Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1133 OF 2001

Kanti Lal ..... Appellant

Versus

State of Rajasthan ..... Respondent

WITH

CRIMINAL APPEAL NO. 1134 OF 2001

Arvind Kumar ..... Appellant

Versus

State of Rajasthan ..... Respondent

J U D G M E N T

Lokeshwar Singh Panta , J.

1]Both these appeals arising out of a common judgment

and order dated 26.04.2001 passed by learned Single Judge of

the High Court of Judicature for Rajasthan at Jodhpur in

S. B. Criminal Appeal No. 125 of 1997 [Arvind Kumar Vs. State

of Rajasthan] and S. B. Criminal Misc. Petition No. 202 of

1997 [Arvind Kumar [DW-2] Vs. State of Rajasthan], were taken

up and heard together and shall stand disposed of by this

common judgment.

2]By the impugned order, the High Court while dismissing

the appeal of Arvind Kumar [A-1] and Kanti Lal [A-3] and

confirming their conviction and sentence under Sections

304B and 498A of the Indian Penal Code, 1860 [for short the

“IPC”] recorded by the learned Sessions Judge, Jalore, in

Sessions Case No. 25 of 1993, has set aside the conviction of

Sanwal Chand [A-2], Bhanwar Lal [A-4], Chetan Lal [A-5],

Popat Lal [A-6] and Smt. Bagtu [A-7] and acquitted them of

the charged offences. However, S. B. Criminal Misc. Petition

No. 202 of 1997 filed by Arvind Kumar Sengwa – Naib

Tehsildar [DW-2] under Section 482 of the Code of Criminal

Procedure, 1973 praying for expunging adverse observations

made by the learned Sessions Judge against him, Dr. Vasudev

[PW-11] and Shaitan Singh – Station House Officer [PW-12],

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contained in paragraph 40 of the judgment, came to be

dismissed.

3]The incident, which led to the trial of the accused,

occurred on 07.08.1992 at about 9.00 a.m. at Village-Silason,

District-Pali. Parasmal [PW-5] – father of Smt. Laxmi lodged

written report [Ex.P-7] to Shaitan Singh [PW-12] – Station

House Officer, Police Station – Raniwada, District – Pali

alleging inter alia that about three years prior to the day of

incident, his daughter Smt. Laxmi aged about 22 years was

married to Arvind Kumar [A-1] - son of Sanwal Chand [A-2],

resident of Village Silason. He averred that as per the custom

of the area, he had given 20 tolas of gold and other valuable

articles to his daughter at the time of her marriage. He

alleged that after the marriage, his daughter had lived a happy

and peaceful life in her parents-in-law’s house for about one

year, but soon thereafter whenever his daughter used to come

to his house or whenever he paid visits to the house of her

parents-in-laws, his daughter had made repeated complaints

to him in regard to ill-treatment and harassment meted out to

her at the hands of the accused for not bringing sufficient

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dowry. He alleged that about two years after her marriage

Smt. Laxmi became pregnant and as per the custom of the

area, she came to her parents’ house for delivery of the first

child and at that point of time his son-in-law (A-1) and his

son-in-law’s elder brother [A-3] had demanded loan amount of

Rs.50,000/- from him for starting some business, which

amount he had paid to them. Smt. Laxmi was blessed with a

male child. After the delivery of a child, Smt. Laxmi stayed in

his house for a period of about 3-4 months and thereafter she

along with her male child, went back to her parents-in-laws’

house.

4]The complainant further alleged that he had gone to the

house of the parents-in-laws of his daughter to find out their

welfare, but at that point of time the accused told him that the

loan amount of Rs. 50,000/- borrowed by A-1 and A-3 from

him will be treated as dowry amount. It was alleged that Smt.

Laxmi came to his house about two months prior to her death.

Bhanwar Lal (A-4), elder brother of A-1, came to his house

and asked him to send his daughter to her parents-in-laws’

house, but because of darkness in the evening, he declined to

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send her with an infant child with A-4. He alleged that on the

same night at about 9:00 p.m. or 10:00 p.m. three accused,

namely A-3, A-4 and A-7, came to his house and banged the

door of his house. On hearing the repeated sound of banging

of the door, he and his wife Bhanvri [PW-6] immediately

opened the door of the house and saw A-3, A-4 and A-7

standing outside the house. They without any reason started

quarelling with him and his wife and told them that the money

advanced by him to A-1 and A-3 shall be treated as amount of

dowry. On hearing the shouting voices of A-3, A-4 and A-7 at

the house of the complainant, one Dayalal Tagir Chand

(PW-3), Narayan Chand (PW-7) and some more neighbours

gathered there and on their intervention A-3, A-4 and A-7 had

gone back to their house.

5]It was alleged that about 10 days prior to the date of

incident, complainant along with Mahender Singh his brother–

in-law and Pratap [PW-10], an acquaintance of the

complainant, went to the house of the parents-in-laws of his

daughter. He went inside the house to meet his daughter,

whereas Mahender Singh and PW–10 remained sitting

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outside. His daughter had disclosed to him that all the

accused had maltreated and harassed her for not bringing

adequate dowry. He, in the presence of Mahender Singh and

PW–4, requested the accused persons that they unnecessarily

should not harass and maltreat his daughter but they paid no

heed to his request. It was also stated that in the early

morning of the day of incident, one Mishrimal Soni and two

Rajputs came to his house and revealed that Smt. Laxmi had

been admitted to Raniwada Hospital as she was suffering from

stomach pain. He along with his wife PW–6 went to the

hospital where they saw their daughter lying on the bed with

burn wounds on her body. He advised his wife to stay back by

the side of his daughter and himself went to his village for

taking the help of his brothers and relatives. He took his

brother Angraj and Jayantilal and some more people of the

village to the hospital, where they were informed that the

victim was being taken to Thonera for further treatment. His

wife had also gone with her daughter. After some time, a jeep

came there, carrying the dead body of Smt. Laxmi. He was

told that Smt. Laxmi had died on the way. On these premises,

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he lodged a complaint [Ext. P7] before Shaitan Singh (PW-12)

Station House Officer, Police Station Raniwada at about 8:00

or 9:00 p.m. on the same day. On the basis of the complaint

(Ex. P7), First Information Report bearing Case No. 126/92

[Ex. P8] came to be registered at Police Station Raniwada

against the accused persons for offences punishable under

Sections 304B and 498A of IPC.

6]Dr. Vasudev (PW-11) Medical Officer posted at Raniwada

Hospital, on the request of the police, examined Smt. Laxmi at

about 5:45 a.m. on 07.08.1992 and noticed about 90% burn

wounds on her entire body starting from the top of the head

right upto her feet. He prepared injury report (Ext. P-11).

According to the doctor’s report, the wounds noticed on the

person of Smt. Laxmi appeared to be four hours old. He took

thumb impression of Smt. Laxmi on the injury report

(Ext. P-11).

7]PW Shaitan Singh, before the death of Smt. Laxmi, went

to Primary Health Centre, Raniwada, where she was admitted

in injured condition. He requested PW Dr. Vasudev about the

condition of Smt. Laxmi. Dr. Vasudev opined that injured

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Smt. Laxmi was in a fit state of mind to make statement. PW

Shaitan Singh called Arvind Kumar Sengwa [DW-2] – Naib

Tehsildar to the hospital, who recorded dying declaration of

Smt. Laxmi [Ext.D/4] in the presence of Dr. Vasudev. On

receipt of the information about the admission of injured

Smt. Laxmi in hospital, Raniwada, Raghubir Singh [PW-13]

C.O., Bhinmal, rushed to the hospital and found Smt. Laxmi

dead on account of 90 per cent burn injuries. PW Shaitan

Singh prepared panchnama [Ext.P-2] under the instructions

and supervision of PW-13. PW-13 before handing over the

dead body to PW-5 – father of the deceased got her dead body

examined from the Medical Board. He inspected the spot of

the incident and prepared Site Map [Ext. P-12] in the presence

of Jalam Singh [PW-1], Shaitan Singh [PW-2] and Ook Singh

[PW-4]. On spot inspection, some burnt pieces of the bangles,

ash, match-box containing burnt and unburnt sticks, some

burnt pieces of the skin attached with clothes and one

‘bhabka’ [a kerosene burning lamp which is being used by a

goldsmith for placing joints in making of gold ornaments] were

collected from the spot. The Investigating Officer seized all

8

those articles and sealed them in a parcel which was

deposited with the In-charge of the Police Station. He

recorded the statements of the witnesses. He later on arrested

A-1, A-3 and A-6. PW-13 conducted the investigation partly

and thereafter as per the order of the D.I.G. Range, Jodhpur,

PW-13 on 23.09.1992 handed over the case file for further

investigation to Mahender Kumar Govil [PW-14] – Additional

Superintendent of Police, Bikaner. PW-14 recorded the

statements of the material witnesses. After the completion of

the investigation of the case, Station House Officer prepared

chargesheet against accused persons and filed the same in the

court of Judicial Magistrate under Sections 304B and 498A of

the IPC. The Judicial Magistrate committed the case to the

Sessions Judge for trial.

8]The accused pleaded not guilty to the charges and

claimed to be tried. The learned Sessions Judge, Jalore,

charged the accused for offences under Sections 304B and

498A of the IPC. The prosecution, in order to substantiate its

case, examined as many as 15 witnesses. The accused

persons in the statements recorded under Section 313 of the

9

Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] denied

the incriminating evidence appearing against them. Smt.

Bagtu [A-7] pleaded that on the day of the incident she was ill.

The accused examined Doongarmal [DW-1] and Arvind Kumar

Sengwa [DW-2] – Naib Tehsildar, Raniwada, Yashpal [DW-3]

and Bhanwar Lal [A-4] in their defence.

9]On examination of the oral and documentary evidence

produced on record, the learned Sessions Judge by his order

dated 24.02.1997 found the accused guilty of the offences

under Sections 304B and 498A of the IPC and sentenced them

to suffer 10 years’ rigorous imprisonment for offence under

Section 304 B of the IPC and 3 years’ rigorous imprisonment

for an offence under Section 498 A of the IPC with a fine of Rs.

500/- each and in default of the payment of fine, each

accused has to undergo simple imprisonment for one month.

All the sentences were ordered to run concurrently. The

learned Sessions Judge in paragraph 40 of the judgment

directed higher officers of PW-11 Dr. Vasudev, PW-12 Shaitan

Singh – Station House Officer and DW-2 - Arvind Kumar

Sengwa – Naib Tehsildar to take disciplinary action against

10

them for not discharging their official duties properly and

diligently.

10]Feeling aggrieved thereby and dissatisfied with the order

of conviction, the accused filed S. B. Criminal Appeal No. 125

of 1997, whereas Arvind Kumar Sengwa [DW-2] – Naib

Tehsildar filed S. B. Criminal Misc. Petition No. 202 of 1997

praying for expunging of the adverse observations made in

paragraph 40 of the judgment.

11]The High Court dismissed the appeal of A-1 and A-3,

whereas the appeal of A-2, A-4, A-5, A-6 and A-7 was allowed

and their conviction and sentence imposed upon them by the

learned Sessions Judge, Jalore, has been set aside. The

Criminal Revision Petition filed by Arvind Kumar Sengwa [DW-

2] – Naib Tehsildar has been dismissed. The order of the High

Court reads as under:

“[1]The appeal filed by the accused appellants

no.1 Arvind kumar [Husband of the deceased] and

no. 3 Kantilal [Jeth of deceased] is dismissed, after

confirming the judgment and order dated

24.02.1997 passed by the learned Sessions Judge,

Jalore so far as they relate to them.

Since accused appellant no. 3 Kantilal [Jeth of

deceased] is on bail, he shall surrender himself

11

before the trial court immediately and in case he

does not surrender, the trial court shall take

immediate steps for arresting and sending him to

jail to serve out the remaining period of sentences.

[2]The appeal filed by the accused appellants

no.2 Sanwal Chand [Father-in-law of deceased],

no.4 Bhanwar Lal [Jeth of deceased], no. 5 Chetan

Lal [Jeth of the deceased], no. 6 Popat Lal [Devar of

the deceased] and no.7 Smt. Bagtu [Mother-in-law

of the deceased] is allowed and the judgment and

order dated 24.02.1997 passed by the learned

Sessions Judge, Jalore so far as they relate to them,

are set aside and they are acquitted of the charges

framed against them. Since they are on bail they

need not surrender and their bail bonds stand

discharged.

[3]The criminal misc. petition filed by the

petitioner Arvind Kumar Sengwa, DW-2 is also

dismissed.”

12]Now, A-1 and A-3 have filed these two sets of appeals

challenging the correctness and validity of the order of the

High Court.

13]Ms. Aishwarya Bhati, Advocate appearing on behalf of

A-1 and A-3, vehemently contended that the judgment of the

High Court confirming the order of conviction passed by the

trial court is erroneous in law. She contended that the High

Court and the trial court, both were not justified in rejecting

the dying declaration [Ext.-D/4] voluntarily made by the

12

deceased to DW-2, an Officer of the State Government, stating

clearly therein that on the intervening night of the incident

she attempted to lit the chimney with burning match-stick,

but in the darkness accidentally kerosene oil fell on the

ground of the room, by which her orna [dupatta] caught fire

and as a result of the accidental fire she received burn

injuries. She stated that the dying declaration [Ext.-D/4] was

made by the deceased to DW-2 in the presence of PW Dr.

Vasudev who certified that she was in a fit state of mind to

make the statement.

14]She next contended that the prosecution case is wholly

false and fabricated. According to the learned counsel, the

fact of recording of dying declaration by DW-2 has been

corroborated by PW-12 – the Station House Officer, who

deposed that at the time of recording of dying declaration of

Smt. Laxmi by DW-2, the complainant [PW-5] and his wife

[PW-6] both parents of the deceased were present and the

prosecution deliberately and intentionally concealed the

production of dying declaration from the Court and also

withheld the examination of DW-2 – the Naib Tehsildar as a

13

prosecution witness with clear intention to conceal true facts

of accidental burning of the deceased. She also contended

that the High Court has wrongly placed reliance on the

evidence of PWs 5, 6 and 8 who are all highly interested

witnesses being close relatives of the deceased. She next

contended that the judgment of the trial court as affirmed by

the High Court holding A-1 and A-3 guilty of the charged

offences are both based upon conjectures and surmises,

therefore, not sustainable. She lastly contended that the

prosecution has not led cogent and credible evidence against

A-3 [Jeth of the deceased] beyond reasonable doubt who has

nothing to do with the offence and therefore, he is entitled for

benefit of doubt.

15]Dr. Manish Singhvi, AAG appearing on behalf of the

State, has canvassed correctness of the views taken by the

courts below in the judgments. He submitted that the

approach of the High Court in re-appreciating the evidence led

by the prosecution cannot be found faulty. He then

contended that the evidence of the eye-witnesses PW-5

Parasmal [father of the deceased], PW-6 Bhanvri [mother of

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the deceased] and PW-8 Mahender Kumar – Mama [Deceased’s

mother’s brother] is concise, cogent and satisfactory for

holding A-1 and A-3 guilty of the charged offences. He lastly

contended that the trial court and the High Court, both have

correctly appreciated and re-appreciated the entire evidence of

the material witnesses, and this Court shall not be obliged to

interfere with the concurrent findings of the facts arrived at by

the courts below.

16]In order to appreciate the rival contentions of the learned

counsel for the parties, we have independently scrutinized the

evidence led by the prosecution and examined the judgment of

the High Court.

17]The dying declaration [Ext.-D/4] allegedly made by the

deceased to DW-2 – Naib Tehsildar has been found to be an

unreliable document by the trial court and the said finding

has been affirmed by the High Court. We think it appropriate

to reproduce the true translation of the contents of the alleged

dying declaration [Ext.-D/4] which read as under:

“That on the night, there was darkness and

she took match-box to lit the chimney and when

she started to lit the chimney, kerosene oil fell on

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the ground and it caught hold fire, by which her

orna caught fire and, thereafter, her husband tried

to save her and people of village gathered and

thereafter, she was taken to hospital.”

18]The dying declaration [Ext.-D/4] was stated to have been

thumb-marked by the deceased and duly signed by DW-2 and

A-3 and PW Dr. Vasudev. It is the evidence of DW-2 that

when he recorded the alleged statement of the deceased, her

mother PW-6 was present in the hospital, but she refused to

append her signature or thumb impression upon the

document. PW Dr. Vasudev has proved on record medical

report [Ext.- P/11] of the deceased and in his examination-in-

chief, he has not whispered a word in regard to recording of

the dying declaration [Ext.-D/4] by DW-2. In cross-

examination, Dr. Vasudev admitted that he could not

remember whether A-3 was present in the hospital when

DW-2 recorded the alleged dying declaration [Ext.-D/4]. He

categorically stated that dying declaration was not recorded by

DW-2, but the said document was prepared by his Reader. He

has shown his ignorance whether DW-2 took thumb-

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impression of the deceased once or two times on the alleged

dying declaration.

19]PW Shaitan Singh – Station House Officer stated that

Medical Officer had given to him in writing that Smt. Laxmi

before her death was in a fit condition to make statement and

therefore, he called DW-2 for recording her statement. He

stated that he was not present in the room when DW-2

recorded the alleged dying declaration [Ext.-D/4] of the

deceased.

20]It is the evidence of DW-2 Arvind Kumar Sengwa that on

07.08.1992 one constable came to him with a letter of request

and disclosed that one woman, namely, Laxmi was admitted

in the hospital and her statement was to be recorded. He

rushed to the hospital and made enquiry from Dr. Vasudev

about the fit condition of Smt. Laxmi. Smt. Laxmi was found

in a fit state of mind to give statement which he correctly

recorded. He admitted that PW Bhanvri – mother of the

deceased was present in the room and she refused to put her

signature or thumb-impression on the statement of the

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deceased. In cross-examination DW-2 admits the following

material facts:

“1]That before recording the statement of the

deceased Ex. D/4, Tehreer was given to him in

writing by the police and he took out the Tehreer

from the pocket of his coat and carbon copy of it,

was produced by him during the course of his

examination and the same is marked as Ex.D/5.

2]That at the time of recording statement of the

deceased Ex.D/4, PW-12 Shaitan Singh, SHO was

not there.

3]That it is correct to say that before recording

the statement of the deceased Ex.D/4, he did not

take certificate from the doctor on the point that

she was in a fit condition to give statement.

4]That before recording statement of the

deceased Ex.D/4, he asked the deceased how the

fire took place and apart from this, he did not ask

any question, but such type of formalities are not

mentioned in Ex.D/4.

5]That it is also correct to say that at the time of

recording statement Ex.D/4 of the deceased, he did

not oust her mother PW-6 Bhanvri and PW-11 Dr.

Vasudev.

6]That it is also correct to say that he did not

have any experience how dying declaration should

be recorded.

7]That it is also correct to say that there is no

endorsement on Ex.D/4 of the fact that statement

was read over to the deceased and she admitted it

to be correct one and, thereafter, her thumb-

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impressions were taken and for non-observing these

formalities, he could not assign any reason.

8]That after recording statement of the deceased

Ex.D/4, he took signatures of her Jeth Kantilal,

accused appellant no. 3, who was sitting at that

time in the Chamber of the doctor.

9]That it is also correct to say that dying

declaration Ex.D/4 was not sealed on the spot and

it was given open to SHO, PW-2 Shaitan Singh.

10]That before recording the statement of the

deceased Ex.D/4, he did not ask the deceased how

incident took place and what she was doing.

11]That he took two thumb-impressions of

deceased and causes of taking two thumb-

impressions have been assigned in the statement,

but Ex.D/4 does not bear such reasons.”

21]It is well-settled that one of the important tests of the

credibility of the dying declaration is that the person, who

recorded it, must be satisfied that the deceased was in a fit

state of mind. For placing implicit reliance on dying

declaration, court must be satisfied that the deceased was in a

fit state of mind to narrate the correct facts of occurrence. If

the capacity of the maker of the statement to narrate the facts

is found to be impaired, such dying declaration should be

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rejected, as it is highly unsafe to place reliance on it. The

dying declaration should be voluntary and should not be

prompted and physical as well as mental fitness of the maker

is to be proved by the prosecution.

22]In the present case, as noticed above DW-2 has not

taken any certificate from the doctor to prove that the

deceased was in a fit state of mind to give statement nor he

has recorded any endorsement to that effect on the alleged

dying declaration [Ext.-D/4]. Another factor which impairs

the credibility of the alleged dying declaration [Ext.- D/4] and

belies the statement of DW-2 was that, according to Dr.

Vasudev, dying declaration was recorded by the Reader of the

Tehsildar and not by DW-2. It is also proved on record that

DW-2 did not ask preliminary questions from the deceased

before the dying declaration allegedly made by her was

recorded and this fact also created doubt about the

correctness and truthfulness of the dying declaration. It is

also the evidence of DW-2 that after recording the alleged

statement of the deceased, he did not seal the dying

declaration and unsealed document was handed over to the

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Station House Officer. DW-2 has not produced on record the

original copy of the ‘Tehreer’ submitted to him by a constable

requesting him to visit the hospital for recording the alleged

dying declaration of the deceased, and a carbon copy whereof

was produced by him during his cross-examination. A

categorical refusal of putting her signature or thumb-

impression on the alleged dying declaration [Ext.-D/4] by

PW-6 – Bhanvri [mother of the deceased] would further go to

prove that the alleged dying declaration was not at all

recorded by DW-2 in the room of the hospital where the

deceased was lying before she died. The above-stated facts

and circumstances would prove that the alleged dying

declaration, on which much reliance has been placed by the

defence, cannot be said to be an admissible and reliable

document. The fact that the alleged dying declaration [Ext.-

D/4] did not bear endorsement of DW-2 to the effect that it

was read over and explained to the deceased, also created a

doubt on its credibility and truthfulness. The trial court as

well as the High Court both have concurrently and, in our

considered view, have rightly rejected the genuineness and

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credibility of the alleged dying declaration to prove the defence

version that the deceased made the said statement to DW-2

and she died because of accidental death. We agree with the

findings and reasoning of the courts below that the alleged

dying declaration [Ext.-D/4] suffers from a number of basic

infirmities and such dying declaration cannot be found

admissible and accepted as genuine document.

23]Ms. Aishwariya, learned counsel, has relied upon the

judgments of this Court in Gaffar Badshaha Pathan Vs. State

of Maharashtra [[2004] 10 SCC 589] to contend that it is one

thing for an accused to attack a dying declaration in a case

where the prosecution seeks to rely on a dying declaration

against an accused but it is altogether different where an

accused relies upon a dying declaration in support of the

defence of accidental death. In such case, the burden on the

accused is much lighter. In the present case, according to the

learned counsel, A-1 and A-3 have established beyond

reasonable doubt that the statement of the deceased was

recorded by DW-2 with bona fide intention and without

putting any pressure upon the deceased and therefore, the

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document has to be accepted as admissible and reliable

document to indicate that the deceased died due to accidental

fire. We have gone through the above cited judgment. In that

case, this Court while dealing with the dying declaration

produced on record held as under:

“It is one thing for an accused to attack a dying

declaration in a case where the prosecution seeks to

rely on a dying declaration against an accused but

it is altogether different where an accused relies

upon a dying declaration in support of the defence

of accidental death. The burden on the accused is

much lighter. He has only to prove reasonable

probability. The High Court erred in holding that

the recording of the dying declaration and story

stated therein apparently appears to be false and

concocted. The fact whether the dying declaration

is false and concocted has to be established by the

prosecution. It is not for the accused to prove

conclusively that the dying declaration was correct

and the story therein was not concocted.”

24]In Ghurphekan and Others Vs. State of Uttar Pradesh

[[1972] 3 SCC 361], this Court while dealing with the case,

which entirely rested on dying declaration of the deceased

held as under:

“[i]A dying declaration recorded within a few

hours after the incident, when it bore the

endorsement of the doctor, that the victim was at

that time in “proper sense” to be able to give the

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statement and where the evidence of the recording

magistrate showed no flaw in taking it down, there

is no reason to reject it.

[ii]Where the dying declaration had two

weaknesses, namely, it did not mention the name of

one of the witnesses present at the spot and it did

not account for the injuries on the persons of the

attacking party, it cannot be rejected on those

omissions only, if otherwise it could be shown to be

true in other respects, by other satisfactory

evidence.

[iii]Where the circumstantial evidence negatived

the alternative case set up by the defence and the

investigating officer’s evidence about the place of

incident, the medical officer’s evidence in support of

the prosecution about the manner of the occurrence

of the incident, and the explanation of some

witnesses for their presence at the spot, are

consistent with the dying statement and the

circumstantial evidence; the dying declaration

possess acceptability in spite of any weaknesses

pointed out by the defence.”

25]In Kans Raj Vs. State of Punjab and others [[2000] 5 SCC

207], this Court held that the statement of a person “as to any

of the circumstances which resulted in his death” must have

some close and proximate relation with the actual occurrence

and proximity would depend upon the circumstances of each

case for the purpose of admissibility of such statement as

24

dying declaration under Section 32 [1] of the Evidence Act,

1872.

26]In Kamalakar Nandram Bhavsar Vs. State of Maharashtra

[[2004] 10 SCC 192], this Court on scrutiny of the evidence on

record found that the victim of dowry death/bride burning

had suffered burn injuries to the extent of 94-95 % could not

have made dying declaration as stated by the doctor during

the cross-examination that a dying declaration was made by

the victim when she was in hospital. The alleged dying

declaration was admitted in evidence on behest of defence by

trial court supportive to the defence of the accused. On the

facts of the case, this Court observed that source of

production of dying declaration was neither mentioned in the

trial court’s judgment nor was there any evidence to prove the

said document. In these circumstances, this Court held that

the High Court had rightly rejected the said dying declaration.

27]In the present case, as noticed in the earlier part of the

judgment A-1 and A-3 have not proved on record the source of

production of the dying declaration by DW-2 who after

recording the statement of the deceased was duty bound to

25

hand over the alleged dying declaration under a sealed cover

to the prosecuting agency. In this case, the origin and source

of the alleged dying declaration produced by DW-2 at the time

of his examination as a defence witness is highly doubtful and

such document cannot be accepted as genuine and truthful

document in support of the defence of A-1 and A-3.

28]In State [Delhi Administration] Vs. Laxman Kumar and

Others and Indian Federation of Women Lawyers and Others

Vs. Smt. Shakuntala and Others [[1985] 4 SCC 476], this Court

while dealing a case of bride burning on the basis of dying

declaration, held as follow:

“A dying declaration enjoys almost a sacrosanct

status as a piece of evidence as it comes from the

mouth of a person who is about to die and at that

stage of life he is not likely to make a false

statement. Ordinarily, a document as valuable as a

dying declaration is supposed to be foolproof and is

to incorporate the particulars which it is supposed

to contain.”

Further, it is held that unless the dying declaration is in

question and answer form it is very difficult to know to what

extent the answers have been suggested by questions put.

What is necessary is that the exact statement made by the

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deceased should be available to the court. It is also said that

if the doctor happened to be present at the time of recording of

the dying declaration and he had heard the statement made

by the deceased, he would ordinarily endorse that the

statement had been made to his hearing and had been

recorded in his presence. The endorsement as made is

indicative of the position that a statement had been recorded

and the same was being attested by the doctor.

29]In the present case, these basic principles are ignored by

DW-2 at the time of recording of the alleged dying declaration

of the deceased. As noticed above, the doctor has not made

any endorsement on the dying declaration to state that it was

recorded in his presence and attested by him. The mother of

the deceased refused to put her thumb-impression on the said

document. Thus, the judgment cited above cannot strength

the defence of A-1 and A-3 that dying declaration Ext. D/4

had been recorded by DW-2 by observing the principles laid

down in the abovesaid case.

30]The prosecution in support of the charge of dowry death

has produced and relied upon the testimony of PW-5 Parasmal

27

– father, PW-6 Bhanvri – mother and PW-8 Mahender Kumar –

‘Mama’ [mother’s brother] of the deceased. Before we proceed

to deal with and consider the evidence of the prosecution on

the question of dowry death, we may consider the ratio of the

law laid down in the cases relied upon before us.

31]In Pawan Kumar and Others Vs. State of Haryana [[1998]

3 SCC 309] this Court held that the ingredient necessary for

the application of Section 304 B are : [a]when the death of a

woman is caused by any burns or bodily injury, or [b] occurs

otherwise than under normal circumstances [c] and the

aforesaid two facts spring within 7 years of girl’s marriage

[d] and soon before her death, she was subjected to cruelty or

harassment by her husband or his relative, [e] this is in

connection with the demand of dowry.

32]In Hira Lal and Others Vs. State [Govt. of NCT], Delhi

[[2003] 8 SCC 80], this Court reiterated that the essential

ingredients to attract application under Section 304 B are

that: [i] the death of a woman should be caused by burns or

bodily injury or otherwise than under a normal circumstance

[ii] such a death should have occurred within seven years of

28

her marriage, [iii] she must have been subjected to cruelty or

harassment by her husband or any relative of her husband,

[iv] such cruelty or harassment should be for or in connection

with demand of dowry, and [v] such cruelty or harassment is

shown to have been meted out to the woman soon before her

death. Further it is said that the presumption under Section

113-B of Evidence Act, 1872 is a presumption of law. On

proof of the essential mentioned therein, it becomes obligatory

on the court to raise a presumption that the accused caused

the dowry death. The essentials required to be proved for

raising the said presumption are that [i] the question before

the court must be whether the accused has committed the

dowry death of the woman, [ii] the woman was subjected to

cruelty or harassment by her husband or his relatives, [iii]

such cruelty or harassment was for or in connection with any

demand for dowry, and [iv] such cruelty or harassment was

soon before her death.

33]Again, in the case of Kamesh Panjiyar alias Kamlesh

Panjiyar Vs. State of Bihar [[2005] 2 SCC 388], Ram Badan

Sharma Vs. State of Bihar with Surya Kant Sharma Vs. State of

29

Bihar [[2006] 10 SCC 115], Trimukh Maroti Kirkan Vs. State of

Maharashtra [[2006] 10 SCC 681], Kailash Vs. State of M.P.

[[2006] 12 SCC 667] and Appasaheb and Another Vs. State of

Maharashtra [[2007] 9 SCC 721], this Court reiterated and

reasserted the settled principles laid down in Hiralal’s case

[supra].

34]In the light of the above-settled proposition of law,

learned counsel for A-1 and A-3 urged that the prosecution

has miserably failed to prove that “soon before her death”, the

deceased was subjected to cruelty or harassment “for or in

connection with the demand of dowry”.

35]In order to appreciate this contention, we have made

independent scrutiny of the evidence led on record to find out

whether the trial court’s order of conviction of A-1 and A-3 as

confirmed by the High Court can be sustained or not. In

support of the charge of dowry death levelled against A-1 and

A-3, the prosecution has examined and relied upon the

testimony of PW-5 and PW-8. It is not in dispute that the

death of Smt. Laxmi was caused by burn injuries within seven

years of her marriage. The evidence of PW-5 proved that at

30

the time of marriage of Smt. Laxmi with A-1, he gave 20 tolas

of gold and other dowry articles to A-1, A-3 and other family

members. For about one year after marriage, his daughter

lived happy married life in her parents-in-law’s house.

Thereafter, whenever Smt. Laxmi used to go to the house of

her parents or whenever PW-5 had visited her in-law’s house

for inviting her to parent’s house, Smt. Laxmi used to

complain that A-1, A-3 and other family members had mal-

treated and harassed her for not bringing adequate dowry. He

brought Smt. Laxmi to his house when she was to deliver a

child and at that time A-1 and A-3 demanded Rs. 50,000/-

from him as loan for running their business. He paid

Rs. 50,000/- to them. Smt. Laxmi stayed at his house for

about 3-4 months when she was blessed with a son and after

some period Smt. Laxmi was sent to her parents-in-law’s

house.

36]It is the evidence of PW-5 that after about 10 days prior

to the fateful incident, he went to village Silason to take his

daughter, but A-1, A-3 and other family members [the

acquitted accused] had refused to send her unless their

31

demand of dowry was not fulfilled by him. A-1, A-3 and other

accused told him that Rs. 50,000/- borrowed as a loan should

be adjusted and treated as dowry money. He did not agree to

the proposal of the accused. On this count, the accused

started ill-treating and harassing his daughter. The evidence

of this witness finds complete corroboration from the evidence

of PW-6 and PW-8 on this count. It is further evidence of

PW-5 that about two months prior to the incident Smt. Laxmi

had visited his house, when A-4 came to his house to take

Smt. Laxmi back to their house but he did not allow her to go

with him because it was not advisable to send her with an

infant child in the late hours of the evening. Later on at about

9.00 p.m. or 10.00 p.m., three accused namely A-3, A-4, A-7

and one Shaitan Singh came to his house and banged the

door of his house and on hearing the sound of banging of the

door, he and his wife PW-6 opened the door. The abovesaid

persons started quarreling with him and impressed upon him

to adjust the amount of Rs.50,000/- as dowry money. This

incident took place in the presence of PW-3 Taga and PW-7

Narainchand.

32

37]PW-3 Taga deposed that about two months prior to the

death of Smt. Laxmi, he saw A-3, A-4 and A-7 alongwith one

Shaitan Singh coming out of the house of PW-5 at about

9.00 p.m. or 10.00 p.m. and at that point of time, they were

quarreling with PW-5 and his wife PW-6 over some money

transaction. PW-7 Narainchand though turned hostile to the

prosecution, yet he admitted that A-3, A-4 and A-7 had a

quarrel with PW-5 on some money matter. PW-6 Smt.

Bhanvri fully corroborates the testimony of PW-3 and PW-5

her husband on this point.

38]PW-8 Mahender Kumar deposed that on that day he

alongwith PW-5 and PW-10 Pratap Singh, visited the house of

the accused persons, they threatened PW-5 that if he would

make demand of returning a sum of Rs. 50,000/- paid by him

as loan to A-1 and A-3, he would face dire consequences. All

the accused said that an amount of Rs. 50,000/- shall be

adjusted against the demand of dowry money. Thus, relying

upon the evidence of PW-5 and PW-8, the trial court and the

High Court came to the conclusion that the prosecution has

proved beyond reasonable doubt that Smt. Laxmi was being

33

constantly harassed and tortured by A-1 and A-3 for the

demand of dowry and a sum of Rs.50,000/- paid to them as

loan amount was also adjusted by them as dowry money.

PW-5, PW-6 and PW-8 have been subjected to searching

cross-examination by the defence, but nothing tangible material

has been extracted from their evidence to create any shadow of

doubt that they are not reliable and truthful witnesses.

39]Having regard to the entire evidence discussed above and

having carefully and closely considered the judgments of the trial

court and the High Court, it appears that the view taken by both

the courts was reasonable and plausible. We find no infirmity or

perversity in the findings recorded by the learned Judges of the

High Court to interfere with the well-reasoned judgment.

40]No other point has been raised by the appellants. We, thus,

find no merit and substance in any of the submissions made on

behalf of the appellants.

41]In the result, for the above-stated reasons, there is no merit in

these appeals and these are, accordingly, dismissed. Both the

appellants are stated to be on bail. Their bail bonds are cancelled

and they are directed to surrender forthwith to serve out the

remaining sentence.

........................................J.

34

(Lokeshwar Singh Panta)

........................................J.

(B. Sudershan Reddy)

New Delhi,

April 17, 2009.

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