Full Judgment Text
REPORTABLE
2023 INSC 863
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 396 OF 2010
PHULEL SINGH …APPELLANT(S)
VERSUS
STATE OF HARAYANA …RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. This appeal challenges the judgment and order dated
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24 July 2009 passed by the Division Bench of the High
Court for the States of Punjab and Haryana in Criminal
Appeal Nos. 413-DBA of 2001 and 909-SB of 1999 along with
Criminal Revision No. 134 of 2000, wherein the Division
Bench partly allowed the appeal filed by the accused persons;
whereby Jora Singh (Accused No. 1), father of the appellant
herein was acquitted of the charge under Section 304-B of
Signature Not Verified
the Indian Penal Code, 1860 (“IPC” for short) and the
Digitally signed by
Narendra Prasad
Date: 2023.10.17
10:41:49 IST
Reason:
conviction and sentence qua the appellant herein rendered by
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the learned court of Mrs. Nirmal Yadav, Sessions Judge, Sirsa
(hereinafter referred to as “the trial court”) in Sessions Trial
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No. 122 of 1994 vide judgment and order dated 14
September 1999 for the offence punishable under Section
304-B of IPC and sentence to undergo rigorous imprisonment
for a period of seven years was upheld. Whereas, Criminal
Appeal No. 413-DBA of 2001 filed by the State of Haryana
and Criminal Revision No. 134 of 2000 filed by Pavitar Singh
(PW-3), brother of Kiran Kaur (hereinafter referred to as
“deceased”) challenging the acquittal of the accused persons
for the charge under Section 302 of IPC were dismissed.
2. Shorn of details, the facts leading to the present appeal,
are as under:
2.1 The marriage between the deceased and the appellant
was solemnized in March, 1987, and they were blessed with
a girl and a boy. It is the prosecution case that the appellant
used to harass the deceased on account of insufficiency of
dowry. It is further the prosecution case that, succumbing to
the demands of the appellant, the parents of the deceased
paid Rs.20,000/- to the appellant in cash and in 1990, they
gave a scooter and gold ornaments weighing 2.5-3 tolas to the
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appellant. Further, the deceased would tell her parents and
her brother about the harassment and ill-treatment meted
out to her at the hands of the appellant whenever she visited
her parental house and eventually refused to reside in the
house of the appellant. However, on account of the assurance
and responsibility undertaken by Mohan Singh, the son-in-
law of Jora Singh, father-in-law of the deceased, she was
brought back to her matrimonial house. Even then, the
deceased was not treated properly by the appellant.
According to the prosecution allegations, Pavitar Singh (PW-
3), brother of the deceased had come to see the deceased at
her matrimonial home in village Chatha about 3 to 4 days
prior to the Diwali of 1991 when the deceased had informed
him about the demand for dowry being made by the
appellant and his family. When Pavitar Singh (PW-3) returned
home and informed his parents about the said harassment
being meted out to the deceased in lieu of demand for dowry,
Randhir Singh (PW-4), father of the deceased, went to Major
Singh (PW-6), Sarpanch of his village, who assured him that
they would go to the house of the appellant for counselling
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them after Diwali. Following which, on 5 November 1991,
i.e., on the festive day of Diwali, Dr. Sharma of Bhagwangarh
had come to Rama Mandi. On his return, he informed Pavitar
Singh (PW-3) and other family members that the deceased
had been burnt and that she was being taken to Ludhiana.
Thereupon, Pavitar Singh (PW-3), Randhir Singh (PW-4) and
cousin Gur Raj Singh reached the Daya Nand Medical College
and Hospital, Ludhiana (hereinafter referred to as “DMC,
Ludhiana”) where the deceased was admitted and lay
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unconscious. On 5 November 1991, Dr. Jasmeet Singh Dhir
(PW-7), the Medical Officer at DMC, Ludhiana, who had
medico-legally examined the deceased, opined that she had
91% burns on her body and accordingly sent ruqa (Ex.-P.J) to
the Station House Officer (SHO), Police Station Sarabha
Nagar, Ludhiana on the same day at about 05.10 p.m.
regarding admission of the deceased in the hospital.
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2.2 On 7 November 1991, when the deceased regained
consciousness, she told Pavitar Singh (PW-3) and others that
it was the appellant who had burnt her. Following which,
Randhir Singh (PW-4) made an application (Ex. P.D./1) to the
Sub-Divisional Magistrate (SDM), Ludhiana, for recording of
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the statement of the deceased. On the following day, i.e., 8
November 1991, Mr. Sadhu Singh (PW-5), the then Executive
Magistrate, Ludhiana received the said application along with
endorsements of the SDM, Ludhiana (Ex. P.D/2 and P.D/3).
Upon receiving the same, the Executive Magistrate, Ludhiana
reached the DMC, Ludhiana and moved another application
(Ex. P.S.) before the Medical Officer at about 04.15 p.m.
thereby seeking his opinion with regards to the fitness of the
deceased. When Dr. Jatinder Pal Singh (PW-8) gave his
opinion (Ex. P.S/1) that the deceased was fit to make a
statement, Mr. Sadhu Singh (PW-5) proceeded to record the
statement of the deceased (Ex. P.L.) on the same day at about
04.40 p.m. The statement was read over and explained to the
deceased, who had put her thumb impression on the same
after admitting to its contents to be correct. A First
Information Report (“FIR” for short) (Ex. P.E./1) was recorded
based on the said statement of the deceased against Jora
Singh, father-in-law of the deceased, appellant herein and
Dhan Kaur, mother-in-law of the deceased, for the offences
punishable under Sections 498-A, 307, 406 and 34 of IPC.
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On 18 November 1991, at about 06.00 p.m., Dr. Jatinder
Pal Singh (PW-8) sent ruqa (Ex. P.M.) to the Police Station
Sarabha Nagar, Ludhiana, regarding the death of the
deceased. Following which, the Assistant Sub Inspector (ASI),
Sri Bhagwan (PW-9) prepared an inquest report at the DMC,
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Ludhiana on 19 November 1991 with regards to the dead
body of the deceased and made an application for conducting
of post-mortem examination as well (Ex. P.R./1).
2.3 Upon completion of investigation, a charge-sheet came
to be filed in the court of jurisdictional Magistrate. Since the
case was exclusively triable by the learned Sessions Judge, it
came to be committed to the learned Sessions Court.
Charges were framed for the offences punishable under
Section 302 read with Section 34 of IPC and Section 304-B of
IPC. The accused pleaded not guilty and claimed to be tried.
2.4 In order to substantiate the charges levelled against the
accused persons, the prosecution examined as many as nine
witnesses. Thereafter, the accused persons were examined
under Section 313 of the Code of Criminal Procedure, 1973
(“Cr.P.C.” for short). They denied the prosecution allegations
regarding demand for dowry and harassment of the deceased
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and alleged that they were being falsely implicated. The
accused persons also denied that the deceased was set
ablaze by them. At the conclusion of trial, the learned trial
court convicted all the three accused persons for the offence
punishable under Section 304-B of IPC for causing the dowry
death of the deceased and accordingly sentenced them to
undergo rigorous imprisonment for a period of seven years
along with fine. However, the learned trial court was pleased
to extend the benefit of doubt qua the charge under Section
302 of IPC and thus, acquitted the accused persons of the
said charge.
2.5 Being aggrieved thereby, the accused persons preferred
an appeal before the High Court with regards to the
conviction and sentence awarded by the learned trial court;
whereas, the State of Haryana and Pavitar Singh (PW-3) also
filed their respective appeals before the High Court with
regards to the acquittal of the accused persons for the charge
under Section 302 of IPC. The High Court, by the impugned
judgement, while observing that the appeal preferred by
Dhan Kaur, mother-in-law of the deceased stood abated as
she had died during the proceedings; dismissed the appeals
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filed by the State of Haryana and Pavitar Singh (PW-3), and
partly allowed the appeals filed by Jora Singh, father-in-law
of the deceased and the appellant herein thereby acquitting
Jora Singh, father-in-law of the charge levelled against him
under Section 304-B of IPC, but confirmed the conviction
and sentence awarded by the learned trial court to the
appellant herein.
3. Being aggrieved thereby, the present appeal.
4. We have heard Shri Rajul Bhargav, learned Senior
Counsel appearing on behalf of the appellant and Shri Samar
Vijay Singh, learned counsel appearing on behalf of the State.
5. Shri Bhargav submitted that the trial court as well as
the High Court has grossly erred in convicting the appellant.
He submits that the reliance placed on the dying declaration
is totally unsustainable. He submits that the very first
information given by the deceased herself to the doctor while
admitting to the hospital, would show that the deceased had
put up kerosene on herself and set herself on fire. He
submits that as a matter of fact, it is the present appellant
who had tried to extinguish the fire. The learned Senior
Counsel therefore submits that the subsequent dying
declaration, which is recorded after 3-4 days of the accident,
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could not have been relied on by the courts. He submits that
the said dying declaration was a tutored one at the instance
of her relatives and the conviction solely based on the same is
not sustainable. The learned Senior Counsel relies on a
recent judgment of this Court in the case of Makhan Singh
1 th
v. State of Haryana decided on 16 August 2022 to which
two of us (B.R. Gavai, J., Pamidighantam Sri Narasimha, J.)
were on the Bench.
6. Shri Bhargav further submitted that the case under
Section 304-B of IPC is also not made out. He submitted
that there is no evidence on record to show that the deceased
was meted out to any harassment on account of non-
fulfillment of demand of dowry. He submitted that even if the
evidence of the relatives of the deceased is taken on face
value, it would not show that there was any harassment to
the deceased on account of non-fulfillment of demand of
dowry. He submitted that even the evidence of independent
witness Major Singh (PW-6), Sarpanch of the village would
also not support the prosecution case.
7. Shri Singh, on the contrary, submitted that the
prosecution has proved the case beyond reasonable doubt.
1 2022 SCC OnLine SC 1019
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He further submitted that the dying declaration is recorded
by the Executive Magistrate. He further submitted that Dr.
Jatinder Pal Singh (PW-8) has testified that the deceased was
in the sound state of mind and fit to make the statement. He
therefore submitted that the conviction recorded on the basis
of the said dying declaration warrants no interference.
8. Shri Singh further submitted that the evidence of PWs 3
and 4, who were relatives of the deceased along with Major
Singh (PW-6), Sarpanch of the village would establish,
beyond all reasonable doubt, that the deceased was meted
out harassment on account of non-fulfillment of demand of
dowry. He therefore prays for dismissal of the present
appeal.
9. With the assistance of the parties, we have perused the
evidence and materials placed on record.
The present case mainly rests on the dying declaration
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of the deceased. No doubt, that a conviction can be solely
recorded on the basis of dying declaration. However, for
doing so, the court must come to a conclusion that the dying
declaration is trustworthy, reliable and one which inspires
confidence. In the present case, the dying declaration is
recorded by Shri Sadhu Singh (PW-5), Executive Magistrate.
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He stated that he obtained the certificate from the doctor
regarding the fitness of the deceased to make the statement.
He further stated that he recorded the statement of the
deceased and thereafter it was read over and explained to
her. He further states that she had thumb marked the same
after admitting its contents to be correct. In the dying
declaration recorded by Shri Sadhu Singh (PW-5), Executive
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Magistrate, the deceased is said to have stated that on 5
November 1991 at around 12.00 noon, her husband Phulel
Singh, i.e., the appellant herein, Jora Singh, father-in-law
and Dhan Kaur, mother-in-law caught hold of her. Her
husband, the appellant herein put kerosene on her person
and set her ablaze. She further stated that when she was set
on fire, she raised an alarm but the accused overpowered her.
11. It is relevant to note that the deceased received burn
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injuries on 5 November 1991 but the dying declaration
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came to be recorded on 8 November 1991 after an
application was made by the relatives of the deceased to the
SDM, Ludhiana. Shri Sadhu Singh (PW-5), Executive
Magistrate, in his evidence, admitted that the boys, who had
brought the application containing the order of the SDM,
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Ludhiana had told him that the statement of the deceased
should be recorded and that she was in a position to make
the statement. He further admitted that those boys had told
him that whatever they had to tell the deceased, they had
told her and that he should accompany them to record her
statement. He has further admitted that those 2-3 boys were
related to the deceased and some other persons were also in
the room in which he recorded the statement of the deceased.
12. It could thus be seen that there is a grave doubt as to
whether the dying declaration recorded by Shri Sadhu Singh
(PW-5), Executive Magistrate was a voluntary one or tutored
at the instance of respondent No.5. It is further relevant to
note that Dr. Jatinder Pal Singh (PW-8), in his deposition
itself, states that Shri Sadhu Singh (PW-5), Executive
Magistrate had recorded the dying declaration of the
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deceased on 8 November 1991 at 04.40 p.m. whereas the
opinion with regard to her fitness was given by him at 06.00
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p.m. on 8 November 1991. He has further admitted that he
had not mentioned in the bed-head ticket that he had
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attested the statement of the deceased at 04.40 p.m. on 8
November 1991. It is thus doubtful as to whether Dr.
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Jatinder Pal Singh (PW-8) had really examined the deceased
with regard to her fitness prior to her statement being
recorded by Shri Sadhu Singh (PW-5), Executive Magistrate.
13. It is further relevant to note that Dr. Jasmeet Singh
Dhir (PW-7) has stated that the history recorded by him while
admitting the deceased, was narrated by the deceased
herself. He has further stated that the deceased had also
narrated that her husband had extinguished fire by pouring
water on her.
14. In the totality of the circumstances, it cannot be said
that the dying declaration (Ex. P.L.) is free from doubt.
15. The most glaring aspect that is required to be
considered is that the High Court itself has disbelieved the
dying declaration insofar as Jora Singh, father-in-law of the
deceased is concerned. We fail to understand as to how the
same dying declaration could have been made basis for
conviction of the appellant when the same was disbelieved
insofar as another accused is concerned.
It will also be apposite to refer to the deposition of Shri
16.
Bhagwan, ASI, Investigating Officer (PW-9). He has stated in
his deposition that he had come to the conclusion that the
present case was not a case under Section 307 of IPC or
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Section 498-A of IPC but a case under Section 309 of IPC.
He has further stated that the higher authorities that is Shri
Sukhdev Singh, DSP and Shri Rajinder Singh, SHO had
verified the investigation conducted by him and found the
same as correct and agreed with his conclusions. He has
further stated that during investigation, it was revealed that
the deceased was short-tempered and that accused Jora
Singh was not there in the village on the fateful day and that
he had gone to Rama Mandi for making purchases for Diwali.
17. Insofar as the evidence regarding harassment on
account of non-fulfillment of demand of dowry is concerned,
the prosecution relies on the evidence of Pavitar Singh (PW-
3), brother of the deceased, Randhir Singh (PW-4), father of
the deceased and Major Singh (PW-6), Sarpanch of the
village. Insofar as PWs 3 and 4 are concerned, they are
relatives of the deceased and their evidence will have to be
scrutinized with greater care, caution and circumspection.
Insofar as harassment with regard to non-fulfillment of
demand of dowry is concerned, except the vague allegation,
there is nothing in their evidence to support the prosecution
case. Insofar as Major Singh (PW-6), Sarpanch of the village
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is concerned, he stated that he was informed by Randhir
Singh (PW-4), father of the deceased that in-laws of the
deceased were harassing her and therefore they should go to
village Chatha. However, he also does not state that he was
informed by Randhir Singh (PW-4), father of the deceased
that the deceased was meted out to any harassment on
account of non-fulfillment of demand of dowry. We are
therefore of the considered view that there is no evidence to
prove beyond reasonable doubt that the deceased was
harassed on account of non-fulfillment of demand of dowry.
We therefore find that the case under Section 304-B of IPC is
not made out by the prosecution.
18. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The judgment and order of conviction as recorded by
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the trial court dated 14 September 1999 and
affirmed by the High Court vide its impugned
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judgment and order dated 24 July 2009 are
quashed and set aside; and
(iii) The appellant is acquitted of all the charges levelled
against him and his bail bonds shall stand
discharged.
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19. Pending application(s), if any, shall stand disposed of in
the above terms.
….……..….......................J.
[B.R. GAVAI]
……………………..….........................J.
[PAMIDIGHANTAM SRI NARASIMHA]
……………..….........................J.
[PRASHANT KUMAR MISHRA]
NEW DELHI;
SEPTEMBER 27, 2023.
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