Delhi High Court

Suman Mittal & Anr vs State & Ors. on 20 September, 2013

Author:
G.S. Sistani

Bench:
G.S.Sistani
,
G.P.Mittal

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on : 30th August, 2013
Judgment Pronounced on : 20th September, 2013

+ CRL.A.NO.1465/2010

SUMAN MITTAL & ANR ..... Appellants
Through : Mr.V.Madhukar and Mr.Jayant Pawar, Advs.

versus

STATE & ORS. ..... Respondents
Through : Ms.Rajdipa Behura, Adv. for respondent no.1.
Mr.Dinesh Garg, Adv. for respondents no.2 to 4.
CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE G.P.MITTAL

G.S. SISTANI, J.

1. Present appeal has been filed by the parents of deceased, Preeti Sharma
(hereinafter referred to as the deceased), under
Section 372
of the Code of
Criminal Procedure, against the judgment of acquittal dated 17.8.2010,
passed by learned Additional Sessions Judge, Delhi, in Sessions Case
No.70/08, whereby respondents no.2 to 4 have been acquitted for the
offences punishable under
Section 498A
/
304B
of the Indian Penal Code.

2. The case of the prosecution, as noticed by the trial court, is as under:

"1. .... DD No. 5A was registered on 17.04.2000 at PS New Ashok
Nagar regarding admission of a lady with 95% burn injuries in
Safdarjung Hospital. PW-6 SI Rajbir Singh reached at Safdarjung
Hospital and took MLC of injured Preeti Sharma. PW-6 recorded
her statement and informed about the occurrence to the SDM and

CRL.A.1465/2010 Page 1 of 26

requested him to record statement of Preeti Sharma. SDM PW-19
Ravi Dadhich recorded statement of injured Preeti. Preeti Sharma
died in hospital on 19.04.00. After postmortem dead body was
handed over to parents of Preeti Sharma. On 21.04.00 on the
recommendation of SDM this FIR No. 69/00 under
section
498A
/
304B
was recorded.

2. After registration of FIR, further investigation was conducted by
PW-6. From the spot, he seized various clothes in torn condition, a
cane of kerosene oil, match box, one match stick and some pieces
of broken bangles. PW-6 also recorded the statement of witnesses.
Thereafter further investigation of this case was marked to D.I. U.
Cell East District. Further investigation of this case was conducted
by PW-22 Inspector A.S. Dhaka. He recorded statement of
witnesses. Accused Raja was arrested on 06.05.00. Accused Rajesh
Sharma and Saroj Devi Sharma, parents of accused Raja were
formally arrested as they were granted anticipatory bail by Delhi
High Court. After investigation police filed chargesheet against
three accused persons under
sections498A
/
304B
IPC.

3. Charges under
sections 498A
/
304B
/
IPC were given to the
accused persons to which they pleaded not guilty and claimed
trial."

3. The prosecution has examined 24 witnesses.

4. Mr.Madhukar, learned counsel for the appellants, submits that the
impugned judgment rendered by the trial court is contrary to the evidence
and the same is not in conformity with the law relating to matrimonial
cruelty as contemplated under
Section 498A
IPC. Counsel further submits
that the daughter of the appellants died in unnatural circumstances within
seven years of her marriage, she was repeatedly harassed for dowry and

CRL.A.1465/2010 Page 2 of 26

upon her resistance to the same she was subjected to matrimonial cruelty.
Counsel next submits that the findings of the trial court, more particularly
in paras 34 and 35 of the impugned judgment, are contrary to the facts.
Counsel also submits that the deceased was subjected to cruelty on
account of dowry a few hours before the incident as Raja, respondent
no.2, had demanded money from the mother of the deceased and upon her
failure to pay the same he had sought to leave the deceased at her
matrimonial home itself. Thus, the respondent no. 2 had sought to make
the matrimonial status of the deceased depending upon the fulfilment of
the said demand.

5. It is contended by learned counsel for the appellants that the trial court has
failed to appreciate that the incident of demand of dowry soon before the
death of the deceased has led to the burning of the deceased, which has
been deposed by PW-4, mother of the deceased. In her statement the
mother had categorically deposed that few hours prior to the incident of
burning, respondent no.2 had come to her house and raised a demand of
Rs.20,000/-. Since the appellant no.2, father, was not at home she could
not arrange for Rs.20,000/- upon which the respondent no. 2 started
fighting with Preeti, threatened her with dire consequences and told her
that he would not take her till the money was arranged by the appellants.
It is further contended that appellant no.2 had pleaded her daughter to stay
back but she insisted on going back with respondent no.2.

6. Another argument has been raised by learned counsel for the appellants
that the trial court has failed to appreciate that at the time of the incident
the deceased was present behind closed doors along with the husband,
respondent no.2, and no reasonable explanation is forthcoming from
respondent no.2 so as to explain the cause of death of the deceased.

7. It is next contended by learned counsel for the appellants that respondent

CRL.A.1465/2010 Page 3 of 26

no.2, husband, did not suffer any burn injuries to douse the flames which
would have resulted in injuries to his hands. It is further contended that
there are material contradictions as two versions have been given out by
respondent no.2 to the prosecution witnesses i.e. PW-2 and PW-7
immediately after the incident. It is further contended that PW-7, Rahul
Jain, who accompanied appellant no.2 to the hospital in NOIDA, was
informed by respondent no.2 that cause of injuries sustained was during
cooking whereas PW-2, Vir Singh, was informed that the cause of injuries
were self-inflicted. It is also contended that respondent no.2 acted in a
suspicious manner with regard to the cause of burns sustained by the
deceased.

8. Another leg of the argument of learned counsel for the appellants is that
the trial court committed an error in relying upon the dying declaration
recorded by the SDM. It is further submitted that the deceased suffered
95% burns and, thus, in the ordinary nature of things she would be
incapable or would not be in a position to speak. It is also submitted that
the dying declaration bears the thumb impression of the deceased, who
was completely burnt.

9. Learned counsel for the appellants also submits that the dying declaration
cannot be relied upon as it is not credible for the reason that in the dying
declaration the time of the incident has been mentioned as 11.30 p.m.
whereas the deceased and respondent no.2 had entered their society
complex at 2.00 a.m. (in the night). Further as per the dying declaration
the period of marriage between the deceased and respondent no.2 was
four months whereas in fact they were married for six months. It is, thus,
submitted that the dying declaration does not inspire confidence. Counsel
further submits that given the 95% burn injuries, the deceased could not
have made any statement to the SDM. Counsel submits that the purported

CRL.A.1465/2010 Page 4 of 26

fitness certificate has overwriting and that too in a different ink, which
establishes the collusion between the authorities and respondents no.2 to

4. It is also submitted that Dr. Savita, who signed the fitness certificate,
was not examined by the prosecution and PW-13, Dr. Savita, proved her
signatures on the fitness certificate. It is next submitted that the dying
declaration was not signed by any witness or the Doctor, who signed the
fitness certificate.

10. To buttress his argument that the dying declaration is unreliable since the
deceased had mentioned the date of incident as 11.30 p.m., reliance is
placed on the evidence of PW-12, the chawkidar, to show that the
deceased and respondent no.2 had entered the main gate of the flat at 2.00
a.m. (in the night). The evidence of PW-12 reads as under:

"PW-12 Surinder Nath s/o.Sh.Siddhi Nath aged 41 years,
Chokidar, R/o.Jhuggi No.114 Sector 10, Noida U.P. permanent
address Village Fulad, PS Paru, Distt. Muzaffarpur Bhiar.

On SA.

I am working as guard in AIIMS apartment Vasundhara
Enclave Delhi. I know accused Shantanu Raja present in the court,
witness correctly identified as in year 2000 he was residing in flat
no.28 alongwith his wife. In the night of 16/17 April, 2000 I was
on night duty from 8 pm. to 8 am. In that night accused Shantanu
along with his wife and entered in the main gate of flats at about 2
am (right) in his car. At about 4 am accused went outside the gate
in his car. I did not check the vehicle of accused as I knew accused
Shantanu being the resident of society and sticker of the society
was affixed on the vehicle. I did not make any entry of the vehicle
of accused in the register being the resident of the society. I have
brought the original register maintained at the gate for coming and
outgoing the vehicle inside the society. The photostate copy of
register dated 17-04-00 is Ex.PW-12/A (within 3 pages) original
register seen and returned. One copy given to Ld. APP, one copy
given to accused persons and one copy retained in judicial file. On
the next day i.e. 18-4-00 police recorded my statement.

CRL.A.1465/2010 Page 5 of 26

xxxxxxxx by Sh.S.K. Ahluwalia counsel for all accused

In those days the parents of Shantanu was not residing in that flat
Vol: Prior to the occurrence they used to reside. I cannot tell when
the parents of Shantanu had left the flat before the occurrence. As
per the entry of register on 16-4-00 one Bunty Resident of B16
Chander Nagar Ghaziabad has visited at Flat No.28 at 6:05 p.m.
Bunty is brother of Preeti. I never heard any complaint of Shantanu
with regard to quarrel with his wife. Generally guard used to make
entry in the register of the visitors except the resident of the colony.
But sometimes visitors reluctant not to make entry in the register
then we generally take permission from the resident and thereafter
allow the entry of the vehicle. I know Sh.R.K. Mittal who is
present in the court today. As per the register entry Mr.R.K. Mittal
R/o.B-16, Chander Nagar Ghaziabad had visited in flat no.28 at
about 9:45 pm and went from gate at 11 pm on 9-4-00."

11. Learned counsel for respondent no.1, State, has pointed out that no leave
to appeal was filed against the judgment of the trial court.

12. Learned counsel appearing on behalf of respondents no.2 to 4 submits that
the deceased and respondent no.2 had a love marriage and they enjoyed a
very good relationship. Counsel further submits that the dying declaration
of the deceased makes it abundantly clear that respondent no.2 and his
family members had no role to play in the death of the deceased. Counsel
next submits that the dying declaration is self-explanatory as she had
stated that on account of a quarrel with her husband, respondent no.2, on a
small matter, since he told her that he would not talk to her, she put
herself on fire by pouring kerosene oil. The deceased in her statement had
categorically stated that there was no demand for dowry and it was a love
marriage of the deceased and respondent no.2 as they were having an
affair for the last three years. The deceased also made it clear that her in-
laws resided at Bijnor and there was nothing against them.

13. Learned counsel for respondents no.2 to 4 contends that the parents of the
deceased and her relations have made false depositions on account of the

CRL.A.1465/2010 Page 6 of 26

fact that they never approved the love marriage between the deceased and
respondent no.2 and this forced the deceased and respondent no.2 to get
married after running away from their house. Counsel next contends that
there is no question of demanding any dowry by respondent no.2 or his
family, as respondent no.2 is a well-settled person and carries on the
business of property dealing.

14. Learned counsel for respondents no.2 to 4 has placed reliance on the
evidence of DW-1 to DW-3 to show that the parents of respondent no.2
were residing at Bijnor. As per the evidence of DW-1, DW-2 and DW-3
the deceased was an acquaintance of respondent no.2 and she had visited
their house once or twice; the deceased had informed them of her love;
and her parents were interfering in her matrimonial home.

15. We have heard learned counsel for the parties and given our thoughtful
consideration to the matter. We have also perused the trial court record,
which was summoned. The arguments of learned counsel for the
appellants can be summarised as under:

 The evidence of the parents of the deceased and close relations
clearly proves that the deceased was being harassed for demand of
dowry, she was subjected to cruelty and harassment by her husband
and her in-laws in connection with demand of dowry soon before
her death and since the death of the deceased was in unnatural
circumstances within seven years of her marriage a presumption
under
Section 113B
of the Indian Evidence Act is against
respondents no. 2 to 4 and accordingly Section 304B would be
attracted.

 The dying declaration is neither credible nor trustworthy as Preeti
had suffered 95% injuries and she was not in a position to make a
statement, which is also evident from the fact that she had made

CRL.A.1465/2010 Page 7 of 26

two factual errors in her statement which she would not have made
in case she was in her right senses.

 Doctor has not signed the dying declaration as a witness.

16. Arguments of learned counsel for the respondents can be summarised as
under:

 The dying declaration was made before the SDM.
 There was no necessity that the Doctor should have signed the
dying declaration as a witness.

 In case there was any tutoring then respondent no.2 would have
ensured that there would be no factual error.

 Respondent no.2 made every effort to save the deceased, in the
middle of the night he even took help of two of his friends and in
case there was anything to hide he would not have done so. Thus
the dying declaration is truthful and reliable and consequently the
same has been rightly relied upon by the prosecution itself.
 The deceased and respondent no.2 had got married after running
away from their house against the wishes of the parents of the
deceased and in view thereof there was no dowry and for the same
reason being unhappy over the relationship the parents and relations
of the deceased have deposed falsely to implicate respondents no.2
to 4.

 Evidence of PW-1, PW-4, PW-5 and PW-20 is unreliable and is
exaggerated.

17. Before considering the rival contentions raised by the counsel for the
parties it would be useful to recall the principles as laid down by the
Supreme Court of India to be followed while considering an appeal
against acquittal. While considering an appeal against acquittal, the High

CRL.A.1465/2010 Page 8 of 26

Court has full power to review and consider the entire evidence but only
after considering each ground on which the order of acquittal was passed
and also giving reasons for not accepting the view expressed by the trial
court. The underlying principle is that while reversing the finding of
acquittal the High Court must take into account that the presumption of
innocence is still available in favour of the accused and in fact would
stand strengthened by the judgment of acquittal passed by the trial court.
While deciding a leave to appeal filed by the State, in case two views are
possible, the High Court must not grant leave if the trial court has taken
one of the plausible views, in contrast thereto in an appeal filed against
acquittal. Upon re-appraisal of evidence and relevant material placed on
record, in case the High Court reaches a conclusion that another view can
reasonably be taken, then the view which favours the accused should be
adopted. Unless the High Court arrives at a definite conclusion that the
finding recorded by the trial court are perverse, the High Court would not
substitute its own views on a totally different perspective.
In the case of

State of Madhya Pradesh Vs. Dal Singh & Ors.
reported at JT 2013 (8)
SC 625 the Supreme Court has held that the appellate court while
considering the appeal against the judgment of acquittal shall interfere
only when there are compelling and substantial reasons for doing so and if
the judgment is unreasonable and relevant material have been
unjustifiably ignored, it would be a compelling reason for interference.

In
the case of
Rukia Begum Vs. State of Karnataka
AIR 2011 SC 1585 the
Apex Court has held that in case two views are possible and the trial court
has taken the view favouring acquittal, the High Court should not disturb
the finding. In paragraph 8 of the judgment, it was held that:

"8. We have bestowed our consideration to the rival submissions
and we are of the opinion that the circumstantial evidence brought
against these appellants are not such which lead towards their guilt.

CRL.A.1465/2010 Page 9 of 26

As stated earlier, recovery from these appellants itself has been
discarded by the High Court. In our opinion motive alone, in the
absence of any other circumstantial evidence would not be
sufficient to sustain the conviction of these two appellants. It is
worthwhile mentioning here that the trial court on appraisal of the
evidence came to the conclusion that the prosecution has not been
able to prove its case beyond all reasonable doubt, so far as Rukia
Begum and Nasreen are concerned. It is trite that where two views
on the evidence are reasonably possible and the trial court has taken
a view favouring acquittal, the High Court in an appeal against
acquittal should not disturb the same merely on the ground that if it
was trying the case, it would have taken an alternative view and
convicted the accused. The High court while hearing appeal against
the judgment of acquittal is possessed of all the power of appellate
court and nothing prevents it to appraise evidence and come to a
conclusion different than that of the trial court but while doing so it
shall bear in mind that presumption of innocence is further
reinforced by acquittal of the accused by the trial court. The view of
the trial Judge as to the credibility of the witness must be given
proper weight and consideration. There must be compelling and
weighty reason for the High Court to come to a conclusion different
than that of the trial court. The view taken by the trial court was
justified in the facts and circumstances of the case and a possible
view and, therefore in our opinion, the High Court erred in setting
aside their acquittal."

18. The present appeal filed by the parents of the deceased is to be considered
on the touchstone of the law which has been
laid down by
the Supreme
Court. The main thrust of the argument of counsel for the appellants is
that the dying declaration, sought to be relied upon by the trial court in
arriving at the decision of acquittal of respondents no.2 to 4, is perverse as
the dying declaration is unreliable, the same has not been witnessed by the
doctor, it contains factual errors and moreover Preeti was incapable of
making a statement as she had sustained 95% burns. This submission of
counsel for the appellants is without any force. Ex.PW-19/A is the
statement of the deceased recorded by PW-19, which reads as under:

CRL.A.1465/2010 Page 10 of 26

"Q. What is your name?

A. Preeti Sharma.
Q. What is your husband‟s name?
A. Raja.
Q. Where do you live?
A. Vasundara Enclave
Q. What is your age?
A. 21 years.
Q. How old is your marriage?
A. Four months.
Q. How do you receive burn injuries?
A. I had a quarrel with my husband on some small matter

yesterday morning. He told me that he will not talk to me.
Thereafter I put myself on fire in drawing room putting
kerosene oil at 11:30 P.M.
Q. Any demand of dowry?

A. No. It is a love marriage. We were having affair for the last
three years.

Q. Where do your inlaws reside?
A. Bijnaur. There was nothing against them."

19.
In a recent decision reported in
Rafique @ Rauf & Others v. State of
U.P.
, reported at 2013 (7) SCALE 708, the Supreme Court considered in
detail the provisions concerning the extent of reliance that can be placed
upon the dying declaration. Paras 13 to 20 read as under:

"13. In this context when we make reference to the statutory
provisions concerning the extent of reliance that can be placed upon
the dying declaration and also the implication of Section 162(2)
Cr.P.C. vis-à-vis Section 32(1) of the Evidence Act, 1872, we feel
that it will be appropriate to make a reference to the decision of this
Court reported in Khushal Rao vs. State of Bombay - AIR 1958 SC

22. Justice Sinha speaking for the Bench after making further
reference to a Full Bench decision of the High Court of Madras
headed by Sir Lionel Leach, C.J., a decision of the Judicial
Committee of the Privy Council and „Phipson on Evidence‟ - 9th
Ed., formulated certain principles to be applied to place any
reliance upon such statements. We feel that the substance of the

CRL.A.1465/2010 Page 11 of 26

principles stated in the Full Bench decision and the Judicial
Committee of the Privy Council and the author Phipson‟s view
point on accepting a statement as dying declaration can also be
noted in order to understand the principles ultimately
laid down by

this Court in paragraph 16.

14. The Full Bench of the Madras High Court reported in In re,
Guruswami Tevar - ILR 1940 Mad 158 at page 170 (AIR 1940
Mad 196 at p.200) in its unanimous opinion stated that no hard and
fast rule can be laid down as to when a dying declaration should be
accepted, except stating that each case must be decided in the light
of its own facts and other circumstances. What all the Court has to
ultimately conclude is whether the Court is convinced of the
truthfulness of the statement, notwithstanding that there was no
corroboration in the true sense. The thrust was to the position that
the Court must be fully convinced of the truth of the statement and
that it should not give any scope for suspicion as to its credibility.
This Court noted that the High Court of Patna and Nagpur also
expressed the same view in the decisions reported in
Mohamad Arif
vs. Emperor
- AIR 1941 Pat.409 (J) and Gulabrao Krishnajee vs.
Emperor - AIR 1945 Nag. 153 (K).

15. The Judicial Committee of the Privy Council while dealing with
a case, which went from Ceylon, which was based on an analogous
provision to
Section 32(1)
of the Indian Evidence Act, took the
view that apart from the evidence of the deceased the other
evidence was not sufficient to warrant a conviction. It was,
however, held that in that case when the statement of the deceased
was received and believed as it evidently was by the jury it was
clear and unmistakable in its effect and thereby, the conviction was
fully justified and was inevitable. The Judicial Committee noted
that the factum of a murderous attack, though resulted in the cutting
of the throat and the victim was not in a position to speak but yet by
mere signs she was able to convey what she intended to speak out,
and the said evidence was brought within the four corners of the
concept of dying declaration, which formed the sole basis
ultimately for the Court to convict the accused, which was also
confirmed by the Supreme Court of Ceylon, as well as by the
Judicial Committee of the Privy Council.

16. The author Phipson in his 9th Ed., of the book on Evidence
made the following observations:

CRL.A.1465/2010 Page 12 of 26

"......The deceased then signed a statement implicating the
prisoner, but which was not elicited by question and answer,
and died on March 20. It was objected that being begun in
that form, it was inadmissible:- Held (1) the questions and
answers as to his state of mind were no part of the dying
declaration; (2) that even if they were, they only affected its
weight, not its admissibility; and (3) that the declaration was
sufficient, without other evidence, for conviction R. v.
Fitzpatrick, (1910) 46 Ir. L.T. 173 (M)."

17. After considering the above legal principles, this Court has set
down the following six tests to be applied for relying upon a
material statement as a dying declaration:

"16. On a review of the relevant provisions of the
Evidence
Act
and of the decided cases in the different High Courts in
India and in this Court, we have come to the conclusion, in
agreement with the opinion of the Full Bench of the Madras
High Court, aforesaid, (1) that it cannot be laid down as an
absolute rule of law that a dying declaration cannot form the
sole basis of conviction unless it is corroborated; (2) that
each case must be determined on its own facts keeping in
view the circumstances in which the dying declaration was
made; (3) that it cannot be laid down as a general proposition
that a dying declaration is a weaker kind of evidence than
other pieces of evidence; (4) that a dying declaration stands
on the same footing as another piece of evidence and has to
be judged in the light of surrounding circumstances and with
reference to the principles governing the weighing of
evidence; (5) that a dying declaration which has been
recorded by a competent magistrate in the proper manner,
that is to say, in the form of questions and answers, and, as
far as practicable, in the words of the maker of the
declaration, stands on a much higher footing than a dying
declaration which depends upon oral testimony which may
suffer from all the infirmities of human memory and human
character, and (6) that in order to test the reliability of a
dying declaration, the Court has to keep in view the
circumstances like the opportunity of the dying man for
observation, for example, whether there was sufficient light
if the crime was committed at night; whether the capacity of
the man to remember the facts stated had not been impaired
at the time he was making the statement, by circumstances

CRL.A.1465/2010 Page 13 of 26

beyond his control; that the statement has been consistent
throughout if he had several opportunities of making a dying
declaration apart from the official record of it; and that the
statement had been made at the earliest opportunity and was
not the result of tutoring by interested parties." (Emphasis
added)

18. We also wish to add that as on date, there is no statutory
prescription as to in what manner or the procedure to be followed
for recording a dying declaration to fall within the four corners of

Section 32(1)
of the Evidence Act. The presence of Magistrate;
certification of the doctor as to the mental or the physical status of
the person making the declaration, were all developed by judicial
pronouncements. As has been repeatedly stated in various
decisions, it will have to be found out whether in the facts and
circumstances of any case the reliance placed upon by the
prosecution on a statement alleged to have been made by the
deceased prior to his death can be accepted as a dying declaration,
will depend upon the facts and circumstances that existed at the
time of making the statement. In that case it would mainly depend
upon the date and time vis-à-vis the occurrence when the statement
was alleged to have been made, the place at which it was made, the
person to whom the said statement was made, the sequence of
events, which led the person concerned to make the statement, the
physical and mental condition of the person who made the
statement, the cogency with which any such statement was made,
the attending circumstances, whether throw any suspicion as to the
factum of the statement said to have been made or any other factor
existing in order to contradict the statement said to have been made
as claimed by the prosecution, the nexus of the person who made
the statement to the alleged crime and the parties involved in the
crime, the circumstance which made the person to come forward
with the statement and last but not the least, whether the said
statement fully support the case of the prosecution.

19.
In this context, we can also make a reference to a decision of
this Court reported in
Cherlopalli Cheliminabi Saheb and another
vs. State of Andhra Pradesh
- (2003) 2 SCC 571, where it was held
that it was not absolutely mandatory that in every case a dying
declaration should be recorded only by a Magistrate.

The said
position was reiterated in
Dhan Singh vs. State of Haryana
- (2010)
12 SCC 277 wherein, it was held that neither
Section 32
of the
Evidence Act nor
Section 162(2)
of the Cr.P.C., mandate that the

CRL.A.1465/2010 Page 14 of 26

dying declaration has to be recorded by a designated or particular
person and that it was only by virtue of the development of law and
the guidelines settled by the judicial pronouncements that it is
normally accepted that such declaration would be recorded by a
Magistrate or by a doctor to eliminate the chances of any doubt or
false implication by the prosecution in the course of investigation.

20.
In a recent decision of this Court reported in
Sri Bhagwan vs.
State of U.P.
- 2012 (11) SCALE 734, to which one of us was a
party, dealt with more or less an identical situation and held as
under in paragraphs 21 and 22:

"21. As far as the implication of 162 (2) of
Cr.P.C
. is
concerned, as a proposition of law, unlike the excepted
circumstances under which 161 statement could be relied
upon, as rightly contended by learned senior counsel for the
respondent, once the said statement though recorded under

Section 161
Cr.P.C. assumes the character of dying
declaration falling within the four corners of
Section 32(1)
of
Evidence Act, then whatever credence that would apply to a
declaration governed by
Section 32 (1)
should automatically
deemed to apply in all force to such a statement though was
once recorded under
Section 161
Cr.P.C. The above
statement of law would result in a position that a purported
recorded statement under
Section 161
of a victim having
regard to the subsequent event of the death of the person
making the statement who was a victim would enable the
prosecuting authority to rely upon the said statement having
regard to the nature and content of the said statement as one
of dying declaration as deeming it and falling under
Section
32(1)
of Evidence Act and thereby commend all the credence
that would be applicable to a dying declaration recorded and
claimed as such.

22. Keeping the above principle in mind, it can be stated
without any scope for contradiction that when we examine
the claim made on the statement recorded by PW-4 of the
deceased by applying
Section 162 (2)
, we have no hesitation
in holding that the said statement as relied upon by the trial
Court as an acceptable dying declaration in all force was
perfectly justified. We say so because no other conflicting
circumstance was either pointed out or demonstrated before
the trial Court or the High Court or before us in order to

CRL.A.1465/2010 Page 15 of 26

exclude the said document from being relied upon as a dying
declaration of the deceased. We reiterate that having regard
to the manner in which the said statement was recorded at the
time when the crime was registered originally under
Section
IPC within the shortest time possible within which it
could be recorded by PW-4 in order to provide proper
medical treatment to the deceased by sending him to the
hospital, with no other intention pointed out at the instance of
the appellant to discredit contents of the said statement, we
hold that the reliance placed upon the said statement as the
dying declaration of the deceased was perfectly justified.
Having regard to our above conclusion, the said submission
of the learned counsel for the appellant also stands rejected."

20. Applying the settled position of law to the facts of this case, the
submission made by learned counsel for the appellants that since the
Doctor on duty did not witness the dying declaration, thus, the same is not
credible, is without any force. It is not mandatory that the Doctor on duty
should have been a witness in the dying declaration provided the dying
declaration is held to be reliable and trustworthy.

21. We may notice that PW-13, Dr.Savita Arora, has proved the MLC,
Exhibit PW-13/A, and the fitness certificate given by Dr.Savita, Exhibit
PW-13/B. It may further be noticed that this witness was not cross-
examined with regard to the credibility of the fitness certificate. The
evidence of PW-13 reads as under:

"PW-13: Dr.Savita Arora, Specialist Plastic Surgery, Safdarjung
Hospital New Delhi on sa:

I have been deputed by the MS to testify on behalf of
Dr.Rajender Kumar and Dr.Swati. Who have left the services of the
hospital.

I have seen MLC No.280118 dt. 17.4.00 at 06.45 AM, the
same is in the handwriting of Dr.Rajender Kumar who‟s
handwriting and signatures I identify being conversant with the

CRL.A.1465/2010 Page 16 of 26

same as he was my junior. The MLC is Ex.PW13/A which bears
his signature at point A. It reads as under:

That alleged history of sustaining burn injury, when she
poured kerosene oil on her body set herself on fire after quarrel
with her husband. Time of burn was 2 AM on 17.4.00. Time of
admission was 6.45 AM on 17.04.00. She was brought by her
husband Raja. History was given by herself. General condition was
critical. She sustained 95% thermal burns. The MLC is in the
handwriting of Dr.Rajender and is Ex.PW13/A and his signature
circled at point A.

I have also perused the endorsement made by Dr.Swati on
the application of the IO with regards to status of fitness of the
patient.

Fitness for the statement was given by Dr.Swati at 1.15 PM
on 17.04.00. I am conversant with her handwriting. She had worked
under me. Her endorsement is Ex.PW13/B in encircled portion with
her signature at point A.

Xxxxxxx by Shri S.K. Ahluwalia, Counsel for the accused persons

It is correct that the permanent address of the Doctor‟s are in the
administrative Branch. I have not checked the address. The MLC
and other report were not prepared in my presence. I have no
personal knowledge of these MLC and other report. The history
was given by the patient herself."

22. It has also been argued by learned counsel for the appellants that the
victim had suffered 95% burn injuries and, thus, she would not be in a fit
state to give the statement and there were two factual errors in the dying
declaration, firstly, with regard to the time of incident and, secondly, the
duration of marriage.

23. Since Dr.Rajender Kumar, who was working as a Junior to PW-13,
Dr.Savita Arora, had left the service of the hospital, PW-13 has proved
the MLC, Exhibit PW-13/A, prepared by Dr.Rajender. PW-13 has also
proved the endorsement made by Dr.Savita on the application moved by

CRL.A.1465/2010 Page 17 of 26

the IO, i.e. Exhibit PW-13/B regarding the patient being fit to make a
statement. The statement was recorded by the SDM of the area, PW-19,
who has specifically stated that just before the recording of the statement
of Preeti, he had ensured from the Doctor on duty regarding condition of
Preeti, who was declared fit for statement on 1.15 p.m. on 17.4.2000.
Thus this submission made by counsel for the appellants is also without
any force.

24. It would be useful to refer to a recent decision of the Supreme Court

Surinder Kumar Vs. State of Punjab
, reported in 2013 (1) RCR
(Criminal) 191, wherein the Apex Court has considered various decisions
where the courts have accepted the dying declaration although the burn
injuries were 90% and even 100%. Relevant paragraphs of the judgment
are reproduced below:

"Discussion and conclusion:

15. The only submission before us was that the dying declaration
given by Kiran Bala should not be accepted. The reasons given for
this were that she had 90% muscle deep burns and as per the post-

mortem report the superficial skin had peeled off. It was argued that
with such a high degree of burns, it cannot be said that Kiran Bala
was in a condition to make a statement and secondly she could not
have signed the statement or even affixed her thumb impression. It
was submitted that the dying declaration is a very detailed one and
it is not expected that a person in that condition could make such a
detailed dying declaration.

16. We are not at all impressed by any of these submissions. There
are a large number of decisions that have been cited before us by
learned counsel for the State where persons with 90% burns have
given a dying declaration and that has been accepted. For example,
in
Amit Kumar v. State of Punjab
, (2010) 12 SCC 285 the victim
had 90% burns and yet her statement was accepted. This Court
noted, inter alia, that the victim did not unfairly implicate anybody
who had not participated in the crime.

This Court relied on ten
principles governing a dying declaration as mentioned in
Paniben
v. State of Gujarat
, (1992) 2 SCC 474 to conclude that there was

CRL.A.1465/2010 Page 18 of 26

no reason to disbelieve the dying declaration given by the victim
in
that case
.

17. Similarly, in
Govindappa v. State of Karnataka
, (2010) 6 SCC
533 the victim had 100% burn injuries and yet she was found to be
in a fit state of mind to give her statement and affix her left thumb
impression on the statement. The dying declaration was accepted
by this Court on the evidence of the doctor that the victim was in a
position to talk.

18.
In
Sukanti Moharana v. State of Orissa
, (2009) 9 SCC 163, the
victim had 90 to 95 per cent burn injuries covering 90 to 95 per
cent body surface and yet her dying declaration was accepted after
considering the principles
laid down in
Paniben.

19.
In
Kamalavva v. State of Karnataka
, (2009) 13 SCC 614,
reference was again made to Paniben. It was noted that the doctor
who was present at the time of recording the dying declaration had
attached a certificate to the effect that it was recorded in his
presence. This Court rejected the technical objection regarding the
non-availability of a certificate and endorsement from the doctor
regarding the mental fitness of the deceased. It was held that the
view taken by this Court in numerous decisions is that this is a mere
rule of prudence and not the ultimate test as to whether or not the
dying declaration was truthful or voluntary.

20.
In
Satish Ambanna Bansode v. State of Maharashtra
, (2009)
11 SCC 217, the victim had 95% superficial to deep burns and after
referring to Paniben, her dying declaration was accepted by this
Court.

21. Insofar as the case before us is concerned, we may only note
that there is no format prescribed for recording a dying declaration.
Indeed, no such format can be prescribed. Therefore, it is not
obligatory that a dying declaration should be recorded in a
question-answer form. There may be occasions when it is possible
to do so and others when it may not be possible to do so either
because of the prevailing situation or because of the pain and agony
that the victim might be suffering at that point of time.

22. It is also not obligatory that either an Executive Magistrate or a
Judicial Magistrate should be present for recording a dying
declaration. It is enough that there is evidence available to show
that the dying declaration is voluntary and truthful. There could be

CRL.A.1465/2010 Page 19 of 26

occasions when persons from the family of the accused are present
and in such a situation, the victim may be under some pressure
while making a dying declaration. In such a case, the Court has to
carefully weigh the evidence and may need to take into
consideration the surrounding facts to arrive at the correct factual
position."

25. As far as the submission made by learned counsel for the appellants that
the dying declaration cannot be relied upon since it contains two factual
errors with regard to the time of the incident and duration of marriage is
concerned, the Supreme Court in the case of
State of Madhya Pradesh v.
Dal Singh and Others
, reported at JT 2013 (8) SC 625, where the victim
had suffered 100% burn injuries, dealt with a similar argument where two
contradictions were made in the dying declaration, firstly, as to who had
put the kerosene oil on the victim and, secondly, who had lit the fire. The
Apex Court has held that since the patient was suffering from great mental
and physical agony it is not expected a person to give an exact version of
the incident. Para 26 of the judgment reads as under:

"26. The contradictions raised by the defence in the two dying
declarations, as regards who had put the kerosene oil on her, and
who had lit the fire have been carefully examined and explained by
the trial court. Furthermore, in such a state of mind, one cannot
expect that a person in such a physical condition, would be able to
give the exact version of the incident. She had been suffering from
great mental and physical agony. Upon proper appreciation of the
evidence on record, the trial court had found the dying declarations
to be entirely believable, and worth placing reliance upon, but the
High Court on a rather flimsy ground, without appreciating material
facts, has taken a contrary view. In our opinion, as the defence did
not put any question either to the executive magistrate, or to the
I.O., or to the doctors who had examined her or conducted the post-
mortem, with respect to whether any part of the thumb had skin on
it or not, as in both the dying declarations, ridges and curves had
been clearly found to exist, we do not see any reason to dis-believe
the version of events provided by the executive magistrate and the
I.O., who had recorded the dying declarations. No suggestion was

CRL.A.1465/2010 Page 20 of 26

made to either of them in this regard, nor was any explanation
furnished with respect to why these two independent persons who
had recorded the dying declarations, would have deposed against
the respondents accused. In the event that both of them had found
the deceased to be in a fit physical and mental condition to make a
statement, there exists no reason to disbelieve the same. In light of
such a fact-situation, the concept of placing of a thumb impression,
loses its significance altogether."

26. Another decision rendered in the case of
Rakesh and Another v. State of
Haryana
, reported at 2013 (4) SCC 69 the Supreme Court has held that
even when there was wrong description of names in the dying declaration,
the dying declaration still be held to be reliable.

27. Accordingly, we are of the view that in case a wrong time was mentioned
or it was stated that the deceased and respondent no.2 were married for
four months instead of six months, this by itself would not make the dying
declaration unreliable. Moreover we find the factual errors made by Preeti
to be rather insignificant having regard to the nature of the statement
made by her.

28. The argument raised by learned counsel for the appellants that the dying
declaration does not bear the signature of the attending Doctor as a
witness is not acceptable to this Court as a fitness certificate was given by
the concerned Doctor and, thus, in our view it is not necessary that the
Doctor should have been a witness.

29. As far as the submission of the counsel for the appellants with regard to
the demand of dowry soon before the death of the deceased is concerned,
the same has been discussed by the trial court in the following manner :

"36. In view of the proposition of law laid by Apex Court, it has to
be seen whether prosecution has been able to prove that deceased
Preeti was subjected to cruelty or harassment in connection with
demand of dowry soon before her death. It is a case of love
marriage where deceased had run away from her house and has

CRL.A.1465/2010 Page 21 of 26

married with accused Raja against wishes of her family. It is was
within four months of marriage, deceased set herself on fire and
thereafter succumbed to burn injuries. As already discussed,
regarding the alleged demand of dowry made by accused Raja and
other two accused persons, PW1, PW4, PW5 and PW20 have made
consistent allegations of dowry demand against all three accused.
Statement of PW1 is silent regarding any specific dowry demand
made by accused persons to the parents of the deceased. PW4 and
PW5 have deposed that accused Rajesh and Saroj used to ask their
daughter to bring cash money from her parents in dowry. PW4 Raj
Kapoor has made specific allegations that in December, 1999, he
had given Rs.50,000/- to accused Rajesh Sharma when he had
come to his house along with accused Raja and his daughter. PW-4
and PW-5 have nowhere alleged that for the alleged demand of
dowry, if either in their presence, Preeti was harassed and tortured
by either of the accused persons or if Preeti had ever told that she is
being harassed or tortured by accused persons for demand of
dowry. Except the alleged incident which took place on 16.04.00 in
their house, which as per prosecution, was only witnessed by
complainant PW-5 and neither PW4 nor PW-20 was present there
at that time.

35. As already discussed, PW-3 Smt Reeta Singh who is
neighhourer of the parents of the deceased Preeti has deposed that
the mother of Preeti had told her that accused Raja and his mother
used to torture her daughter for dowry but statement of PW-5 who
is mother of the deceased is silent if Preeti had ever told her that her
harassment and torture for demand of dowry either by accused Raja
or his mother accused Saroj . Statement of PW-3 is contrary to the
statement of PW-4 hence is not credible and not worth reliance.

37. PW-20 has deposed exaggerated version of entire story, starting
from marriage of the deceased with Raja and till her death on
18.04.00. As already discussed, PW20 has alleged that accused
Rajesh had told him that for getting money, he has hatched
conspiracy to extract money from them. As per PW20, he had paid
Rs.250/- to each guest who appeared in the marriage. The statement
of PW-20 roping Rakesh and Sushila, uncle and aunty of accused
Raja in the demand of dowry is contrary to the statement of PW-4
and PW-5. PW-20 has further deposed that on 17.04.00 when he
reached at ICU ward Safdarjung Hospital, attendants of

CRL.A.1465/2010 Page 22 of 26

neighbourer patient of UP had told him that accused Raja had come
there with some police officials and some other persons and had
taken thumb impressions of Preeti on some papers and Preeti was
semi conscious and murmuring in low voice " Mujhe Jala Diya,
Mujhe Jala Diya". This statement of PW-20 is in contradiction to
the Statements made by PW-4 and PW-5 who were also present in
the hospital at that time. PW20 does not stop here. He has further
made allegations against first IO HC Rajbir Singh and against IO
Inspector A.S. Dhaka (PW22) and SDM Ravi Dadhich (PW19) for
not acting fairly and being in collusion with accused persons.
Regarding all these allegations, there is not a single whisper in the
statement of PW-4 and PW-5. Because of these massive
improvements made by PW-20 in his statement vis a vis statement
of PW-4 and PW-5, his testimony is not found credit worthy."

30. We have also carefully examined the testimonies of the appellant, PW-1,
PW-4, PW-5 & PW-20. As per the testimony of PW-4, after the marriage
in the year 1999 respondent no.2 used to visit their house along with the
daughter and used to demand money in dowry. The parents of the
respondent no.2 also used to ask the deceased to bring cash from her
parents. No exact date or any specific demand has been shown to have
been made. It has also been deposed that in the year 1999 a sum of
Rs.50,000/- was given to the respondent no.2 besides jewellery and other
dowry items at the time of marriage. It may be noticed that the date of
incident in this case is 17.4.2000. According to this witness on 15.4.2000
in his absence the respondent no.2 had come to his house at midnight and
demanded Rs.20,000/- and this is the incident of demand of dowry soon
before the death of Preeti. The mother of the deceased has deposed on the
similar lines and given the reason for demand of Rs.20,000/- as it was to
be re-paid to one Gurpreet Singh Dhara. PW-10, Gurpreet Singh Dhara
has admitted that he has given Rs.20,000/- to respondent no.2, but he had
never asked respondent no.2 to return the money, although respondent
no.2 had offered to return the money, but he did not accept the same by

CRL.A.1465/2010 Page 23 of 26

saying that it may be treated as a wedding gift.

31.
In the case of
Amar Singh v. State of Rajasthan
, reported at 2010 (3)
Apex Court Judgments 258 (S.C.), it has been held as under:

"23. PW2 (father of the deceased) has not stated in his evidence
before the Court that Jagdish and Gordhani, in any way, subjected
the deceased to any harassment or cruelty. PW4 (mother of the
deceased), however, has stated that the deceased used to complain
about the demand of a Scooter by Girdhari and harassment by her
mother-in-law Gordhani, but PW-4 has not stated what was the
exact act of Gordhani by which the deceased felt harassed. The
evidence of PW-5 (brother of the deceased) is that whenever the
deceased used to come home she used to complain that her in-laws
have been teasing her and they were demanding a Scooter or
Rs.25,000/- for a shop and that when the deceased came home one
month prior to her death, she complained that her mother-in-law
and all other in-laws used to torture her and taunt her that she did
not bring anything, but PW5 has not described the exact conduct of
the mother-in-law and other in-laws on account of which the
deceased felt tortured and taunted. On the other hand, the evidence
of PW4 is clear that Amar Singh used to taunt her that she has
come from a hungry house. Thus, there was evidence in the case of
Amar Singh about his exact conduct which caused harassment to
the deceased but there was no such evidence in the case of Jagdish
and Gordhani. A prosecution witness who merely uses the word
"harassed" or "tortured" and does not describe the exact conduct of
the accused which, according to him, amounted to harassment or
torture may not be believed by the Court in cases under
Section
498A
and
304B
IPC. For this reason, the High Court has taken a
view that the charges against Jagdish and Gordhani have not been
established beyond reasonable doubt and that their case is
distinguishable from that of Amar Singh and that Jagdish and
Gordhani appear to have been implicated because they were
members of Amar Singh's family.

24.
In
Kans Raj v. State of Punjab and Others
, 2000 (2) Apex Court
Journal 221 (S.C.) : 2000 (5) SCC 207, this Court cautioned that in
cases where accusations of dowry deaths are made, the overt acts
attributed to persons other than the husband are required to be
proved beyond reasonable doubt and by mere conjectures and
implications such relations cannot be held guilty for the offence

CRL.A.1465/2010 Page 24 of 26

relating to dowry deaths. In the aforesaid case, this Court further
observed that a tendency has developed for roping in all relations of
the in-laws of the deceased wives in the matters of dowry deaths
which, if not discouraged, is likely to affect the case of the
prosecution even against the real culprits.

25. We, therefore, do not find any substance in the contention of
Dr.Singhvi that the High Court should have sustained the
conviction of Jagdish and Gordhani and we accordingly dismiss
this appeal."

32. In the present case, the mother and father of the deceased have not been
able to establish that any specific demand of dowry was made by
respondents no.2 to 4 either soon after the marriage or soon before the
incident. The alleged demand of Rs.20,000/- a day before the incident is
not found to be reliable and, thus, it cannot be said that there was any live
link between the demand of dowry and death of Preeti, more particularly,
in view of the dying declaration of Preeti.

33. The testimony of PW-20 is most unreliable, although he is the uncle of the
deceased, but he has given details of payments made and monies spent
which have not even been stated by the mother and father of the deceased.
It may also be noticed that although the parents of the husband
(respondent no.2) i.e. respondents no.3 and 4 were staying at Bijnor even
they were not spared in making allegations, which shows that the
testimonies of PW-1, PW-4, PW-5 and PW-20 are not reliable; and more
particularly when their own daughter has given her husband and her in-
laws a clean-chit.

34. The submission of learned counsel for the appellants that since the victim
died within seven years of her marriage and that too under unnatural
circumstances as she was being harassed for dowry soon before her death,
the case would squarely be covered by
Section 304B
of the IPC is also
without any force. There is no evidence to support this submission of

CRL.A.1465/2010 Page 25 of 26

counsel for the appellants and the trial court has rightly relied upon the
dying declaration of the deceased in which she has given a clean chit to
respondent no.2 and her in-laws.

35. Another argument, which has been raised by learned counsel for the
appellants, is that respondent no.2 did not take appropriate steps to save
the life of Preeti. We may notice that respondent no.2 was with Preeti, he
took her to the hospital and made all efforts to save her including calling
up his friends in the middle of the night to seek their help. Thus, it cannot
be said that respondent no.2 did not make any effort to save his wife.

36. For the reasons aforesaid, we find no infirmity in the view taken by the
trial court and in fact this is the only view which is possible. It is most
unfortunate that young daughter of the appellants died within four months
of her marriage with respondent no.2; but taking into consideration the
evidence on record and the dying declaration which we find credible and
trustworthy, we find no reason to differ from the view taken by the trial
court. The appeal is without any merit and the same is dismissed.

G.S. SISTANI, J

G.P. MITTAL, J
SEPTEMBER 20th, 2013
msr/ssn

CRL.A.1465/2010 Page 26 of 26