The case in hand also relates to one such unfortunate woman who became a victim of the aggression of her drunkard husband, who under the influence of alcohol went on to commit such horrendous act of burning his own wife.In the present case deceased was just 30 years of age and had a boy child of fourteen years from her first husband.She was attacked by accused when he came back home in a drunk condition.The exact prosecution story as it unfolds in the charge-sheet is as under:-"On 28.11.1987 at 5:50 p.m. an information was received from an unknown person through telephone PCR vide DD No. 41-B CRL.A. 634/1999 Page 2 of 27 that a lady has been burnt by pouring kerosene oil at 1?485, Khichripur colony, some officer be sent.On this information, after recording report of the same was sent to SI Dharmender Kumar through constable Om Prakash, who went to the spot and said SI was told at the spot that the lady Smt. Harjeet has been taken to hospital, SI tried to ascertain the hospital and in the meantime, at 07:25 p.m. vide DD No.15, constable Jai Prakash was informed from safdurjung hospital on telephone that Smt. Harjeet has been admitted in the hospital in the burnt condition.On this S.I reached safdurjung hospital and received MLC No.69629 pertaining to injured Smt. Harjeet.The SI seeing the condition took the SDM, Shadhra, Shri Parimal Rai and reached the hospital.Inviting the attention of this Court to the deposition of PW4-Dharmender who is son of the deceased from her previous marriage, counsel for the appellant submitted that this witness in his examination-in-chief clearly stated that the appellant was having cordial relationship with his mother and no quarrel took place between his mother and the accused.He also deposed that he did not witness any incident of quarrel or threatening by accused to his mother.He also deposed that when he returned to the house he did not see the accused Wilson present at the house.The contention raised by the counsel for the appellant was that this witness was the son of the deceased from her previous marriage and had the accused been involved in the commission of the said crime then at least this witness would have strongly supported the prosecution case instead of coming to the rescue of the appellant.My son, who is from my previous husband, is about 16 years of age.Wilson used to beat me.Earlier I used to CRL.A. 634/1999 Page 9 of 27 reside at Jahangir Puri.Wilson wanted to get rid of me.Even about two weeks back, Wilson had made an attempt to burn me after pouring kerosene oil on me as well as on him and today also he threatened to put an end to my life.It has happened in the evening.The history of assault as is recorded in the MLC would also be relevant and the same is reproduced as under:-"Alleged history of sustaining burns at about 4.30 p.m. on 28.11.1987 at her house in Block No.9, Khichripur, New Delhi, when her husband came home drunk and started abusing her.Then he allegedly poured kerosene oil over her and set her on fire with a matchstick.She rushed out of the house shouting when her neighbour came and poured water over her and brought to hospital.O/E GC critical, smell of kerosene oil.sh Patient fully conscious, oriented.Pulse not palpable CRL.A. 634/1999 Page 10 of 27 Heart rate - 40/ min Resp.rate - 28/ min Tough dug, week veins, collapsed, capitrany ratio poor dehydration & Rest crs & Resp.system NAB L/E Fresh superficial to deep burns over whole of the body except back of head, both treada Part of both lower limbs & groin 85% burns"CRL.A. 634/1999 Page 10 of 27The MLC also records that the patient was fully conscious and oriented.It further records that the burn injuries suffered by the victim were over 85% and also that the general condition of the victim was critical and smell of kerosene oil was coming from her body.The said MLC was proved on record as Ex. PW-21/A in the testimony of PW-21, Mr. J.B. Bhardwaj, Medical Record Technician of Safdarjung hospital."There are 2nd degree deep burns (... over the face), 3rd degree burn over neck all around, chest & abdomen all around except back of the left forearm, all around the right thighs, portem medical aspect of left thighs and back of both legs.....all around CRL.A. 634/1999 Page 11 of 27 both upper .mere is ___________________ cut open on the left __________ and evidence of vital reaction.Scalp hair show signing at margins.KAILASH GAMBHIR, J.By this appeal filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C), the appellant herein seeks to challenge the judgment and order dated 30.09.1999 and 01.10.99 respectively passed by the Court of Ld.Additional Sessions Judge, Shahdara, Delhi, thereby convicting the appellant for committing an offence under Section 302 of India Penal Code, 1860 (hereinafter referred to as IPC) and sentencing him to undergo imprisonment for life CRL.A. 634/1999 Page 1 of 27 together with fine of Rs. 2,000/- and in default thereof to undergo further rigorous imprisonment for a period of one year.CRL.A. 634/1999 Page 1 of 27Crime against women is not just a crime against an individual but against humanity that makes one lose its faith in humans and relationships.These days it has become a routine affair.Not even a day passes when unspeakable crimes like rape, murder, bride burning etc are not committed against women.This violence is not just restricted to the streets or alleys; but it often travels through the walls and into one's house.There is no empathy left even towards a women living with a man after marriage for several years under the same roof.A separate permission to record the statement of the victim was sought by the police vide application dated 28.11.1987 on which the doctor made the endorsement to the effect "patient is fit to give statement" allegedly at 08:30 p.m. in the dying declaration made to the SDM, the victim named her husband as offender.On the statement of the victim a case was registered under Section 307 IPC."CRL.A. 634/1999 Page 2 of 27After supplying the copies of the charge sheet to the accused as per law, case was committed to the Court of Sessions.Arguments on the point of charge were heard and charge under section 302 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.To CRL.A. 634/1999 Page 3 of 27 prove its case, the prosecution had examined 25 witnesses.The statement of accused was recorded by the learned Trial Court under Section 313 Cr.P.C. and the accused pleaded his innocence and false implication.CRL.A. 634/1999 Page 3 of 27Addressing arguments on behalf of the appellant, Ms. Jaspreet Gogia, Advocate, vehemently contended that the appellant has been falsely implicated in the present case based on an uncorroborated and unreliable dying declaration of the deceased.Counsel for the appellant also argued that at the time of the incident even the appellant was not present at the house and therefore, also the appellant could not have committed the said crime.Making a serious challenge on the credibility of the alleged dying declaration made by the deceased, the counsel for the appellant contended that as per the MLC proved on CRL.A. 634/1999 Page 4 of 27 record, the deceased had suffered 85% burn injuries over whole of her body and even her both the lips and hands were also burnt and therefore, such a condition of the deceased could not have permitted her to give such a lengthy statement to the SDM or to affix thumb mark on the dying declaration.Counsel for the appellant also argued that even the SDM did not satisfy himself before recording the statement as to whether she was in a sound condition to give her statement or not.Counsel for the appellant further submitted that even no fitness certificate was obtained from the doctor certifying that the deceased remained conscious, oriented and mentally alert till the end of recording of her statement.CRL.A. 634/1999 Page 4 of 27Placing reliance on a judgment of the Apex Court in the case of Surender Kumar v. State of Haryana reported in 2011 (10) SCC 173, counsel for the appellant submitted that ratio of this judgment is squarely applicable to the facts of the present case, as in the facts of the said case also, the dying declaration made by the deceased did not carry a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased and that he had read over the statement to her.Counsel for the appellant also apprised the Court that the appellant had already undergone more than 7 years of incarceration for an offence CRL.A. 634/1999 Page 6 of 27 which he had never committed and is presently leading a happy married life with his wife along with three children.Counsel for the appellant also submitted that the wife of the appellant who is about 38 years of age is suffering from Cancer, Carcinoma Cervix III B and presently she is undergoing Chemo Therapy involving huge expenses and besides his ailing wife, the appellant has also to look after his old aged mother.Based on the above submissions, counsel for the appellant prayed for acquittal of the appellant.CRL.A. 634/1999 Page 6 of 27Mr. Sunil Sharma, learned APP for the State, on the other hand fully supported the reasoning given by the learned Trial Court in convicting the appellant under Section 302 IPC and as per him, the same does not warrant any interference by this Court in exercise of its appellate powers.Learned APP for the State submitted that the dying declaration in the present case was recorded by the Magistrate and there is no reason to challenge the credibility and independence of the Magistrate, in truthfully and correctly recording the last statement of the deceased.Learned CRL.A. 634/1999 Page 7 of 27 APP for the State also argued that in the post mortem report of the deceased, proved on record as Ex.PW-20/A, there is no mention about the hands of the deceased being affected by any burn injuries, and therefore, the deceased could have easily affixed her thumb mark on the dying declaration proved on record as Ex.PW-15/A. Learned APP for the State also argued that even the appellant had also received burn injuries on the back side of his right hand, and therefore, he cannot set up the plea of alibi that he was not present at the time of the commission of the crime.Learned APP for the State has drawn attention of this Court to the MLC of the appellant proved on record as Ex.PW-19/A. Based on the above submissions, learned APP for the State prayed for upholding the order of conviction and sentence passed by the learned Trial Court.CRL.A. 634/1999 Page 7 of 27We have heard learned counsel for the parties at a considerable length.We have also gone through the Trial Court record before taking a final view in the matter.In the present case, deceased Smt. Harjeet was unsuccessful in her first marriage, which had taken place about 15 years ago with one Mr. Ram Narain.A son, namely, Dharmender was born out of her first wedlock and she was devoting her life in the upbringing of her son.The CRL.A. 634/1999 Page 8 of 27 present accused entered in her life and without formally marrying the deceased as per their customs and traditions, they started living together as husband and wife.On the evening of 28th November, 1987, she was allegedly burnt by the present accused after some quarrel had taken place between them.The deceased was rushed to Safdarjung hospital in the burnt condition where her dying declaration was recorded by the Sub Divisional Magistrate and on 30.11.1987 she succumbed to burn injuries .The text of the said dying declaration is reproduced as under:-CRL.A. 634/1999 Page 8 of 27"My husband Wilson had returned back in the drunken condition, immediately thereafter he started quarrelling.He asked me to go away from the house, at which, I retorted that it is you only who repeatedly moves out of the house and why I should leave.He had vigorously fought with me and thereafter angrily he had poured kerosene oil on me and said that if I do not leave then he will eliminate me.He thereafter with the help of match box ignited fire.Wilson is resident of Jallandhar.This was my second marriage.About 15-16 years have passed after my first marriage.His name was Ram Narain.He left me about 12-13 years back from today.Since for the past 4 years I started living with Wilson.I did not marry him as per customs and tradition.He burnt me with the intention to kill me.He should be apprehended and not allowed to run away.The said dying declaration was recorded by the Sub Divisional Magistrate at about 08:45 p.m. in the Safdarjung hospital.CRL.A. 634/1999 Page 9 of 27The MLC also records the name of Mrs. Bohti, mother of the deceased, who had accompanied the deceased at the time of her admission in the hospital.PW-20, Dr. L.T. Ramani, Lok Nayak hospital, Delhi, had conducted the post mortem of the deceased.As per the post mortem report proved on record as Ex.PW-20/A, the deceased had suffered the following burn injuries on her person:No smell of kerosene oil is directed in the scalp hair.There is no other mark of violence on the body"CRL.A. 634/1999 Page 11 of 27In the present case, the counsel for the appellant first challenged the credibility and truthfulness of the said dying declaration made by the deceased.The Counsel for the appellant contended that the dying declaration made by the deceased is uncorroborated and unreliable and therefore the conviction of the accused cannot be made solely on the basis of said dying declaration.Apparently, the deceased was admitted in the hospital at 07:25 p.m. on 28th November.At 08:30 p.m. the police officer made an application to the Doctor, requesting him to allow the recording of statement of the victim.The said application made by the police officer is proved on record as Ex.PW-24/A. On the application made by the police officer, Dr. Ankur Sarkar made an endorsement (Ex.PW-25/F), stating that the victim is fit to make the statement.Thereafter, the SDM recorded the statement of the victim, which concluded at 08:45 p.m. PW-15, Shri Parimal Rai in his court deposition fully supported the said facts.He deposed that before recording the statement of Harjeet, police had obtained the opinion of doctor as to CRL.A. 634/1999 Page 12 of 27 whether Harjeet was fit to make statement or not and on which doctor opined her to be fit to make statement at about 8.30 PM.He further deposed that he finished recording the statement of the victim at about 8.45 PM.The evidence of this witness remained uncontroverted as he was not cross-examined by the defence.From the above factual matrix, it is clear that the dying declaration was recorded immediately after the victim was admitted in the hospital and after the fitness certificate was obtained from the concerned doctor.Thus the chances of it being embellished or tutored do not arise.Further a dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement.The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death.CRL.A. 634/1999 Page 12 of 27It shall also be noted that the SDM is an independent and an impartial witness.It will be useful here to refer the judgment of the Hon'ble Apex Court in Harjit Kaur V. State of Punjab , 1999 (3) RCR (Cri) 700, wherein the Court took a view that Sub Divisional Magistrate, being an independent witness holding high position had no reason to do anything which was not proper and therefore genuineness of dying CRL.A. 634/1999 Page 13 of 27 declaration recorded by him could not be easily doubted and conviction recorded on that basis could not be faulted with.The germane portion of the judgment is extracted below:CRL.A. 634/1999 Page 13 of 27It was submitted by the learned counsel for the appellants that about hundred persons had approached the District Magistrate for getting the Dying Declaration of Parminder Kaur recorded and that some of the relative of the deceased had even accompanied the S.D.M. (P.W.-7) while he was going to the hospital for recording her Dying Declaration.He also submitted that the evidence of this witness discloses that three to four persons were present in the room where Parminder Kaur was kept.According to the learned counsel these two circumstances clearly indicate that P.W. 7 had recorded the Dying Declaration under pressure and in presence of those persons who were interested in Parminder Kaur.We do not find any substance in this contention because this witness has categorically stated in his Examination-in-Chief that when he was recording her statement, nobody was present in the room and even the Nurse attending on her was asked to get out of that room.What he has stated in cross examination is that when he had reached that place, three or four persons were seen sitting in the room.Therefore, it is not correct to say that the Dying Declaration was recorded in presence of some relatives of the deceased.The other circumstances that there was an agitation by the relatives of Parminder Kaur for recording her statement cannot lead to an inference that P.W.-7, who was an I.A.S. Officer and holding high position of Sub-Divisional Magistrate had recorded it under pressure and as desired by the relatives of the deceased.There was no reason for him to do so.As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect.Merely because that endorsement was made not on the Dying Declaration itself but on the application, that would not render the Dying Declaration CRL.A. 634/1999 Page 14 of 27 suspicious in any manner.The said endorsement made by the Doctor was produced by him and it has become evidence in the case.CRL.A. 634/1999 Page 14 of 27It was further submitted by the learned counsel that the statement of Parminder Kaur was not recorded by the witness in question and answers form.CRL.A. 634/1999 Page 18 of 27In the present case at 08:30 p.m. the police officer made an application to the Doctor, requesting him to allow the recording of statement of the victim.The said application made by the police officer is proved on record as Ex.PW-24/A. On the application made by the police officer, CRL.A. 634/1999 Page 19 of 27 Dr. Ankur Sarkar made an endorsement (Ex.PW-25/F) stating that the victim is fit to make the statement.The plea therefore succeeds only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.CRL.A. 634/1999 Page 24 of 27 Apparently, the accused has not placed anything on the record to show that at the time of the alleged incident he was not present at the place of the incident or that he was present at some other place so far away from the place of the incident that he could not be present at the place of incident at the same time.Apart from this, the evidence placed on record clearly show the presence of the accused at the place of incident, at the alleged time, as history of assault as is recorded in the MLC of the accused (Ex.PW-19/A) is "alleged injury sustained in saving his wife on 28.11.1987".Further it is pertinent to note that none of these witnesses were present on the spot at the relevant time, thus they cannot state any fact as to what would have had happened at the time when the accused burnt his own wife and had these witnesses not turned hostile, the evidence of all these witnesses, at its best, could have supported the case of prosecution only to the extent that it could prove the relation between the accused and the deceased.Thus even if these witnesses have turned hostile, their evidence will in no way affect the prosecution version that on the alleged day, the accused had burnt his own wife.CRL.A. 634/1999 Page 25 of 27In the light of the aforesaid discussion we find ourselves fully satisfied that the said dying declaration was made by the deceased voluntarily and truthfully, free from any kind of tutoring or prompting, and it was duly recorded by the SDM.There lies no merit in the present appeal.

Sections cited: Section 302 in The Indian Penal Code, Section 307 in The Indian Penal Code