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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1422 OF 2009

Prem Kumar Gulati ….Appellant

Versus

State of Haryana and another ..Respondents

WITH

CRIMINAL APPEAL NOL.1423 OF 2009

Mahender Singh alias  Mahender Gulati ……Appellant  

Versus

State of Haryana and another ..Respondents

J U D G M E N T

M.Y. EQBAL, J.

These appeals are directed against judgment and order  

dated 06.09.2008 passed by the High Court of Punjab and  

Haryana in Criminal Appeal No. 342-DB of 2006, whereby the  

High Court dismissed the appeal of the accused persons and  

upheld  the  judgment  dated  25.04.2006  passed  by  the  

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Additional  Sessions  Judge,  Bhiwani  (Haryana)  in  Sessions  

Case No.8 RBT of 18.3.2004, inflicting sentence with rigorous  

imprisonment  for  life  under  Section  302/498-A  read  with  

Section 34, Indian Penal Code and imposed fine with default  

clause.  

2. The facts leading to the prosecution story are that on  

16.1.1995, Rajni-deceased was married with Mahender Singh  

alias Mahender Gulati and out of this wedlock, three children  

were born.   Both the appellants,  namely  Mahender Gulati  

and Prem Kumar Gulati (brother in-law (jeth) of deceased)  

are the brothers.  The prosecution case is that on receipt of  

V.T.  message  on  10.12.2003,  ASI  Ram  Singh  rushed  to  

PGIMS,  Rohtak with  regard to  admission  of  Rajni  in  burnt  

condition.   After  obtaining  Doctor’s  certificate  regarding  

fitness  of  the  victim  to  give  statement,  Additional  Chief  

Judicial  Magistrate,  Rohtak  recorded  her  statement  (dying  

declaration)  to  the  effect  that  on  9.12.2003,  at  around  

9.30/10.00 P.M. the accused persons being her husband, Jeth  

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and Jethani poured kerosene oil on her and set ablaze.   It is  

also stated in her dying declaration that her husband had  

illicit relation with his Bhabi   Bimla (since deceased), with  

the result she used to pick up quarrel with him. Her husband  

gave her beatings under the influence of intoxication.  None  

made attempt to extinguish fire.  

3. On the basis of the above dying declaration a case was  

registered and the investigation agency swung into action.  

Statements  of  witnesses  were  accordingly  recorded under  

Section 161, Cr.P.C.  The Investigating Officer investigated  

the spot and prepared rough site plan with correct marginal  

notes and took into possession burnt clothes of Rajni, ash of  

burnt clothes, one kerosene lamp after converting the same  

into sealed parcel.   On the night  of  12.12.2003,  message  

was received from PGIMS, Rohtak that Rajini had died as a  

result of  burn injuries.   Post mortem report was obtained,  

site plan was sketched and FSL report was obtained.  After  

completion of  investigation,  only  accused Mahender  Singh  

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alias  Mahender  Gulati  was  arraigned  to  stand  trial  under  

Sections  302/498A,  I.P.C.  by  Police,  whereas  Prem Kumar  

Gulati and Smt. Bimla alias Nirmla were summoned to face  

trial  along  with  other  accused  Mahender,  as  additional  

accused, by invoking the provisions of Section 319, Cr.P.C.

4.  In order to substantiate the charges, the prosecution  

examined nine witnesses.  According to Dr. Ravi Kanta (PW-

1), who conducted post mortem examination, burn injuries  

were approximately 50% and cause of death of Rajni was  

due to ante mortem burns, which were sufficient to cause  

death in ordinary course of nature.  According to Dr. Naresh  

Kumar  Kardwal  (PW-3),  who  medico-legally  examined  the  

deceased,  found  superficial  deep  burns  all  over  the  body  

except  back,  hip,  lower  leg,  left  hand  and  forearm.   He  

stated that possibility of burn injuries in this case by fall of  

kerosene oil on the head cannot be ruled out.  Agyapal (PW-

7),  father  of  the  deceased,  stated  that  accused  person  

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started harassing his daughter three months after marriage  

for  want  of  dowry  although  sufficient  dowry  was  given.  

Ultimately, she was shunted out from the matrimonial abode  

and her husband filed a divorce petition.  Later, the matter  

was resolved on the apology being tendered and assurance  

given  by  the  accused  persons  before  the  panchayat  on  

1.12.1996.   Ironically  she fell  prey to recurrence and was  

turned out from the matrimonial house in the year 1997.  His  

daughter  divulged  about  the  illicit  relations  between  her  

husband  and  sister-in-law.   Again  accused  persons  were  

apologized before the Panchayat on the assurance given by  

them.  In 2001, a criminal case was filed, which was also  

compromised with the intervention of panchayat.   Against  

willingness  of  his  daughter,  he  persuaded  and  sent  her  

daughter back to the matrimonial house through panchayat.  

He  further  highlighted  that  about  one  week  prior  to  the  

occurrence, his daughter informed him telephonically about  

harassment  and  requested  him  to  take  her  to  parental  

house.   Thereafter,  on  10.12.2003  at  around 5.00  A.M.  a  

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telephonic message,   was received and he along with his  

wife  and  son  rushed  to  the  hospital,  where  the  victim  

disclosed that accused Prem and Bimla caught hold of her  

and her husband Mahender poured kerosene oil and set her  

on fire.  PW8, brother of Rajni, supported the version of his  

father PW7.

5. Accused denied all the charges and in defence accused  

Mahender  Singh stated that  at  the time of  occurrence he  

was present on the ground floor and was working at flour  

mill.   His  wife and children were on the first  floor.   After  

hearing cries of children, he went upstairs on the first floor  

and saw that his wife was having burn injuries accidentally  

due to falling of a lamp upon her in the kitchen.  Complaint  

against  his  brother  and  bhabhi,  who  were  residing  

separately,  was filed at  the instance of  her  parents.   The  

accused  examined  deceased’s  eight  years’  old  daughter  

Kumari Manshu (DW-1), who deposed that she heard cries of  

her mother in the kitchen.  She came out and told that she  

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had caught fire due to falling of burning lamp on her as glass  

of  the lamp got  broken after  falling upon her.   The Child  

called her father, who was on the ground floor in the flour  

mill  at that time.  Her father and neighbours extinguished  

fire and took her  mother  to  the hospital.   Upon this,  trial  

court has opined that the child has been tutored as she was  

residing  with  accused  persons,  namely,  Prem  and  Bimla,  

after the death of her mother and she had come along with  

them on the date of examination in the Court.  Trial court  

further observed that broken glasses of the lamp had fallen  

in the verandah and not in the kitchen.  

6. After careful examination of the evidence and pleadings  

of the parties, the trial court held that the prosecution has  

proved  that  the  accused  persons,  in  furtherance  of  the  

common intention, subjected Rajni to cruelty as her husband  

had illicit relations with co-accused Bimla (Bhabhi).  The Trial  

Court convicted all the three accused persons under Section  

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302/498-A  read  with  Section  34  IPC  and  sentenced  them  

with  rigorous imprisonment  for  life  and imposed a  fine of  

Rs.5,000/-under Section 302 read with Section 34 IPC and  

rigorous imprisonment  for one year and fine of Rs.  500/-  

under  Section  498A-read  with  Section  34  IPC  on  each  

accused convicts.

7. Aggrieved by the decision of the trial court, the accused  

persons preferred criminal appeal before the High Court of  

Punjab and Haryana at Chandigarh, which was dismissed by  

the Division Bench of the High Court upholding the judgment  

of  the trial  Court.   Hence,  the present appeals  by special  

leave by two accused persons.

8. Mrs. Meenakshi Arora, learned senior counsel appearing  

for  the  appellants  assailed  the  judgment  of  conviction  as  

being contrary to law and the facts of the case and that the  

prosecution  has  not  proved  the  case  beyond  reasonable  

doubt.  At the very outset, learned senior counsel submitted  

that two of the accused persons, viz., Prem Kumar Gulati and  

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his wife were in no way involved in the commission of the  

alleged offence.  She drew our attention to the evidence of  

PW-2 Sub-Inspector who investigated the case and recorded  

the statement of witnesses under Section 161 of Cr.P.C.  He  

deposed that during investigation the accused Prem Kumar  

Gulati and his wife were found innocent.  Hence they were  

not  summoned  to  face  trial  along  with  the  deceased’s  

husband Mahender Singh Gulati.   Similarly,  PW-9 ASI Ram  

Singh Investigating Officer in the case deposed inter alia that  

the accused appellant Prem and his wife Bimla were residing  

separately.   However,  they  could  not  escape  themselves  

from the  clutches  of  law  on  the  basis  of  so  called  dying  

declaration.   She  further  submitted  that  the  dying  

declaration cannot be relied upon and conviction cannot be  

based on vague statement.  She submitted that in the dying  

declaration,  there  is  neither  anu  mention  of  time  of  its  

recording nor there is any mention about the state of mind  

of  the  deceased  while  making  her  statement  before  the  

Magistrate.   The dying declaration is  also  not  in  question  

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answer form.  Learned senior counsel submitted that in case  

of any inconsistency between the dying declaration and the  

evidence adduced by the prosecution such dying declaration  

cannot be relied upon.  Learned senior counsel relied upon  

few of the decisions of this Court viz.,  P. Mani  vs.  State  

of Tamil Nadu, (2006) 3 SCC 161; Mohan Lal & Ors.  vs.   

State of Haryana, (2007) 9 SCC 151.

9. Mrs.  Arora  further  submitted  that  there  is  no  eye-

witness in the case except one eight year old daughter of  

the  deceased  who  was  examined  as  DW-1.   She  further  

submitted  that  it  is  wrong  to  disbelieve  the  child  on  the  

ground that she is a tutored witness being residing with the  

accused persons after the death of her mother and on the  

date of examination in court, she had come along with them.  

It was contended that father of the deceased (PW-7) did not  

express  that  he  would  keep  the  child  in  his  care  and  

guardianship.  Learned  counsel  submitted  that  because  of  

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the past history of alleged torture and several litigations, the  

motive of giving dying declaration cannot be ruled out.

10. Mrs. Arora, specifically mentioned the innocence of the  

accused-appellant Prem Kumar Gulati (brother of the main  

accused) who is found innocent during the investigation and  

was not put on trial.   It  was only after the orders passed  

under Section 319 of Cr.P.C. he faced the trial along with the  

main accused.  Finally, she submitted that in the absence of  

eye-witness to the incident the prosecution story based on  

inconsistent  evidence  of  the  witnesses  cannot  be  relied  

upon.

11. Mr.  Rupansh Purohit,  learned Addl.  Advocate General  

appearing for the State, firstly submitted that the statement  

made by the deceased on the dying declaration is sufficient  

to convict the appellants for the offence committed by them.  

Ld. AAG submitted that dying declaration is not necessary to  

be  in  question  answer  form,  rather  dying  declaration  in  

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narrative form is more natural.  In this connection he relied  

upon a decision of  this  Court  in  State of Karnataka  v.  

Shariff  (2003) 2 SCC 473.  Learned AAG further submitted  

that evidence given by the father (PW-7) is more  reliable  

evidence and there is nothing on record to suggest that the  

deceased made a dying declaration on the influence of her  

father.  Lastly, he submitted that the accused Prem Kumar  

Gulati and his wife were residing in the same building and  

there is no evidence that they were living separately.

12. First  of  all  we  shall  consider  the  authenticity  of  the  

dying  declaration  recorded by  the  Magistrate.   The dying  

declaration reads as under:-

“Statement of Rajni W/o Mahender, aged 28 years,  Household, Jamalpur, District Bhiwani.

Stated  that  yesterday  night  at  9.30/10.00  my  husband Mahender, my Jeth Prem Gulati, my Jethani  Bimla  have  poured  kerosene  oil  upon  me.   My  husband used to reside with his bhabhi.  There was  quarrel between us daily.  After drinking liquor, I was  beaten  up  with  lathi  and  shoes.   None  has  extinguished the fire.  I have three children.  I have  

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heard my statement, which is correct. I do not want  to say anything else.”

RO & AC Sd/- Sd/- ACJM, Rohtak R.T.I. Rajni 10.12.2003”         

13. It  is  well  settled  that  a  truthful  and  reliable  dying  

declaration  may  form  the  sole  basis  of  conviction  even  

though  it  is  not  corroborated.  However,  the  reliability  of  

declaration should  be subjected  to  close scrutiny and the  

courts must be satisfied that the declaration is truthful.  In  

the case of Godhu & Anr. vs. State of Rajasthan, (1975)  

3 SCC 241, a three Judge Bench of this Court has thoroughly  

discussed  the  evidentiary  value  and  reliability  of  dying  

declaration observed:-

“16. We are also unable to subscribe to the  view that if a part of the dying declaration has  not  been  proved  to  be  correct,  it  must  necessarily result in the rejection of the whole  of the dying declaration. The rejection of a part  of the dying declaration would put the court on  the  guard  and  induce  it  to  apply  a  rule  of  caution. There may be cases wherein the part  of the dying declaration which is not found to  be  correct  is  so  indissolubly  linked  with  the  other part of the dying declaration that it is not  possible  to  sever  the  two  parts.  In  such  an  event  the  court  would  well  be  justified  in  

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rejecting  the  whole  of  the  dying  declaration.  There may, however,  be other cases wherein  the two parts  of  a dying declaration  may be  severable and the correctness of one part does  not depend upon the correctness of the other  part.  In  the  last  mentioned  cases  the  court  would not normally act upon a part of the dying  declaration,  the  other  part  of  which  has  not  been found to be true,  unless the part  relied  upon is corroborated in material particulars by  the  other  evidence  on  record.  If  such  other  evidence  shows  that  part  of  the  dying  declaration  relied  upon  is  correct  and  trustworthy the court can act upon that part of  the  dying  declaration  despite  the  fact  that  another part of the dying declaration has not  been proved to be correct.”

14. In  the  case  of  K. Ramachandra Reddy vs.  Public  

Prosecutor, (1976) 3 SCC 618, this Court observed that:-  

“6.  The  accused  pleaded  innocence  and  averred that they had been falsely implicated  due to enmity. Thus it would appear that the  conviction of the accused depends entirely on  the reliability of the dying declaration Ext. P-2.  The  dying  declaration  is  undoubtedly  admissible  under  Section  32  of  the  Evidence  Act and not being a statement on oath so that  its truth could be tested by cross-examination,  the courts have to apply the strictest scrutiny  and  the  closest  circumspection  to  the  statement  before  acting  upon  it.  While  great  solemnity and sanctity is attached to the words  of a dying man because a person on the verge  of death is not likely to tell lies or to concoct a  case so as to implicate an innocent person yet  the  court  has  to  be  on  guard  against  the  statement  of  the  deceased  being  a  result  of  

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either tutoring,  prompting or a product of his  imagination.  The court  must be satisfied that  the deceased was in a fit state of mind to make  the statement after the deceased had a clear  opportunity  to  observe  and  identify  his  assailants  and  that  he  was  making  the  statement  without  any  influence  or  rancour.  Once  the  court  is  satisfied  that  the  dying  declaration  is  true  and  voluntary  it  can  be  sufficient to found the conviction even without  any  further  corroboration.  The  law  on  the  subject  has  been  clearly  and  explicitly  enunciated  by  this  Court  in  Khushal  Rao v.  State of Bombay, AIR 1958 SC 22, where the  Court observed as follows:

“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  convictiorn  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  tothe  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  

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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  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.

Hence, in order to pass the test of reliability,  a dying declaration has to be subjected to a  very  close  scrutiny,  keeping  in  view the  fact  that  the  statement  has  been  made  in  the  absence  of  the  accused  who  had  no  opportunity  of  testing  the  veracity  of  the  statement by cross-examination.” The above observations made by this Court  were fully endorsed by a Bench of five Judges  of this Court in Harbans Singh v. State of  Punjab AIR 1962 SC 439. In a recent decision of  this Court in Tapinder Singh v. State of Punjab, (1970) 2 SCC 113, relying upon the earlier  decision referred to above, this Court observed  as follows: [SCC p. 119, para 5]

“It is true that a dying declaration is not a  deposition in court  and it  is  neither made on  oath nor in the presence of the accused. It is,  therefore, not tested by cross-examination on  behalf of the accused. But a dying declaration  is admitted in evidence by way of an exception  to the general rule against the admissibility of  hearsay evidence, on the principle of necessity.  The  weak  points  of  a  dying  declaration  just  mentioned merely serve to put the court on its  guard while testing its reliability,  by imposing  

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on it an obligation to closely scrutinise all the  relevant attendant circumstances.” In Lallubhai Devchand Shah v. State of Gujarat,   (1971)3 SCC 767, this Court laid special stress  on the fact that one of the important tests of  the reliability of a dying declaration is that the  person who recorded it must be satisfied that  the deceased was in  a  fit  state of  mind and  observed as follows: [SCC p. 772 : SCC (CRI) p.  18, para 9]

“The  Court,  therefore,  blamed Dr  Pant  for  not questioning Trilok Singh with a view to test  whether Trilok Singh was in a ‘fit state of mind’  to make the statement. The ‘fit state of mind’  referred to is in relation to the statement that  the  dying  man  was  making.  In  other  words,  what the case suggests is that the person who  records a dying declaration must be satisfied  that  the  dying  man was  making  a  conscious  and  voluntary  statement  with  normal  understanding.”

15. In  the  case  of  Kali  Ram  v.  State  of  Himachal  

Pradesh, (1973) 2 SCC 808,  a  three Judge Bench of  this  

Court  elaborately  discussed  the  mode of  appreciation   of  

evidence and the general principles regarding presumption  

of innocence of the accused.  The Bench observed:-

“25. Another golden thread which runs through  the  web  of  the  administration  of  justice  in  criminal cases is that if two views are possible  on  the  evidence  adduced  in  the  case,  one  pointing  to  the  guilt  of  the  accused  and  the  other  to  his  innocence,  the  view  which  is  favourable to the accused should be adopted.  

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This principle has a special relevance in cases  wherein the guilt of the accused is sought to be  established  by  circumstantial  evidence.  Rule  has accordingly been laid down that unless the  evidence adduced in the case is consistent only  with the hypothesis of the guilt of the accused  and is inconsistent with that of his innocence,  the  Court  should  refrain  from  recording  a  finding  of  guilt  of  the  accused.  It  is  also  an  accepted rule that in case the Court entertains  reasonable  doubt  regarding  the  guilt  of  the  accused, the accused must have the benefit of  that doubt. Of course, the doubt regarding the  guilt of the accused should be reasonable; it is  not  the  doubt  of  a  mind  which  is  either  so  vacillating that it is incapable of reaching a firm  conclusion or so timid that is  is  hesitant and  afraid  to  take  things  to  their  natural  consequences. The rule regarding the benefit  of doubt also does not warrant acquittal of the  accused by report to surmises, conjectures or  fanciful  considerations.  As  mentioned  by  us  recently in the case of State of Punjab v.  Jagir  Singh(1974)3SCC 227 a criminal trial is not like  a fairy tale wherein one is free to give flight to  one’s  imagination  and  phantasy.  It  concerns  itself  with  the  question  as  to  whether  the  accused arraigned at the trial  is  guilty of the  offence with which he is charged. Crime is an  event in real life and is the product of interplay  of different human emotions. In arriving at the  conclusion  about  the  guilt  of  the  accused  charged with the commission of  a crime, the  Court  has  to  judge  the  evidence  by  the  yardstick of probabilities, its intrinsic worth and  the animus of witnesses. Every case in the final  analysis  would  have to  depend upon its  own  facts. Although the benefit of every reasonable  doubt  should  be  given  to  the  accused,  the  Courts  should  not  at  the  same  time  reject  evidence  which  is  ex  facie  trustworthy  on  grounds which are fanciful or in the nature of  conjectures.

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27.  It  is  no  doubt  true  that  wrongful  acquittals  are  undesirable  and  shake  the  confidence of the people in the judicial system,  much  worse,  however,  is  the  wrongful  conviction  of  an  innocent  person.  The  consequences of the conviction of an innocent  person  are  far  more  serious  and  its  reverberations cannot but be felt in a civilised  society.  Suppose  an  innocent  person  is  convicted  of  the  offence  of  murder  and  is  hanged, nothing further can undo the mischief  for  the  wrong  resulting  from  the  unmerited  conviction  is  irretrievable.  To  take  another  instance, if  an innocent person is  sent to jail  and undergoes the sentence, the scars left by  the miscarriage of justice cannot be erased by  any  subsequent  act  of  expiation.  Not  many  persons  undergoing  the  pangs  of  wrongful  conviction  are fortunate  like Dreyfus  to  have  an  Emile  Zola  to  champion  their  cause  and  succeed in getting the verdict of guilt annulled.  All this highlights the importance of ensuring,  as  far  as  possible,  that  there  should  be  no  wrongful  conviction  of  an  innocent  person.  Some risk of the conviction of the innocent, of  course,  is  always there in  any system of  the  administration of  criminal  justice.  Such a risk  can be minimised but not ruled out altogether.  It may in this connection be apposite to refer to  the following observations of Sir Carleton Alien  quoted  on  p.  157  of  The  Proof  of  Guilt by  Glanville Williams, 2nd Edn.:

“I  dare  say  some  sentimentalists  would  assent to the proposition that it is better that a  thousand  or  even  a  million  guilty  persons  should escape than that one innocent person  should suffer; but no responsible and practical  person  would  accept  such  a  view.  For  it  is  obvious  that  if  our  ratio  is  extended  indefinitely,  there  comes  a  point  when  the  whole system of justice has broken down and  society is in a state of chaos.”

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16.   The submission of Ms. Meenakshi Arora, learned senior  

counsel  appearing  for  the  appellant  that  the  dying  

declaration is untenable being without mentioning the time  

when the statement was recorded as also not in the question  

answer form, cannot be sustained.   Merely because dying  

declaration was not  in  question answer form,  the sanctity  

attached to a dying declaration as it comes from the mouth  

of a dying person cannot be brushed aside and its reliability  

cannot be doubted.

17.  In the light of the law settled by the Supreme Court, we  

shall first examine the case of the accused appellant Prem  

Kumar Gulati, whose wife (Bimla, since deceased) was also  

co- accused.  Immediately after the occurrence took place,  

the police reached the place of occurrence and recorded the  

statement of witnesses in course of investigation and found  

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that the said accused Prem Kumar Gulati was innocent and  

he was not involved in the commission of the offence.

18. Admittedly,  they were not put on trial along with the  

main accused-appellant Mahender Singh.  It was only at the  

stage of Section 319,  Cr.P.C.  the accused persons namely  

Prem Kumar Gulati and his wife were summoned and put on  

trial.  Except dying declaration there is nothing on record to  

strongly suggest that they were involved in the commission  

of crime.  There is nothing in the findings of sessions court  

which suggest that the said accused persons participated in  

the  commission  of  the  aforesaid  crime,  and  this  fact  has  

been reiterated by the High Court also.

19. As noticed above, in the dying declaration, the deceased  

declared that her husband Mahender Singh along with the  

accused  Prem  Kumar  Gulati  and  Bimla  (deceased)  have  

poured kerosene oil upon her.  Except that, nothing has been  

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said in the dying declaration as against the accused Prem  

Kumar Gulati or his wife- Bimla as to which accused poured  

kerosene oil upon her and the accused lighted the fire.  In  

the later part of dying declaration, the deceased stated that  

her husband Mahender Singh used to reside with his Bhabhi.  

After drinking liquor, she was beaten up by her husband with  

lathi and shoes.  In other words, in her dying declaration she  

said that her husband Mahender Singh used to beat her after  

drinking liquor.  There is no eye-witness to the occurrence.  

PW-2,  the  police  officer  deposed  that  he  recorded  the  

statement of  several  persons and collected all  the papers  

including ration card and compromise letter written to the  

Panchayat  etc.   He  further  deposed  that  during  the  

investigation,  the  accused  Prem  Kumar  and  Bimla   were  

found innocent as they were living separately.  Although the  

trial  court  and  the  appellate  court  convicted  both  the  

accused Prem Kumar  Gulati  and his  wife  Bimla,  but  after  

scrutiny of all the evidence, we are of the view that there are  

no corroborative evidence to  come to  the conclusion that  

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these  two  participated  along  with  the  main  accused  

Mahender  Singh  for  the  commission  of  the  offence.   As  

noticed above,  one of  the accused Bimla already expired.  

We do not find any reason why Prem Kumar also participated  

in the commission of the offence.  Admittedly, neither in the  

dying declaration nor in the statement of witnesses it  has  

come in light as to what act was done by the accused- Prem  

Kumar.

20. In our considered opinion, the benefit of doubt should  

be  given  to  accused-appellant  Prem  Kumar  and  his  

conviction cannot be sustained.

21. Sufficient  evidence  has  come  on  record  and  the  

prosecution has established the case that it was Mahender  

Singh at whose instance and instigation she was subjected  

to death by pouring kerosene oil  and lit  on fire.   We are,  

therefore, of the view that the finding recorded by the trial  

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court as also by the Appellate Court as against main accused  

Mahnder  Singh  (husband  of  the  deceased)  cannot  be  

interfered with.

22. We,  therefore,  dismiss  Criminal  Appeal  No.  1423  of  

2009 and uphold the conviction of Mahender Singh.

23. Criminal  Appeal  No.1422 of  2009 is  allowed and the  

appellant Prem Kumar Gulati is acquitted from charges.  He  

is directed to be released forthwith.

…………………………….J. (M.Y. Eqbal)

…………………………….J. (Pinaki Chandra Ghose)

New Delhi, September 23, 2014.

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