannot show sufficient cause for his non-
appearance on the earlier date, then he will be precluded
from appearing and arguing the case on behalf of the
accused. But, in such a situation, it is open to the accused
to either engage another counsel or the Court may proceed
with the hearing of the case by the counsel appointed as
amicus curiae.”
(Emphasis Supplied)
37. A 3-Judge Bench of this Court in Anokhilal v. State of Madhya
Pradesh7 laid down the following guidelines regarding appointment
and assistance of amicus curiae in criminal matters:
“31. Before we part, we must lay down certain norms so
that the infirmities that we have noticed in the present
matter are not repeated:
31.1. In all cases where there is a possibility of life
sentence or death sentence, learned advocates who
have put in minimum of 10 years’ practice at the Bar
6 (2011) 4 SCC 729.
7 (2019) 20 SCC 196.
[2025] 9 S.C.R. 1289
Tarun Sharma v. State of Haryana.
alone be considered to be appointed as Amicus Curiae
or through legal services to represent an accused.
31.2. In all matters dealt with by the High Court concerning
confirmation of death sentence, Senior Advocates of the
Court must first be considered to be appointed as Amicus
Curiae.
31.3. Whenever any learned counsel is appointed
as Amicus Curiae, some reasonable time may be
provided to enable the counsel to prepare the matter.
There cannot be any hard-and-fast rule in that behalf.
However, a minimum of seven days’ time may normally
be considered to be appropriate and adequate.
31.4. Any learned counsel, who is appointed as Amicus
Curiae on behalf of the accused must normally be
granted to have meetings and discussion with the
accused concerned. Such interactions may prove to be
helpful as was noticed in Imtiyaz Ramzan Khan [Imtiyaz
Ramzan Khan v. State of Maharashtra, (2018) 9 SCC
160 : (2018) 3 SCC (Cri) 721]”
(Emphasis Supplied)
38. Thus, what emerges from the precedents cited above is that the
hearing in a criminal trial or appeal must be an effective hearing.
This necessarily presupposes not only the presence of counsel but
also the grant of adequate time and opportunity for such counsel,
whether engaged by the accused or appointed as an amicus curiae,
to properly prepare and present the case. To appoint an amicus and
proceed to hear the matter on the very same day, without affording
sufficient time for preparation or consultation, renders the safeguard
of effective legal representation to an empty formality and undermines
the very essence of the right to fair trial enshrined under Article 21
of Constitution of India.
39. We thus sound a word of caution that in criminal trials and appeals,
especially those involving punishment of life imprisonment or capital
sentence, the concerned Courts must not treat the appointment
of an amicus curiae as an empty formality. Such counsel must be
afforded sufficient time to peruse the record, meet the accused,
and prepare the defence effectively. The principles of fair trial
1290 [2025] 9 S.C.R.
Supreme Court Reports
and effective representation are not procedural gimmicks but
foundational guarantees of our criminal justice system, which cannot
be compromised or breached.
40. Looking to the long period of incarceration suffered by the accused-
appellant, rather than remitting the matter for fresh consideration,
we find it expedient, in the interest of justice, to address the case
on its merits.
41. Suffice it to say that the entire case of the prosecution rests purely on
the statement/dying declaration (Exh. P-34) of the deceased Munish
Kumar recorded by Sub-Inspector, Somnath (PW-17).
42. It is noteworthy that Amit Bakshi (PW-1), brother of the deceased
Munish Kumar who, as per the statement/dying declaration (Exh.
P-34) was also present in the same car as the deceased Munish
Kumar at the time of incident, did not support the prosecution case
and was declared hostile by the prosecution. Testimony of Amit
Bakshi (PW-1) in his examination-in-chief is important, and relevant
part is reproduced hereinbelow: -
“Munish Bakshi (Since deceased) was my real brother.
He sustained injuries on 31.3.2012 at about 10:00 p.m.
when myself and he were coming in the car. Munish
fell unconscious. We could not identify the unknown
persons who caused injuries to Munish in scuffle due
to darkness. I also cannot tell in which vehicle they,
had come and in which direction, those assailants
had fled. I have seen the accused present in the court
today, they had not caused any injuries to Munish. On
31.3.2012 at about 10:00 p.m I removed my brother
Munish in an unconscious condition to CHC Mullana
and then to Govt. Hospital Ambala and from there Munish
was taken into G.M.C.H. Sector 32, Chandigarh and from
there he was shifted to PGI Chandigarh. Munish remained
unconscious till his death. except for a short time
but he was not in a position to speak though he was
conscious. I disclosed to the doctors of Govt. Hospital
Ambala and that of GMCH Sector 32, Chandigarh and
as well as to the Deters of PGI Chandigarh that some
unknown assailants had caused injuries to Munish.”
(Emphasis Supplied)
[2025] 9 S.C.R. 1291
Tarun Sharma v. State of Haryana.
43. From the deposition of (PW-1), it is clearly discernible that due to
darkness, neither the witness (PW-1) nor injured Munish Kumar
could identify the assailants in the scuffle, nor could the witness
(PW-1) specify the details of the vehicles in which they had come
or the direction in which they fled. The witness (PW-1) categorically
stated that the accused present in Court had not caused any injuries
to Munish Kumar at the relevant time. He further stated that Munish
Kumar fell unconscious immediately after sustaining injuries and,
though he regained consciousness for a short period, but was never
in a position to speak.
44. It is relevant to mention here that although the Public Prosecutor
declared Amit Bakshi (PW-1) hostile and cross-examined him, there
was no attempt to dislodge his stand on the important aspect that
the incident took place in pitch darkness. Furthermore, not a single
question was put to the witness (PW-1) regarding the categorical
assertion that his brother, Munish Kumar, remained unconscious
almost for the entire period and was not in a position to speak from
the time of receiving the injuries on 31st March, 2012 till he took his
last breath on 14th April, 2012.
45. In C. Muniappan v. State of T.N.8, this Court while summing up
the earlier decisions, laid down the following principles governing
the admissibility or reliability of the testimony of hostile witnesses: -
“81. It is settled legal proposition that:
“6. … the evidence of a prosecution witness cannot
be rejected in toto merely because the prosecution
chose to treat him as hostile and cross-examined
him. The evidence of such witnesses cannot
be treated as effaced or washed off the record
altogether but the same can be accepted to the
extent their version is found to be dependable
on a careful scrutiny thereof.
82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10
SCC 360 : 1996 SCC (Cri) 1278] this Court held that
(at SCC p. 363, para 7) evidence of a hostile witness
would not be totally rejected if spoken in favour of
8 (2010) 9 SCC 567.
1292 [2025] 9 S.C.R.
Supreme Court Reports
the prosecution or the accused but required to be
subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the
prosecution or defence can be relied upon. A similar
view has been reiterated by this Court in Balu Sonba
Shinde v. State of Maharashtra [(2002) 7 SCC 543: 2003
SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006)
13 SCC 516.
83. Thus, the law can be summarised to the effect that the
evidence of a hostile witness cannot be discarded as a
whole, and relevant parts thereof which are admissible
in law, can be used by the prosecution or the defence.”
(Emphasis Supplied)
46. Recently, this Court in K.P. Tamilmaran v. State9, once again clarified
the position of law regarding the evidentiary value of a hostile witness,
setting out the governing principles as under: -
“26. As a general rule, the testimony of a witness who
has been cross-examined by the party which produced
him/her will not stand totally discredited, and it is for
the Court to consider what value should be attached
to this testimony. After referring to a series of judgments
on this point, the Court in Sat Paul held as follows:
“52. From the above conspectus, it emerges
clear that even in a criminal prosecution
when a witness is cross-examined and
contradicted with the leave of the court, by
the party calling him, his evidence cannot,
as a matter of law, be treated as washed
off the record altogether. It is for the Judge
of fact to consider in each case whether
as a result of such cross-examination and
contradiction, the witness stands thoroughly
discredited or can still be believed in regard
to a part of his testimony. If the Judge finds
9 2025 SCC OnLine SC 958.
[2025] 9 S.C.R. 1293
Tarun Sharma v. State of Haryana.
that in the process, the credit of the witness
has not been completely shaken, he may,
after reading and considering the evidence
of the witness, as a whole, with due caution
and care, accept, in the light of the other
evidence on the record, that part of his
testimony which he finds to be creditworthy
and act upon it. If in a given case, the whole of
the testimony of the witness is impugned, and
in the process, the witness stands squarely and
totally discredited, the Judge should, as matter
of prudence, discard his evidence in toto.
……………………………………………..
(Emphasis Provided)
27. An examination of the cases referred above shows
that there can be no doubt about the fact that the
evidence of a witness, who has been cross-examined
by the side which produced him/her, cannot be totally
discarded [Also see : Neeraj Dutta v. State (NCT of Delhi),
(2023) 4 SCC 731].”
..………
33. The statements made by a witness in Court, including
in cross-examination, either conducted by the opposite
party or by the party who produced the witness, would
come under the definition of ‘evidence’ under Section 3 of
the Evidence Act, since this evidence has come before the
Court with its permission. Moreover, there is no specific
bar under the Evidence Act which mandates that such
evidence has to be discarded. Thus, it would form part
of the entire evidence which the Court can examine
while arriving at its decision, and it is for the Court
to determine what value has to be given to that piece
of evidence or how such evidence has to be used in
a given case.
34. Viewed from a different perspective, the rejection of
the entire testimony of a prosecution witness, who has
1294 [2025] 9 S.C.R.
Supreme Court Reports
been cross-examined by the prosecution, would not only
harm the case of the prosecution but perhaps also of the
defence in a given case. This is because as the law
stands today, the benefit of the testimony of such
witness can be taken by both the prosecution and the
defence, allowing them to use it to build their case
[See: Paulmeli v. State of T.N., (2014) 13 SCC 90, Ramesh
Harijan v. State of U.P., (2012) 5 SCC 777]. In any case,
ultimately, it will be the cause of justice that will suffer
if the testimony of such witness is totally discarded. It
is, therefore, rightly left to the discretion of the Court
to test the evidentiary value of such a testimony.
………..
36. It is though trite and much overstated but the maxim
“falsus in uno, falsus in omnibus”, is not applicable to our
criminal justice system. It is for the Court to distinguish
the wheat from the chaff while dealing with the
depositions of a hostile witness. Courts can rely upon
that part of the deposition of a hostile witness which
is corroborated by other evidence on record.
If part of the evidence of a hostile witness corroborates
with other reliable evidence, then that part of the
evidence is admissible. Once a prosecution witness
has been declared hostile and then cross-examined by
the prosecution, then it is for the Court to evaluate the
veracity of the testimony. There can be several reasons
for a witness to turn hostile and the court must also look
into these factors while evaluating the evidence given by a
hostile witness. It is an uncomfortable reality in our criminal
Courts for a prosecution witness to turn hostile. But then
the purpose of a Trial Court is to go to the truth of the
matter. Whatever evidence is there before the Court must
be examined, tested, corroborated (whenever necessary),
before a verdict can be finally given.”
(Emphasis Supplied)
47. Applying the aforesaid principles governing the evidence of hostile
witness to the facts of the present case, we find that the testimony
[2025] 9 S.C.R. 1295
Tarun Sharma v. State of Haryana.
of Amit Bakshi (PW-1), though declared hostile, cannot be discarded
altogether. His deposition must be assessed with care to ascertain
which portions, if any, can be separated and relied upon. On a close
reading, what stands out is that Amit Bakshi (PW-1) categorically
deposed that the accused present in court had not caused any
injuries to the deceased Munish Kumar and that, due to darkness,
the assailants could not be identified. This appears to be true
because the incident took place at 10:00 PM in the night. He further
stated that Munish Kumar became unconscious immediately after
sustaining injuries and remained so except for a short period until his
death, and was never in a condition to speak. These portions of his
testimony are consistent, withstand scrutiny, and are corroborated
by the evidence of the Medical Officers, Dr. Vijay Vivek (PW-9) and
Dr. Nand Kumar Jha (PW-10), both of whom confirmed that Munish
Kumar was not in a position to speak.
48. Consequently, the testimony of Amit Bakshi (PW-1) cannot be brushed
aside merely because he did not support the prosecution case in
entirety. On the contrary, the acceptable portions of his deposition
directly contradict the prosecution’s theory regarding the statement/
dying declaration (Exh. P-34), and therefore must be given due weight.
49. Additionally, during the course of investigation, the prosecution
deviated from its original version by portraying that Ashok Kumar
(PW-2) was also present in the vehicle driven by Munish Kumar.
However, this claim is belied by the statement/dying declaration
(Exh. P-34), which makes no reference whatsoever regarding the
presence of Ashok Kumar (PW-2) in the vehicle. This discrepancy
further undermines the credibility of the prosecution case.
50. Now coming to the statement/dying declaration (Exh. P-34) on which
the entire case of prosecution hinges. On a perusal of the record, and
on going through the impugned judgments of the High Court and the
trial Court, we find that the prosecution made no effort whatsoever to
disclose the identity of the Doctor/Medical Officer who had appended
the fitness certificate (Exh. P-33) regarding the fit state of the injured
Munish Kumar to give the statement (Exh. P-34). Consequently, the
said Doctor was not examined at the trial.
51. We feel that the trial Court acted with total apathy and in a lackadaisical
manner in ignoring this vital aspect of the case. Section 165 of the
Indian Evidence Act, 1872 (Section 168 of the Bharatiya Sakshya
1296 [2025] 9 S.C.R.
Supreme Court Reports
Adhiniyam, 2023) casts a duty on the Court to remain cognizant
and not to act as a mute spectator in the course of trial. This was
undeniably a fit case wherein, the Presiding Officer of the trial Court
ought to have exercised the powers vested by virtue of Section
311 CrPC (Section 348 of the Bharatiya Nagarik Suraksha Sanhita,
2023) to ascertain the identity of the doctor concerned who had
purportedly issued the fitness certificate (Exh. P-33) and should
have examined him as a court witness since the prosecution was
not desirous to do so. The failure of the trial Court in this regard
represents not only a procedural shortcoming but also an abdication
of the Court’s obligation to play a proactive role in eliciting the truth
and safeguarding the fairness of the trial.
52. Furthermore, it is observed that not even a single document relating
to the treatment of injured Munish Kumar at GMCH Sector-32,
Chandigarh or PGI, Chandigarh was produced on record and proved
by the prosecution. This is a serious omission which compels us to
draw an adverse inference against the prosecution.
53. The Doctors who treated injured Munish Kumar on the night of the
incident i.e. Dr. Vijay Vivek (PW-9) posted at CHC, Mullana and Dr.
Nand Kumar Jha (PW-10) working as a Medical Officer at Trauma
Centre GH, Ambala City, did not utter a word in their testimony that
the injured Munish Kumar was in a condition to speak while he was
admitted in either of the two hospitals.
54. Thus, there is a serious lapse on the part of the prosecution in failing
to lead substantive evidence of the concerned witness for proving
the fitness certificate (Exh. P-33), which was essential to satisfy the
Court regarding the condition of the injured Munish Kumar to make
a statement, as claimed by Sub-Inspector, Somnath (PW-17). The
non-disclosure of the identity of the doctor who allegedly issued
the fitness certificate (Exh. P-33), coupled with the failure to place
on record the medical records (Bed Head Ticket) of the deceased
Munish Kumar while he was alive and undergoing treatment casts a
grave doubt on the entire case of prosecution regarding the alleged
dying declaration (Exh. P-34).
55. A perusal of the statement/dying declaration (Exh. P-34), further
reinforces these doubts. Before recording the said statement/dying
declaration (Exh. P-34) the recording officer, i.e., Sub-Inspector
Somnath (PW-17), neither noted nor recorded his own satisfaction
[2025] 9 S.C.R. 1297
Tarun Sharma v. State of Haryana.
that the injured Munish Kumar was in a fit condition to make a
statement.
56. It has been consistently held by this Court in a catena of decisions
that the satisfaction of the person recording the dying declaration
is indispensable. A Constitution Bench of this Court in Laxman v.
State of Maharashtra10, observed the following:
“3. …………Consequently, what evidential value or weight
has to be attached to such statement necessarily depends
on the facts and circumstances of each particular case.
What is essentially required is that the person who
records a dying declaration must be satisfied that the
deceased was in a fit state of mind. Where it is proved
by the testimony of the Magistrate that the declarant was
fit to make the statement even without examination by
the doctor the declaration can be acted upon provided
the court ultimately holds the same to be voluntary and
truthful. A certification by the doctor is essentially a rule
of caution and therefore the voluntary and truthful nature
of the declaration can be established otherwise.”
(Emphasis Supplied)
57. In the present case, the absence of satisfaction recorded by the
Sub-Inspector, Somnath (PW-17), regarding the fitness of the injured
Munish Kumar to make a statement, casts a serious doubt on the
reliability of the statement/dying declaration (Exh. P-34).
58. Moreover, while narrating the circumstances in which the statement/
dying declaration (Exh. P-34) was recorded, the Sub-Inspector,
Somnath (PW-17), merely exhibited the statement/dying declaration
(Exh. P-34) and stated that injured Munish Kumar had appended
his signatures thereupon. Though he identified the signatures of
Munish Kumar, he failed to identify the signature of the doctor who
purportedly gave the fitness certificate (Exh. P-33). The prosecution
also did not make any attempt to get the signature of Munish Kumar
as appended on the statement/dying declaration (Exh. P-34) verified
through his own brother Amit Bakshi (PW-1).
10 (2002) 6 SCC 710.
1298 [2025] 9 S.C.R.
Supreme Court Reports
59. Furthermore, the statement/dying declaration (Exh. P-34) does not
mention the time at which the same was recorded. This omission is a
serious lapse, as recording of time in a dying declaration is essential
so as to correlate the statement with the medical condition of the
injured at that point. Without it, the Court cannot fairly assess whether
the injured was in a fit state of mind or whether the statement was
recorded contemporaneously or after undue delay. The absence of this
foundational detail, therefore, casts a grave doubt on the authenticity
of the dying declaration and seriously erodes its evidentiary worth.
60. The cumulative effect of these crucial infirmities and loopholes,
namely, the prosecution’s failure to examine or even identify the
certifying doctor, the absence of contemporaneous treatment records
of the injured Munish Kumar, the omission by the recording officer,
Sub-Inspector, Somnath (PW-17) to record his own satisfaction
regarding the fitness of the injured Munish Kumar and his failure
to mention the time at which statement/dying declaration (Exh.
P-34) was recorded, creates a grave doubt on the veracity of the
statement/dying declaration (Exh. P-34). These grave doubts not
only undermine the authenticity of the statement/dying declaration
(Exh. P-34) but also render the same unreliable so as to form the
sole basis for sustaining the prosecution case.
61. Furthermore, the statement/dying declaration (Exh. P-34) mentions
about the role of three more assailants, namely, Bittoo, Sanjay, and
one unknown man, in addition to the accused-appellant. Specific
allegations were attributed against Sanjay in the statement/dying
declaration (Exh. P-34) alleging that he was the one who inflicted
the fatal knife injuries on the head of the deponent Munish Kumar.
However, the Investigating Officer, Randhir Singh (PW-25), found no
evidence to substantiate this allegation and consequently exonerated
the said Sanjay who was the main assailant as per the statement/
dying declaration (Exh. P-34). Bittoo, was charge sheeted by stating
that he was none other than Balwinder (accused No. 3), but the trial
Court itself chose not to rely upon the statement/dying declaration
(Exh. P-34) to the extent of his participation in the case and acquitted
him. Hence, even the trial Court and the High Court have not given
full imprimatur to the version as set out in the statement/dying
declaration (Exh. P-34).
[2025] 9 S.C.R. 1299
Tarun Sharma v. State of Haryana.
62. This Court in Atbir v. Govt. (NCT of Delhi)11, relying upon its earlier
judgments, laid down key principles regarding convictions based
upon dying declaration, which are extracted hereinbelow:
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction
if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of tutoring,
prompting or imagination.
(iii) Where the court is satisfied that the declaration is
true and voluntary, it can base its conviction without any
further corroboration.
(iv) It cannot be laid down as an absolute rule of law
that the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration does not contain
all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the dying
declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is
true and free from any effort to induce the deceased to
make a false statement and if it is coherent and consistent,
11 (2010) 9 SCC 1.
1300 [2025] 9 S.C.R.
Supreme Court Reports
there shall be no legal impediment to make it the basis of
conviction, even if there is no corroboration.”
(Emphasis Supplied)
63. In wake of the discussion made hereinabove and testing the evidence
on the touchstone of the principles laid down by this Court, the
following material infirmities are noticeable in the case of prosecution:
(i) It was categorically stated by Amit Bakshi (PW-1) and
corroborated by the Doctors who treated Munish Kumar i.e.
Dr. Vijay Vivek (PW-9) and Dr. Nand Kumar Jha (PW-10) that
Munish Kumar remained unconscious almost fully from the
time of the assault on 31st March, 2012 until his death on 14th
April, 2012, and was never in a condition to speak. Hence the
fitness certificate (Exh. P-33) stating that Munish Kumar was
fit to give a statement becomes doubtful.
(ii) The prosecution failed to identify or examine the doctor who had
issued the fitness certificate (Exh. P-33) certifying Munish Kumar
fit to make a statement, which creates grave doubt about the
authenticity of the fitness certificate (Exh. P-33). Furthermore,
non-examination of the said doctor, deprived the defence an
opportunity to discredit the fitness certificate (Exh. P-33).
(iii) No contemporaneous medical record relating to the treatment
of Munish Kumar at GMCH Sector-32, Chandigarh or PGI,
Chandigarh was produced nor proved during trial, leaving the
Court without corroborative material to assess the fitness of
the injured Munish Kumar to make a statement.
(iv) The statement/dying declaration (Exh. P-34) itself suffers from
serious infirmities as it bears no time of recording, and the
recording officer, Sub-Inspector, Somnath (PW-17), failed to
record his own satisfaction that the injured Munish Kumar was
fit to make such statement.
(v) Even the prosecution and trial Court did not fully accept the
version set out in the statement/dying declaration (Exh. P-34),
inasmuch as one of the named assailants, Sanjay, was not
charge sheeted, and another, Bittoo (accused No. 3), was
acquitted by the trial Court.
[2025] 9 S.C.R. 1301
Tarun Sharma v. State of Haryana.
(vi) Amit Bakshi (PW-1), who was present with Munish Kumar at
the time of the incident, categorically deposed that the accused
present in Court had not caused any injuries to Munish Kumar
and further stated that the assailants could not be identified due
to darkness, thereby significantly contradicting the version set
out in the statement/dying declaration (Exh. P-34).
64. In light of the infirmities and loopholes noted by us in the case of
the prosecution, we are of the firm opinion that neither could the
prosecution prove the faithful recording of the statement/dying
declaration (Exh. P-34) nor they could prove it to be an unimpeachable
document. Such a doubtful piece of evidence cannot be made the
foundation of conviction of the accused-appellant.
65. Apart from the statement/dying declaration (Exh. P-34), the trial
Court as well as the High Court laid emphasis on the recovery of
the knife made in furtherance of the disclosure statement (Exh.
P-24) of the accused-appellant. However, the evidentiary value of
this recovery is undermined by the fact that the FSL report (Exh.
P-1) did not indicate any blood group on the said weapon, nor was
any serological report produced to establish that the blood allegedly
found on the knife matched with that of the deceased. In the absence
of such scientific corroboration linking the recovered knife with the
deceased Munish Kumar, the recovery remains inconsequential.
Otherwise also mere recovery of a weapon, even if stained by the
same blood group as that of the deceased cannot by itself establish
the guilt of an accused12, particularly where the prosecution’s primary
evidence, namely the statement/dying declaration (Exh. P-34) suffers
from serious infirmities.
66. In view of the serious lapses surrounding the recording of the
statement/dying declaration (Exh. P-34), coupled with the material
contradictions between its contents and the ocular testimony as well
as the inconsequential recovery of the knife which stands discredited
for want of scientific corroboration, the case of the prosecution has
miserably failed to establish the complicity of the accused-appellant
for the commission of the crime.
12 See Raja Naykar v. State of Chhattisgarh, (2024) 3 SCC 481.
1302 [2025] 9 S.C.R.
Supreme Court Reports
67. Resultantly, the impugned judgment of the High Court dated 24th
September, 2024 and the impugned judgment and order of the trial
Court dated 26th August, 2013 do not stand to scrutiny and the same
are hereby set aside. The appellant is acquitted of the charges.
He is in custody and shall be released from prison forthwith, if not
wanted in any other case.
68. The appeal stands allowed accordingly.
69. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Divya Pandey
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