Delhi High Court

Smt.Hardeep Kaur vs The N.C.T Of Delhi on 4 July, 2012

Author: Suresh Kait

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   Crl. A. No.907/2001

%                     Judgment reserved on : 30th May, 2012
                     Judgment pronounced on : 4th July, 2012

Smt.Hardeep Kaur                                                  Appellant
                            Through Mr.K.T.S. Tulsi, Senior Advocate with
                                    Mr.Ravinder Singh and Mr.Faraz Khan,
                                    Advocates.

                                           Versus

The N.C.T of Delhi                                                .... Respondent
                           Through         Mr.M.N.Dudeja, APP for the State.

                                          AND

+                                    Crl.A No.822/2001

Sh.Baljit Singh                                                   Appellant
                            Through Mr.Jitender Sethi & Mr.Rajiv Bansal,
                                    Advocates.

                                           Versus

State                                                             .... Respondent
                           Through         Mr.M.N.Dudeja, APP for the State.

                                          AND

+                                    Crl.A No.796/2001

Arvinder Singh                                                   Appellant
                            Through Mr.Siddharth Luthra, Senior Advocate
                                    with Mr.Rajiv Gaur „Naseem‟ and
                                    Mr.Arashdeep Singh, Advocates.

                                           Versus

State of Delhi                                                    .... Respondent
                           Through         Mr.M.N.Dudeja, APP for the State.



Crl.A Nos.907/2001, 822/2001 & 796/2001                               Page 1 of 52
 CORAM:

HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. The present appeals are filed by the appellants against the

judgment dated September 12, 2001 passed in FIR No.913 of 1997

registered at Police Station Paschim Vihar for the offences punishable

under Sections 302/498A/120B/406/34 of Indian Penal Code, 1860

whereby the appellants have been held guilty and convicted for the

offences punishable under Section 302 read with Section 120 of IPC

and for offence under Section 498A/34 of Indian Penal Code, 1860.

2. The appellants have also challenged the impugned order on

sentence by which the appellants have been directed to undergo life

imprisonment for the offences under Section 302/120B of IPC with fine

of ` 10,000/- each and in default to undergo further RI of three months

each, further sentenced them to RI of three years under Section

498A/34 of IPC and fine of ` 5,000/- each and in default to undergo

additional RI of two months each.

3. All the appellants have been convicted by the common judgment

and sentenced by a common order as mentioned above, therefore, all

the appeals are decided by a common judgment.

4. The appellant Smt.Hardeep Kaur is mother-in-law of Davender

Kaur (deceased) who married with the appellant Baljit Singh (husband)

according to Sikh rites on November 12, 1997. The appellant Arvinder

Singh is the husband of sister of the appellant Baljit Singh.

5. The relevant facts of the case are that on 8th November, 1997, the

PCR received a call about setting on fire a woman at B-1-127, Paschiv

Vihar. Accordingly, the said information was recorded vide DD No.9A

(Ex.PW6/A). The said DD was entrusted to SI Rattan Singh (PW11) who

along with Constable Raj Singh (PW5) reached at the spot of incident.

There he came to know that the injured already shifted to Safdarjung

Hospital by PCR van. Accordingly, PW11 ASI Rattan Singh reached at

the hospital. In the hospital, doctor declared Smt. Davender Kaur fit for

statement.

6. PW2 Davender Singh, SDM, Vasant Vihar arrived at the hospital

at 5.25 pm, who recorded the statement (Ex.PW2/B) of Smt. Davender

Kaur in question-answer form. In an answer to the questions, she

stated that, "her name is Davender Kaur and she was marred to Baljit

Singh about eight years back. Dowry was being demanded. Her parents

had given everything in marriage according to their capacity. Her mother-

in-law Hardeep Kaur used to give filthy abuses and also beatings. At

about 1 pm, she was sitting when her mother-in-law Hardeep Kaur was

abusing her and in the meanwhile she brought one can of petrol and

poured on her and then lit the fire with a match stick and ran away from

the automatic door. While screaming, she came out and neighbours

extinguished her fire. Her mother-in-law Hardeep Kaur poured petrol and

burnt her. At that time only they two were alone there. Her husband had

gone to his shop. Her mother-in-law Hardeep Kaur pourned petrol and

burnt her on account of dowry".

7. After the usual endorsement by the Area SDM, PW10 B.S. Jaglan,

the case was registered against the accused persons including the

appellants under Sections 498A/307 of IPC.

8. In the meanwhile, DD No.50B (Ex.PW4/D1) was also recorded at

the Police Station Sarojini Nagar on the message of Arvinder Singh

(PW18), brother of deceased, that his sister was burnt by her in-laws

and was admitted in Safdarjung Hospital and was about to die but the

police did not record her statement.

9. The aforesaid DD was entrusted to PW4 SI Dharampal Singh who

along with one Constable reached Safdarjung Hospital.

10. At about 4.30 pm PW28 Dr. Sujata Pandey declared her fit for

statement vide Ex.PW28/A. Thereafter, PW4 SI Dharampal Singh in the

presence of Dr. Rajiv Rajput (PW1) and PW11 SI Rattan Singh recorded

the statement (Ex.PW1/A) of Davender Kaur at 5 pm. This statement

was to the effect that, "She was married about 8 years back; that she

was being harassed by her in-laws on account of dowry; that

harassment continued; that today at about 1 pm, her mother-in-law, her

husband Baljit Singh and Arvinder Singh poured petrol on her from a can

and her mother -in-law lit the fire with a match stick; that she tried to

save herself and raised noise; that neighbours came and brought her to

the lobby; that her in-laws have burnt her".

11. On the same date, at about 8.15 pm, an information was received

about death of Davender Kaur which was recorded vide DD NO.43B

(Ex.PW26/A). On receiving the said DD, PW26 Inspector Jai Singh

along with Constable Vijay Bahadur reached at the place of incident.

Accordingly, the offence was altered from Section 307 to 302 IPC.

12. Investigation of the case was taken over by Inspector Jai Singh

(PW26). The spot was got inspected from the Crime Team. The site plan

was got prepared and photographs were also got taken. Ash of burnt

clothes, burnt hairs, and burnt plastic can of petrol with writing "GTX",

one matchbox and two burnt match sticks were taken into possession

and were kept in a pulanda which were sealed with the seal of "JS".

13. The statements of witnesses were recorded and the case property

was deposited at the Police Station Malkhana Moharar. Appellant

Hardeep Kaur was arrested on 9.11.1997. Her personal search was

taken by PW 23 W/HC Pushpa Kaur.

14. The appellant Hardeep Kaur made a confessional statement to the

effect that, "her son Baljit Singh was married with Davender Kaur in

September, 1989 according to Sikh rites; that Davender Kaur had not

brought the dowry articles as per their desire; that she along with her son

Baljit Singh, daughter Simmi and son-in-law used to beat Davender Kaur

on account of dowry; that they all hatched a conspiracy to kill Davender

Kaur; that she poured petrol on Davender Kaur and lit the fire with

matchstick; that she could arrest her son Baljit Singh, daughter Simmi

and son-in-law Arvinder Singh and could point out the place".

15. Thereafter, she took the police party to the place of incident i.e.

First Floor of Room No.B-1-127, Paschim Vihar and pointed towards the

place where they had poured petrol on Davender Kaur and burnt her

with matchstick.

16. Inquest proceedings were prepared under Section 174 CR.PC and

after the postmortem, the dead body was handed over to the relations of

the deceased. Statements of witnesses were recorded by the

Investigating Officer Jai Singh.

17. As per the postmortem report, cause of death was due to shock as

a result of 100% superficial and burns of deep first, second, third and

fourth degree and ante mortem burn caused by flames. On the internal

examination, there was noticed extra vacation of blood in the scalp

which was opined by PW9 Dr.Chanderkant as caused by application of

blunt force from a blunt object/ material to head against rough and

hard surface.

18. After investigation, the police filed the charge-sheet in the Court

and thereafter vide order dated 2nd May, 1998 charge for committing

offences under Sections 302/120B IPC was framed against the

appellants including Satender Kaur. The appellants pleaded not guilty

and claimed trial.

19. The prosecution examined 29 prosecution witnesses and the

statements of appellants were also recorded under Section 313 Cr.PC.

20. Before proceeding further, we briefly discuss about the witnesses

examined by prosecution. PW1 Dr. Rajiv Rajput, who was on duty in

Burn Department (ICU) of Safdarjung Hospital, when deceased with

100% burns was admitted there at about 2.30 pm. As the SDM did not

reach despite long waiting and the condition of the deceased was critical

and she could succumb any time, therefore, her statement (Ex.PW1/A)

was recorded by PW4 SI Dharampal Singh.

21. The said statement (Ex.PW1/A) of the deceased has been

considered by the learned trial court as one of her dying declaration.

22. PW2 Davender Singh, SDM, Vasant Vihar, had recorded the

statement of deceased (Ex.PW2/A) later. The learned trial court

considered this statement also as dying declaration, while, convicting

the appellants.

23. PW3 HC Om Prakash deposed that he reached at the place of

incident at about 13:27 pm on getting information regarding a lady

having been burnt. He removed her to the Safdarjung Hospital in the

PCR Van. Her mother-in-law (appellant Hardeep Kaur) also

accompanied the deceased in the van. According to him, deceased did

not utter anything on the way and was crying. However, when they

reached the hospital, she started crying that she was burnt and killed.

On his asking, she told that her mother-in-law, husband Baljeet Singh

and Nandoi Harnam Singh set her on fire after pouring petrol on her.

24. This part of the statement made by the deceased to PW3 HC Om

Prakash has also been considered as one of the dying declaration by the

Trial Court.

25. PW4 SI Dharampal Singh of Police Station Sarojini Nagar deposed

that he had reached the spot on receiving DD No. 50B (Ex.PW4/D1). He

informed the SDM, Paschim Vihar, who advised him to contact SDM

Punjabi Bagh as the later was not available. He contacted the SDM

Sarojini Nagar who advised him to contact SDM Punjabi Bagh, who was

still not available. As the SDM had not arrived, he recorded statement

(Ex.PW1/A) of the deceased at 5 pm in the presence of PW1 Dr. Rajiv

Rajput and PW11 SI Ratan Singh.

26. PW5 Constable Raj Singh was posted at the Police Station

Paschim Vihar and he had accompanied PW11 SI Rattan Singh to the

place of incident. As the deceased had already been taken to the

hospital, SI Ratan Singh left for the hospital while he remained at the

spot. Thereafter, he had taken rukka (Ex.PW5/A) to the Police Station

Paschim Vihar and got the case registered vide FIR (Ex.PW5/B).

27. PW6 Constable Kailash Chand deposed that he had taken the

special report to the senior police officers and to the Area Magistrate on

the same day. He denied that he had not taken the copy of the FIR as

deposed and that the same was delivered on the next day.

28. PW8 Dr.Sushma deposed that she was on duty at Safdarjung

Hospital on 08.11.1997 when at about 02:30PM, she examined

Davender Kaur vide MLC Ex.PW8/A. She deposed that Davender Kaur

was brought by her mother-in-law (appellant) and the deceased had

herself informed to have sustained burn injuries and that she had the

fight with her husband and mother-in-law and she had poured petrol

on herself in her room and lit on fire and got herself burnt.

29. The learned trial court has considered the aforesaid statement

also as one of the dying declaration, while convicting the appellants.

30. PW9 Dr.Chanderkant has proved the postmortem report

Ex.PW9/A on the body of the deceased done on 09.11.1997.

31. PW10 B.S. Jalan was the SDM Paschim Vihar and he had made

endorsement regarding registration of the case on the statement

recorded by PW2 as Ex.PW2/B.

32. PW11 SI Rattan Singh, as stated above, had reached the place of

incident along with Constable Raj Singh. In the hospital, he sought the

declaration of the doctor as regards to the fitness of the deceased for

making statement. He was a witness to the statement Ex.PW1/A

recorded by PW4 SI Dharampal Singh in the presence of Dr. Rajiv

Rajput. Later on after getting endorsement (Ex.PW2/B) of SDM Punjabi

Bagh, PW10 B.S. Jalan as Ex.PW2/B, he prepared rukka (Ex.PW5/A)

and sent the same through PW5 Constable Raj Singh for registration of

the case. After receipt of information regarding death of deceased, PW10

handed over the investigation of the present case to PW26 SHO Jai

Singh.

33. PW12 Inspector Davinder Singh had prepared the scaled site plan Ex.PW12/A.

34. PW13 Constable Durgalal had taken the five photographs Ex.P6

to P10 of the place of incident.

35. PW14 Constable Umed Singh had collected the postmortem

report along with the seal parcel containing the hair and the sample

seal from the hospital and had handed the same to the Duty Officer

PW15 HC Brij Lal.

36. PW16 Lady SI Lata Singh had recorded DD NO.9A (Ex.PW16/A)

at Police Station Paschim Vihar, on receipt of information from the PCR

regarding having been set on fire. Thereafter, she recorded the DD

No.14A Ex.PW16/A regarding admission of Davender Kaur (deceased) in

the hospital in burnt condition.

37. PW17 SI Dhan Singh deposed that he along with the

photographer Hans Raj and R.K. Ken had reached at the spot.

38. PW20 constable Davinder proved the previous incidents between

the deceased and her in-laws vide entries Ex.PW20/A and PW20/B of

the police record dated 23.10.1994.

39. PW21 Constable Satpal and PW25 Om Prakash were on the duty

at Safdarjung Hospital on 8.11.1997. They deposed about the

admission of Davender Kaur in burnt condition in the hospital by PCR

official namely HC Om Prakash (PW3). They had given the information

to Police Station Paschim Vihar regarding the incident which was

recorded vide DD No.14 Ex.PW16/B. Constable Satbir also gave the

information about the death of Davender Kaur which was recorded at

Police Station Paschiv Vihar vide DD No.43 as ex.PW26/A.

40. PW23 examined W/HC Pushpa Kaur who accompanied Inspector

Jai Singh and was a witness to the arrest of appellant Hardeep Kaur

vide Ex.PW19/B.

41. PW24 Inspector Meena conducted the investigation from

6.12.1997. He recorded statements of the same witnesses and then

formally arrested appellant Arvinder Singh and he had also got sent

exhibits to FSL, Malviya Nagar.

42. PW26 Insp. Jai Singh had taken over the investigation after death

of Davender Kaur. He prepared the site plan Ex.PW26/B. He recorded

the statement of the father and brother of the deceased and other

witnesses and took into possession hairs, ash of the clothes, match box

with two burnt sticks, one can in melted condition from the spot. He

had arrested the appellant Hardeep Kaur. He also recorded the

statement of PW4 SI Dhanpal and PW3 HC Om Prakash. Thereafter, he

arrested appellant Baljit on the next day after he surrendered in the

Court.

43. The above discussed witnesses also took into possession the

photographs of compromise deeds dated 23.10.1994 as arrived between

the deceased and her in-law in a previous incident on which PW11 SI

Ratan Singh‟s signatures were there. He prepared the inquest report

Ex.PW26/D and then formally arrested another accused.

44. PW27 HC Raj Singh was posted as Malkhana Moharar at the

Police Station on 8.11.1997 and also on 2.12.1997 when exhibits of the

case property were deposited with him. On 28.01.1998, he got sent

these exhibits to FSL, Malviya Nagar but these were not accepted there.

The entries in this regard were made in Register No.19.

45. PW28 Dr.Sujata Pandey who examined the deceased at 4.20 pm

& declared her fit for statement on the application Ex.PW28/A as made

by the relations of the deceased.

46. PW29 Dr. Savita Arora had identified the signatures of Dr. Samir

Verma on Ex.PW2/A whereby the deceased was declared fit to make

statement by Dr. Samir who had left the services of the hospital and his

whereabouts were not known. Dr. Savita had seen Dr. Samir signing

and writing during the course of his working with her. She also

identified handwriting and signatures of Dr. Samir Verma as appearing

on the case sheet Ex.PW29/A. On both these exhibits Dr. Samir Verma

had declared the deceased to be conscious, oriented and fit for

statement.

47. PW22 is the cousin of deceased Davender Kaur and PW7 was a

family friend of Harnam Singh. They all deposed about the previous

incident of cruelty on account of dowry and also of the compromise and

subsequent allegations of harassment of deceased Davender Kaur by

her in-laws on account of dowry.

48. The learned trial Judge came to the conclusion that the deceased

was subjected to harassment and cruelty and was burnt by the

appellant Baljit Singh, appellant Hardeep Kaur and appellant Arvinder

Singh as on the fateful day. She was subjected to beatings, and was

ultimately burnt to death.

49. The learned trial Judge has observed in its impugned judgment

that from the evidence on record, it is established that there was

complicity of these three appellants in commission of the offence. They

assaulted the deceased and burnt her with undoubted common

intention amongst them to cause her death. Therefore, the case was

proved against the appellants Baljit Singh, Hardeep Kaur and Arminder

Singh for offences punishable under Sections 302/120B Indian Penal

Code, 1860 and under Section 498A/34 of Indian Penal Code, 1860.

50. The learned trial Judge has further observed that though there

were certain allegations of presence of Satinder Kaur also on the fateful

day when a sum of `5 lac was demanded and deceased was subjected to

abusive language and harassment, but as she was not named by the

deceased in any of her dying declarations and as there was not much

evidence against her, therefore, she was acquitted by giving her benefit

on account of lack of sufficient evidence against her.

51. Mr.Jitender Sethi, learned counsel appearing on behalf of

appellant Baljeet Singh - husband of the deceased argued that the first

dying declaration Ex.PW8/A recorded in the MLC at about 02:30PM

wherein it is mentioned that the statement was given by the informant

herself and it states that she had sustained herself burn injuries after

having a fight with her husband and mother-in-law in a room by

pouring petrol on herself and put herself on fire with match-stick.

52. Learned counsel submitted that this is the first dying declaration

and if the same is to be believed to be true, then it is the case of self-

immolation and not homicidal death.

53. He further submitted that the next dying declaration is alleged to

have been given to PW4 SI Dharam Pal at about 05:00PM, wherein the

deceased had stated in the narration form that at about 01:00PM on

08.11.1997, her mother-in-law, husband - Baljeet Singh and brother-

in-law Arvind Singh poured petrol from a can over her and her mother-

in-law lit match stick. On account of burning she started crying, then

neighbours came there and took her to the lobby. This alleged dying

declaration has been attested by PW1 Dr.Rajiv Rajput.

54. Learned counsel has argued that both the PW1 and PW4 have

admitted that at the time of recording of dying declaration her brother

and other relatives were present and even they were instructing the

police to record the statement in a particular form. PW4 had also

admitted that the brother of the deceased was even suggesting replies to

the question put to her. Both the PW1 and PW4 had admitted that the

deceased was nodding sometimes on the questions asked to her.

However, a bare perusal of the Ex.PW1/A does not show that as to what

were the questions which were answered by the deceased while nodding

her head and as such it is clear that as to how PW4 had understood the

meaning of those questions and recorded himself in his own language

in a narrative form.

55. Learned counsel submitted that this kind of recording of the

dying declaration cannot be believed and not acceptable in criminal

jurisprudence. In this regard, he has relied upon the case of Jagdish

Lal Malhotra v. State of Delhi, 1983 Chandigarh Criminal Cases,

558 wherein it has been held in para No.34 as under:-

"(34) We have examined the dying declaration Ext.PW24/A in the light of its essential characteristics and in the light of prosecution evidence itself. That sufficiently goes to show that the statement is surrounded by suspicion and it is absolutely unsafe to base conviction on this alone. We have evidence in this case of Dr. V. Thukral PW 24 that his statement of the deceased

was written by DW 26 Surinder Dev S.I. on his questioning from the patient. We, however, are not taken into confidence as to what those questions were, in what form they were put, what were the suggestions, if any, given and how were the answers given and recorded. It is due to this difficulty that Dr. V. Thukral PW 26 has not been able to depose in respect of the broad feature of the dying declaration and he is content by telling us that "in nut shell what he remembers is that she stated that in the early hours of the morning she had gone to bath room to make water and from her back her husband set her on fire after sprinkling kerosene oil on her body". It is very strange that the words "from her back" have come in the statement for the first time in spite of fact case that this is not to be found in the declaration itself. In any case, if a statement is made on questioning, the proper course to record it would be to record the questions and the replies so as to enable the court to appreciate its evidentiary value. The argument of Shri Sodhi learned counsel for the State that this dying declaration should be assessed in the light of the earlier dying declaration made by her before Dr. R.P. Sharma, PW 25 "that she was burnt by her husband" under the circumstances does not appear to be a sound approach. Why should we look at the dying declaration in isolation of the totality of the circumstances and other evidence of the prosecution particularly when we know that its vital contents are by and large controverter by the prosecution evidence itself."

56. The counsel further submitted that since PW1 and PW4 have

categorically stated that the relatives of the deceased were influencing

her in giving replies to the questions put to her by PW4. Therefore, by

no stretch of imagination it can be said that the said dying declaration

was in fact the statement given by the deceased herself. It is also

admitted by PW4 that the he had not made any endorsement on the

said statement of injured as he was convinced that it was not the

statement of the injured Davender Kaur.

57. On the another dying declaration which was alleged to have been

given orally to PW4 HC Om Parkash, incharge of PCR Van, who had

taken the injured to Safdarjung Hospital, Mr.Sethi, learned counsel

submitted that the said witness also had sent the information which is

recorded as Ex.PW3/DA, wherein he had categorically stated that as

per the investigation at the spot, the injured Davender Kaur had burnt

herself by closing the door from inside and she was saved by the

neighbourers after breaking up of the door. He had also sent an

information in that DD that the husband of the deceased was not

available as he had already gone to his shop at Connaught Place, New

Delhi. This witness had also sent the information at about 02:40PM

that the injured was admitted at Safdarjung Hospital with 100% burnt

injures and she is being examined by the doctor and had also

mentioned, "now she is speaking".

58. Learned counsel further argued that nowhere the aforementioned

witness has sent any information to the Police Control Room that a

statement had been made by the injured to him in the PCR van before

reaching to the Safdarjung Hospital. Surprisingly, this witness

remained silent about it till 08:00PM on the next day i.e. 09.11.2007

when he admitted that the IO came to him with two Sikh gentlemen and

then recorded his statement wherein he had stated that a statement

was made to him by the deceased.

59. It is asserted that conduct of this witness by not disclosing the

dying declaration made to him about 30 hours to any of his officials or

to the concerned IO or the police station or even to the Duty Constable

clearly shows that he had not given reliable evidence. Moreover, he also

did not contradict the injured when she made a statement to the doctor

in his presence that she herself burnt by pouring petrol over herself.

Thus, it is established that this witness was later on influenced by the

prosecution to prove false case against the present appellants.

60. He further argued that other oral dying declaration which were

alleged to have been given to PW18 and PW19, brother and father

respectively of the deceased, who stated that the deceased disclosed to

them that she had burnt by her mother-in-law and brother-in-law and

the husband after pouring petrol over her and match stick was lit by

her mother-in-law after giving her beatings cannot be relied on in the

facts and circumstances.

61. Learned counsel has argued that though as per these witnesses,

who had reached the hospital at about 03:00PM as stated by PW19 and

also corroborated by DD No.50B the information received at police

station Sarojini Nagar, New Delhi at about 03:30PM sent by PW18 that

some officers be sent to record her statement, as she was about to die.

PW19 (father of the deceased) has admitted that when he alongwith his

sons reached the hospital at about 03:00PM, they had asked her

daughter about the cause of burn and then she informed them as

mentioned above and thereafter they called the police and the SDM.

62. Learned counsel has submitted that this admission on the part

of the these witnesses categorically shows that before the police and

SDM reached the spot, they had ample time to influence the mind of the

deceased and had tutored her in all respects to make an unreliable

statement.

63. Furthermore, in the rukka which was sent by the IO from

Safdarjung Hospital, at about 08:00PM, there is no mention of any

dying declaration made either to PW4 SI Dharam Pal or any oral dying

declaration made to PW3 HC Om Parkash or any oral dying declaration

made to either PW18 or PW19. As such, it is amply clear that by that

time no such dying declaration was ever made to any of these persons

by the deceased. Learned counsel has relied upon Ram Kumar Pandey

v. State of M.P. : AIR 1975 SC 1026.

64. On the last dying declaration, recorded by PW2 SDM which is

Ex.PW2/B recorded at 05:20PM and it is in the question-answer form.

65. Learned counsel further submitted that in the said dying

declaration, it was categorically stated by the deceased that her

husband was not present in the house and it was her mother-in-law,

who had poured kerosene on her and then lit the fire.

66. Mr.Sethi, learned counsel appearing on behalf of appellant Baljeet

Singh (husband of deceased) has submitted that since the dying

declarations are inconsistent; as such no reliance can be placed on any

of the dying declarations.

67. To strengthen his arguments on the issue, he has relied upon

Smt.Kamla v. State of Punjab: AIR 1993 SC 374 wherein it has

been held as under:-

"5. It is well settled that dying declaration can form the sale basis of conviction provided that it is free from infirmities and satisfies various tests.

(Vide Khushal Rao v State of Bombay, AIR 1958 SC 22). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all these cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declarations they should be consistent. If a dying declaration is found to be voluntary, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed

between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinizing the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances."

68. He has further relied upon Mahiboobsab Abbasabi Nadaf v.

State of Karnataka : 2007 (7) JCC 2355 wherein the Apex Court has

observed as under:-

Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations.They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.

69. Reliance has also been placed upon Brij Kishan v. State :

2010(1) Crimes, 121 wherein the Division Bench of this Court

observed as under:-

„Where there are inconsistencies in a dying declaration or where there are traces of the maker of the dying declarations being influences, unless corroborated by independent evidence, it would be unsafe to sustain a conviction on such dying declarations."

70. Learned counsel further submitted that without prejudice to the

rights and contention of appellant Baljeet Singh, he submitted that

dying declaration which is recorded by the SDM PW2 which is also the

basis of the FIR, does not implicate the appellant in any manner for

causing burn injuries to the deceased, as such the involvement of the

husband is therefore, not established in the commission of the offence

under Section 302 IPC.

71. He humbly submitted that the appellant has already undergone

incarceration for about 05 years and the son from his marriage with

deceased is living with him and he is also having a daughter aged 10

years from his second marriage. There are no cogent evidence with

regard to the offence under Section 498A IPC as whatever has been

stated by the witnesses i.e. PW7, PW18, PW19, and PW22 are

contradictory to each other as well as have material improvements in

their depositions before the Court than what was made before the

police and thus, their statement cannot be relied upon.

72. In this regard, reliance has been placed on Yudhister v. State of

Maharashtra: 1971 CAR SC 250. Therefore, appellant deserves to be

acquitted form all the charges in the instant case.

73. Mr.Siddharth Luthra, learned Senior Advocate appearing on

behalf of appellant Arvinder Singh (brother-in-law „Nandoi‟ of deceased)

has argued that case against the appellant mainly depends upon six

multiple dying declarations, viz three written and three oral made by

the deceased.

74. The first dying declaration is orally made before PW3 HC Om

Parkash, incharge, PCR Van for the allegation of murder at about 02:15

to 02:20PM implicating three persons viz mother-in-law, husband, and

brother-in-law.

75. Learned Senior Advocate argued that this dying declaration was

allegedly made by the deceased to PW3 who took her to the hospital

from the spot. It is unreliable because PW3 inspite of being a police

officer, did not record it in writing anywhere. Rather, in Ex.PW3/DA, he

also gave a contrary version of suicide. Ex.PW3/DA further depicts that

the deceased was not speaking at all till she was handed over to the

doctor. Further, PW3 did not inform anyone regarding this oral dying

declaration in spite of meeting doctor and duty constable in the hospital

and sending information about the same to his office. In fact the very

first time this dying declaration came into existence was that next date

i.e. 24 hours later. Thus, this oral dying declaration in all probability

was not made at all and was just concocted later on to buttress the

prosecution case.

76. The second dying declaration was made by the deceased at

02:30PM to PW8 Dr.Sushma which was reduced into writing on the

MLC Ex.PW8/A for the alleged offence of murder implicating husband

and mother-in-law.

77. Learned Senior Advocate contended that without prejudice to

rights of the accused, this dying declaration appears truthful reliable

because it is the very first version of the occurrence coming from the

mouth of the deceased and it is further corroborated by the

independent witnesses on record i.e. Ex.PW3/DA and evidence of PW26,

IO Inspector Jai Singh who in his cross-examination dated 22.05.2000

deposed that the door had to be broken open to save the deceased,

which gives rise to the inference that the door was bolted from the

inside and which further shows that deceased had committed suicide

by pouring petrol and setting herself on fire.

78. The third dying declaration is made to PW4 SI D. P. Singh in

writing in the presences of PW1 and PW11 at 05:00PM for the allegation

of murder implicating mother-in-law, husband and Nandoi.

79. Learned counsel further submitted that this dying declaration is

completely unreliable because the scribe PW4 himself felt that this is

not a voluntary statement of the deceased since the brother of the

deceased was putting leading questions to the deceased and even when

PW4 asked questions from the deceased, her brother intervened and

gave suggestive answers. The evidence of PW4 is also corroborated by

the deposition of PW1 Dr. Rajiv Rajput, who also felt that this is not the

statement of the deceased.

80. Again deceased made another dying declaration fourth time, in

writing to PW2 SDM Shri Davinder Singh for murder at 05:20PM

implicating only mother-in-law.

81. Learned counsel submitted that this dying declaration is again

not reliable because though it is recorded by a neutral officer like SDM,

but before making it, the deceased had already been tutored and brain

washed so as to give a version implicating the accused as per the desire

of the relatives of the deceased and specially her brother. Thus,

though it may be genuinely recorded by the SDM without any alteration

etc. But it does not mean that the deceased had made a truthful

statement. Thus even this dying declaration could not be treated as

credible and reliable.

82. As far as the last two dying declaration are concerned both the

oral dying declaration made at 03:00PM for the offence of murder by the

deceased to PW18 Arvinder, her brother and to PW19 Harnam Singh,

her father implicating mother-in-law, husband and nandoi.

83. Learned counsel further submitted that these two oral dying

declarations are not unreliable because firstly, the father and brother of

the deceased were vengeful on account of her death and were bent upon

implicating as many persons from the accused side as possible,

secondly they made significant improvements during their deposition in

the Court. Thirdly, they stated that they reached the hospital and

talked with the deceased at 03:00PM; wherein the deceased told them

that she has not stated true facts to the SDM. This is inherently

impossible because the dying declaration recorded by the SDM was

recorded at 05:20PM. Thus, the deceased could never have referred to

it, while talking with her brother and father at 03:00PM. Even

otherwise, when there are written dying declarations recorded by

neutral persons like, doctor, then the oral dying declarations made to

the interested witnesses could not be given preference over them.

84. Mr.Luthra, learned Senior Advocate relied upon Thurukanni

Pompiah & Anr v. State of Mysore, : AIR 1965 SC 939 wherein the

Apex Court has held that if the Court finds that the declaration is not

wholly reliable and the material and integral portion of the deceased‟s

version of the entire occurrence is untrue, the Court may, in all

circumstances of the case consider it unsafe to convict the accused on

the basis of the declaration alone without further corroboration.

85. He further submitted that applying the ratio of Thurukanni

(supra) to the instant case, when there are multiple dying declarations

recorded in suspicious circumstances and having various irreconcilable

inconsistencies qua version of incident and assailants etc; viz - the

deceased told to PW6 Dr.Sushma that she set herself on fire after a fight

with her husband and mother-in-law; in the dying declaration to PW4

SI Dharam Pal Singh, she stated that petrol was poured on her by her

mother-in-law, husband and nandoi; in the last dying declaration made

to SDM, PW2, she stated that only her mother-in-law had set her on

fire.

86. Learned counsel submitted that the irresistible conclusion is, that

only the dying declaration should be relied upon which is corroborated

by some independent evidence on record. In the present case, only the

dying declaration made to doctor is corroborated by the independent

evidence i.e. Ex.PW3/DA and the evidence of PW26 IO Inspector Jai

Singh who deposed that the door had to be broken open to get the

deceased out, which gives rise to the inference that the door was bolted

from inside and which further shows that deceased had bolted the door

from inside and committed suicide by pouring petrol and burning

herself.

87. He further submitted, that the question of law has been settled by

the Supreme Court in a three judge bench judgment holding that even if

the charge is only under Section 302/498A IPC even then the

conviction is possible under Section 306 IPC if the accused is not

prejudiced and the evidence produced in the case fulfill the ingredients

of the offence under Section 306 Indian Penal Code, 1860 i.e. there has

been cruelty and harassment meted out to the deceased to such an

extent which has led her to take the extreme step of committing suicide.

88. Mr.K.T.S.Tulsi, learned Senior Advocate appearing on behalf of

appellant Hardeep Kaur submitted that the PW1 and PW4 both stated

that while recording her statement in the hospital, the brother of the

deceased was putting leading questions. It is on record that to some

questions she nodded and to some questions she whispered, but one

does not know are all those questions for which she noded. It has come

on the record that violence had erupted outside the hospital and the

brother of deceased had instructed her.

89. In the instant case, there are multiple dying declarations. The

first was made before PW3 HC Om Parkash, Incharge of PCR Van

wherein three persons were blamed, mother-in-law, husband and

nandoi. Learned Senior Advocate has pointed out that neither the

aforesaid PW3 recorded her statement nor transmitted the same to the

police station or to any other officer including the IO. The prosecution

has suppressed this information. The log book of the PCR recorded that

she herself set on fire. He further submitted that PW18 reached at the

spot and may have concocted the version. Therefore, the said alleged

dying declaration cannot be believed at all.

90. On second dying declaration recorded by Dr.Sushma at 02:30PM

learned counsel argued that she blamed two persons viz mother-in-law

and the husband of deceased and medium of fire was narrated as

petrol.

91. In the third dying declaration being Ex.PW1/A recorded by PW4

SI Dharampal, she blamed mother-in-law; Arvinder Kumar(Nandoi); and

Baljeet Singh (husband).

92. PW1 Dr.Rajiv Rajput was declared hostile and stated that no such

statement under Section 161 Cr. P.C. was recorded by the police.

93. As far as the fourth dying declaration is concerned, the same was

recorded by the SDM, PW2 Shri Davender Singh - wherein deceased

stated that the mother-in-law poured kerosene oil.

94. PW2 Shri Davender Singh, Vansat Vihar, New Delhi in his cross-

examination stated that there were about 10 persons including the

police officials where the patient was admitted. Out of them 3-4 were

police officials and remaining were the relatives of the deceased. When

he entered the room, the patient was crying and they were pacifying

her. The brother of the deceased was standing nearby the bed and he

was also pacifying her. He could not hear as to what type of conversion

was taking place between the patient and her brother.

95. Learned counsel has also referred the statement of PW6 Inspector

Jai Singh, who stated in the cross-examination that the door of the

drawing room was broken and entry was made in the house after

breaking the door to save the deceased. He also came to know that one

Mr.Mittal and one another person residing in the neighbourhood also

entered the house after breaking open the door.

96. PW13, photographer also deposed that both the doors of the room

were bolted from inside and there was no possibility of the access to the

room.

97. Mr.Tulsi, learned Senior Advocate has argued that the material

seized from the place of incident shows that the deceased herself

committed suicide as one plastic can in melted condition found on

which the word „Castrol GTX Extra‟ and one match box along with two

burnt match sticks were recovered from near the door of the room in

the covered lobby at first floor of the rear portion of the house.

98. In the statement of the appellant Hardeep Kaur, she stated that

the deceased was in depression and her name was mentioned in the

complaint made before CAW Cell by her sister-in-law Bhabhi.

99. Learned counsel has also doubted that the deceased was in a fit

condition to make any statement; whereas it is mentioned that she was

100% with deep burn and was not able to speak and the answers were

repeated and dictated by her brother present over there on the basis of

her alleged whispering and nodding.

100. The statement was recorded by SDM at 05:25 PM, however,

thereafter, she changed her version within 25 minutes as per the

statement recorded by PW28 Dr.Sujata Pandey at 04:20PM. Finally, the

deceased died at 07:30PM, which proves that she was not in a fit

condition and position to make her statement.

101. Learned Senior counsel has submitted that the learned Trial

Court has failed to appreciate the law on dying declarations. In case of

multiple dying declarations, the Court cannot pick and choose one or

more dying declaration and discard the other for convicting the accused

persons. The dying declarations have to be consistent and in the

absence of consistencies in them, none of the dying declarations can be

relied upon.

102. He submitted that learned Trial Court has further failed to

appreciate that the deceased had stated before Dr.Sushma as recorded

in the MLC Ex.PW8/A that after she fought with her husband and

mother-in-law, she poured petrol on her and set herself on fire.

103. Learned Trial Court has also failed to appreciate that dying

declarations recorded thereafter were all tutored one as the father and

brother of the deceased were present in the hospital all along. PW1

Dr.Rajiv Rajput has clearly stated in his cross-examination that the

brother of patient was trying to help the patient in replying to the

questions put by the police officials to the patient. He further admitted

that several persons were standing outside and violence had also

erupted.

104. It has also been established that there was a big crowd. There

was tension at the time of recording the statement of patient. It has also

been established that brother of the patient was instructing the police

to record the statement of police in accordance with the statement made

in Ex.PW1/A. This establishes that statement was neither recorded in a

correct manner nor it was a voluntary statement, therefore, such type of

statement cannot be considered as a dying declaration for convicting

the appellants.

105. Moreso, the appellant (mother-in-law of the deceased) shifted the

deceased in injured condition to the hospital and same has been

corroborated in her statement recorded under Section 313 Cr. P.C. and

thereafter, appellant was arrested from the hospital itself.

106. Further, he humbly submitted that the appellant has crossed the

age of 70 years and has already been incarcerated for around 08 years.

The instant case is for suicide; hence, appellant may be acquitted from

the charges framed against her.

107. On the other hand, Mr.M.N.Dudeja, learned APP has submitted

that the appellant Hardeep Kaur in her statement under Section 313

Cr. P.C. stated that their neighbor Mr.R.S.Mittal informed her about the

smoke coming from the first floor and she alongwith him broke open the

door and in the meanwhile, police arrived. The deceased burnt herself

in the room which was having an automatic lock. PW26 at one place

stated that he came to know that one Mr.Mittal and another person

entered the house after breaking open the door and they extinguished

the fire. Her statement was recorded, but the fact remains that there

was no statement of Mr.Mittal recorded nor he was sighted as a witness

by the prosecution. It appears that Mr.Mittal has been falsely

introduced. If there was Mr.Mittal, in the neighbourhood, as alleged by

the appellant, who allegedly informed her; then he could have

conveniently examined without any difficulty in support of the defence

of the accused persons, but no evidence in defence has been led by the

appellants.

108. Learned APP further submitted that the deceased was beaten and

then burnt. It find corroborations from the medical evidence of PW9

Dr.Chander Kant, who conducted the postmortem and deposed that

there were 100% superficial and deep anti-mortem burnt covering

whole body, charring of skin in the scalp region anteriorly, in the middle

of parietals region, both frontal region, front of forehead, nose and both

upper and lower lips, part of neck right side and both thighs. Skin was

peeled off at places revealing varia of vital reactions. On internal

examination of deceased, witness noticed that there was extra vasation

of blood in middle of forehead region i.e. frontal region of 3.3 cm X 2.8

cm size; right side of frontal region size 4.2 cm X 3.8 cm.

109. He also noticed that extra vasation of blood with separation in

fifth rib at the junction of right costo-condral junction. He opined the

death was caused due to shock as result of 100 superficial and deep

ante mortem burnt caused by flames. Internal extravasation of blood in

skull was caused by application of blunt force from blunt object like due

to hitting head against the rough and hard surface.

110. During cross-examination, this witness denied that there was

other reason other than use of fire and which resulted in extravagation

of blood in head. He also explained that the extravagation of blood is

whenever there is a force applied on tissues.

111. Learned APP further submitted that the deceased has narrated

the whole incidence before the Doctor/IO/SDM and same has been

corroborated further by brother and father of the deceased

112. He has also argued on the conduct of appellant Baljeet Singh that

as per the statement, he was at his shop at Connaught Place, New

Delhi, where he received information about the incident. He also stated

that he later on reached at the hospital. But it is matter of record that

he neither reached at the hospital nor at home. On receipt of the

information he also did not visit the hospital, but went underground.

As, his mother Hardeep Kaur had been arrested, this would have made

him to surrender before the Court on the next day. Appellant, Arvinder

Singh was also evading arrest after the incident and could be arrested

only after a couple of days.

113. Learned APP further submitted that learned Trial Judge after

considering the statement of witnesses and material on record had

come to the conclusion that the deceased was subjected to cruelty and

harassment on account of dowry demand by the appellants and even on

the fateful day, she was subjected to beating on this count by the

appellant and thereafter, it ultimately led to her death by burning.

114. On the aspect of dying declaration, learned APP has fairly

conceded that in case of State of M.P. v. Santosh Kumar : 2009 (6)

SCC 484 the Apex Court has held that there were three dying

declarations and each of them was giving a different version. No clear

answer as to which of the three versions is believable; therefore, in such

a situation, the conviction was set aside.

115. However, in case of Lakhan v. State of MP : 2010 (8) SCC 514

it has been held by the Apex Court as under:-

"20. In view of the above, the law on the issue of dying declaration can be summarized 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 deceleration and it has not been made under a tutoring/duress/prompting; it can be the sold basis for recording conviction. In such 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 scrutinize the facts of an individual case very carefully and take a decision as which of the declarations is worth reliance."

116. Learned APP further relied upon Jaishree Anant Khandekar v.

State of Maharashtra: 2009 (11) SCC 647 wherein there were five

dying declarations having some deviations, but all of them were

consistent in material particulars.

117. In Abrar v. State of Uttar Pradesh: AIR 2011 SC 354 the Full

Bench of the Apex Court held that minor discrepancy inter-se cannot be

a ground to acquit the accused.

118. Whereas in Mangesh v. State of Maharashtra : AIR 2011 SC

637 there were two dying declarations and were consistent in regard to

the names of the accused persons and accordingly, accused were

convicted.

119. In State of Rajasthan v. Permender Singh : 2009 (7) SCC 320

in all the dying declarations the respondent was specifically named and

the role played by him had been categorically described.

120. In the case at hand also, there is no consistency in the dying

declarations. She was in a deep pain as she was having 100% burnt

injuries. Therefore, in the instant case, she could not narrate the whole

incident. Initially, she made allegations against her mother-in-law and

husband. Thereafter, on receiving some medication in the hospital,

she felt some comfort and narrated the correct version of the incident.

Therefore, the statement of the deceased could not be brushed aside.

121. To sum up, learned APP has submitted that there is no merit in

these appeals and same may be dismissed.

122. We have heard learned counsels for the parties and gone through

the evidence on record.

123. Learned counsels appearing on behalf of the three appellants

have mainly stressed that when more than one dying declarations are

there, and if there is no consistency in them, in that case, the accused

are entitled for benefit of doubt.

124. In the present case, the alleged first dying declaration though not

written made before PW3 HC Om parkash, Incharge, PCR Van at about

02:15 to 02:20PM. We find that PW3 neither reduced it into writing nor

conveyed to PCR officials, IO or the SHO of the concerned police station.

Therefore, we are of the considered opinion that the statement of PW3

cannot be relied upon and such type of statement cannot be considered

as reliable for conviction.

125. As the second dying declaration is concerned, which is recorded

on MLC Ex.PW8/A by PW8 Dr.Sushma wherein the deceased alleged

that she herself sustained burn injuries after having a fight with her

husband and mother-in-law in a room by pouring petrol on herself and

put herself on fire with a match-stick. The said information conspire

confidence as it was without any influence from any corner and the

learned counsel for the parties could not bring any material or record

on the record that PW8 had recorded false statement of the deceased.

126. We are conscious that the settled proposition of law is that, as

discussed above, if there are more than one dying declarations, and

there is no inconsistency in them, then none of the dying declaration

can be relied upon. However, we are also conscious that if in the

multiple dying declarations, some names are consistent, then there is

no point not to believe the names consistently figuring in the dying

declarations.

127. As the case of appellant Arvinder Singh is concerned, the

deceased did not mention his name before PW8 Dr.Sushma. Therefore,

she has not recorded his name in the MLC Ex.PW8/A. However, his

name emerged in the dying declaration orally made to PW3 HC Om

Parkash and same has been discarded by us because of the fact that

the brother of the deceased and the SHO concerned, themselves

contacted to PW3 and thereafter, recorded her statement. Had the

deceased disclosed any such type of information, he was duty bound to

transmit the same to the PCR and the police station, which he failed to

do so. Therefore, we are of the considered opinion that the deceased did

not make any statement before PW3 HC Om Parkash.

128. The name of the appellant Arvinder Singh is also mentioned in

the third dying declaration made at 05:00PM to PW4 SI Dharam Pal

Singh, the said statement was recorded in the presence of PW1 and

PW11 which is Ex.PW1/A; wherein the PW4 himself felt that this was

not a voluntary statement of the deceased since the brother of the

deceased was putting leading questions to the deceased. Even when

PW4 asked questions from the deceased, he intervened and gave

suggestive answers. The deposition of PW4 is also corroborated by the

deposition of PW1 Dr.Rajiv Rajput, who also felt that it was not the true

statement of the deceased. Therefore, we are of the considered view

that the dying declaration should be free from any duress, pressure or

influence, which is missing in the present case, as discussed above.

129. The fourth dying declaration recorded at 05:20PM by PW2

Sh.Davender Singh, SDM which is Ex.PW2/B. The said statement

recorded much later and by that time, the deceased had been tutored

and brain washed so as to give the version implicating the appellants as

per the desire of her relatives and especially of her brother.

130. Though, the statement recorded by PW2/SDM may be genuinely

recorded, but after going through the evidence on record, we of the

opinion that the statement recorded by the SDM was not free from

pressure, therefore, we discard this statement also, as it cannot be

treated as credible or reliable.

131. The fifth and sixth oral dying declarations made by the deceased

at 03:00PM to PW18 Arvinder Singh and PW19 Harnam Singh, brother

and father respectively of deceased in the hospital.

132. After going through the deposition of the above two witnesses on

record, we are of the opinion that firstly; they were bent upon to

implicate persons of their choice and secondly; they made significant

improvements during their evidence in the Court. They deposed that

they had reached in the hospital at 03:00PM where the deceased told

them that she did not tell the true facts to the SDM. This was inherently

impossible because the dying declaration recorded by the SDM was at

05:20PM, thus, the deceased never could refer it while talking with her

brother and father at 03:00PM. Even otherwise, when there were

written dying declarations recorded by neutral person like Doctor, then

the oral dying declaration made to interested witnesses cannot be given

preference over them.

133. The only fact remains with us is to consider that, whether the

statement made before PW8 Dr.Susham, which is recorded on MLC

Ex.PW8/A was true and free from any duress, pressure and influence?

134. The deceased was admitted by her mother-in-law i.e. appellant

Hardeep Kaur and she was arrested from the hospital itself. At that

point of time, the deceased narrated as to what actually happened with

her wherein she clearly stated that a quarrel took place with her

husband and mother-in-law and thereafter, she set herself ablaze.

135. Therefore, we are of the considered opinion that the statement

recorded in the MLC seems to be true because of the fact that the

deceased first set the mattress on fire and thereafter, poured petrol

upon her body and set herself also on fire. This fact of quarrel

corroborates with the deposition of PW22 and PW7, as before this

incident, there was some matrimonial dispute arose on account of

dowry between the deceased and her husband, appellant Baljeet Singh,

wherein a compromise deed was recorded on 23.10.1994 in the police

station. It proves that the appellant Baljeet Singh and Hardeep Kaur,

husband and mother-in-law of the deceased respectively used to torture

and harass the deceased, therefore, on the date of the incident also they

both fought with the deceased; thereafter, husband left the house for

his shop at Connaught Place, New Delhi and appellant Hardeep Kaur

started performing pooja on the ground floor.

136. In case of Jagdish Lal Malhotra (supra) it has been observed by

their Lordships that if the statement is surrounded by suspicion and it

is absolutely unsafe to base conviction and such statements are not

taken into confidence as to what those questions were, in what form

they were put, what were the suggestions, if any, given and how were

the answers given and recorded.

137. Nowhere it is mentioned that deceased has given oral statement

to PW4 HC Om Parkash, Incharge of PCR Van before reaching to

Safderjung Hospital. This witness also remained silent till 08:00PM on

the next day i.e. 09.11.2007 when he admitted that the IO came to him

along with two Sikh gentlemen and then recorded his statement

wherein he had stated that a statement was made to him by the

deceased.

138. This witness did not disclose about such dying declaration made

to him for about 30 hours to any of the officials or to the concerned IO

or the police station or even to the Duty Constable, which clearly create

suspicion, therefore, his statement does not conspire confidence.

139. We note, it was categorically stated by the deceased that her

husband was not present in the house and it was her mother-in-law

who had poured kerosene on her and then lit the fire. This statement

of the deceased also does not conspire confidence because she made

statement before PW8, the doctor of MLC wherein she stated that there

was a quarrel with her husband and mother-in-law, thereafter, she

poured petrol on her body and set herself on ablaze.

140. The law has been settled in Smt.Kamla (supra) wherein their

Lordship of the Apex Court have observed that the statement should be

consistent throughout if the deceased had several opportunities of

making such dying declarations, that is to say, if there are more than

one dying declarations they should be consistent. If a dying declaration

is found to be voluntary, it can be relied upon without even any

corroboration. In a case where there are more than one dying

declaration if some inconsistencies are noticed between one and the

other, the Court has to examine the nature of the inconsistencies;

namely whether they are material or not.

141. The case in hand has multiple statements of the deceased as well

as other witnesses. Therefore, none of the statements conspire

confidence; except one which the deceased made firstly before the

concerned doctor and same was recorded on the MLC itself. A

conviction can indisputably be based on a dying declaration. But, before

it can be acted upon, the same must be held to have been rendered

voluntarily and truthfully. Consistency in the dying declaration is the

relevant factor for placing full reliance thereon. In this case, the

deceased herself had taken contradictory and inconsistent stands in

different dying declarations. Therefore, they should not be accepted on

their face value. In such a situation, the statements have

inconsistencies and where there traces of maker of dying declaration

being influenced unless corroborates by independent evidence, it would

not be safe to sustain conviction on such dying declarations.

142. The first dying declaration appears truthful and reliable because

it is the very first version of the occurrence coming from the mouth of

the deceased and it is further corroborated by the independent evidence

on record i.e. Ex.PW3/DA and evidence of PW26, IO Inspector Jai Singh

who in his cross-examination dated 22.05.2000 deposed that the door

had to be broken open to save the deceased, which gives rise to the

inference that the door was bolted from the inside and which further

shows that deceased had committed suicide by pouring petrol and

setting herself on fire. On the similar fact, PW13 photographer also

deposed that both the doors of the room were bolted from inside and

there was no possibility of the access to the room.

143. Moreover, PW4 himself also felt that this was not the voluntary

statement of the deceased since the brother of the deceased was putting

leading questions to the deceased and even when PW4 asked questions

to the deceased, her brother intervened and give suggestive answers.

This fact has been corroborated by the deposition of PW1 Dr.Rajiv

Rajput that this was not the statement of the deceased.

144. The oral dying declaration made before the brother and father of

the deceased is absolutely unreliable because firstly, the father and

brother of the deceased were vengeful on account of her death and were

bent upon implicating as many persons from the accused side as

possible; secondly, they made significant improvements during their

deposition in the Court; and thirdly, stated that they reached the

hospital and talked with the deceased at 03:00PM; wherein the

deceased told them that she has not stated true facts to the SDM. This

is inherently impossible because the dying declaration by the SDM was

recorded at 05:20PM. Thus, the deceased could never have referred to

it, while talking with her brother and father at 03:00PM.

145. In view of above discussion, and legal position, we are of the

considered opinion that the appellants are entitled to acquittal from the

charges for the offences punishable under Section 302/120B Indian

Penal Code, 1860. However, their conviction under Section 498A/34

Indian Penal Code, 1860 is duly proved and accordingly maintained for

the reasons that cruelty committed on the deceased earlier also and

same has been corroborated by the deposition of PW22 and PW7 and

the compromise deed dated 23.10.1994 recorded in the police station.

Even on the fateful day, appellants - Hardeep Kaur and Baljeet Singh,

mother-in-law and husband respectively had quarreled with the

deceased and subjected her to harassment and cruelty on account of

dowry by both the appellants mentioned above. There are certain

allegations of demand of a sum of ` 5.00 lacs. Therefore, she has been

subjected to abusive language and harassment. Appellant Arvinder

Singh has already spent 08months and 29 days incarceration and

earned remission to the tune of 25 days as per Nominal Roll dated

28.05.2012. Therefore, we sentence him to the period already

undergone.

146. Since, we have come to the conclusion that a quarrel took place

between the deceased and the appellant Baljeet Singh and Hardeep

Kaur, consequent thereto, deceased set herself ablaze and committed

suicide because of the quarrel. After the quarrel, none had pacified the

deceased. Husband left for shop and mother-in-law started pooja on the

ground floor. The deceased might have come under shock and immense

pressure, therefore, under the compelling circumstances, she ended her

life. Therefore, we are of the opinion that the appellants mentioned

above, have abated her to commit suicide.

147. Accordingly, both the appellants namely Hardeep Kaur and

Baljeet Singh, mother-in-law and husband respectively, are held guilty

for the offence punishable under Section 306/34 Indian Penal Code,

1860. As the law has been settled in Dalbir Singh v. State of UP :

MANU/SC/0320/2004 = AIR 2004 SC 1990 wherein the Full Bench

of the Apex Court has observed as under:-

"16. This question was again examined by a three Judge Bench in Gurbachan Singh v. State of Punjab: 1957CriLJ1009 in which it was held as under:

"In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."

17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to

each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC.

18. The facts and circumstances of the present case may now be examined in the light of the principle discussed above. The trial Court and also the High Court have recorded a clear finding and with which we are in complete agreement, that the accused had started making a demand of dowry soon after marriage. Even after his father-in-law had given him a colour T.V., a scooter and money for purchasing the flat, he did not feel satisfied and continued to harass his wife. He used to frequently taunt her that some of the items given by way of gift at the time of marriage were of poor quality and were not of his standard. He had also assaulted his wife and even his seven year old daughter on several occasions. It was in such circumstances that Vimla took the extreme step of not only setting herself on fire, but also her two daughters, one of whom was only one year old. The letter written by Vimla just before taking such an extreme step speaks volume about the treatment meted out to her by the accused. Therefore, the basic ingredients of the offence under Section 306 IPC

have been established by the prosecution. These features of the prosecution case were sought to be established by the prosecution in order to substantial the charge under Section 498A IPC and also for showing that the accused had a motive to commit the crime of murder for which he was actually charged. The cross-examination of the witnesses show that every effort was made to demolish the aforesaid aspect of the prosecution case, namely, that neither any demand of dowry was made nor any gifts or presents or money was received by the accused at a subsequent stage and that Vimla had not been subjected to any kind of harassment or ill-treatment. The next question to be seen is whether the accused was confronted with the aforesaid features of the prosecution case in his statement under Section 313 Cr.P.C. His statement runs into six pages where every aspect of the prosecution case referred to above was put to him. He also gave a long written statement in accordance with Section 233 (2) Cr.P.C. wherein he admitted that Vimla committed suicide. He also admitted that the scooter and colour T.V. were subsequently given to him by his in-laws but came out with a plea that he had paid money and purchased the same from his in-laws. There is no aspect of the prosecution which may not have been put to him. We are, therefore, of the opinion that in view of the material on record, the conviction under Section 306 IPC can safely be recorded and the same would not result in failure of justice in any manner. The record shows that the accused was taken into custody on 29.3.1991 and was released from jail after the decision of the High Court on 20.3.1997 and thus he has undergone nearly six years of imprisonment. In our opinion, the period already undergone (as under-trial and after conviction) would meet the ends of justice.

19. For the reasons mentioned above, Crl. Appeal No.479 of 1999 filed by Dalbir Singh is dismissed. Criminal Appeal No.480 of 1999 filed by State of U.P. is partly allowed and he is

convicted under Section 306 IPC and is sentenced to the period already undergone."

148. We are conscious that the charge under Section 306 Indian Penal

Code, 1860 has not been framed against the appellants; however, it is

settled proposition of law that after going through the evidence on

record, if the bigger offence are not proved and the Court find that

accused can be convicted for the minor offences, in that eventuality,

there is no legal bar to convict them for the minor offence without there

being a formal charge to this effect. Therefore, we convict both the

above mentioned appellants for the offences punishable under Section

306/34 Indian Penal Code, 1860.

149. As per the Nominal Roll, appellant Baljeet Singh has already

spent around 04 years 11 months and 19 days as per Nominal Roll

dated 28.05.2012 in incarceration and earned 03 months and 22 days