Cr. Appeal No.88/2012 Page 1 of 26

IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT JAMMU

Reserved on: 02.06.2023

Pronounced on:20.07.2023

Cr. Appeal No.88/2012

c/w

CONF No.12/2013

RAKESH KUMAR ... APPELLANT(S)

Through: - Mr. Mohd. Latif Malik, Advocate.

Vs.

STATE OF J&K …RESPONDENT(S)

Through: - Mr. Amit Gupta, AAG.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

JUDGMENT

Sanjay Dhar, J

1) The instant appeal is directed against the judgment dated

26.10.2012 passed by learned 1

st

Additional Sessions Judge, Jammu,

whereby the appellant has been convicted of offences under Section 302

and 498-A RPC. The appellant has also challenged order dated

03.11.2012, whereby, in proof of offence under Section 302 of RPC, he

has been awarded death sentence.

2) Briefly stated, case of the prosecution is that the appellant, who

happens to be the husband of deceased Nina Devi, was harassing her and

treating her with cruelty in connection with demands of dowry. It is

alleged that on 14.03.2007, in the morning at about 10 O’clock, when

the deceased had an altercation with the appellant, he dragged her by

Cr. Appeal No.88/2012 Page 2 of 26

putting dupatta around her neck, whereafter he set her ablaze after

sprinkling petrol over her. The father and aunt of the appellant, who were

present in the house at the relevant time, doused the fire and shifted the

deceased to the hospital but the appellant fled away from the spot. In the

hospital, while the deceased was undergoing treatment, she made a dying

declaration that was recorded by PW Constable Fazal who had been

deputed to the hospital by SHO, P/S R. S. Pura, for the said purpose. The

aforenamed Constable recoded the dying declaration of the deceased in

presence of the Magistrate after seeking permission from the concerned

doctor. The deceased in her statement disclosed that she had entered into

wedlock with the appellant about one and a half years back and out of

their wedlock, a male child was born. She further stated that the appellant

was harassing her in connection with demands of dowry and on the

fateful day i.e., on 14.03.2007, she was done to death by the appellant in

the manner as indicated hereinbefore.

3) On the basis of the statement made by the deceased, FIR

No.17/2007 for offences under Section 498-A and 307 RPC was

registered and investigation of the case was set into motion. However, in

the evening of 14.03.2007, the deceased succumbed to the injuries, as

such, in place of offence under Section 307 RPC, offence under Section

302 RPC was substituted. After investigation of the case, charge sheet

was laid before the competent court. The trial court vide order dated 1

st

June, 2007, framed charges for offences under Section 302/498-A RPC

against the appellant and his plea was recorded. The appellant denied the

charges and claimed to be tried. Accordingly, the prosecution was

Cr. Appeal No.88/2012 Page 3 of 26

directed to lead evidence in support of the charges. Out of 14 witnesses

cited by the prosecution, 13 witnesses have been examined during trial

of the case. After the completion of prosecution evidence, incriminating

circumstances appearing in the prosecution evidence were put to the

appellant/accused to seek his explanation and his statement under

Section 342 of J&K Cr. P. C was recorded on 29

th

August, 2012. In his

statement, the appellant claimed that he never made any demand of

dowry from the deceased and that the prosecution witnesses have

deposed falsehood. The appellant further claimed that he has been falsely

implicated and at the time of the occurrence, he was not present in the

house. He has further stated that at the relevant time, he was in the house

of his neighbourer which is located at a distance of 200 meters from his

house. He went on to state that a person called him and he went to his

house where he found his wife in a burnt condition. He further stated that

he carried his wife to the hospital at R. S. Pura and thereafter to GMC,

Jammu. He has also stated that he informed his in-laws on telephone and

that his wife was not in a condition to make any statement.

4) The learned trial court, relying upon dying declaration of the

deceased and the other circumstances established on record, came to the

conclusion that charges against the appellant stand proved and,

accordingly, vide the impugned judgment, he has been convicted of

offences under Section 302/498-A of RPC.

5) The appellant has challenged the impugned judgment on the

grounds that the same is contrary to the facts and that he has been framed

in the case. It has been submitted that the deceased wife of the appellant

Cr. Appeal No.88/2012 Page 4 of 26

was suspecting his fidelity and she had suspicion that the appellant was

having relationship with her younger sister. It has been claimed that on

account of this unfounded suspicion, relations between appellant and the

deceased deteriorated, as a result of which the deceased committed

suicide when the appellant was not at home. According to the appellant,

he carried the deceased to the hospital and informed his in-laws but he

has been falsely implicated in the case. It has been further contended that

investigation of the case has not been conducted in a fair manner and that

the trial court’s approach in passing the impugned judgment has been

emotional and not based upon appreciation of evidence in accordance

with law. It has been further contended that the deceased had suffered

91% burn injuries and her brain matter was congested, therefore, it is out

of question that she would have been in a position to make a statement

relating to the circumstances of her death. It has also been contended that

the doctor, who had certified that the deceased was fit to make a

statement, has not been examined as a witness and that the statement of

the deceased has been recorded by the Constable and not by the

Executive Magistrate. It is further contended that there is no evidence on

record to prove that the appellant had made any demands of dowry from

the deceased or her parents. It has been contended that there are stark

contradictions in the statements of prosecution witnesses on essential

aspects of the case which have been ignored by the learned trial court

while passing the impugned judgment.

6) We have heard learned counsel for the parties and perused the

evidence on record, the grounds of appeal and the impugned judgment.

Cr. Appeal No.88/2012 Page 5 of 26

7) The major thrust of the arguments of learned counsel for the

appellant was upon the admissibility and reliability of the dying

declaration, EXP-2, stated to have been made by the deceased. In this

regard, the main grounds of challenge that have been urged by learned

counsel for the appellant are that the deceased was suffering from 91%

burn injuries and her brain matter had been congested, as such, it was

impossible for her to make a statement. It has been contended that the

doctor who had certified that the deceased was fit to make a statement

has not been examined as a witness by the prosecution. It has been further

contended that the Executive Magistrate has only attested the dying

declaration and it has not been recorded by him. Lastly, it has been

contended that the dying declaration has been recorded by the police

constable in a technical language and not in the words of the deceased.

According to the learned counsel, all these factors make the dying

declaration highly unreliable. In support of his contentions, the learned

counsel has placed reliance upon the judgments of the Supreme Court in

the cases of Sampat Babso Kale & anr. vs. State of Maharashtra,

(2019) 4 SCC 739, Darshan Singh and others vs. State of Punjab,

(1983) 2 SCC 411, Paparambaka Rosamma vs. State of Andhra

Pradesh, (1999) 7 SCC 695, K. Ramachandra Reddy and another

vs. The Public Prosecutor, (1976) 3 SCC 618, Maniram vs. State of

M.P, 1994 Supp. (2) SCC 539, Surinder Kumar vs. State of Haryana,

(2011) 10 SCC 173, judgment of Bombay High Court in Deepak

Baliram Bajaj vs. State of Maharashtra, 1993 Crl. J. 3269 and the

Cr. Appeal No.88/2012 Page 6 of 26

judgment of Madhya Pradesh High Court in Amar Singh vs. State of

MP, 1996 Crl.J 1582.

8) In order to test the merits of the submissions made by learned

counsel for the appellant as regards the reliability and admissibility of

the dying declaration, EXP-2, made by the deceased, it would be apt to

notice the law on the subject.

9) Section 32(1) of the Evidence Act makes relevant, the statement

of a relevant fact by a person who is dead or cannot be find out. It reads

as under:

Section 32. Cases in which statement of relevant fact

by person who is dead or cannot be found, etc., is

relevant. When it relates to cause of death; or is made

in course of business; or against interest of maker; or

gives opinion as to public right or custom, or matters

of general interest; or relates to existence of

relationship; or is made in will or deed relating to

family affairs; or in document relating to transaction

mentioned in section 13, clause (a); or is made by

several persons, and expresses feelings relevant to

matter in question.

Statements, written or verbal, of relevant facts

made by a person who is dead, or who cannot be found,

or who has become incapable of giving evidence, or

whose attendance cannot be procured without an

amount of delay or expense which under the

circumstances of the case appears to the Court

unreasonable, are themselves relevant facts in the

following cases:

(1) When it relates to cause of death. -- When the

statement is made by a person as to the cause of his

death, or as to any of the circumstances of the

transaction which resulted in his death, in cases in

which the cause of that person’s death comes into

question. Such statements are relevant whether the

person who made them was or was not, at the time

when they were made, under expectation of death, and

whatever may be the nature of the proceeding in which

the cause of his death comes into question.

Cr. Appeal No.88/2012 Page 7 of 26

10) From a perusal of the afore-quoted provision, it is clear that when

a statement is made by a person as to the cause of his death or as to the

circumstances which resulted in his death in cases in which cause of that

person’s death comes into question, the said statement becomes relevant.

The logic behind reliability of a dying declaration is that no man would

like to meet his maker with falsehood in his mouth. It is on account of

this logic that statement made by a person who is about to die as regards

the cause or circumstances of his death has been given the status of an

independent piece of evidence which can be acted upon even without

corroboration if it is found to be true and reliable. The reliability of a

dying declaration has been a subject matter of discussion in a number of

cases before the Supreme Court and before various High Courts of the

Country and it would be apt to refer to some of these judgments in order

to understand the concept in this regard.

11) A Constitution Bench of the Supreme Court has, in the case of

Laxman vs. state of Maharashtra, (2002) 6 SCC 710, more or less

settled the law on the admissibility of the dying declaration. Para (3) of

the said judgment is relevant to the context and the same is reproduced

as under:

The juristic theory regarding acceptability of a dying

declaration is that such declaration is made in extremity,

when the party is at the point of death and when every hope

of this world is gone, when every motive to falsehood is

silenced, and the man is induced by the most powerful

consideration to speak only the truth. Notwithstanding the

same, great caution must be exercised in considering the

weight to be given to this species of evidence on account of

the existence of many circumstances which may affect their

truth. The situation in which a man is on death bed is so

solemn and serene, is the reason in law to accept the veracity

Cr. Appeal No.88/2012 Page 8 of 26

of his statement. It is for this reason the requirements of

oath and cross-examination are dispensed with. Since the

accused has no power of cross-examination, the court insist

that the dying declaration should be of such a nature as to

inspire full confidence of the court in its truthfulness and

correctness. The court, however has to always be on guard

to see that the statement of the deceased was not as a result

of either tutoring or prompting or a product of imagination.

The court also must further decide that the deceased was in

a fit state of mind and had the opportunity to observe and

identify the assailant. Normally, therefore, the court in order

to satisfy whether the deceased was in a fit mental condition

to make the dying declaration look up to the medical

opinion. But where the eyewitnesses state that the deceased

was in a fit and conscious state to make the declaration, the

medical opinion will not prevail, nor can it be said that since

there is no certification of the doctor as to the fitness of the

mind of the declarant, the dying declaration is not

acceptable. A dying declaration can be oral or in writing and

in any adequate method of communication whether by

words or by signs or otherwise will suffice provided the

indication is positive and definite. In most cases, however,

such statements are made orally before death ensues and is

reduced to writing by someone like a magistrate or a doctor

or a police officer. When it is recorded, no oath is necessary

nor is the presence of a magistrate is absolutely necessary,

although to assure authenticity it is usual to call a

magistrate, if available for recording the statement of a man

about to die. There is no requirement of law that a dying

declaration must necessarily be made to a magistrate and

when such statement is recorded by a magistrate there is no

specified statutory form for such recording. 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.

12) Again, in the case of Ramesh and others vs. State of Haryana,

(2017) 1 SCC 529, the Supreme Court has discussed the law on the

admissibility of dying declarations in the following manner:

Cr. Appeal No.88/2012 Page 9 of 26

31. Law on the admissibility of the dying declarations

is well settled. In Jai Karan v. State (NCT of Delhi), this

Court explained that a dying declaration is admissible

in evidence on the principle of necessity and can form

the basis of conviction if it is found to be reliable. In

order that a dying declaration may form the sole basis

for conviction without the need for independent

corroboration it must be shown that the person

making it had the opportunity of identifying the person

implicated and is thoroughly reliable and free from

blemish. If, in the facts and circumstances of the case,

it is found that the maker of the statement was in a fit

state of mind and had voluntarily made the statement

on the basis of personal knowledge without being

influenced by others and the court on strict scrutiny

finds it to be reliable, there is no rule of law or even of

prudence that such a reliable piece of evidence cannot

be acted upon unless it is corroborated. A dying

declaration is an independent piece of evidence like

any other piece of evidence, neither extra strong or

weak, and can be acted upon without corroboration if

it is found to be otherwise true and reliable. There is no

hard-and-fast rule of universal application as to

whether percentage of burns suffered is determinative

factor to affect credibility of dying declaration and

improbability of its recording. Much depends upon the

nature of the burn, part of the body affected by the

burn, impact of the burn on the faculties to think and

convey the idea or facts coming to mind and other

relevant factors. Percentage of burns alone would not

determine the probability or otherwise of making dying

declaration. Physical state or injuries on the declarant

do not by themselves become determinative of mental

fitness of the declarant to make the statement

(see Rambai v. State of Chhattisgarh [Rambai v. State

of Chhattisgarh).

32. It is immaterial to whom the declaration is made.

The declaration may be made to a Magistrate, to a

police officer, a public servant or a private person. It

may be made before the doctor; indeed, he would be

the best person to opine about the fitness of the dying

man to make the statement, and to record the

statement, where he found that life was fast ebbing out

of the dying man and there was no time to call the

Cr. Appeal No.88/2012 Page 10 of 26

police or the Magistrate. In such a situation the doctor

would be justified, rather duty-bound, to record the

dying declaration of the dying man. At the same time,

it also needs to be emphasised that in the instant case,

dying declaration is recorded by a competent

Magistrate who was having no animus with the

accused persons. As held in Khushal Rao v. State of

Bombay, this kind of dying declaration would stand on

a much higher footing. After all, a competent

Magistrate has no axe to grind against the person

named in the dying declaration of the victim and in the

absence of circumstances showing anything to the

contrary, he should not be disbelieved by the court

(see Vikas v. State of Maharashtra).

33. No doubt, the victim has been brought with 100%

burn injuries. Notwithstanding, the doctor found that

she was in a conscious state of mind and was

competent to give her statement. Thus, the Magistrate

had taken due precautions and, in fact, the medical

officer remained present when the dying declaration

was being recorded. Therefore, this dying declaration

cannot be discarded merely going by the extent of

burns with which she was suffering, particularly, when

the defence has not been able to elicit anything from

the cross-examination of the doctor that her mental

faculties had totally impaired rendering her incapable

of giving a statement.

13) From the foregoing enunciation of law on the subject, it is clear

that the dying declaration is a substantive piece of evidence and can be

made basis of conviction provided the Court is satisfied that the dying

declaration has been made voluntarily and that the same inspires

confidence of the Court. Before placing reliance upon the dying

declaration, it has to be shown that the maker of the dying declaration

was in a fit state of mind and that he has made the said statement

voluntarily without any tutoring or any external influence.

Cr. Appeal No.88/2012 Page 11 of 26

14) In the light of aforesaid legal position, let us now examine the facts

that have been established in the instant case. The deceased has made a

statement relating to the circumstances of her death in the presence of a

Magistrate, PW Anil Magotra (Naib Tehsildar), PW Jeeto Devi, the

mother of the deceased and PW Raman Kumar, the brother of the

deceased. Her statement has been recorded by PW Constable Fazal.

15) PW Jeeto Devi has stated that when she reached the hospital, the

deceased talked to her and told her that her husband put dupatta around

her neck and dragged her, whereafter he sprinkled petrol over her and set

her on fire. In her cross-examination she has, however, stated that when

she reached the hospital, the deceased was unconscious.

16) PW Raman Kumar has stated that when he reached the hospital,

they asked the deceased as to how she had suffered burn injuries and she

disclosed that the appellant tied dupatta around her neck and dragged

her. He has further stated that the deceased made a statement in their

presence and in presence of doctor and the Naib Tehsildar. The said

statement was recorded by a policeman. He admitted his signatures on

EXP-2. In his cross-examination he has stated that the deceased died

after two hours of making her statement and that prior to making her

statement, the deceased conveyed that she was in a position to make the

statement. He has further stated that the statement of the deceased was

recorded by a police officer with stars on his uniform. He has also stated

that the deceased was brought to the hospital by accused/appellant and

his family members.

Cr. Appeal No.88/2012 Page 12 of 26

17) PW Anil Magotra, Naib Tehsildar, has stated that under the

directions of Deputy Commissioner, he went to GMC Hospital, Jammu,

in the emergency ward and found the deceased lying over there in a

pitiable condition. He has further stated that besides him, one doctor and

one constable was present over there. He also stated that he directed

recording of statement of the deceased. He has further stated that two

more witnesses were present on spot at the relevant time. Prior to

recording the statement of the deceased, he asked certain questions to the

deceased and asked her the cause of burn injuries, to which she replied

that she had been set on fire by her husband. He has further stated that

whatever questions were asked by him, the same were answered by the

deceased and the constable reduced them into writing. The statement,

EXP-2, was attested by him. In his cross-examination, he has stated that

he does not know as to whether the statement of the deceased was to be

recorded in accordance with Rule 609 of the Police Rules. He has further

stated that he did not obtain any certificate from the doctor as regards the

fitness of the deceased; that he conducted the proceedings in the manner

in which he was asked by the SHO; that he has not certified that the

statement of the deceased was recorded under his supervision but he has

only attested the statement; that at the relevant time, the face and neck of

the deceased were having burin injuries; that a number of persons were

present in the emergency ward at the relevant time and that PWs Jeeto

Devi and Raman Kumar also signed the statement, EXP-2. He denied the

suggestion that statement, EXP-2, had already been prepared when he

reached the hospital. He has stated that he asked the deceased the cause

Cr. Appeal No.88/2012 Page 13 of 26

for burn injuries; that the statement, EXP-2, has not been recorded in

question answer form and that he has not recorded any certificate to

indicate that the deceased was fit to make a statement. He denied the

suggestion that he has signed the statement, EXP-2, only as a witness.

18) The most important witness to the statement, EXP-2, is its scribe

PW Constable Mohammad Fazal. He has stated that when he reached the

hospital to record the statement of the deceased, the doctor, the Executive

Magistrate and the relatives of the deceased were present over there. He

has further stated that after recording the statement of the deceased, the

same was attested by the Executive Magistrate; that he recorded the

statement, EXP-2, on 14.03.2007 in the evening hours and that the

docket bears the endorsement of the doctor that the patient is fit for

making statement. In his cross-examination he stated that he went to the

hospital all alone at about 5.00 p.m.; that he handed over the application

to Dr. Neesha; that at the time when he recorded statement of the

deceased, she was full of burn injuries and as per his assessment, she was

not fully fit to make a statement; that there were other civil persons

present in the hospital but he did not ask them to be witnesses to the

dying declaration. He was sent by the SHO to record statement of the

deceased.

19) Another piece of evidence which is required to be considered

while determining the reliability of the dying declaration of the deceased,

is her postmortem report, EXPKB, and the statement of the doctor, Kiran

Bhat. As per the statement of the doctor, the deceased had suffered

Cr. Appeal No.88/2012 Page 14 of 26

epidermal burns involving whole body except back of right thigh and

circular portion of lower abdomen. She had suffered 91% burn injuries.

The doctor has further stated that the brain substance of the deceased was

congested and the soot particles were present in upper respiratory track

and her lungs were congested. He has also stated that all internal visceras

of the deceased were congested. In her cross-examination, the doctor has

stated that burn injuries would have caused severe pain to the deceased.

She has further stated that for relieving pain, the doctors prescribe certain

medicines which cause sedation effect upon the patients and induce sleep

and drowsiness. She has further stated that if dosage of these drugs is

high, the patient may not be able to communicate or answer questions or

give response. She stated that because she did not meet the deceased

when she was alive, as such, she cannot state whether or not she was fit

to make statement before her death.

20) In the light of aforesaid evidence on record and the legal position

discussed hereinbefore, let us now determine as to whether reliance can

be placed upon the dying declaration of the deceased. In the instant case,

it is to be noted that the statement of the deceased was recorded while

she was admitted in the hospital. Had it been a case where statement of

the deceased was recorded at any place other than the hospital, the

requirement of fitness certificate before recording her statement could

have been obviated, because in such cases if the police finds that it is not

possible to requisition the services of a doctor without delay, which may

ultimately lead to loss of vital evidence in the shape of dying declaration

Cr. Appeal No.88/2012 Page 15 of 26

of the deceased, the investigating agency may have a valid reason for not

obtaining a fitness certificate prior to recording of dying declaration of a

deceased. However, in the instant case, the statement of the deceased was

recorded while she was admitted in the GMC Hospital, Jammu where at

a given time scores of doctors are on duty. Therefore, it would not have

been difficult for the investigating agency to requisition the services of a

doctor for examining the deceased as to her fitness to make a statement

prior to recording of her dying declaration. In fact, it appears that the

investigating agency has requisitioned the services of a doctor who

appears to have endorsed on the police docket that the deceased was fit

to make a statement. The endorsement, it appears, bears the signatures

of Dr. Juhi. However, the said doctor has neither been cited as a witness

to the challan nor has she been examined by the prosecution during trial

of the case. Therefore, the endorsement regarding fitness of the deceased

to make statement has not been proved. The scribe of the dying

declaration, PW Constable Fazal, has, in his cross-examination, stated

that as per his assessment the deceased was not fully fit to make a

statement. Besides this, even the mother of the deceased, PW Jeeto Devi,

has, in her cross-examination, stated that when she reached the hospital,

the deceased was unconscious. As per the postmortem report, the

deceased had suffered 91% burn injuries, her brain matter was

congested, her lungs were also congested and soot particles were present

in her upper respiratory track.

Cr. Appeal No.88/2012 Page 16 of 26

21) All the aforesaid circumstances established from the evidence on

record creates a grave suspicion regarding the fitness of the deceased to

make a statement before her death. This air of suspicion could have been

cleared by examination of the doctor who had given the certificate of

fitness, but the prosecution has not examined the said doctor. Therefore,

Illustration (g) to Section 114 of the Evidence Act comes into play and

it has to be presumed that if the prosecution would have examined the

doctor who has given the fitness certificate, her evidence would have

been unfavourable to the prosecution. The burden to prove that the

deceased was in a fit state of mind at the time of making dying

declaration, EXP-2, was upon the prosecution which, in the instant case,

it has failed to discharge.

22) There are other inherent defects and infirmities in the dying

declaration, EXP-2, which make it unreliable. The dying declaration,

EXP-2, has been recorded by PW Constable Fazal and not by PW Anil

Magotra, the Executive Magistrate. It is surprising that instead of

recording the statement himself, PW Anil Magotra has entrusted the job

to a police constable. According to PW Anil Magotra, the questions were

asked by him to the deceased who answered the same, whereafter the

statement was reduced into writing by PW Constable Fazal. A perusal of

the statement, EXP-2, reveals that it has been recorded in a highly

technical police language as if it was an FIR. It certainly does not appear

to be in the language and words of the deceased. According to PW Anil

Magotra, the Executive Magistrate, the statement, EXP-2, was recorded

on the basis of questions asked by him and the answers given by the

Cr. Appeal No.88/2012 Page 17 of 26

deceased, but it is not in a question answer form. This makes the

statement of the Executive Magistrate unreliable. PW Anil Magotra, the

Executive Magistrate, has only attested the statement, EXP-2, and he has

not even recorded a certificate that the statement was recorded under his

supervision. The dying declaration, EXP-2, in these circumstances

becomes extremely doubtful.

23) Another aspect of the matter which is required to be noticed and

which makes the dying declaration, EXP-2, unreliable, is that the same

has been recorded in presence of mother and brother of the deceased,

meaning thereby they were present on spot at the time of recording of

the dying declaration. Therefore, having regard to the pitiable condition

of the deceased, as has been stated even by the Executive Magistrate in

his statement, tutoring of the deceased by her mother and brother, given

the acrimonious relationship between the deceased and her husband,

cannot be ruled out.

24) Learned counsel for the respondent-State has contended that there

is no requirement of law that dying declaration should be recorded by a

Magistrate or that there should be a certificate of fitness from the doctor

before recording a dying declaration. He has further contended that

percentage of burns suffered by a person making dying declaration is

also irrelevant if it is shown that the deceased was fit to make a statement.

25) There can be no quarrel with the propositions of law propounded

by learned AAG appearing for the respondent-State but then in a case

where the statement of the deceased is recorded inside the hospital, the

Cr. Appeal No.88/2012 Page 18 of 26

non-examination of the doctor to prove the fitness of the deceased to

make a statement makes the dying declaration highly vulnerable.

Similarly, the percentage of burns suffered by the deceased may not be

a relevant factor for ascertaining as to whether he or she was fit to make

a statement but then in a case where the scribe of the dying declaration

himself says that according to his assessment, the deceased was not fully

fit to make a statement and there was evidence on record to show that

the brain matter and lungs of the deceased were congested and there were

soot particles present in her trachea, the dying declaration of the

deceased becomes highly doubtful.

26) There is yet another aspect of the matter which dents the

prosecution version. It has come in the evidence on record that when the

deceased was set on fire, her father-in-law and aunt of her husband were

present on spot and they doused the flames, whereafter these persons

took her to hospital. Neither father-in-law of the deceased nor aunt of the

appellant has been examined as witnesses by the prosecution. The

Investigating Officer, PW Kuldeep Khajuria, during his cross-

examination was asked a specific question by the defence on this aspect

of the matter. He has stated that he did not record the statements of these

two witnesses as they were related to the appellant and he did not expect

them to support the prosecution version. He has further stated that he did

not even question these two persons during the investigation of the case.

Non-examination of these two important witnesses has led to non-

corroboration of the dying declaration. The best witnesses in the instant

case would have been the persons who had reached the spot of

Cr. Appeal No.88/2012 Page 19 of 26

occurrence immediately or who were present on the spot of occurrence.

They would have been the best persons to state as to whether or not the

deceased told them anything about the occurrence. The Investigating

Officer has presumed that these persons will not support the prosecution

version and has thereby abdicated his duty to investigate the case in a

fair and transparent manner, which is the primary duty of an

Investigating Officer. The job of an Investigating Officer is not somehow

to collect material only in support of the theory of crime which he has

conceived but his real duty is to unearth the truth and ensure that no

criminal is let-off. At the same time the Investigating Officer has to

make sure that no innocent is falsely implicated. He has to keep his mind

open and consider the material that may even be produced by the

suspect/accused. The Investigating Officer cannot refuse to question the

relatives of the accused simply because they are expected to favour the

accused. The manner in which the Investigating Officer has investigated

the instant case leaves much to be desired. In a heinous crime of the

present nature, the Investigating Officer by not examining the persons

who would have been acquainted with the circumstances of the case and

by not citing the doctor who has issued the fitness certificate of the

deceased, as a witness to the challan has caused a severe dent to the

theory of crime propounded by him in the challan.

27) In view of the foregoing discussion, it would be highly unsafe to

rely upon the dying declaration of EXP-2 and record conviction of the

appellant on its basis. The leaned trial court has unfortunately ignored all

these aspects of the case and has simply brushed aside these

Cr. Appeal No.88/2012 Page 20 of 26

inconsistencies and inherent defects in the dying declaration, by terming

the same as insignificant. These inherent defects in the statement, EXP-2,

go to the root of the matter and can, by no stretch of imagination, be

termed as insignificant.

28) Similarly, the observations of the learned trial court that it is

purely within the domain of the Investigating Officer to choose as to

whom he wishes to cite as a witness, is also dehors the sanction of law.

The Investigation Officer is expected to question all those persons who

are acquainted with the facts of the case and he is not expected to ignore

and leave out those witnesses who may not be toeing the line of the

prosecution theory. The observation of the learned trial court that it was

open to the defense to produce these left out witnesses in defense which

he failed to do, is also without any substance because the prosecution has

to stand on its own legs in order to prove its case beyond any reasonable

doubt against the accused. When an accused finds that the prosecution

has not been able to prove its case beyond reasonable doubt against him,

he is not expected to lead evidence in defense by producing those

witnesses who have been left out by the prosecution just for the sake of

it. No adverse inference can be drawn against the accused for not

producing those witnesses.

29) For the foregoing analysis, it is clear that the dying declaration,

EXP-2, on the basis of which the learned trial court has based the

conviction of the appellant, has been found to be absolutely unreliable

and full of infirmities and doubts. Such a type of dying declaration

Cr. Appeal No.88/2012 Page 21 of 26

cannot be relied upon for recording conviction of an accused. The

learned trial court has grossly erred in placing reliance upon the aforesaid

dying declaration. The appellant cannot be convicted of offence under

Section 302 RPC on the basis of dying declaration, EXP-2.

30) Another circumstance that has been relied upon by the prosecution

is the recovery of bottle of petrol, burnt pieces of cloth and the match

box from the house of the accused/appellant. It is true that these articles

are established to have been recovered from the house of the appellant.

As per the report of the FSL, EXPW-RK, traces of petrol were found in

the seized pieces of cloth. When this circumstance is read in conjunction

with the postmortem report, EXPW-KB, it gets established that the

deceased has died due to burn injuries.

31) Yet another circumstance that has been relied upon by the

prosecution is continuous demands of dowry by the appellant from his

deceased wife and his in-laws. PW Prem Chand, the uncle of the

deceased, has in clear terms stated that the appellant used to harass his

wife in connection with demands of dowry and he would even beat her

up for the said purpose. He has stated that he himself saw the appellant

quarrelling with the deceased and he even advised the appellant not to

do so. PW Karam Chand, the father of the deceased, has stated that the

appellant used to demand money from him and he would harass his wife.

He has stated that he has paid an amount of Rs. 20,000/- on two occasions

to the appellant and that the appellant also demanded motorcycle from

him. In his cross-examination he has given the details as to when he paid

this amount of Rs. 20,000/- on two occasions to the appellant. PW

Cr. Appeal No.88/2012 Page 22 of 26

Raman Kumar, the brother of the deceased, has stated that 4/5 days prior

to the occurrence, he had gone to the in-law’s house of the deceased and

in his presence, appellant quarreled with the deceased and demanded

motorcycle from her. He has further stated that he and his mother tried

to intervene in the matter and things were resolved but after 4/5 days, the

occurrence took place. There is nothing in the cross-examination of the

witness to discredit his statement on this aspect of the matter.

32) PW Jeeto Devi, the mother of the deceased has corroborated the

statement of her son PW Raman Kumar and stated that on two occasions

the appellant demanded Rs. 20,000/- from her husband and the same was

paid to him. She has further stated that the appellant was making demand

of motorcycle. She also stated that she along with PW Raman Kumar

went to the house of the appellant where she found appellant quarrelling

with his wife. She and her son tried to resolve the matter.

33) From the foregoing statements of the witnesses, it is clear that the

appellant was inflicting acts of cruelty upon the deceased prior to her

death in connection with demands of dowry. There is evidence on record

to show that he was paid Rs. 20,000/- on two occasions when he

demanded the same from his wife. There is also evidence on record to

show that the appellant was making demand of a motorcycle from his

deceased wife. The evidence on record also shows that the appellant

would often pick up quarrel with the deceased in connection with

demands of dowry. Thus, the charge for offence under Section 498-A

RPC stands established against the appellant.

Cr. Appeal No.88/2012 Page 23 of 26

34) Learned AAG appearing for the respondent-State has submitted

that the appellant has been unable to explain as to in what circumstances

the death of the deceased had taken place, which, admittedly, has taken

place inside the house of the appellant. According to learned AAG as per

Section 106 of the Evidence Act, the burden of proving the fact

especially within the knowledge of a person lies upon him. It has been

contended that since the death of the deceased had taken placed inside

the house of the appellant, who happens to be her husband, therefore, it

was for him to explain the circumstances under which she died and in

the absence of any such explanation, it has to be presumed that he is the

author of the crime.

35) Once it is found that the theory of murder of the deceased which

is based upon the dying declaration, EXP-2,has not been established by

the prosecution beyond reasonable doubt, the question arises as to what

is the explanation for death of the deceased put forward by the appellant,

as her death has taken place inside his house. In his statement recorded

under Section 342 of J&K Cr. P. C, the appellant has stated that he had

gone to his neighbourer’s house when the occurrence took place and

when he was called, he found the deceased lying in burnt condition. He

has stated that he carried the deceased to the hospital. His presence in the

hospital is deposed to by none else than PW Raman Kumar, the brother

of the deceased. The fact that the deceased was carried to the hospital

by the appellant further rules out the theory of murder.

36) In the memo of appeal, the appellant has taken a defence that the

deceased committed suicide as she was suspicious about his character.

Cr. Appeal No.88/2012 Page 24 of 26

He has also taken a defence that he was not present on the spot at the

time of the occurrence and it has come in evidence on record that he was

present in the hospital when the deceased was taken to the hospital. The

conduct of the appellant shows that he had not set the deceased on fire

but then her death has taken place within a period of seven years from

the date of her marriage and it has also been shown that the appellant had

subjected her to cruelty in connection with demands of dowry. The death

of the deceased is unnatural in nature, inasmuch as she has been found

to have received extensive burn injuries, while in her matrimonial home.

The appellant has, though in his statement under Section 342 of J&K Cr.

P. C, not explained the cause of death of the deceased but in the appeal,

he has submitted that the deceased had committed suicide, though for a

different reason which has not been established from the evidence on

record. The provisions contained in Section 114-C of the J&K Evidence

Act, which provides that once it is shown that a married woman has

committed suicide within a period of seven years from the date of her

marriage and her husband had subjected her to cruelty, the Court has to

presume that such suicide had been abetted by her husband. When the

aforesaid circumstances established on record are considered in the light

of Section 114-C of the Evidence Act, the charge for offence under

Section 306 of the RPC is proved against the appellant.

37) It may be argued that since the charge was for offence under

Section 302 RPC, the appellant was not put to notice to meet a charge

under Section 306 RPC, therefore, he is prejudiced by not framing a

charge under Section 306 of RPC. But then in the instant case, all the

Cr. Appeal No.88/2012 Page 25 of 26

prosecution evidence has been put to the appellant while recording his

statement under Section 342 of J&K Cr.P.C. This evidence includes the

evidence relating to the offence under Section 498-A of RPC. Therefore,

the appellant had enough of notice of the allegations that attract Section

306 of RPC as well. Since there is no clinching evidence regarding

setting on fire of the deceased by the appellant and it is nobody’s case

that it was an accidental death, as such, the only course left is to hold that

the prosecution has proved suicide of the deceased that has been abetted

by the act of cruelty perpetrated by the appellant upon her in connection

with demands of dowry. In our aforesaid view, we are supported by the

ratio laid down by the Supreme Court in the case of Lakhjit Singh vs.

State of Punjab, 1994 SCC Supl. (1) 173.

38) For the foregoing reasons, the conviction of the appellant under

Section 302 RPC and sentence of death awarded against him are set

aside. Instead, the appellant is convicted of offence under Section 306

RPC. His conviction for offence under Section 498-A RPC is upheld.

39) Having regard to the crude and barbaric manner in which the

appellant has instigated the deceased to commit suicide on account of

persistent demands of dowry coupled with the fact that the incident has

resulted in death of not only the deceased but it has also resulted in death

of the unborn child inside her womb, the appellant deserves to be given

the maximum punishment. Accordingly, in proof of offence under

Section 306 RPC, the appellant is sentenced to rigorous imprisonment

for a term of ten years and to pay a fine of Rs.10,000/. In proof of offence

under Section 498-A of RPC, the appellant is sentenced to rigorous

Cr. Appeal No.88/2012 Page 26 of 26

imprisonment for a term of three years and to pay a fine of Rs.5,000/.

Both the sentences shall run consecutively. In default of payment of fine,

the appellant shall undergo further imprisonment of one year in each of

the offence. The period of custody undergone by the appellant during the

investigation and trial of the case before the trial court and during the

pendency of this appeal shall be set-off against the sentence awarded by

this Court.

40) The recommendation for imposing death sentence upon the

appellant made vide the reference submitted by the trial court is declined.

41) As per the nominal roll, the appellant has been in custody for more

than sixteen years, as such, he has served the sentence. He is, therefore,

directed to be released from the custody, if not required in connection

with any other case.

42) The trial court record along with a copy of this judgment be sent

back to the learned trial court.

(Rajesh Sekhri) (Sanjay Dhar)

Judge Judge

Jammu,

20.07.2023

“Bhat Altaf, PS”

Whether the order is speaking: Yes/No

Whether the order is reportable: Yes/No