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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1779 OF 2009

Rakesh and Another                  .... Appellant(s)

Versus

State of Haryana            .... Respondent(s)      

J U D G M E N T

P.Sathasivam,J.

1) This appeal has been filed against the final judgment  

and order  dated 15.05.2006 passed by  the High  Court  of  

Punjab and Haryana at Chandigarh in Criminal  Appeal No.  

575-DB  of  2001  whereby  the  Division  Bench  of  the  High  

Court  dismissed  the  appeal  preferred  by  the  appellants  

herein  and  confirmed  the  judgment  on  conviction  and  

sentence  dated  27.09.2001  and  28.09.2001  respectively,  

passed by the Additional Sessions Judge, Sonepat, Haryana  

in Sessions Case No. 39 of 1998/2001 holding the appellants  

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guilty for the offence punishable under Sections 498-A and  

302 read with Section 34 of the Indian Penal Code, 1860 (for  

short  ‘IPC’)  and  sentenced  them  to  undergo  rigorous  

imprisonment (RI)  for  one year for  the offence punishable  

under Section 498-A and a fine of Rs.500/- each and RI for  

life for the offence punishable under Section 302 read with  

34 IPC and a fine of Rs.2000/- each, in default, to undergo RI  

for one year and both the sentences to run concurrently.   

2) Brief facts:

(a) The  case  of  the  prosecution  is  that  the  deceased  -  

Kailash was married to Rakesh, resident of Gohana, Sonepat  

about 8 years prior to the date of the incident.  Out of the  

wedlock, four children were born to them.  At the time of  

marriage, adequate dowry was given by the parents of the  

deceased.   However,  being  unsatisfied  with  the  dowry,  

Kailash has been subjected to harassment and cruelty in her  

matrimonial home by Rakesh (A-1) and Smt. Ram Piari, (A-2)  

mother-in-law.   15  days  prior  to  the  occurrence,  the  

deceased attended the marriage of her sister along with her  

husband and in-laws.  The accused started harassing her for  

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not bringing adequate amount after seeing the marriage of  

her sister.   

(b) On 14.05.1998, at about 11 p.m., a quarrel took place in  

the house of Rakesh (A-1) where he put his leg on the neck  

of the deceased and beaten her mercilessly.    Thereafter,  

Ram Piari (A-2) caught hold of the hands of the deceased  

while Rakesh (A-1) sprinkled kerosene upon her and set her  

ablaze.  At that time, Lala, younger brother of Rakesh (A-1)  

was also present in the house.  On the same night, Rakesh  

(A-1), Ram Piari (A-2) and Siri Ram - father-in-law took the  

deceased to the hospital and admitted her in the hospital on  

15.05.1998 at 1.30 a.m.  After getting a telephonic message,  

the parents of the deceased also reached the hospital.  

(c) On  16.05.1998,  on  receipt  of  telephonic  information  

about the admission of Kailash in PGI MS, Rohtak, on account  

of  burn  injuries,  the  police  contacted  Kailash  and  an  

application  was  moved by  the  investigating  officer  to  the  

Duty Magistrate at  5.50 p.m.   Ms.  Shalini  Nagpal,  Judicial  

Magistrate, on getting the permission of the doctor at 6.10  

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p.m. about the fitness of the victim to make a statement,  

recorded her statement.

(d)  On the same day, a copy of the statement was sent to  

the police station for registration of the case.  An FIR was  

registered  and  the  investigating  officer  took  the  case  for  

investigation on 17.05.1998.   

(e) On 21.05.1998, Rakesh was arrested and got medically  

examined  by  the  doctor  who  opined that  his  hands  were  

found  to  be  having  superficial  to  deep  burns.  On  his  

disclosure, a stove containing the kerosene was recovered.   

(f) On  29.05.1998  Ram  Piari–  mother-in-law  of  the  

deceased  was  also  arrested.   Ultimately,  on  04.06.1998,  

Kailash succumbed to her injuries in Safdarjung Hospital at  

New Delhi.   

(g) On  completion  of  the  investigation,  charges  for  the  

offence punishable under Sections 498-A and 302 read with  

Section 34 IPC were framed against the accused.  

(h) The  Additional  Sessions  Judge,  Sonepat,  after  

examination of all the witnesses, vide judgment 27.09.2001,  

convicted  the  accused  persons  guilty  for  the  offences  

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punishable under Sections 498-A and 302 read with Section  

34  IPC.   By  judgment  dated  28.09.2001,  the  trial  Judge,  

sentenced the accused persons to RI for one year and a fine  

of Rs.500/- under Section 498-A and RI for life and a fine of  

Rs.2000/-  under  Section  302/34  IPC  and  in  default  of  

payment of fine, both the accused shall have to undergo RI  

for one year.  Both the sentences shall run concurrently.  

(i) Being  aggrieved,  the  accused  persons  (A-1  and  A-2)  

filed an appeal before the High Court of Punjab and Haryana  

at Chandigarh.  After hearing both the parties, by impugned  

judgment dated 15.05.2006, the High Court confirmed the  

judgment  of  the  trial  Court  and  dismissed  the  appeal  

preferred by the appellants herein.   

(j) Questioning the conviction and sentence, Rakesh (A-1)  

and Smt.  Ram Piari  (A-2)  preferred this  appeal  by way of  

special  leave before this  Court  and leave was granted on  

11.09.2009.    

3) Heard Mr. R.N. Kush, learned counsel appearing for the  

appellants-accused  and  Mr.  Kamal  Mohan  Gupta,  learned  

counsel appearing for the respondent-State.

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Contentions:

4) Mr. R.N. Kush, learned counsel for the appellants, at the  

foremost, contended that since the deceased - Kailash was  

not fit to make a statement as she was suffering from 85%  

burn  injuries,  reliance  and  conviction  based  on  the  dying  

declaration cannot be sustained.  He further submitted that  

Rakesh (A-1) also suffered injuries which are indicative of the  

fact that he came to rescue her wife on seeing her burning.  

On  the  other  hand,  Mr.  Gupta,  learned  counsel  for  the  

respondent-State contended that the dying declaration was  

recorded by the Judicial Magistrate only after the duty doctor  

duly  certified  that  she  was  in  a  fit  condition  to  make  a  

statement and the same was rightly relied on by both the  

courts below.  As regards the second contention, it is pointed  

out by that if the injuries alleged to have been sustained by  

Rakesh (A-1) as claimed by him, nothing prevented him from  

taking  treatment  on  the  date  of  the  incident,  particularly  

when he took the deceased to the Hospital.  However, the  

fact remains that only on 21.05.1998, when he was arrested  

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by the police, he showed his alleged injuries to the doctor  

which itself create a doubt about his version.   

5) We  have  perused  all  the  relevant  materials  and  

considered the rival contentions.

Discussion:

6) It  is  not  in  dispute  that  the  deceased  –  Kailash  

sustained burn injuries at the house of the accused – Rakesh  

where they were living for about eight years.  The incident  

occurred at 11.00 p.m. on 14.05.1998 and she was admitted  

in the hospital on 15.05.1998 at about 1.30 a.m.  It is also  

not in dispute that the deceased was under the supervision  

of doctors as well as the accused Rakesh till 10.00 a.m. on  

16.05.1998.

7) Now, let us consider the dying declaration, its contents,  

and the procedure followed while recording the same.  It is  

seen that after knowing the condition of the deceased, the  

police requested Ms. Shalini Nagpal, the Judicial Magistrate,  

Ist Class, Rohtak (PW-10) for recording her statement.  It is  

further  seen  that  before  recording  her  statement,  the  

Magistrate (PW-10) asked for the opinion of the duty doctor  

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about  her  condition  whether  she  was  fit  to  make  a  

statement.   The  record  shows  that  after  obtaining  the  

opinion of doctor, all the police officials and relatives were  

directed  to  leave  the  ward.   Dr.  Raman  Sethi  (PW-6)  

explained  to  the  patient  that  she  is  deposing  before  the  

Magistrate  and  apprised  that  she  is  free  to  make  her  

statement  voluntarily  without  any fear  or  pressure.   After  

satisfying her position to make a statement, the Magistrate  

(PW-10) recorded the statement of the deceased.  It reads as  

follows:

“Q:  How many years have passed to your marriage? Ans: 8 years

Q: How many children have you? Ans:  Four

Q: On which day the incident took place? Ans: The quarrel was continuing for the last 15 days.

Q: On  the  night  of  last  Thursday  at  11.00  P.M.  what  happened with you?

Ans: My husband used to say as to why I did not bring  money in the marriage of my sister.  He used to demand  money from my father.  My mother-in-law Ram Piari and  father-in-law Siri Ram used to harass/tease me for dowry.  It  was  Thursday,  my  mother-in-law,  Devar  (husband’s  younger  brother)  Lala  were  at  home.   My mother-in-law  caught hold of my hand and my husband set me on fire  with match stick after sprinkling kerosene oil.   My devar  came afterwards, when I was set on fire.  My husband gave  beating to me and set me ablaze.  Then my husband put  his leg on my neck and I was beaten up mercilessly.  After  

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that my father-in-law came, but he did not set me on fire.  My husband, mother-in-law and father-in-law brought me  to the hospital.  

Q: Do you want to say any thing else? Ans: No

(Right great Toe impression of Patient)   Sd/- J.M.I.C.(D)        

R.O. & A.C.

Patient remained fit and conscious during the statement Sd/- in English Dr. Raman Sethi P.G. Surg 5/IV”

8) In  order  to  strengthen  the  above  statement,  the  

prosecution examined Dr. Raman Sethi (PW-6) who certified  

the condition of the deceased.  In his evidence, he deposed  

that on 16.05.1998, Ram Kumar (ASI) moved an application  

(Ex.  PD)  before  him  seeking  opinion  regarding  fitness  of  

Kailash,  W/o  Rakesh,  resident  of  Gohana  for  making  a  

statement.  PW-6 declared her fit to make a statement at  

6.30 p.m. on 16.05.1998.  Basing on his statement, the duty  

Magistrate recorded her statement.  Even after recording the  

statement,  PW-6 again  examined Kailash  and opined that  

the  deceased  remained  fit  and  conscious  during  her  

statement.   He  also  stated  that  the  statement  was  over  

within 20 minutes and also informed that he did not treat the  

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patient at any stage and denied that he gave wrong opinion  

at the behest of Magistrate.  

9) Ms.  Shalini  Nagpal,  Judicial  Magistrate,  Ist  Class,  

Rohtak, who recorded the dying declaration of the deceased  

was examined as PW-10.  According to her, on 16.05.1998,  

the police had moved an application before her for recording  

the statement of Kailash, and she had visited PGIMS, Rohtak  

at  about  5.50  p.m.  on  the  same  day  and  contacted  the  

doctor concerned in Ward No.5 and sought his opinion about  

her  fitness  to  make  a  statement.   She  asserted  that  the  

doctor had declared Kailash fit to make a statement (Memo  

Ex  PB/3).   She  further  explained  that  thereafter,  she  

recorded her statement in the form of question and answers  

form which is Ext. PB.  The statement was concluded by her  

at  6.25  p.m  and  PW-6,  after  examining  the  deceased  

certified that Kailash was in her sense throughout the period  

of her examination.  She also deposed that the statement  

(Ex.PB) had been recorded by her in the very language of  

Kailash without any addition or omission and her certificate  

to that effect is Ex.PB/5.  The certificate of the doctor about  

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the physical condition of the deceased during the course of  

examination is Ex.PB/4.  She also informed the Court that the  

statement  was  read  over  to  Kailash  who  accepted  the  

contents  to  be correct.   She also  stated that  she did  not  

obtain  the  thumb  impression  of  the  patient  as  both  her  

hands  were  burnt,  hence  she  elected  to  obtain  the  

impression of her right toe.  In the cross examination, she  

admitted that the document exhibited as Ex.PB by her is the  

carbon copy prepared by her in the same process. It is also  

clear from her evidence that before recording the statement  

of the deceased, she specifically directed the police officials  

and relatives to leave the ward so that the patient was not  

under any influence while making the statement before her.  

Though, in the evidence, it has come on record that few of  

the  relatives  were  standing  in  the  ward,  in  view  of  the  

assertion  of  the  Magistrate  (PW-10)  who  recorded  her  

statement,  mere  presence  of  some  of  the  close  relatives  

would not affect the contents of the declaration.  

10) Dr. S.P. Chug, Casualty Medical Officer, PGIMS, Rohtak  

was examined as PW-11.  In his evidence, he deposed that  

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on 15.05.1998 at about 1.30 a.m., he examined Kailash W/o  

Rakesh and on examination he found that the patient was  

conscious,  pulse  and  BP  were  unrecordable.   He  further  

stated that  there were superficial  to  deep burns involving  

almost all the body except the legs below the knees.  There  

was approx. 85% burns which were subjected to surgeon’s  

opinion  and  was  kept  under  observation.   Though  it  was  

pointed out that while recording the history of the patient,  

he noted that it was the accidental fire while cooking food, in  

view of categorical statement by the deceased in her dying  

declaration the  reference made by  PW-11 while  recording  

the history of the patient would not affect the prosecution  

case.  

11) Dr.  B.S.Kadian,  Medical  Officer  of  CHC,  Gohana  was  

examined as PW-7.  In his evidence, he explained the nature  

of burn injuries.

12) Dr.  L.K.  Barua,  who  was  examined  as  PW-13  has  

conducted the post mortem on the dead body of Kailash and  

submitted  the  report  vide  (Ex.PH).   He  asserted  that  the  

death was due to burn injuries.   

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13) Hiralal, father of the deceased was examined as PW-14.  

He explained the manner in which the in-laws of Kailash was  

behaving with her prior to the occurrence.  He has supported  

the entire prosecution version.   

14) Madhu – daughter of Rakesh aged about 12 years, was  

examined as a defence witness.  Though she deposed that  

her mother caught fire, per chance, from the kersone stove,  

however, she admitted that her father Rakesh was present in  

the house at the time of the incident.   

15) It is not in dispute that the accused did not inform the  

parents of the deceased about the incident.  Though it is the  

claim of A-1 that it was he who informed PW-14, father of the  

deceased,  in  his  evidence,  he  denied  the  same  and  

according  to  him,  he  received  a  message  from  Hukum  

Chand.  It is also relevant to note that only after arrival of  

PW-14  and  on  seeing  the  deteriorating  condition  of  her  

daughter, he complained to the doctor concerned to shift her  

to Safdarjung Hospital, New Delhi.  The fact remains that the  

accused did not take any such step.  

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16) The statement  of  the deceased in  the form of  dying  

declaration is fully acceptable since on receipt of intimation  

from the police, the Judicial Magistrate (PW-10) reached the  

hospital and after satisfying herself through the statement of  

the duty doctor that the deceased was conscious and fit to  

make a statement,  recorded her statement in the form of  

question and answers.  In the dying declaration, which we  

have  extracted  in  the  earlier  part  of  our  order,  she  had  

specifically  stated  that  her  husband  scolded  her  for  not  

brining money in  the marriage of  her  sister.   He used to  

demand  money  from  her  father.   Her  in-laws  used  to  

harass/tease her for not bringing sufficient dowry and on the  

relevant date her  mother-in-law caught hold of  her  hands  

and her  husband set  her  on fire with a match stick  after  

sprinkling  kerosene  oil.   It  is  also  seen  from  her  dying  

declaration  that  before  she  was  set  on  fire,  her  husband  

gave beat on her neck with his leg and she was beaten up  

mercilessly.   Considering  the  materials  placed  by  the  

prosecution  about  the  recording  of  dying  declaration,  

procedure  followed,  her  fitness  to  make  a  statement,  the  

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evidence  of  doctor  and  the  evidence  of  Magistrate,  who  

recorded her statement, it amply prove their case.   

17) Coming  to  the  claim  that  inasmuch  as  the  husband  

Rakesh also sustained burn injuries in his hands, it is highly  

impossible to set her ablaze, it is relevant to note that the  

incident  occurred  late  night  on  14.05.1998,  though  the  

accused-husband took her to the hospital admittedly, he did  

not  tried  to  get  any  treatment  from  the  doctor  for  the  

alleged burn injuries.  As rightly pointed out by the learned  

counsel for the State, if he had sustained burn injuries in his  

hands nothing prevented him from taking treatment on the  

same day from the same doctor.  Admittedly, he did not get  

treatment till he was arrested on 21.05.1998.  In view of the  

same, the argument of the learned counsel for the appellant  

that inasmuch as the burn injuries were found on the hands  

of the husband, it was necessary to look for corroboration is  

liable to  be rejected.   In  view of  the factual  position,  the  

decisions of various Courts relied on by the counsel for the  

appellants on this aspect are not applicable to the case on  

hand and there is no need to refer the same.  

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18) The claim that there was wrong description of names in  

the dying declaration and some of the relatives were present  

at the time of recording of dying declaration are not material  

contradictions which would affect the prosecution case.  

19) Though learned counsel  for  the appellants contended  

that in view of the conduct of A-1 taking the deceased to the  

hospital and he also sustained injuries on his hand prayed  

for altering the conviction from Section 302 to Section 304  

Part  I,  in  view  of  our  earlier  discussion,  we  are  not  in  a  

position to accept the same.  It  is not in dispute that the  

occurrence took place in  the house of the accused where  

Kailash was residing, and unfortunately,  even after having  

four children, she died at the matrimonial home due to burn  

injuries at the instance of the accused appellants.  There is  

no valid ground to alter  the conviction as pleaded by the  

counsel for the first appellant.   

20) Inasmuch as the second appellant-Ram Piari had been  

released  after  14  years  on  the  orders  of  the  appropriate  

Government, no argument was advanced about the decision  

of the courts below.             

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21) In view of the above discussion, we are satisfied that  

the prosecution has established its case beyond reasonable  

doubt and we are in entire agreement with the conclusion  

arrived  at  by  the  trial  Court  as  well  as  the  High  Court.  

Consequently, the appeal fails and the same is dismissed.     

………….…………………………J.                   (P. SATHASIVAM)                                  

       ………….…………………………J.                  (M. Y. EQBAL)  

NEW DELHI; MARCH 22, 2013.

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