Kanti Lal Vs. State of
Rajasthan  INSC 789 (17 April 2009)
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
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 2 of Rajasthan] and S. B. Criminal Misc. Petition No. 202 of up and
heard together and shall stand disposed of by this common judgment.
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], 3 contained
in paragraph 40 of the judgment, came to be dismissed.
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 4 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.
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 5 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.
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 6 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, 7 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.
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
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 8
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 9 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.
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 10 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.
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 11 them for not discharging their official duties
properly and diligently.
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.
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:
" 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.
appellant no. 3 Kantilal [Jeth of deceased] is on bail, he shall surrender
himself 12 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.
 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.
 The criminal
misc. petition filed by the petitioner Arvind Kumar Sengwa, DW-2 is also
A-1 and A-3 have filed these two sets of appeals challenging the correctness
and validity of the order of the High Court.
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 13 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
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 14 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.
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
15 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.
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.
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 16 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
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- 17 impression of the deceased
once or two times on the alleged dying declaration.
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.
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 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
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
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- 19 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."
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 20 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
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.
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 21 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 22 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
Aishwariya, learned counsel, has relied upon the of Maharashtra [ 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 23 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."
[ 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 24 statement and where the evidence of the
recording magistrate showed no flaw in taking it down, there is no reason to
[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
[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."
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 25 dying
declaration under Section 32  of the Evidence Act, 1872.
[ 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 26 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.
Others and Indian
Federation of Women Lawyers and Others while dealing a case of bride burning on
the basis of dying declaration, held as follow:
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
What is necessary is
that the exact statement made by the 27 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 above said case.
30] The prosecution
in support of the charge of dowry death has produced and relied upon the
testimony of PW-5 Parasmal 28 - 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
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.
[ 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 29 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 Maharashtra [ 9 SCC 721], this
Court reiterated and reasserted the settled principles laid down in Hiralal's
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 31 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.
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 32 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.
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 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.
35 (Lokeshwar Singh Panta)
(B. Sudershan Reddy)