Banarsi Dass & Ors vs State Of Haryana

1-Dr. S.D. Goyal, who found that Chander Kalan suffered burn injuries which were approximately 45%. On his request, PW-16-ASI Jagdeep Singh recorded Exhibit-PM-dying declaration. Thereafter, she was admitted in the hospital of PW-9-Dr. Soni on 19.06.1998 and, on 17.07.1998, she was further shifted to the hospital of PW-5-Dr. SubhashVerma, where she died on 04.08.1998. PW- 2-Dr. V.K. Kawatra conducted the postmortem along with Dr. Arun Gupta. The trial court chose not to believe Exhibit-PM-dying declaration, but relied on the evidence of PW-5-Dr. Subhash Verma and PW-6-Lalman, Tehsildar and ruled out the possibility of burning by the accused. However, having found that there is evidence to establish cruelty, all the accused were convicted under Section 498A of IPC. The High Court, in the appeal by the State, entered the following conclusion at paragraphs- 8 to 10:

On the basis of the above discussion, the High Court entered the following finding at paragraph-12, which reads as follows:

(Emphasis supplied) In cross-examination, it is stated by him that she was brought to the clinic by her husband-Ramesh Kumar along with 3/4 more persons whom the doctor could not identify. It has also clearly come out in the evidence that "except burn injuries, no other injury caused by any other weapon blunt or incised was found on the person of Chander Kalan". And still further, it was noted that there was no sign of any burn mark below umbilicus and on the back of the deceased except one small patch on lower part of the back. The long hair was not affected at all which indicates that the fire was extinguished soon after it caught the clothes of Chander Kalan. According to him, a patient with 45% burns can survive if good and proper medical aid is given to him or her.

In the facts and circumstances of the present case, Exhibit-PM-declaration does not meet the requirements of a dying declaration under Section 32(1) of the Evidence Act. It has to be noted that the very foundation of the reliability of the dying declaration is the principle of Nemo moriturus praesumitur mentire which literally means that no one at the point of death is presumed to lie since one is normally afraid to meet his maker with a lie on his mouth at the time of death.

Now, regarding the sentence, it is brought to our notice that appellant nos. 2 and 3 have served imprisonment for around two years. Since the appellants are acquitted under Section 304B of IPC and the conviction is only under Section 498A of IPC and since accused/appellant nos. 1 and 5 are no more, and having regard to the facts and circumstances of the case, we are of the view that the sentence of accused/appellant nos. 2 and 3 is to be limited to the period already undergone.

In the result, the conviction under Section 304B of IPC in respect of all the appellants is set aside. The conviction under Section 498A of IPC in respect of appellant no. 4-Rajesh is set aside. The conviction under Section 498A of IPC is maintained in respect of accused/appellant nos. 1, 2, 3 and 5. Accused/appellant nos. 1 and 5 are no more and the appeal as against them is abated. The sentence of accused/appellant nos. 2 and 3 is limited to the period already undergone.

It is seen that the deceased had been undergoing treatment from 18.06.1998 till her death on 04.08.1998, initially in two government hospitals and thereafter, for a long period, in two private hospitals. Therefore, we are of the view that the accused/appellants should be made liable to pay compensation to the parents of the deceased. Accused/appellant nos. 2 and 3 are directed to pay total compensation of Rs.1,00,000/- to the parents of the deceased-Chander Kalan within a month from today. In the event of default, the District Magistrate, Hisar shall take appropriate coercive action to recover the amount from accused/appellant nos. 2 and 3 and pay the same to the parents of the deceased, within another six months.

The appeals are allowed as above.

December 18, 2014.