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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1853 OF 2012

MANOJ & ORS. ...APPELLANTS

Versus

STATE OF HARYANA     ...RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The appellants in this case were found guilty of  

offence punishable under Sections 498­A and 304­B  

Indian Penal Code (for short, “IPC”) by the Sessions  

Judge, Bhiwani. They were sentenced to undergo  

imprisonment for life for the offence under  Section  

304­B IPC and also to undergo rigorous imprisonment for  

three years, besides, payment of fine of Rs.5,000/­  

each and in default of which to undergo further  

imprisonment for a period of six months for the offence  

under Section 498­A IPC. Their appeal against the said  

judgment and conviction to the High Court of Punjab &  

Haryana at Chandigarh got dismissed except with a  

modification in the sentence of imprisonment from

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imprisonment for life to imprisonment for 10 years for  

the offence under Section 304­B IPC.  

2. The prosecution case, in brief, is that on  

14.4.2005 on receipt of a telephonic message from the  

Incharge, Police Post, General Hospital, Bhiwani  

regarding admission of Meena Devi wife of Manoj Kumar  

(appellant no.1) resident of Village Hetampura in burnt  

condition, ASI Chattarmal (PW­11) of P.S. Sadar,Bhiwani  

along with other police officials reached the said  

hospital and collected medical ruqa (memo) alongwith  

medico­legal report of injured Meena.  After obtaining  

the opinion of the Doctor regarding fitness of the  

injured to make statement when he brought the Duty  

Magistrate to record her statement in the hospital, the  

Doctor had already referred her to PGIMS Rohtak.  

Thereafter, he alongwith Magistrate reached PGIMS,  

Rohtak and collected two medical ruqas from Incharge,  

Police Post, PGIMS Rohtak out of which one was  

regarding death of Meena. Then he reached in the  

gallery of emergency ward where complainant Vedpal (PW­

9) met him and got recorded his statement (Ex.PA).  It  

is alleged by the complainant­Vedpal (PW­9) that he had  

one daughter and two sons.   His daughter was married  

with Manoj (appellant no.1) son of Mahabir about five  

years earlier (the actual date of marriage found to be  

6.05.2000) to the incident that had occurred on

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14.04.2005. He further stated that in the marriage of  

his daughter, he had given dowry beyond his financial  

capacity.  However, his daughter on her return from her  

matrimonial home for the first time told him that her  

in­laws were not satisfied with the dowry articles that  

were given in marriage. The complainant had given  

double bed, T.V., fridge, cooler, sofa set, almirah, 21  

utensils and clothes etc., besides, Rs.2100/­ in cash.  

When the daughter of the complainant (PW­9) went to her  

matrimonial home for the second time, his son­in­law  

Manoj (appellant no.1), the mother­in­law of his  

daughter namely Chameli Devi (appellant no.2), the  

father­in­law namely Mahabir (since acquitted) and  

Jethani (husband's elder brother's wife) of his  

daughter namely Suman (appellant no.3) raised a demand  

for a motor cycle and started torturing her (beating)  

for  this.   Therefore, Meena  Devi (deceased)  started  

living with him (complainant).   She stayed with her  

father (complainant) for fourteen months. About ten  

months earlier from the date of incident that  occurred  

on 14.04.2005, the complainant (PW­9) made his daughter  

understand and sent her back in the presence of  

panchayat of Hetampura and Sant Mann Singh s/o Chandu  

Ram r/o Hissar.   However, even then the accused were  

demanding a motor cycle and kept troubling his daughter  

for dowry.  On 14.04.2005, at about 8.00 a.m, Mahabir  

informed him on telephone from the Hospital at Bhiwani

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that Meena Devi (deceased) had been admitted in the  

Government Hospital, Bhiwani with burn injuries. On  

receiving this information, the complainant (PW­9)  and  

Dayanand s/o Jogi Ram and his brother Shamsher reached  

the Hospital at Bhiwani. There they came to know that  

Meena Devi (deceased) had been referred to PGIMS,  

Rohtak. Then they all reached PGIMS, Rohtak where he  

met his daughter in the emergency ward of PGIMS,  

Rohtak. His daughter told him that in the morning on  

that day, her mother­in­law namely Chameli Devi  

(appellant no.2) had called her in the room and her  

husband Manoj (appellant no.1) poured kerosene oil on  

her and her husband's elder brother's wife (Jethani)  

namely Suman (appellant no.3) lit a matchstick and set  

her on fire on account of which she got burnt. After  

sometime Meena Devi (deceased) while she was under  

treatment breathed her last. It it alleged by the  

complainant (PW­9) that on account of greed of dowry,  

his daughter Meena Devi (deceased) had been set on fire  

by pouring kerosene oil on her by her husband Manoj  

(appellant no.1), mother­in­law Chameli Devi (appellant  

no.2) and husband's elder brother's wife (Jethani)  

Suman (appellant no.3) after colluding with each other.  

He further requested for action being taken against the  

accused.

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3. On the basis of such complaint FIR No.103 dated  

14.4.2005 under Sections 304­B/498­A/406/34 IPC was  

registered. Subsequently, on the basis of above  

allegations, all the four accused were charged under  

Section 304­B in alternative under Sections 302, 498­A  

and 406 r/w Section 34 of the IPC to which they pleaded  

not guilty and claimed trial.   

4. All together eleven witnesses were produced by the  

prosecution  in support of their  case. Exhibits were  

proved through the prosecution witnesses. Defence also  

produced two witnesses in its favour.  

5. The Sessions Judge, Bhiwani by judgment dated  

4.09.2006 acquitted Mahabir father­in­law of the  

deceased and held the appellants guilty for the offence  

under Sections 498­A and 304­B of the IPC.   The  

Sessions Judge further held that the prosecution has  

miserably failed to prove its case against all the four  

accused for the offence under Sections 302 and 406 r/w  

Section 34 IPC and, hence, all the four accused were  

acquitted for the said offence.  

6. An appeal was preferred by the appellants against  

the judgment passed by the Sessions Judge, Bhiwani and  

another appeal was preferred by the complainant­Ved Pal  

(PW­9) against acquittal of Mahabir. By impugned  

judgment dated 15.02.2012 the Division Bench of  the  

High Court of Punjab and Haryana at Chandigarh

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dismissed the appeal preferred by Ved Pal­

complainant(PW­9). The judgment passed by the Sessions  

Judge was affirmed with the modification in the  

sentence of imprisonment, the appeal preferred by the  

appellants was also dismissed.   

7. In this appeal, learned counsel appearing for the  

appellants contended that in view of severity of burn  

injuries of the deceased she could not have been in a  

fit state of mind or condition to make a dying  

declaration. The said dying declaration is purported to  

be made in presence of Dr. Rajender Rai (PW­4). In  

absence of any other material to corroborate the same,  

the dying declaration should not be relied upon.  

8. It was submitted that PW­7, the Police Inspector  

who had prepared a report under Section 173 Cr.PC, in  

his statement admits that there was no mention of the  

statement of the deceased allegedly  recorded by  the  

Doctor at the time of her MLR.  Even under Section 313  

Cr.PC, no question was ever put to the accused with  

regard to his signing of the said MLR in question. The  

said dying declaration raises suspicion and doubt. It  

may not be an absolute proposition of law that a dying  

declaration should be recorded by a Magistrate but if  

in a given case, there is ample time and  

opportunity,the services of a Magistrate should be  

called upon in order to lend credence to the said dying

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declaration. The I.O (PW­11) has stated that after  

reading of the statement Ex.PF, he did not approach the  

deceased to verify from her if she had made such  

statement or not.  

9. Per contra, according to counsel for the  

prosecution, the dying declaration recorded by Dr.  

Rajinder Rai (PW­4), Medical Officer is reliable.  

There is nothing on record to suggest that Dr. Rajinder  

Rai (PW­4) is an unreliable witness. To the contrary,  

he is a natural witness and his testimony has not been  

shaken during a long cross examination. The theory of  

tutoring is also ruled out in the present case as the  

accused  persons  only were present with the deceased  

during that time and none of the family members of the  

deceased were present when the dying declaration was  

recorded by the Doctor. The husband (appellant no.1)  

Manoj has also affixed his signature on the MLR on  

which the dying declaration was recorded by the Doctor.  

The evidence of PW­4 is trustworthy, cogent and  

reliable.  

10. Further according to the learned counsel for the  

prosecution an alternate charge under Section 302  

shall be framed in addition to Section 304­B and in  

view of dying declaration of the deceased, which has  

been believed by both the courts below. A grave error  

of law has been committed by the trial Court as well as

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the High Court by not convicting the accused persons  

under Section 302. It was submitted that this is a fit  

case wherein this Court may exercise its extraordinary  

powers under Article 142 of the Constitution of India  

and shall consider altering the conviction from Section  

304­B to Section 302 IPC.

11. Coming to the evidence of Dr. Rajinder Rai (PW­4)  

who conducted medico­legal examination and recorded the  

statement of the deceased, we find that he specifically  

deposed that the deceased Meena was brought to the  

Hospital with the history of burns. Kerosene like smell  

was present. Smell was also present in the clothes.  On  

examination she was conscious. There were superficial  

to deep burns about 100% with in a duration of 12  

hours. Dr. Rajender Rai (PW­4) stated that the deceased  

told him that  she was called inside and the door was  

latched from inside.  Kerosene oil was sprinkled upon  

her and her Jethani Suman had ignited the fire by the  

match stick. Her husband and mother­in­law were also  

involved in it.  After recording the statement of the  

deceased, he signed it. The statement was again read  

over to the patient by him in Hindi. She stated Yes.  

He again asked the patient whether the above statement  

was correct and she again stated Yes. He again signed  

the endorsement and put the time of 7.55 a.m. He  

prepared MLR including statement of the patient

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recorded by him in his handwriting and his endorsement.  

He further stated that he had sent ruqa (Ex.PG) to the  

Incharge, Police Post, General Hospital, Bhiwani at  

8.00 a.m.   Therefore, Chhattarmal ASI of P.S. Sadar,  

Bhiwani moved application Ex.PH before him asking his  

opinion regarding fitness of Meena Devi to make  

statement, on which, he opined vide endorsement Ex.PH/1  

at 8.45 a.m that she was fit to make statement and  

thereafter he referred the patient to PGIMS, Rohtak  

vide endorsement Ex.PH/2. He had recorded the statement  

of deceased Meena Ex.PF correctly without any addition  

thereto and on the basis of whatever had been stated  

before him.  

12. The Defence had tried to make a futile effort to  

prove that  Dr. Rajinder Rai (PW­4) was an interested  

witness because cousin of the deceased and his wife  

were posted in the same Hospital and, thus, undue  

influence was exercised upon him by them but it was not  

believed by both the courts in absence of any evidence  

on the file that alleged cousin of the deceased and his  

wife were posted in Government Hospital, Bhiwani at the  

time  the deceased was medico­legally examined at 7.30  

a.m on 14.4.2005.  Contrary to it, evidence was brought  

on record that aforesaid cousin of the deceased and his  

wife were posted in some private nursing home in

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Siwani, which was about 70 kilometers away from  

Bhiwani.  

13. There is another glaring factor in the present  

case which proves that Dr. Rajinder Rai (PW­4) was not  

under influence of anyone because had it been, he or  

investigating officer Chhattarmal (PW­11) might not  

have made any effort to call the Magistrate for  

recording the statement of the deceased. The law is  

well settled that if the declaration is made  

voluntarily and truthfully by a person who is  

physically in a condition to make such statement, then  

there is no impediment in relying on such a  

declaration. Such view was taken by this Court in  

Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1  

SCC 73 wherein this Court held:   

“5. ….... The question then is, can a conviction  be based primarily on the dying declaration of the  deceased in this case? In this regard we do not  think it is necessary for us to discuss the cases  cited by the learned counsel which are noted  hereinabove because, in our opinion, the law is  well settled i.e. if the declaration is made  voluntarily and truthfully by a person who is  physically in a condition to make such statement,  then there is no impediment in relying on such a  declaration. In the instant case, the evidence of  PW 5, the doctor very clearly shows that the  deceased was conscious and was medically in a fit  state to make a statement. It is because of the  fact that a Judicial Magistrate was not available  at that point of time, he was requested to record  the statement, which he did. His evidence in  regard to the state of mind or the physical  condition of the deceased to make such a

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declaration has not been challenged in the cross­ examination. That being so, it should be held that  the deceased was in a fit state of mind to make a  declaration as held by the courts below. The next  question for our consideration is whether this  statement is voluntary and truthful. It is not the  case of the defence that when she made the  statement either she was surrounded by any of her  close relatives who could have prompted her to  make an incorrect or false statement. In the  absence of the same so far as the voluntariness of  the statement is concerned, there can be no doubt  because the deceased was free from external  influence or pressure. So far as the truthfulness  of the statement is concerned, the doctor (PW 5)  has stated that she has made the said statement  which, as noted above, is not challenged in the  cross­examination. The deceased in her brief  statement has, in clear terms, stated that because  of the quarrel between her and the accused, the  accused had poured kerosene and set her on fire  which, in our opinion, cannot be doubted.........”

14. In Ashok Kumar v. State of Rajasthan, (1991) 1 SCC  

166 this Court noticed that if it was a case of death  

by burning, entries of injury report in the bed head  

ticket can be construed as dying declaration. In the  

said case this Court held:   “11. Entries in the injury report which have been  construed as dying declaration by the two courts  below were severely criticised and it was  submitted that although dying declaration was  admissible in evidence and conviction could be  recorded on it without corroboration yet the  circumstances in which it was recorded created  doubt if it was genuine. The High Court for very  good reasons rejected similar arguments advanced  before it. We also do not find any substance in  it. When the deceased was examined by Dr Temani he  having found her condition to be serious  immediately sent message to the police station and

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also requested for arranging for recording of the  dying declaration. This is corroborated by the  entry in the record of the police station. But the  Inspector of Police came after 11.00 when the  injection of morphine had already been  administered to lessen the agony of the patient  who thereafter became unconscious. She was,  however, as indicated earlier conscious between  10.00 to 11.00 during which period the bed head  ticket was written by Dr Saxena and the entries  were made on the injury report. The judge did not  doubt the recording on the bed head ticket that  the deceased complained of misbehaviour by her  brother­in­law. Even the learned counsel could not  point out any infirmity or reason to discard it  except that by mere word, brother­in­law it was  not established that it was appellant, i.e. the  effort was to make out a case of doubt. That could  have been possible if that entry could have stood  alone.  But it stands  not only corroborated  but  clarified by identifying the appellant by entry in  injury report as the brother­in­law who was  responsible for this crime. We perused the injury  report and we could not find any reason to doubt  its authenticity.”

15. What we find in the present case is that the dying  

declaration (Ext.PF) which was recorded by Dr.Rajinder  

Rai (PW­4) was also signed by Manoj (appellant no.1)  

which indicates that appellant No.1 was present when  

statement was recorded.   Nothing on the record to  

suggest that any of the relation of the deceased was  

present to influence Dr. Rajinder Rai (PW­4).  

16. Thus, we find that there is no infirmity in the  

finding of the Sessions Judge as affirmed by the High  

Court.

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17. Admittedly, the death of Meena Devi (deceased) is  

caused by burns i.e. otherwise than under normal  

circumstances within seven years of her marriage.  The  

complainant (PW­9) father of the deceased has stated  

that at the time of marriage he had given double bed,  

sofa set, T.V.,  cooler and other domestic articles,  

besides, gold ornaments of 4 tolas, 21 utensils and  

Rs.2100/­ in cash.  However, his daughter told him that  

her  in­laws  were not satisfied with  those articles.  

When  his daughter visited her matrimonial home for the  

second time, all the accused started taunting her and  

harassing her raising demand for a motor cycle.   She  

was turned out of her matrimonial home after giving  

beatings.  Thereafter, she started living with him (PW­

9) and stayed with him for 14 months.  Then he convened  

a panchayat consisting of Sant Man Singh, Krishan of  

Hetampura and others i.e. his brother Satyawan and his  

brotherhood from village Khera.  In that panchayat, the  

accused   assured not to harass Meena in future and  

then accused Mahabir and Chameli came to take her away  

and she was accordingly sent to her matrimonial house  

about 10 months prior to her death.  After four days,  

they again started harassing her by  demanding motor  

cycle and continued beating her.   His brother Satpal  

(PW­10) has also corroborated his deposition. No  

mitigating circumstances are found on record to  

disbelieve their statements.

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18. In view of such evidence on record both the courts  

have come to definite conclusion that soon before her  

death she was subjected to cruelty and harassment by  

her husband and his relatives in connection with demand  

for dowry.  Therefore all the ingredients are present  

to convict the appellants under Section 304­B of the  

IPC. The prosecution proved beyond reasonable doubts  

that the appellants are guilty for the offence under  

Section 498­A of the IPC.  

19. In these circumstances, we find that the Sessions  

Judge has recorded cogent and convincing reasons for  

convicting the appellants for the offences under  

Sections 304­B and 498­A IPC.  

20. So far as conviction of the appellants under  

Section 302 IPC, as suggested by counsel for the State,  

we find no wrong to alter the conviction to Section 302  

IPC.   

21. In  Muthu Kutty and Another v. State by Inspector  

of Police, Tamil Nadu (2005) 9 SCC 113 this Court held  

that when it was found that the accused were  

responsible for setting the deceased on fire and  

causing her death, Section 302 instead of Section 304­B  

was attracted. On facts, no prejudice would be caused  

to accused­appellants of the said case if the  

conviction is altered to Section 304 Pt. II on the  

basis of conclusions arrived at by the trial court as

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they were originally charged for offence punishable  

under Section 302 alongwith Section 304­B IPC.  

22. In the present case, we have noticed that after  

appreciation of evidence, learned Sessions Judge by  

judgment dated 4.9.2006 specifically held that the  

prosecution has miserably failed to prove its case  

against all the four accused for the offence under  

Sections 302 and 406 r/w Section 34 IPC and, hence, all  

the four accused were acquitted under the said offence.  

Against the acquittal of Mahabir Singh the complainant  

(PW­9) filed an appeal which has been dismissed by the  

impugned judgment.  No appeal has been preferred by the  

complainant or the State against the acquittal of all  

the accused for the offences under Section 302 and 406  

r/w Section 34 IPC. The finding of Sessions Judge  

having reached finality, the question of altering the  

present  sentence under Section 304­B to  Section  302  

does not arise.  

23. Lastly, it was submitted on behalf of the  

appellants to consider reducing the sentence awarded to  

the appellants from 10 years to 7 years which is the  

minimum sentence prescribed under Section 304­B IPC  

considering the facts and circumstances of the case. In  

the present case we find that the appellants were  

sentenced for life for the offence under Section 304­B  

IPC by the trial Court and the High Court already

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considered the facts and circumstances of the case and  

reduced the sentence from life imprisonment to 10  

years.  

24. We find no other circumstances to reduce  it to  

minimum sentence of seven years.  In absence of merit,  

the appeal is dismissed.   

25. Bail bonds of the appellant nos. 2 and 3 are  

cancelled. Appellant nos. 2 and 3 are directed to be  

taken into custody to serve out remainder of the  

sentence.

………………………………………………………………………………J.        (T.S.THAKUR)

………………………………………………………………………………J.            (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, JULY 9,2013.