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Non-Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1554 of 2014

Sandeep and Anr.      …. Appellants

Versus

State of Haryana    …. Respondent          

J U D G M E N T  

Uday Umesh Lalit, J.

1. This appeal by Special Leave by appellants, Sandeep and his

mother Krishna, challenges the judgment and order dated 18.09.2012

passed by the High Court of Punjab and Haryana at Chandigarh in

Criminal Appeal No. D-203-DB/2008 affirming their conviction under

Sections 304-B, 498A read with Section 34 IPC.

2. The crime in the instant  case was registered on the basis  of

statement  made by Sharmila,  wife  of  appellant  Sandeep,  to Suresh

Chand, ASI at 6:15 p.m. on 2.11.2006.  Her statement Ext. P-13 was

to the following effect:-

“Stated  that  I  am resident  of  aforesaid  address.  I  was married  to  Sandeep S/o Rajbir  @Raja Jat  by caste  r/o Ghikara on 21.05.2005. After some days of the marriage

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I was kept properly and there after they started harassing me and saying that less dowry is brought. My husband, my  mother-in-law,  Krishna  father-in-law  Rajbir  and Nanad  Urmila  started  taunting  and  my  husband  and mother-in-law used  to  beat  me.  I  told  about  it  to  my mother  Parasi  Devi  and  brothers.  Surender  S/o  Brij Mohan and Anand Kumar S/o Brij  Mohan. At this my brothers brought Panchayat from Village Chelawas twice, upon  which  on  the  asking  of  the  village  my  husband Sandeep  brought  me  from  my  parental  house  on 23.10.2006.  Yesterday  dt.  01.11.2006  during  night  at about  9:00p.m.  my  husband,  mother-in-law  Krishna father-in-law  Rajbir  all  gave  me  slap  and  fist  blows which I tolerated. Today morning at about 8:30 a.m. my mother-in-law Krishna  sprinkled  kerosene  oil  upon me and my husband Sandeep set me with fire with a match box. My husband, mother-in-law, father-in-law ran away from the spot when I raised noise, our neighbours Lily s/o  Harnath,  Risalo  W/o  Lilu  came  there  and  got  me admitted  to  Dadri  Hospital  from  where  I  have  been referred  to  Rohtak.  Now  I  have  got  recorded  my statement  to  you.  My husband Sandeep,  mother-in-law Krishna, and father-in-law Rajbir after sprinkling oil have set me on fire with an intention to finish me. Now I have got  recorded  my  statement,  heard  it  and  the  same  is correct.”

3. Soon after the incident while Sharmila was being removed to

the hospital by Lilu and Risalo appellant Sandeep joined them. She

was taken to General Hospital Charkhi Dadri where PW 7 Dr. Anita

Gulia medically examined her and found percentage of burns to be

85%.  According to  PW 7,  Sharmila  had not  told  her  who had set

Sharmila afire.  Sharmila was thereafter  referred to  and admitted at

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PGIMS Rohtak, where the aforesaid statement was recorded, pursuant

to  which  FIR Ext.  P-14  was  lodged  and  the  crime  was  registered

under Sections 307, 498-A and 34 IPC.

4. On  3.11.2006  at  about  4:30  a.m.  PW  2  Shri  Vimal  Sapra

Judicial Magistrate Rohtak, on receipt of police request Ext. P04 went

to  PGIMS  Rohtak  to  record  the  statement  of  Sharmila.  Before

recording the statement, the witness vide Ext. P-8 had obtained the

opinion of  the doctor as  regards her fitness.  The witness thereafter

proceeded  to  record  the  statement  and  the  doctor  was  present  all

throughout  the  recording.  Thereafter  the  concerned  doctor  put  the

endorsement Ext. P-9 “patient remained fit during the statement. In

my  presence”.  The  statement  Ext.  P-6  so  recorded  was  to  the

following effect:

“Statement  of  Sharmila  w/o  Sandeep,  18  years, Housewife, R/o Chelawas

Stated that I was married to Sandeep about 2 years ago. I have no issue. There are my husband and parents-in-law in my house. They all used to harass me for bringing less dowry. My husband used to say that Motor Cycle is not brought  and  she  sould  bring  the  same.  Yesterday  i.e. 02.1.2006 at about 8:30/9:00 a.m. I had gone to fields my mother-in-law  and  husband  were  at  home.  Fight  took place between them on some matter. When I  returned, they were  fighting.  Then my mother-in-law poured oil upon me and my husband lit the fire with a match box. At

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that time my father-in-law was not present at house. My Tai  mother-in-law  took  me  to  the  hospital.  After  the marriage my husband, mother-in-law, father-in-law were raising the demand of motor cycle and Rs. 50,000/-. I am giving this statement with my own free will.

RO &AC Sd/- in English RTI of Sharmila D/JMIC, Rohtak dt. 03.11.06”

5. Sharmila  died  on  07.11.2006.    The  appellants  along  with

Rajbir, father of appellant Sandeep were tried for having committed

the offence under Sections 304-B, 498-A read with Section 34 IPC in

the  court  of  Sessions  Judge,  Bhiwani.   In  support  of  its  case  the

prosecution examined 10 witnesses including the Judicial Magistrate

as  PW2,  the  brothers  of  Sharmila  as  PW  6  and  PW  9  and  the

Investigating Officer ASI Suresh Chand as PW 10.  The defence also

examined six witnesses including Lok Ram and Risalo as DWs 3 and

4 respectively who had arrived at the scene of occurrence soon after

the incident. PW 9 Anand stated about demands of dowry and that her

in-laws were not ready to accept Sharmila in their house unless she

had brought a golden chain, motorcycle and Rs. 50000/- in cash. He

further stated that panchayats on few occasions were called and that

on 23.10.2006 Sharmila  was  sent  to  her  matrimonial  house  due to

such Panchayat. It came out in his cross examination that Sharmila

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was residing at her parental house few months before 23.10.06 and

that  though  the  demand  for  dowry  was  existing  the  accused  had

agreed to keep Sharmila in the matrimonial home.

6. The Trial Court found that the prosecution had proved its case

against the appellants but gave benefit of doubt to accused Rajbir and

acquitted him of all the offences. The trial court principally relied on

both the dying declarations i.e. Ext. P-13 recorded by PW 10 and Ext.

P-6 recorded by PW 2.  The trial  court  sentenced the appellants  to

undergo life imprisonment and to pay fine of Rs. 10000/- each for the

offence punishable under Section 304-B read with Section 34 IPC and

in  default  of  payment  of  fine  to  undergo  further  rigorous

imprisonment of two years. It also sentenced the appellants to undergo

rigorous imprisonment for two years and to pay fine of Rs. 5000/-, in

default  whereof  to  undergo  further  rigorous  imprisonment  for  six

months under Section 498-A read with Section 34 IPC. The appellants

carried the matter further by filing Criminal Appeal before the High

Court.  The High Court affirmed the order of conviction but reduced

the sentence under Section 304-B read with Section 34 IPC to ten

years and set aside the sentence of fine under said count. It maintained

the sentence imposed under Section 498A read with Section 34 IPC.

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With  such  modification  in  sentence,  the  appeals  preferred  by  the

appellants were dismissed which view is presently under challenge.   

7.  Mr. Rishi Malhotra learned Advocate appearing for the appellants

submitted that :-

(i)   The conviction in the present case rested solely on two dying

declarations, which were not consistent with each other (ii) That there

were loopholes in the dying declarations rendering them unworthy of

reliance  (iii) The Doctor who had given the certificate of fitness to

record such dying declaration was not examined at all (iv) That given

the fact that Sharmila had suffered 85% to 90% burns it  would be

impossible  for  her  to  have  given  such  statements  (v) At  the  first

available opportunity said Sharmila had not stated anything regarding

the incident or the involvement of the appellant before PW 7 (vi) The

evidence as regards alleged demand for dowry was absolutely scanty.

PW 6, brother of the deceased did not speak about any such demand

while the testimony of the other brother ie. PW 9 was without any

details or particulars (vii) The incident in question was an accident as

stated by appellant Sandeep in his statement under Section 313 Cr.

P.C.

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8. Dr. Monika  Gusain  learned advocate  appearing for  the State

submitted that both the dying declarations were consistent as regards

the involvement of the present appellants, that dying declaration Ext.

P-6 recorded by the Judicial Magistrate in the presence of the Doctor

and with  requisite  certification from the  Doctor  was  entitled  to  be

given absolute credence, that the dying declarations Ext. P-13 and P-6

themselves stated about the demands for dowry and inability to fulfill

such demands being the reason why she was set afire which was fully

supported by the testimony of PW9 and that the assessment made by

both the Courts below holding the appellants guilty of the offences

was absolutely correct and justified.

9.  The status and importance of a dying declaration was summed

up by this Court in Kundu Bala Subramaniyam Vs. State of Andhra

Pradesh1 in following words :-

“..A  dying  declaration  made  by  person  on  the verge of his death has a special sanctity as at that solemn  moment,  a  person  is  most  unlikely  to make  any  untrue  statement.  The  shadow  of impending death is by itself the guarantee of the truth  of  the  statement  made  by  the  deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost  a  sacrosanct  status,  as  a  piece  of

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1993(2) SCC 684

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evidence,  coming as it  does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny  of  the  courts,  it  becomes  a  very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true  and  free  from  any  embellishment  such  a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration…..”

In the very same case,  this Court struck a note of caution in

cases  where  there  are  more  than  one  dying  declarations.  It  was

observed as under:-

“….If there are more than one dying declarations then the court has also to scrutinise all the dying declarations  to  find  out  if  each  one  of  these passes the test  of  being trustworthy. The Court must further find out whether the different dying declarations  are  consistent  with  each  other  in material  particulars before accepting and relying upon the same….”

10. In the light of the aforesaid principle, it needs to be seen if

both the dying declarations are consistent with each other in material

particulars. The analysis of these dying declarations shows following

consistent assertions:

(a)   Sharmila  was  being harassed  by  her  husband  and  in-laws  for

bringing  less  dowry.  (b)  On  02.01.2006  at  about  8:30  a.m.  her

mother-in-law poured Kerosene oil upon her (c) Her husband Sandeep

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lit the fire with a match box and  (d)  Risalo i.e.  her Tai mother in law

took her to the hospital.  

11. Both the dying declarations i.e.  Exts.  P-13 and P-6, on these

material  particulars  are  completely  consistent.  There  appear  to  be

certain additional features in the statement Exh. P-13 recorded by PW

10 to the following effect:-

(i)  Sharmila had told about her harassment to her mother Patasi

Devi  and  brothers  (ii)  At  this  her  brothers  had  brought  Panchayat

twice (iii) On the asking of such Panchayat her husband Sandeep had

brought  her  from  her  parental  house  on  23.10.2006.  (iv)  On  the

previous night at about 9:00 p.m. her husband and parents in law had

beaten her, and (v)  Soon after the incident her husband and parents in

law had run away from the spot.  

12. It is no doubt true that the aforesaid features do not figure in the

dying  declaration  Ext.  P-6  recorded  by  the  Judicial  Magistrate.

However such non mention does not make both the dying declarations

incompatible. The incompatibility or inconsistency can be said to arise

if the assertions in one dying declaration are so diametrically opposed

to the statements in the other that both cannot stand together.  Such is

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not the case in the present matter. At best it  could be said that the

aforesaid  features  of  the  matter  were  additionally  spelt  out  in  the

statement  Ext.  P-13 given to the police.  The incompatibility in the

dying declarations Ext. P-13 and P-6 however is quite eloquent when

it comes to the allegations against Rajbir, father in law. Though he

was definitely ascribed a particular  role in the statement  Ext.  P-13

given  to  the  police,  the  declaration  Ext.  P-6  however  specifically

recorded  that  he  was  not  present  at  all.  The  assertions  being

diametrically  opposed would certainly make allegation against  said

Rajbir  completely  inconsistent.  The  Courts  below  were  therefore

perfectly justified in granting benefit of doubt to Rajbir. However as

regards the role ascribed to the appellants there is no inconsistency or

incompatibly in the dying declarations.  

13.  It may be useful at this juncture to quote the observations of

this court in Lakhan Versus State of Madhya Pradesh2  which are as

follows:-

“12.   A  dying  declaration  recorded  by  a competent  Magistrate  would  stand  on  a  much higher  footing than the  declaration  recorded  by officer  of  lower  rank,  for  the  reason  that  the competent Magistrate has no axe to grind against the person named in the dying declaration of the

2 2010 (8) SCC 514

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victim, however, circumstances showing anything to the contrary should not be there in the facts of the case. (Vide  Ravi Chander v. State of Punjab, Harjit Kaur v. State of Punjab,  Koli Chunilal Savji v.  State  of  Gujarat and  Vikas v.  State  of Maharashtra). …………..

21.     In view of the above, the law on the issue of  dying  declaration  can  be summarised  to  the effect  that  in  case  the  court  comes  to  the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under  any  tutoring/duress/prompting;  it  can  be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there  are  multiple  dying  declarations  and  there are inconsistencies between them, generally, the dying declaration recorded by the higher  officer like a Magistrate can be relied upon, provided that there  is  no  circumstance  giving  rise  to  any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise  the  facts  of  an  individual  case  very carefully and take a decision as to which of the declarations is worth reliance.”

14. In the present case the dying declaration Ext. P-6 recorded by

the  Judicial  Magistrate  was  in  the  presence  of  a  doctor  who  had

certified about the fitness of Sharmila before and after recording of

such  statement.  There  was  not  even  a  suggestion  in  the  cross

examination  of  the  Judicial  Magistrate  that  any of  the  relations  of

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Sharmila were present when such statement was recorded nor is there

any circumstance which could cast a doubt about the genuineness of

Ext.  P-6  as  recorded  by  the  Judicial  Magistrate.   Further  the

certification by the doctor  was  also not  put  in  challenge.   Though

statement  Ext.P-13  recorded  by  PW10  completely  satisfies  the

requirements,  in  the  light  of  the  law  laid  down  by  this  Court  in

Lakhan Vs. State  of  Madhya  Pradesh  (supra) dying  declaration

Ext.P-6 as recorded by the Judicial Magistrate would certainly stand

on a  higher  footing and we have no hesitation  in  placing intrinsic

reliance thereon.   We must add that we find no inconsistency between

the statement Ext. P-13 recorded by PW10 on one hand and the dying

declaration Ext. P-6 recorded by the Judicial Magistrate on the other

as regards the involvement of the appellants.  

15. It  is  true  that  PW-7  was  the  first  Medical  Officer  to  see

Sharmila and according to the witness, Sharmila had not told her who

had set Sharmila afire. However the fact remains that Sharmila was

brought to the hospital by her husband appellant Sandeep and she was

not  given  any  extensive  treatment  in  said  hospital  but  was

immediately  referred  to  PGIMS Rohtak.  In  the  circumstances  it  is

possible that the victim did not have the occasion to disclose as to

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who had set her afire. The other criticism that there was no evidence

to suggest that Sharmila was harassed for demands of dowry is also

incorrect.  Said  fact  finds  clear  mention in  the statement  Ext.  P-13

recorded  by  the  police  as  well  as  the  dying  declaration  Ext.P-6

recorded by the Judicial Magistrate and finds further corroboration in

the testimony of PW-9, brother of deceased Sharmila. We therefore

reject the submissions of Mr. Malhotra.  

16. In  our  considered  view,  the  conviction  of  the  appellants  is

absolutely  correct  and  justified.  We therefore  affirm  the  order  of

conviction and sentence as passed by the High Court and dismiss this

appeal. The appellants shall serve out the sentence as awarded.    

                                                             ………………………..J. (A.K. Sikri)

………………………..J. (Uday Umesh Lalit)

New Delhi, May 26, 2015

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