2023 INSC 863 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 396 OF 2010

PHULEL SINGH …APPELLANT(S)

VERSUS

STATE OF HARAYANA …RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1.This appeal challenges the judgment and order dated

24

th

July 2009 passed by the Division Bench of the High

Court for the States of Punjab and Haryana in Criminal

Appeal Nos. 413-DBA of 2001 and 909-SB of 1999 along with

Criminal Revision No. 134 of 2000, wherein the Division

Bench partly allowed the appeal filed by the accused persons;

whereby Jora Singh (Accused No. 1), father of the appellant

herein was acquitted of the charge under Section 304-B of

the Indian Penal Code, 1860 (“IPC” for short) and the

conviction and sentence qua the appellant herein rendered by

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the learned court of Mrs. Nirmal Yadav, Sessions Judge, Sirsa

(hereinafter referred to as “the trial court”) in Sessions Trial

No. 122 of 1994 vide judgment and order dated 14

th

September 1999 for the offence punishable under Section

304-B of IPC and sentence to undergo rigorous imprisonment

for a period of seven years was upheld. Whereas, Criminal

Appeal No. 413-DBA of 2001 filed by the State of Haryana

and Criminal Revision No. 134 of 2000 filed by Pavitar Singh

(PW-3), brother of Kiran Kaur (hereinafter referred to as

“deceased”) challenging the acquittal of the accused persons

for the charge under Section 302 of IPC were dismissed.

2.Shorn of details, the facts leading to the present appeal,

are as under:

2.1The marriage between the deceased and the appellant

was solemnized in March, 1987, and they were blessed with

a girl and a boy. It is the prosecution case that the appellant

used to harass the deceased on account of insufficiency of

dowry. It is further the prosecution case that, succumbing to

the demands of the appellant, the parents of the deceased

paid Rs.20,000/- to the appellant in cash and in 1990, they

gave a scooter and gold ornaments weighing 2.5-3 tolas to the

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appellant. Further, the deceased would tell her parents and

her brother about the harassment and ill-treatment meted

out to her at the hands of the appellant whenever she visited

her parental house and eventually refused to reside in the

house of the appellant. However, on account of the assurance

and responsibility undertaken by Mohan Singh, the son-in-

law of Jora Singh, father-in-law of the deceased, she was

brought back to her matrimonial house. Even then, the

deceased was not treated properly by the appellant.

According to the prosecution allegations, Pavitar Singh (PW-

3), brother of the deceased had come to see the deceased at

her matrimonial home in village Chatha about 3 to 4 days

prior to the Diwali of 1991 when the deceased had informed

him about the demand for dowry being made by the

appellant and his family. When Pavitar Singh (PW-3) returned

home and informed his parents about the said harassment

being meted out to the deceased in lieu of demand for dowry,

Randhir Singh (PW-4), father of the deceased, went to Major

Singh (PW-6), Sarpanch of his village, who assured him that

they would go to the house of the appellant for counselling

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them after Diwali. Following which, on 5

th

November 1991,

i.e., on the festive day of Diwali, Dr. Sharma of Bhagwangarh

had come to Rama Mandi. On his return, he informed Pavitar

Singh (PW-3) and other family members that the deceased

had been burnt and that she was being taken to Ludhiana.

Thereupon, Pavitar Singh (PW-3), Randhir Singh (PW-4) and

cousin Gur Raj Singh reached the Daya Nand Medical College

and Hospital, Ludhiana (hereinafter referred to as “DMC,

Ludhiana”) where the deceased was admitted and lay

unconscious. On 5

th

November 1991, Dr. Jasmeet Singh Dhir

(PW-7), the Medical Officer at DMC, Ludhiana, who had

medico-legally examined the deceased, opined that she had

91% burns on her body and accordingly sent ruqa (Ex.-P.J) to

the Station House Officer (SHO), Police Station Sarabha

Nagar, Ludhiana on the same day at about 05.10 p.m.

regarding admission of the deceased in the hospital.

2.2On 7

th

November 1991, when the deceased regained

consciousness, she told Pavitar Singh (PW-3) and others that

it was the appellant who had burnt her. Following which,

Randhir Singh (PW-4) made an application (Ex. P.D./1) to the

Sub-Divisional Magistrate (SDM), Ludhiana, for recording of

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the statement of the deceased. On the following day, i.e., 8

th

November 1991, Mr. Sadhu Singh (PW-5), the then Executive

Magistrate, Ludhiana received the said application along with

endorsements of the SDM, Ludhiana (Ex. P.D/2 and P.D/3).

Upon receiving the same, the Executive Magistrate, Ludhiana

reached the DMC, Ludhiana and moved another application

(Ex. P.S.) before the Medical Officer at about 04.15 p.m.

thereby seeking his opinion with regards to the fitness of the

deceased. When Dr. Jatinder Pal Singh (PW-8) gave his

opinion (Ex. P.S/1) that the deceased was fit to make a

statement, Mr. Sadhu Singh (PW-5) proceeded to record the

statement of the deceased (Ex. P.L.) on the same day at about

04.40 p.m. The statement was read over and explained to the

deceased, who had put her thumb impression on the same

after admitting to its contents to be correct. A First

Information Report (“FIR” for short) (Ex. P.E./1) was recorded

based on the said statement of the deceased against Jora

Singh, father-in-law of the deceased, appellant herein and

Dhan Kaur, mother-in-law of the deceased, for the offences

punishable under Sections 498-A, 307, 406 and 34 of IPC.

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On 18

th

November 1991, at about 06.00 p.m., Dr. Jatinder

Pal Singh (PW-8) sent ruqa (Ex. P.M.) to the Police Station

Sarabha Nagar, Ludhiana, regarding the death of the

deceased. Following which, the Assistant Sub Inspector (ASI),

Sri Bhagwan (PW-9) prepared an inquest report at the DMC,

Ludhiana on 19

th

November 1991 with regards to the dead

body of the deceased and made an application for conducting

of post-mortem examination as well (Ex. P.R./1).

2.3Upon completion of investigation, a charge-sheet came

to be filed in the court of jurisdictional Magistrate. Since the

case was exclusively triable by the learned Sessions Judge, it

came to be committed to the learned Sessions Court.

Charges were framed for the offences punishable under

Section 302 read with Section 34 of IPC and Section 304-B of

IPC. The accused pleaded not guilty and claimed to be tried.

2.4In order to substantiate the charges levelled against the

accused persons, the prosecution examined as many as nine

witnesses. Thereafter, the accused persons were examined

under Section 313 of the Code of Criminal Procedure, 1973

(“Cr.P.C.” for short). They denied the prosecution allegations

regarding demand for dowry and harassment of the deceased

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and alleged that they were being falsely implicated. The

accused persons also denied that the deceased was set

ablaze by them. At the conclusion of trial, the learned trial

court convicted all the three accused persons for the offence

punishable under Section 304-B of IPC for causing the dowry

death of the deceased and accordingly sentenced them to

undergo rigorous imprisonment for a period of seven years

along with fine. However, the learned trial court was pleased

to extend the benefit of doubt qua the charge under Section

302 of IPC and thus, acquitted the accused persons of the

said charge.

2.5Being aggrieved thereby, the accused persons preferred

an appeal before the High Court with regards to the

conviction and sentence awarded by the learned trial court;

whereas, the State of Haryana and Pavitar Singh (PW-3) also

filed their respective appeals before the High Court with

regards to the acquittal of the accused persons for the charge

under Section 302 of IPC. The High Court, by the impugned

judgement, while observing that the appeal preferred by

Dhan Kaur, mother-in-law of the deceased stood abated as

she had died during the proceedings; dismissed the appeals

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filed by the State of Haryana and Pavitar Singh (PW-3), and

partly allowed the appeals filed by Jora Singh, father-in-law

of the deceased and the appellant herein thereby acquitting

Jora Singh, father-in-law of the charge levelled against him

under Section 304-B of IPC, but confirmed the conviction

and sentence awarded by the learned trial court to the

appellant herein.

3.Being aggrieved thereby, the present appeal.

4.We have heard Shri Rajul Bhargav, learned Senior

Counsel appearing on behalf of the appellant and Shri Samar

Vijay Singh, learned counsel appearing on behalf of the State.

5.Shri Bhargav submitted that the trial court as well as

the High Court has grossly erred in convicting the appellant.

He submits that the reliance placed on the dying declaration

is totally unsustainable. He submits that the very first

information given by the deceased herself to the doctor while

admitting to the hospital, would show that the deceased had

put up kerosene on herself and set herself on fire. He

submits that as a matter of fact, it is the present appellant

who had tried to extinguish the fire. The learned Senior

Counsel therefore submits that the subsequent dying

declaration, which is recorded after 3-4 days of the accident,

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could not have been relied on by the courts. He submits that

the said dying declaration was a tutored one at the instance

of her relatives and the conviction solely based on the same is

not sustainable. The learned Senior Counsel relies on a

recent judgment of this Court in the case of Makhan Singh

v. State of Haryana

1

decided on 16

th

August 2022 to which

two of us (B.R. Gavai, J., Pamidighantam Sri Narasimha, J.)

were on the Bench.

6.Shri Bhargav further submitted that the case under

Section 304-B of IPC is also not made out. He submitted

that there is no evidence on record to show that the deceased

was meted out to any harassment on account of non-

fulfillment of demand of dowry. He submitted that even if the

evidence of the relatives of the deceased is taken on face

value, it would not show that there was any harassment to

the deceased on account of non-fulfillment of demand of

dowry. He submitted that even the evidence of independent

witness Major Singh (PW-6), Sarpanch of the village would

also not support the prosecution case.

7.Shri Singh, on the contrary, submitted that the

prosecution has proved the case beyond reasonable doubt.

1 2022 SCC OnLine SC 1019

9

He further submitted that the dying declaration is recorded

by the Executive Magistrate. He further submitted that Dr.

Jatinder Pal Singh (PW-8) has testified that the deceased was

in the sound state of mind and fit to make the statement. He

therefore submitted that the conviction recorded on the basis

of the said dying declaration warrants no interference.

8.Shri Singh further submitted that the evidence of PWs 3

and 4, who were relatives of the deceased along with Major

Singh (PW-6), Sarpanch of the village would establish,

beyond all reasonable doubt, that the deceased was meted

out harassment on account of non-fulfillment of demand of

dowry. He therefore prays for dismissal of the present

appeal.

9.With the assistance of the parties, we have perused the

evidence and materials placed on record.

10.The present case mainly rests on the dying declaration

of the deceased. No doubt, that a conviction can be solely

recorded on the basis of dying declaration. However, for

doing so, the court must come to a conclusion that the dying

declaration is trustworthy, reliable and one which inspires

confidence. In the present case, the dying declaration is

recorded by Shri Sadhu Singh (PW-5), Executive Magistrate.

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He stated that he obtained the certificate from the doctor

regarding the fitness of the deceased to make the statement.

He further stated that he recorded the statement of the

deceased and thereafter it was read over and explained to

her. He further states that she had thumb marked the same

after admitting its contents to be correct. In the dying

declaration recorded by Shri Sadhu Singh (PW-5), Executive

Magistrate, the deceased is said to have stated that on 5

th

November 1991 at around 12.00 noon, her husband Phulel

Singh, i.e., the appellant herein, Jora Singh, father-in-law

and Dhan Kaur, mother-in-law caught hold of her. Her

husband, the appellant herein put kerosene on her person

and set her ablaze. She further stated that when she was set

on fire, she raised an alarm but the accused overpowered her.

11.It is relevant to note that the deceased received burn

injuries on 5

th

November 1991 but the dying declaration

came to be recorded on 8

th

November 1991 after an

application was made by the relatives of the deceased to the

SDM, Ludhiana. Shri Sadhu Singh (PW-5), Executive

Magistrate, in his evidence, admitted that the boys, who had

brought the application containing the order of the SDM,

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Ludhiana had told him that the statement of the deceased

should be recorded and that she was in a position to make

the statement. He further admitted that those boys had told

him that whatever they had to tell the deceased, they had

told her and that he should accompany them to record her

statement. He has further admitted that those 2-3 boys were

related to the deceased and some other persons were also in

the room in which he recorded the statement of the deceased.

12.It could thus be seen that there is a grave doubt as to

whether the dying declaration recorded by Shri Sadhu Singh

(PW-5), Executive Magistrate was a voluntary one or tutored

at the instance of respondent No.5. It is further relevant to

note that Dr. Jatinder Pal Singh (PW-8), in his deposition

itself, states that Shri Sadhu Singh (PW-5), Executive

Magistrate had recorded the dying declaration of the

deceased on 8

th

November 1991 at 04.40 p.m. whereas the

opinion with regard to her fitness was given by him at 06.00

p.m. on 8

th

November 1991. He has further admitted that he

had not mentioned in the bed-head ticket that he had

attested the statement of the deceased at 04.40 p.m. on 8

th

November 1991. It is thus doubtful as to whether Dr.

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Jatinder Pal Singh (PW-8) had really examined the deceased

with regard to her fitness prior to her statement being

recorded by Shri Sadhu Singh (PW-5), Executive Magistrate.

13.It is further relevant to note that Dr. Jasmeet Singh

Dhir (PW-7) has stated that the history recorded by him while

admitting the deceased, was narrated by the deceased

herself. He has further stated that the deceased had also

narrated that her husband had extinguished fire by pouring

water on her.

14.In the totality of the circumstances, it cannot be said

that the dying declaration (Ex. P.L.) is free from doubt.

15.The most glaring aspect that is required to be

considered is that the High Court itself has disbelieved the

dying declaration insofar as Jora Singh, father-in-law of the

deceased is concerned. We fail to understand as to how the

same dying declaration could have been made basis for

conviction of the appellant when the same was disbelieved

insofar as another accused is concerned.

16.It will also be apposite to refer to the deposition of Shri

Bhagwan, ASI, Investigating Officer (PW-9). He has stated in

his deposition that he had come to the conclusion that the

present case was not a case under Section 307 of IPC or

13

Section 498-A of IPC but a case under Section 309 of IPC.

He has further stated that the higher authorities that is Shri

Sukhdev Singh, DSP and Shri Rajinder Singh, SHO had

verified the investigation conducted by him and found the

same as correct and agreed with his conclusions. He has

further stated that during investigation, it was revealed that

the deceased was short-tempered and that accused Jora

Singh was not there in the village on the fateful day and that

he had gone to Rama Mandi for making purchases for Diwali.

17.Insofar as the evidence regarding harassment on

account of non-fulfillment of demand of dowry is concerned,

the prosecution relies on the evidence of Pavitar Singh (PW-

3), brother of the deceased, Randhir Singh (PW-4), father of

the deceased and Major Singh (PW-6), Sarpanch of the

village. Insofar as PWs 3 and 4 are concerned, they are

relatives of the deceased and their evidence will have to be

scrutinized with greater care, caution and circumspection.

Insofar as harassment with regard to non-fulfillment of

demand of dowry is concerned, except the vague allegation,

there is nothing in their evidence to support the prosecution

case. Insofar as Major Singh (PW-6), Sarpanch of the village

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is concerned, he stated that he was informed by Randhir

Singh (PW-4), father of the deceased that in-laws of the

deceased were harassing her and therefore they should go to

village Chatha. However, he also does not state that he was

informed by Randhir Singh (PW-4), father of the deceased

that the deceased was meted out to any harassment on

account of non-fulfillment of demand of dowry. We are

therefore of the considered view that there is no evidence to

prove beyond reasonable doubt that the deceased was

harassed on account of non-fulfillment of demand of dowry.

We therefore find that the case under Section 304-B of IPC is

not made out by the prosecution.

18.In the result, we pass the following order:

(i)The appeal is allowed;

(ii)The judgment and order of conviction as recorded by

the trial court dated 14

th

September 1999 and

affirmed by the High Court vide its impugned

judgment and order dated 24

th

July 2009 are

quashed and set aside; and

(iii)The appellant is acquitted of all the charges levelled

against him and his bail bonds shall stand

discharged.

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19.Pending application(s), if any, shall stand disposed of in

the above terms.

….……..….......................J.

[B.R. GAVAI]

……………………..….........................J.

[PAMIDIGHANTAM SRI NARASIMHA]

……………..….........................J.

[PRASHANT KUMAR MISHRA]

NEW DELHI;

SEPTEMBER 27, 2023.

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