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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 579 OF 2009

Surinder Kumar …..Appellant

Versus

State of Punjab      …..Respondent

J U D G M E N T  

Madan B. Lokur, J.

1. The  question  for  consideration  is  whether  the  dying  

declaration given by Kiran Bala to the effect  that her husband  

(the  appellant)  had  driven  her  to  commit  suicide  should  be  

accepted or not.   The case of  the appellant  is  that  Kiran Bala  

accidentally caught fire and therefore it is not a case of suicide.

2. We agree with the concurrent view of the Trial Court and the  

High Court that Kiran Bala was driven to suicide by the appellant  

and as such his conviction and sentence under Section 304-B and  

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Section 498-A of the Indian Penal Code (for short the IPC) should  

be upheld.

The facts:

3. The appellant Surinder Kumar and Kiran Bala were married  

some time in 1990-91.  They have a female child.

4. On  28th April  1994  Kiran  Bala  was  admitted  to  the  Civil  

Hospital,  Tanda, with burn injuries all  over her body. Since her  

condition appeared to be serious,  Dr.  Kewal  Singh the Medical  

Officer informed the Assistant Sub Inspector of Police, Mohinder  

Singh, through a memo, of her admission in the hospital with 90%  

burns.

5. Mohinder  Singh  went  to  the  Tehsil  Office  to  contact  the  

Tehsildar who was also the Executive Magistrate.  Finding that he  

was not available and since a Judicial Magistrate was not located  

in Tanda, Mohinder Singh went to the Civil Hospital apparently to  

obtain first hand information of the events.

6. In  the  Civil  Hospital,  Mohinder  Singh  contacted  Dr.  Kewal  

Singh at about 9.30 a.m. and he certified that Kiran Bala was fit to  

make  a  statement.  Thereafter,  Mohinder  Singh  recorded  the  

statement of Kiran Bala in vernacular in the presence of Dr. Kewal  

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Singh and Dr. Satpal Singh, Medical Officer. The statement was  

read over to her and after she admitted the contents to be true,  

her  signature  and  right  thumb  impression  was  taken  on  the  

statement. An endorsement was made on the statement by Dr.  

Kewal Singh and Dr. Satpal Singh to the effect that Kiran Bala had  

given her statement in their presence.

7. Unfortunately, Kiran Bala passed away on the same day.

8. In the meanwhile,  based on the statement given by Kiran  

Bala, Mohinder Singh began investigating into the occurrence.  On  

5th May, 1994 he arrested the appellant who had been absconding  

till then and on completion of investigations, he filed a challan in  

which the appellant was accused of having driven Kiran Bala to  

commit  suicide.  The appellant  was  charged for  offences  under  

Section 304-B and Section 498-A of the IPC.  He pleaded not guilty  

and claimed trial.

9. Before filing the  challan,  Mohinder  Singh asked Dr.  Kewal  

Singh in writing on 8th July 1994 whether Kiran Bala was conscious  

throughout the time her statement was recorded. Dr. Kewal Singh  

certified that Kiran Bala was medically fit (fully conscious) from  

the beginning of her statement till the very end.  

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10. At  this  stage,  it  is  appropriate  to  quote  the  English  

translation of the dying declaration made by Kiran Bala on 28th  

April 1994.  This reads as under:-

“I am resident of village Bainchan. My parental village  is Chatiwind in Amritsar. I was married about 3 ½ years  ago with Surinder  Kumar son of Rattan Chand, caste  Balmiki,  resident  of  Bainchan,  Distt.  Hoshiarpur,  according to customary rites. I have one daughter, who  is aged about 2 ½ years.  My husband Surinder Kumar  is working as a labourer.  Today i.e. 28.4.1994 at about  7.30 A.M. my husband Surinder Kumar quarreled with  me and was saying that I had brought less dowry at the  time of marriage and that I should bring a scooter  and  Rs.5000/- in cash from my parents.  I had been telling  my mother-in-law and brothers-in-law that my husband  had been demanding more dowry and they had been  asking  him  not  to  make  such  demands.   I  had  not  informed my parents about the demands of dowry so  that  they  may  not  form  a  bad  opinion  about  my  husband.  Today, at about 7.30 A.M. fed up with the  demands  of  dowry  made  by  my  husband,  I  poured  kerosene oil and set myself on fire. When I put myself  on fire, my mother-in-law Ramo, sister-in-law Paramjit  Kaur,  my daughter Ritu,  my husband Surinder Kumar  were present in the house.  However, my mother-in-law  and sister-in-law were not aware about the setting on  fire.  When I caught fire, I raised alarm extinguished the  fire. My husband Surinder Kumar, sister-in-aw Paramjit  Kaur, a neighbour, namely Kamla my nephew Kala took  me to Civil Hospital for treatment.  My parents should  get  back  the  articles  of  dowry  given  to  me  and  my  daughter  Ritu  should  remain  with  my  husband.   My  parents should not marry my younger sister Neeta with  my  husband  Surinder  Kumar.  I  had  confided  in  my  younger sister Neeta about demands of dowry made by  husband.   Except  my  husband,  my  mother-in-law,  

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sister-in-law, brother-in-law or other members of my in  laws had not made any demands of dowry and only my  husband Surinder Kumar used to make the demands of  dowry  and  I  have  set  myself  on  fire  after  pouring  kerosene oil being fed up from the demands of dowry  made by my husband”.

Decision of the Trial Court:

11. On  the  merits  of  the  case,  the  Trial  Judge  held  that  the  

evidence indicated that the appellant had been demanding dowry  

from Kiran Bala and since she had not brought sufficient dowry,  

he mistreated her. The Trial Judge was of the view that there was  

no reason to disbelieve the dying declaration given by Kiran Bala  

that she was driven by the appellant to commit suicide. It was  

held that the dying declaration was voluntary and was recorded  

by  Mohinder  Singh  in  the  presence  of  two  doctors.  Under  the  

circumstances,  the  appellant  was  found  guilty  of  the  offences  

alleged  against  him  and  sentenced  to  ten  years  rigorous  

imprisonment and fine for an offence under Section 304-B of the  

IPC and 3 years rigorous imprisonment and fine for an offence  

under Section 498-A of the IPC.

Decision of the High Court:

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12. Before the High Court the submission made by the appellant  

was  that  the  dying  declaration  could  not  be  relied  upon  for  

several reasons. It was argued that since Kiran Bala had suffered  

burn injuries to the extent of 90%, she was not in a fit condition to  

make  a  statement.   Moreover,  the  dying  declaration  was  not  

recorded in a question-answer form. There was also no reason to  

disbelieve  the  defence  witnesses  who  testified  that  Kiran  Bala  

accidentally caught fire.

13. The High Court  was of  the  view that  there  was  sufficient  

evidence to show that Kiran Bala was driven to commit suicide,  

which she did at about 7.30 a.m. on 28th April, 1994. Kiran Bala  

was conscious when she gave her dying declaration and although  

her condition may have been critical at that point of time, there  

was sufficient intrinsic evidence to show that she was fit to make  

the  statement.   Moreover,  it  is  not  as  if  her  statement  was  

vindictive inasmuch as she squarely blamed only the appellant  

and nobody else.

14. On this evidence, the High Court upheld the view of the Trial  

Judge and affirmed the conviction and sentence.

Discussion and conclusion:

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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  

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as mentioned in  Paniben v. State of Gujarat, (1992) 2 SCC  

474 to conclude that there was 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  

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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  

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be 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.

23. Clearly, the dying declaration made by Kiran Bala was not  

under any pressure.  The only persons who were present when  

she made her dying declaration were Mohinder Singh and the two  

doctors.   We have no doubt  that  both the Courts  have rightly  

come to the conclusion that the dying declaration made by Kiran  

Bala was voluntary.

24. The dying declaration contains some facts which would not  

have been known to strangers like Mohinder  Singh or  the two  

doctors.  For example, they could not have known the parental  

village of Kiran Bala or when she was married or the caste of her  

husband and so on. Therefore, it is incorrect to obliquely suggest  

that since the dying declaration was detailed,  it  should not be  

accepted.  On the contrary, the details given by Kiran Bala at the  

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time of  her  death are indicative of  her  consciousness  and her  

fitness to make a statement.

25. We are also of the opinion that the dying declaration was  

truthful  inasmuch  as  Kiran  Bala  did  not  introduce  any  

exaggerations and narrated only the basic and important facts,  

namely, about the persistent demand for dowry by her husband.  

She also truthfully stated that she had been telling her mother-in-

law and brothers-in-law that the appellant was demanding dowry  

and that they had asked him not to make such demands.  Kiran  

Bala  did  not  implicate  anybody  other  than  the  appellant  and  

truthfully  stated that  since she was fed up with the persistent  

demand  of  dowry  made  by  him,  she  poured  kerosene  oil  on  

herself and set herself on fire.

26. It is not necessary for us to repeat the principles laid down in  

Paniben since they have been repeated in several  judgments,  

some of which have been referred to above.  All that we need say  

is that the decisions referred to and relied on in Paniben need to  

be updated. Applying the principles laid down Paniben, the dying  

declaration given by Kiran Bala ought to be accepted as voluntary  

and truthful.

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27. Learned counsel for the appellant relied on  Laxmi v. Om  

Prakash, (2001) 6 SCC 118  particularly paragraph 21 of the  

Report. In that case, the third dying declaration (out of five) was  

under consideration. This Court upheld the doubt expressed by  

the Trial Court (and endorsed by the High Court) that even though  

the victim had 85% burns, her neck, mouth and lips were burnt.  

The  records  available  with  the  Burns  Ward  of  the  concerned  

hospital also showed that her hands were burnt and the skin had  

peeled  off.  In  such  a  situation,  a  grave  doubt  was  expressed  

whether the victim could have made a detailed statement and put  

her  signature  thereon.  Clearly,  that  case  was  decided  on  its  

peculiar facts and no general principle of law was laid down in the  

paragraph under reference.  

Result:

28. Given  the  facts  of  the  case  and  the  law  laid  down  in  

Paniben, we have no difficulty in upholding the concurrent views  

of the Trial Court as well as the High Court in accepting the dying  

declaration of Kiran Bala as voluntary and truthful. Consequently,  

we uphold the conviction and sentence awarded to the appellant.

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29. There  is  no  merit  in  the  appeal  and  it  is  accordingly  

dismissed.

….…….……………………..J.   (Swatanter Kumar)

….…….……………………..J.   (Madan B. Lokur)

New Delhi November 21, 2012

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