Dhanpati & Ors. vs State (Govt. Of Nct Of Delhi)
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 29.04.2026
Pronounced on: 02.07.2026
+ CRL.A. 909/2002
+ CRL.A. 938/2002
RAJ PAL & ANR. .....Appellants
SMT. DHANPATI & ORS. .....Appellants
Through: Mr.Naveen Yadav and
Mr.Thakur Sumit, Advs.
versus
STATE (GOVT. OF NCT OF DELHI) .....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav and
Mr.Atiq Ur Rehman, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. The present appeals have been preferred by the appellants,
challenging the judgment of conviction dated 04.10.2002 passed by
the learned Additional Sessions Judge, New Delhi (hereinafter
referred to as, „Trial Court‟) in Sessions Case No. 32/1996, arising out
of FIR No. 235/1988, registered at Police Station Samaypur Badli,
convicting the appellants of the offences punishable under Sections
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498-A and 302 read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as „IPC‟).
2. The appellants further challenge the Order on Sentence dated
07.10.2002 passed by the learned Trial Court, sentencing the
appellants to undergo life imprisonment along with a fine of Rs.
5,000/- each, for the offence under Section 302 of the IPC. In default
of payment of the said fine, they have been sentenced to undergo
further rigorous imprisonment for a period of one year. The appellants
were also sentenced to undergo rigorous imprisonment for a period of
three years along with fine of Rs. 1,000/- each, for the offence
punishable under Section 498-A of the IPC. In default of payment of
the fine, the appellants were sentenced to undergo further rigorous
imprisonment for a period of three months. The sentences were to run
concurrently.
3. At the outset, it is noted that appellant Raj Pal is the husband of
the deceased-Kamlesh, appellant Jaswant is her brother-in-law ( jeth ),
appellant Phoolwati is her mother-in-law ( saas ), appellant Dhanpati is
her sister-in-law ( jethani ), and appellant Suresh is her sister-in-law
( nand ). We further highlight that appellant no.1 in Crl.A. No.
909/2002, namely, Raj Pal, and the appellant no.2 in Crl.A. No.
938/2002, namely, Smt. Phoolwati, have since passed away. The
appeals have, therefore, abated qua them.
CASE OF THE PROSECUTION:
4. Briefly stated, it is the case of the prosecution that:
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(a) On 30.10.1988, at around 08:46 A.M., information was
received at Police Station Samaypur Badli, that someone
had burnt his wife. The information was recorded vide DD
No. 3A (Ex. PW-17/A).
(b) On receipt of this information, PW-17/ SI Chhida Nand was
sent for investigation at the place of incident, from where he
found that the deceased Kamlesh, has been taken to a
hospital by her family members.
(c) In the meantime, information was received from PW-
5/ Balbir Singh , the Duty Constable, that appellant Jaswant
Singh had got the deceased-Kamlesh admitted at the J.P.N.
Hospital in a burnt condition. The same was recorded vide
DD No. 4A (Ex. PW-5/A).
(d) The medical examination of the deceased was conducted at
around 09:15 A.M., and it was recorded in the MLC Report
(Ex. PW-2/A) that she had sustained burn injuries on
approximately 90% of her body. It was also recorded that
the deceased reported that she got burnt while cooking food.
(e) The relatives of the deceased, including PW-1/ Bimla Yadav ,
PW-7/ Smt. Patashi Devi , and PW-8/ Parkash Singh , also
reached the hospital. PW-1/ Bimla Yadav reached the
hospital at around 11:30 A.M., and was allegedly told by the
deceased that appellant Suresh put her on fire and that the
other appellants were also present there.
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(f) The MLC Report (Ex. PW-2/B) records that at 11:15 A.M.,
the deceased was opined to be unfit for statement. However,
subsequently, at 2:30 P.M., the doctor declared her to be fit
for statement.
(g) Accordingly, the concerned SDM, PW-3/ Smt. Satbir Silas,
was informed, who reached the hospital at around 03:00-
03:30 P.M.
(h) Thereafter, the statement of the deceased, Ex. PW-3/A, was
recorded by the SDM, in a question-and-answer form, and
vide an endorsement, Ex. PW-3/B, she was again opined to
be fit for statement at 3:30 P.M. In the said statement, the
deceased was specifically asked as to who all were present
at the time of the incident. In response, the deceased
implicated all the appellants. In reply to questions regarding
how she had caught fire, she informed that her sister-in-law,
appellant Suresh, had put her on fire and that she had been
kept hungry and was not given any food for the preceding
three days. Upon being asked about the specifics of the
incident, she elaborated that since around 04:00 A.M. in the
morning, the appellants and the deceased were fighting, and
that at around 08:00 A.M., she was set on fire. She further
stated that she was in a room and was mopping the floor,
when appellant Suresh called her, thereafter appellants
Phoolwati and Dhanpati caught her, and appellant Suresh
put her on fire. She further stated that appellant Jaswant was
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also present there. The deceased was also asked about
dowry related harassment, to which she responded that the
appellants used to demand a cupboard and a scooter from
her. She was also asked whether her husband, appellant Raj
Pal, used to assault her, to which she answered in the
affirmative.
(i) After recording the said statement of the deceased, FIR no.
235/1988 (Ex. PW-9/A) was registered against the
appellants under Sections 498-A/307/34 of the IPC.
Subsequently, as the deceased passed away, Section 302 of
the IPC was also added against the appellants.
(j) The deceased passed away on the same day at around 06:00
P.M. in the evening. The cause of death was opined to be
100% burns and hypovolemic shock. In the death summary
recorded as Ex. PW-2/C, it was stated that, “ the patient
stated that the burns were sustained when some of her
relatives poured kerosene oil on her and set her on fire ”.
Information of the same was received and recorded vide DD
No. 36/B (Ex. PW-5/B).
(k) Investigation was conducted and the site plan exhibited as
Ex. PW-17/B was prepared, which recorded that from the
place of incident three burnt match sticks, one match box, a
metal container containing some kerosene oil, burnt pieces
of clothes, burnt hair of the deceased and one pair of rubber
chappal (slippers) were seized.
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(l) In the CFSL Report (Ex. PW-16/A), it was opined that the
partly burnt pieces of clothes and scalp hair which were
recovered from the place of incident, showed presence of
kerosene residue. The CFSL Report (Ex. PW-16/C) also
opined that the partially burnt pieces of clothes show “ loose
& broken fibre ends at its torn edges, hence the same could
have resulted due to unusual force ”.
(m) PW-10/ Dr. Anil Aggarwal conducted the post-mortem of
the deceased and opined that there were superficial burns
covering 100% of her body. He further noted that a strong
smell of kerosene was coming from her scalp hair. Upon
internal examination, he found that all the organs of the
deceased were congested and that she was also carrying a
foetus, whose age was around 4 weeks.
(n) The appellants Dhanpati, Phoolwati, Raj Pal and Jaswant
were arrested on 30.10.1988 from the place of the incident,
and appellant Suresh was arrested the next day, that is, on
31.10.1988, on being produced by her relatives.
PROCEEDINGS BEFORE THE LEARNED TRIAL COURT:
5. The learned Trial Court, vide the order dated 30.03.1989,
framed the following charges against the appellants:
“On 30.10.1988 and before at H.No. 171 Gali
No.7 Samaipur Delhi you accused Raj Pal
being the husband of Smt. Kamlesh and you
other accused being the relations of Raj Pal
subjected Smt. Kamlesh to cruelty by causing
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harassment and beating to her etc. and you
thereby committed an offence punishable
under section 498A IPC/34 IPC and within the
cognizance of this court;
Secondly on 30.10.1988 at 8 A.M. at the
aforesaid house you all the accused in
furtherance of your common intention
intentionally or knowingly committed the
murder of Smt. Kamlesh by pouring kerosene
oil on her person and setting her on fire and
you thereby committed an offence punishable
under section 302 read with section 34 IPC
and within the cognizance of this court”
6. The appellants pleaded not guilty before the learned Trial Court
and claimed trial.
7. To prove its case, the prosecution examined 18 witnesses,
including the relatives of the deceased and the concerned official
witnesses.
8. Thereafter, the statements of the appellants were recorded under
Section 313 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) on
16.07.2001, wherein they claimed to be innocent and stated that they
were being falsely implicated. The appellants stated that the deceased
was residing separately with appellant Raj Pal on the ground floor of
the house, while the other family members, that is, the appellants,
resided on the first floor. It was also stated that appellant Suresh lived
separately with her husband in Najafgarh, and had only come to her
parental home (matrimonial house of the deceased) on the date of the
incident for the purposes of childbirth. Further denying the allegations
against them, the appellants stated that the deceased had received the
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burn injuries while cooking. They denied that the deceased was fit to
make a statement and contended that she was not in a position to
speak. They further stated that PW-1/ Bimla Yadav was talking to the
deceased and she, along with the other relatives of the deceased, were
tutoring the deceased in the hospital. They further contested the
testimony of the PW-1/ Bimla Yadav and the police officials, by
alleging them to be false and interested witnesses.
9. The appellants did not lead any evidence in support of their
contention of false implication.
10. The learned Trial Court, in the impugned judgment of
conviction, opined as under:
“ 57. … The police reached the hospital and
SDM was also called to the hospital and then
the dying declaration of Kamlesh injured was
recorded by the SDM and she alleged that she
has been burnt by her Nanand, Saas and
Jethani and her jeth and her husband were
also present there in the house and that she
had been without meals for three days. The
injured Kamlesh had already made one dying
declaration to Bimla Yadav wherein she had
alleged that she had gone to the house of her
Bua at samaipur Badli and had told her that
she apprehended her death at the hands of
accused persons and that she should call her
parents and another bua. This apprehension
was expressed by Kamlesh two days prior to
her death. This statement made to her Bua was
not taken by her Bua seriously rather she
advised her that everything will be all right
and asked the deceased to return to her in-
laws house and after two days this incident
had taken place. The fact that she was hungry
and was not having any meals in her stomach
is proved by the medical evidence as per
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postmortem report. Her dying declaration
made to Bimla Yadav has been supported by
Bimla Yadav and her dying declaration made
to the SDM has been proved by the SDM.
From the dying declaration it becomes clear
that the accused persons intended to kill her
and they did not give any meals to her for
three days and when she did not die of hunger
she was put on fire by pouring kerosene oil on
her. She alleged harassment on account of
dowry as almirah and scooter were being
demanded from her by her in-laws and thus
harassment on account of demand of dowry,
i.e. scooter and almirah stands proved from
the dying declaration and also from the
statement made by Bimla Yadav who clearly
stated that her husband used to maltreat her
after taking liquor and other accused persons
used to join hands with him in maltreating her.
So the case of prosecution that she was
harassed for demand of dowry is proved
against the accused persons. The charge of
murdering the deceased by the accused
persons is also proved from the dying
declaration. The accused persons had common
intention to kill her and that is the reason that
they did not provide any meals to her and then
put her on fire as a result of which she died in
the hospital.”
11. Thereafter, the impugned Order on sentence dated 07.10.2002
was passed by the learned Trial Court, imposing the sentence as noted
hereinabove.
SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL
FOR THE APPELLANTS
12. The learned counsel for the appellants submits that the learned
Trial Court has erred in placing reliance upon the dying declaration of
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the deceased recorded by the SDM. He submits that prior to the said
statement, it was recorded in the MLC Report (Ex. PW-2/A), that the
deceased had sustained the burn injuries due to an accident that
occurred while she was cooking food, however, the SDM failed to
question the deceased on this contradiction.
13. He further submits that it is a settled position of law that in
cases where there are multiple dying declarations, the Court shall
normally consider the first statement made by the deceased,
particularly when the subsequent version introduces allegations
implicating the accused persons. He contends that the learned Trial
Court, however, failed to consider the other statements made by the
deceased, wherein the appellants were not implicated. In furtherance
of his submission, he places reliance on the judgment in Raghubiri
Devi v. State (GNCT Govt. of Delhi) , 2013:DHC:6062-DB.
14. He further relies upon the judgment of the Supreme Court in
Uttam v. the State of Maharashtra , (2022) 8 SCC 576, to contend
that in cases where multiple and contradictory dying declarations are
made, the Court must seek corroboration from other evidence
produced, and scrutinise the scope of close relatives/family members
influencing or tutoring the deceased. The learned counsel submits that
the possibility of tutoring in the present case cannot be ruled out. He
points out that PW-1/ Bimla Yadav had met the deceased before her
dying declaration was recorded by the SDM. In this regard, reliance is
also placed on the testimony of the SDM (PW-3/ Smt. Satbir Silas ),
who stated that she could not say whether the deceased had been
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tutored by her relatives prior to making the dying declaration. He
submits that in such circumstances, the dying declaration should not
have been accepted by the learned Trial Court as trustworthy.
15. He submits that even the testimony of PW-1/ Bimla Yadav is
inconsistent with the material on record and, therefore, does not
inspire confidence. He points out that admittedly, PW-1/ Bimla Yadav
had reached the hospital at around 11:30 A.M. and had allegedly
spoken to the deceased, who is stated to have informed PW-1/ Bimla
Yadav that she was burnt by the appellants. However, according to the
MLC Report (Ex. PW-2/B), the deceased had been opined to be unfit
for making statement at 11:15 A.M. itself. He submits that in these
circumstances, it is highly doubtful that the deceased made a statement
to PW-1/ Bimla Yadav implicating the appellants. The learned counsel
submits that this material inconsistency renders the testimony of PW-
1 /Bimla Yadav unreliable.
16. He further submits that the case of the prosecution is
inconceivable insofar as appellant Suresh is considered. The learned
counsel submits that the appellants have, in their statements under
Section 313 of the Cr.P.C., categorically stated that the appellant
Suresh lived separately with her husband and had come to the
matrimonial house of the deceased only for the purposes of childbirth.
He further points out that the appellant gave birth to a child on
13.11.1988, that is, merely 14 days after the alleged incident took
place. He contends that considering her advanced stage of pregnancy
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at the time of the incident, appellant Suresh could not be in a position
to participate in the alleged offence.
17. The learned counsel refers to DD No. 4A (Ex. PW-5/A), which
records that the deceased was brought to the hospital by the appellant
Jaswant. He contends that the conduct of appellant Jaswant in
immediately taking the deceased to the hospital, is inconsistent with
the conduct of a guilty person, and, in fact, is indicative of his
innocence. He further submits that the allegations of dowry related
harassment against appellant Jaswant are also untenable, as he had his
own separate family and was living on a different floor. Therefore, he
had no motive to harass the deceased for dowry.
18. The learned counsel submits that the allegations relating to
dowry demand and cruelty are unsupported by any complaint made,
either by the deceased or by her family members, prior to the incident.
19. He submits that even the father of the deceased, PW-8/ Prakash
Singh , and the mother of the deceased, PW-7/ Smt. Patashi Devi , did
not support the prosecution‟s case regarding dowry related
harassment. He submits that, on the contrary, PW-8/ Prakash Singh
stated that the deceased was happy in her matrimonial house and there
were no complaints or dowry demands. PW-8/ Prakash Singh , further
stated that the deceased was hot tempered and had died due to burn
injuries. Similarly, PW-7/ Patashi Devi stated that she had advised the
deceased that she should not make a statement regarding her burning
herself. The learned counsel submits that these inconsistencies
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indicate that the allegations introduced in the dying declaration to the
SDM were to falsely implicate the appellants.
20. He also challenges the prosecution‟s case that the deceased had
not been given any food for three days prior to the incident. He
submits that the same is unnatural, as the deceased had herself stated
that she was mopping the floor when the incident occurred. He
submits that had the deceased truly been without food for three days, it
would not have been possible for her to carry out household chores
such as mopping the floor.
21. He further submits that PW-1/ Bimla Yadav had stated that the
deceased had visited her other bua two days prior to the incident and
had expressed apprehension of death at the hands of the appellants.
According to the learned counsel, had the allegations of starvation
been true, the said other bua of the deceased would have provided the
deceased with food. He further submits that despite being a material
witness, the said other bua was not examined by the prosecution,
thereby casting a doubt on the prosecution‟s case. He further submits
that the prosecution‟s interpretation of the post-mortem Report is
incorrect and the same does not establish that the deceased had
remained without food for three days prior to the incident.
22. In view of the above submissions, the learned counsel submits
that the prosecution has failed to establish its case beyond reasonable
doubt and that the learned Trial Court erred in convicting the
appellants. He, accordingly, prays that the judgment of conviction and
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the Order on Sentence be set aside, and the appellants be acquitted of
all charges and allegations.
SUBMISSIONS ON BEHALF OF THE LEARNED ADDITIONAL
PUBLIC PROSECUTOR
23. Mr. Aman Usman, the learned APP for the State, on the other
hand, disputes the contention that the deceased sustained burn injuries
accidentally while cooking food. He submits that the said plea is
wholly unreliable and devoid of merit, particularly as the doctor who
allegedly recorded the said history in the MLC Report (Ex. PW-2/A)
was not examined.
24. He further submits that the deceased was brought to the hospital
by her brother-in-law ( jeth ), appellant Jaswant, who was a Delhi
Police personnel. In these circumstances, it is highly probable that the
version of accidental burning was supplied by appellant Jaswant and
was mechanically recorded by the doctor in the MLC Report (Ex. PW-
2/A). He also submits that the deceased may have acquiesced to such a
version under pressure, undue influence, or in the hope of survival and
continuation in her matrimonial home. Therefore, the history recorded
in the MLC Report does not inspire confidence and deserves to be
discarded. He relies on the judgment of the Supreme Court in
Harbans Lal & Anr. v. State of Haryana , AIR 1993 SC 819, to
submit that the MLC Report cannot be regarded as a recording of the
dying declaration of the deceased.
25. He further submits that the plea of accidental burning is also
falsified by the surrounding circumstances, as no evidence could be
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brought on record to show that the deceased was cooking food. He
points out that in the investigation, no stove was recovered, which
would have been the most naturally recovered article, had the incident
occurred due to an accident during cooking. He submits that on the
contrary, a matchbox, matchsticks, burnt clothes, and slippers of the
deceased were found scattered in different rooms, thereby clearly
indicating signs of struggle. In support of his submissions, the learned
APP relies on the judgment of this Court in Aslam v. State , 2017 SCC
OnLine Del 11970, to submit that the surrounding circumstances
falsify the appellants‟ version of accidental burning.
26. He submits that the prosecution‟s case primarily rests upon the
dying declaration of the deceased recorded by the SDM, which forms
the backbone of the prosecution‟s case. The same was recorded after
the deceased had been certified by the doctor to be fit to make a
statement. In this regard, reliance is also placed on the statement of
PW-3/ Smt. Satbir Silas , the SDM, who deposed that the deceased was
conscious and in a fit state of mind when she made the statement. In
the said statement, the deceased implicated individual roles upon the
appellants and further made certain allegations of cruelty, harassment,
and dowry demands. The learned APP submits that this statement was
consistent, natural, and free from any tutoring. It is, therefore,
sufficient to uphold the conviction of the appellants.
27. The learned APP further submits that said statement stands
corroborated by the medical evidence, that is, the CFSL Report (Ex.
PW-16/A), which indicates that kerosene oil had been poured upon the
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deceased, as smell of kerosene oil was coming from her scalp and
kerosene oil residue was found in her hair and burnt clothes. He
submits that this completely rules out the defence of the incident being
an accident.
28. He submits that the dying declaration is further corroborated by
the post-mortem Report, which shows presence of green coloured
fluid material in the stomach of the deceased, thereby indicating that
the deceased had not consumed anything and had an empty stomach.
29. The learned APP submits that corroboration to the statement of
the deceased is provided by the testimony of PW-1/ Bimla Yadav, who
also stated that the deceased had informed her in the hospital
regarding the harassment at the hands of the appellants and had
implicated the appellants in the occurrence of the incident.
30. He further submits that no motive has been attributed to PW-
1/ Bimla Yadav to falsely implicate the appellants. She was not on
inimical terms with the appellants and, therefore, her testimony is
credible and sustains the conviction of the appellants.
31. He submits that the appellants did not disclose to PW-1/ Bimla
Yadav, where the deceased had been taken after the incident. In fact, at
the hospital, appellant Jaswant falsely stated that the deceased had
passed away, even though she was alive at that time. According to the
learned APP, such conduct of the appellants is incriminating and
indicative of a guilty mind.
32. Regarding the testimony of the mother and father of the
deceased, PW-7/ Smt. Patashi Devi and PW-8/ Parkash Singh ,
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respectively, the learned APP submits that such part of their
testimonies which favour the appellants cannot be relied upon, as they
have been declared hostile. He submits that even otherwise, the
version put forth by PW-7/ Smt. Patashi Devi is contrary to the
material on record and does not inspire confidence. In this regard, he
points out that PW-7/ Smt. Patashi Devi stated that at about 12:00
noon, the deceased told her that she had burnt herself, however, as per
the medical record, the deceased was declared unfit to make any
statement at about 11:15 A.M. itself. Further, the surrounding
circumstances, including the recovery of scattered slippers, burnt
clothes and other articles, indicate that some struggle had occurred
prior to the incident, which is inconsistent with the case of self-
inflicted burns.
33. He submits that in view of the dying declarations, the medical
evidence, the testimony of PW-1/ Bimla Yadav , and the surrounding
circumstances, the prosecution has proved its case beyond reasonable
doubt. Therefore, the judgment of conviction and the Order on
Sentence of the surviving appellants deserve to be confirmed.
ANALYSIS AND FINDINGS:
34. We have considered the submissions made by the learned
counsels for the parties and have perused the record.
35. It is an undisputed fact that the alleged incident giving rise to
the present appeal occurred on 30.10.1988, and was within seven
years of the marriage of the appellant Raj Pal to the deceased. The
death of the deceased had occurred due to burning.
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36. There is no eye-witness to the incident. The case of the
prosecution rests primarily upon the alleged dying declarations made
by the deceased in the hospital to PW-1/ Bimla Yadav , her bua, and to
the SDM, PW-3/ Smt. Satbir Silas, which is exhibited as Ex. PW-3/A.
37. The law applicable to a dying declaration has been explained by
the Supreme Court in Irfan @ Naka v. State of Uttar Pradesh , 2023
SCC OnLine SC 1060, wherein it has been held that though the
juristic theory regarding the acceptability of a dying declaration is that
such declaration is made in extremity, when the party is at the point of
death and when every motive to falsehood is silenced and the man is
induced by the most powerful consideration to speak only the truth,
notwithstanding the same, great caution must be exercised in
considering the weight to be given to such evidence, on account of the
existence of many circumstances which may affect its truth. Since the
accused has no power of cross-examination, the Courts insist that a
dying declaration should be of such a nature as to inspire full
confidence of the Court in its truthfulness and correctness. The Court
should be on guard to see that the statement of the deceased was not a
result of tutoring, prompting, or a product of imagination. The Court
further held that though there is no hard and fast rule for determining
when a dying declaration should be accepted, the duty of the Court is
to decide this question in the facts and surrounding circumstances of
the case and be fully convinced of the truthfulness of the statement.
The Court also laid down certain factors that can be considered by the
Court while weighing a dying declaration. We quote from the
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judgment as under:
“ 43. The juristic theory regarding the
acceptability of a dying declaration is that
such declaration is made in extremity, when
the party is at the point of death and when
every hope of this world is gone, when every
motive to falsehood is silenced, and the man is
induced by the most powerful consideration to
speak only the truth. Notwithstanding the
same, great caution must be exercised in
considering the weight to be given to this
species of evidence on account of the existence
of many circumstances which may affect their
truth. The situation in which a man is on the
deathbed is so solemn and serene, is the
reason in law to accept the veracity of his
statement. It is for this reason, the
requirements of oath and cross-examination
are dispensed with. Since the accused has no
power of cross-examination, the courts insist
that the dying declaration should be of such a
nature as to inspire full confidence of the court
in its truthfulness and correctness. The court,
however, should always be on guard to see
that the statement of the deceased was not as a
result of either tutoring or prompting or a
product of imagination. [See : Laxman v. State
of Maharashtra, (2002) 6 SCC 710]
xxx
60. Since time immemorial, despite a general
consensus of presuming that the dying
declaration is true, they have not been stricto-
sensu accepted, rather the general course of
action has been that judge decides whether the
essentials of a dying declaration are met and if
it can be admissible, once done, it is upon the
duty of the court to see the extent to which the
dying declaration is entitled to credit.
61. In India too, a similar pattern is followed,
where the Courts are first required to satisfy
themselves that the dying declaration in
question is reliable and truthful before placing
any reliance upon it. Thus, dying declaration
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while carrying a presumption of being true
must be wholly reliable and inspire
confidence. Where there is any suspicion over
the veracity of the same or the evidence on
record shows that the dying declaration is not
true it will only be considered as a piece of
evidence but cannot be the basis for conviction
alone.
62. There is no hard and fast rule for
determining when a dying declaration should
be accepted; the duty of the Court is to decide
this question in the facts and surrounding
circumstances of the case and be fully
convinced of the truthfulness of the same.
Certain factors below reproduced can be
considered to determine the same, however,
they will only affect the weight of the dying
declaration and not its admissibility:—
(i) Whether the person making the
statement was in expectation of death?
(ii) Whether the dying declaration was
made at the earliest opportunity? “Rule of
First Opportunity”
(iii) Whether there is any reasonable
suspicion to believe the dying declaration
was put in the mouth of the dying person?
(iv) Whether the dying declaration was a
product of prompting, tutoring or leading at
the instance of police or any interested
party?
(v) Whether the statement was not recorded
properly?
(vi) Whether, the dying declarant had
opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has
been consistent throughout?
(viii) Whether, the dying declaration in
itself is a manifestation/fiction of the dying
person's imagination of what he thinks
transpired?
(ix) Whether, the dying declaration was
itself voluntary?
(x) In case of multiple dying declarations,
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whether, the first one inspires truth and
consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would
have been impossible for the deceased to
make a dying declaration?
63. It is the duty of the prosecution to establish
the charge against the accused beyond the
reasonable doubt. The benefit of doubt must
always go in favour of the accused. It is true
that dying declaration is a substantive piece of
evidence to be relied on provided it is proved
that the same was voluntary and truthful and
the victim was in a fit state of mind. It is just
not enough for the court to say that the dying
declaration is reliable as the accused is named
in the dying declaration as the assailant.
64. It is unsafe to record the conviction on the
basis of a dying declaration alone in the cases
where suspicion, like the case on hand is
raised, as regards the correctness of the dying
declaration. In such cases, the Court may have
to look for some corroborative evidence by
treating the dying declaration only as a piece
of evidence. The evidence and material
available on record must be properly weighed
in each case to arrive at an appropriate
conclusion. The reason why we say so is that
in the case on hand, although the appellant-
convict has been named in the two dying
declarations as a person who set the room on
fire yet the surrounding circumstances render
such statement of the declarants very
doubtful.”
38. In Sanjay Kumar Sharma v. State of Bihar & Ors. , 2026 INSC
223, the Supreme Court reiterated that while a dying declaration is a
very important species of evidence, capable of proving the crime and
identifying the accused, for reliance, it should inspire confidence of
the Court as to its credibility. The Court should be satisfied that the
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statement is made by the deceased without any prompting, tutoring or
coercion. If there is even an iota of suspicion, the Court has to look for
corroboration. It was held that a dying declaration recorded by a
Judicial Magistrate adds credence since they are trained to record such
declarations. We quote from the judgment as under:
“13. From a conspectus of the above
decisions, it is clear: That, a dying declaration
is a very important species of evidence
capable of proving the crime proper and
identifying the accused, an exception to
hearsay having been provided by Section 32 of
the Indian Evidence Act. That, a dying
declaration, for reliance should inspire
confidence in the Court as to its credibility.
That, the Court should be satisfied it is made
by the deceased without any prompting or
tutoring or coercion or is a mere figment of
imagination. That, then conviction can be
based solely on the dying declaration and
there is no requirement of any corroboration.
That, it can be reduced to writing or can be
oral, as testified by reliable witnesses. That, it
can be one or numerous and if more than one;
exculpatory and inculpatory, it is for the Court
to find out which is believable. That, it can be
a lengthy one or a short one, so far as the
crime is spoken of and identification of the
perpetrator comes through. That, it can be a
single narrative or in a question and answer
form. That, it can either have a history of the
rancour between the perpetrator and the
victim or can be merely the brief statement of
the incident. That, the capacity of the injured
to make the statement, both physical and
mental, need not be necessarily certified by a
doctor and would rest again on the
satisfaction of the Court on an analysis of the
testimony of the various witnesses and the
other evidence coming forth in trial. That, if
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the Court is satisfied of the fit state of mind of
the injured from the evidence on record, a
contrary medical opinion or an absence of it
will be inconsequential. That, it can be made
before a Magistrate; Executive or Judicial, a
Doctor, a Police Officer, a relative or a third
party whose presence is not doubtful. That, the
desire of the declarant to live, through the
truth despite fear of imminent death cannot be
easily brushed aside. The decisions also
caution us that if the statement is doubtful then
one or more of the above aspects could result
in the dying declaration being eschewed
completely; based on the facts of each case.
14. As a corollary, it also has to observed:
That, if there is an iota of suspicion the Court
has to look for corroboration. That, the
medical certification as to the physical and
mental state always aids in arriving at a
satisfaction. That, in the wake of multiple
grievous injuries or a higher percentage of
burns, the declaration could be in question
and answer form, lending more credence as
actually spoken of by the injured as opposed to
a long drawn out narrative, which could be
mistook as supplied by interested related
parties. That, a dying declaration recorded by
the Judicial Magistrate, adds credence since
they are trained to record such declarations.
That, as far as possible, the recording is to be
done in the presence of the Doctor and
definitely not in the presence of numerous
bystanders; which could lead to a defence
being raised of prompting and tutoring. That,
the veracity of the declaration has to come
forth from the attendant circumstances as
brought out in evidence.”
39. In Abhishek Sharma v. State (Govt. of NCT of Delhi) , 2023
INSC 924, the Supreme Court has also laid down the following
principles for the Court to consider while dealing with a case
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involving multiple dying declarations:
“9. Having considered various
pronouncements of this court, the following
principles emerge, for a Court to consider
when dealing with a case involving multiple
dying declarations:
9.1 The primary requirement for all dying
declarations is that they should be voluntary
and reliable and that such statements should
be in a fit state of mind;
9.2 All dying declarations should be
consistent. In other words, inconsistencies
between such statements should be 'material'
for its credibility to be shaken;
9.3 When inconsistencies are found between
various dying declarations, other evidence
available on record may be considered for the
purposes of corroboration of the contents of
dying declarations.
9.4 The statement treated as a dying
declaration must be interpreted in light of
surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its
own merits. The court has to examine upon
which of the statements reliance can be placed
in order for the case to proceed further.
9.6 When there are inconsistencies, the
statement that has been recorded by a
Magistrate or like higher officer can be relied
on, subject to the indispensable qualities of
truthfulness and being free of suspicion.
9.7 In the presence of inconsistencies, the
medical fitness of the person making such
declaration, at the relevant time, assumes
importance along with other factors such as
the possibility of tutoring by relatives, etc.”
40. In the present case, the first dying declaration made by the
deceased can be stated to be in the form of the MLC Report (Ex. PW-
2/A), which records that on the information of the patient, the case
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was recorded to arise out of „ getting burnt while cooking the food ‟.
The learned APP has prayed for us to discard this dying declaration,
by contending that the deceased had been brought to the hospital by
appellant Jaswant who was a police personnel and, therefore, it may
be that he influenced the doctor to record the above history by
attributing it to the deceased. He has further contended that no
cooking material was reported to be found by PW-17/ SI Chhida Nand,
who had gone to the house of the deceased and seized various articles
including a matchbox, burnt matchsticks and a kerosene can. He
submits that, therefore, there was no question of any food being
cooked by the deceased or she getting accidently burnt in the process
of such cooking. He has further submitted that the post-mortem
Report and the CFSL Report (Ex. PW-16/A) show that even the hair
and clothes of the deceased had kerosene oil, which is not likely to be
there in case of an accidental fire while cooking.
41. The above submissions may cast some doubt on the veracity of
the recording of the MLC Report, however, Dr. Deepak Sabharwal,
who is stated by PW-2/ Shri Sashi Dharan, Record Clerk of the JPN
Hospital, to have made the said recording in the MLC Report, has not
been produced by the prosecution as a witness. Therefore, doubt, if
any, on the veracity of the recording in the MLC, has to flow in favour
of the appellants and not the prosecution.
42. As far as non-recovery of cooking stove etc. is concerned, while
the witnesses speak of things that have been seized from the place of
occurrence, there is no mention of the absence of the stove or cooking
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material at the place of occurrence. This positive evidence of absence
of cooking material had to come from the prosecution. The Court
cannot, in absence of such positive evidence and only because any
cooking material was not seized by the IO, assume that there was no
cooking material at the site of the incident. PW-1/ Bimla Yadav, bua of
the deceased, in her cross-examination has stated that the deceased
and her husband used to reside on the ground floor of the building,
that is the place of the incident. Therefore, her presence there and the
possibility of her cooking, cannot be completely ruled out on the basis
of the submissions made by the learned APP.
43. Equally, no adverse inference against the prosecution can be
drawn and the MLC Report is ignored only because appellant Jaswant
was working in the Delhi Police.
44. The second dying declaration comes in the form of the alleged
statement/information given by the deceased to PW-1/ Smt. Bimla
Yadav , her bua . PW-1/ Bimla Yadav , deposed that as and when the
deceased met her, the deceased complained that appellant Raj Pal used
to maltreat her after consuming liquor and that the other appellants
also joined hands with him. She stated that on 30.10.1988, her
daughter received a telephone call from the daughter of her sister, who
asked her to call back when PW-1/ Bimla Yadav and PW-1/ Bimla
Yadav’s husband returned. When PW-1/ Bimla Yadav and her husband
returned, her sister‟s son came there and told them that the deceased-
Kamlesh was burnt. Upon learning about the incident, she, along with
her husband, went to the house of her sister/other bua of the deceased,
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at about 08:30 P.M., where her sister was not available. She then
proceeded to the house of the deceased, where she made enquiry from
appellant Phoolwati and the father-in-law of the deceased, but they
showed their ignorance. She then went to the Police Post, from where
she came to know that the deceased had been admitted in the hospital.
On reaching the hospital, appellant Jaswant falsely informed them that
the deceased had passed away and that no one was allowed inside the
room. However, she managed to go inside and upon entering the room
of the deceased, she found the deceased alive. She further stated that
on being asked about the incident, the deceased stated that appellant
Suresh had put her on fire while the others were also present. The
deceased further told her that she had not eaten for the past three days
and had visited her other bua’s house in Samaypur Badli, two days
prior to the incident, where she had expressed her apprehension of
death at the hands of the appellants and had asked for her father,
mother, and bua (PW-1/ Bimla Yadav) to be called. She stated that the
deceased further stated that the said other bua of the deceased advised
her and then left her at her matrimonial home.
45. In her cross-examination, PW-1/ Bimla Yadav also stated that
she had earlier visited the house of the deceased and advised appellant
Raj Pal to consume liquor in moderation. She stated that at that time,
the deceased was residing on the ground floor with her husband. She
further stated that she reached the hospital at around 11:30 A.M.,
whereas the parents of the deceased reached at around 01:00 P.M. She
denied the suggestion that the deceased was not in a condition to
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speak when she met her. She also stated that she had informed the
SDM that appellant Suresh had poured kerosene oil and set the
deceased on fire. She was then confronted with Ex. PW-3/DA and
PW-3/C, wherein the same was not recorded. She further stated that
the deceased had told her that the other appellants were also present at
the spot and that she had informed of this fact to the police and also to
the SDM. However, she was again confronted with Ex. PW-3/C and
PW-1/DA, wherein the same was not recorded.
46. In her statement at Ex. PW-1/DA and Ex. PW-3/C, she had
stated that the deceased informed her that she had been burnt by
throwing oil. She had also stated that she had been informed on phone
that the deceased had been burnt by the elder sister-in-law of the
deceased and all other family members.
47. When we consider whether to rely on the alleged dying
declaration made by the deceased to PW-1/ Bimla Yadav , we have to
remain mindful of the fact that in the MLC Report (Ex. PW-2/B), at
about 11:15 AM, it was recorded that the „ Pt. is not fit for statement ‟.
Further, as noted hereinabove, in Ex. PW-1/DA as also in Ex. PW-
3/C, PW-1/ Bimla Yadav had stated that she had been informed on
telephone that the deceased had been burnt by her sister-in-law and
that the other family members of the appellant Raj Pal were also
present there. We also take note of the fact that while PW-1/ Bimla
Yadav has stated that two days before the incident, the deceased had
gone to the house of her other aunt ( bua ) and had informed the bua
that the appellants were not giving her food and that she felt
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threatened that they might kill her. This other aunt was never
examined in the trial. Further, the information of the burning of the
deceased was allegedly given to PW-1/ Bimla Yadav by the son of her
sister and prior to that by a telephone call from the daughter of this
sister. PW-1/ Bimla Yadav had also gone to the said sister‟s house
before going to the house of the deceased but did not find her there.
Curiously, this sister/other bua , thereafter, disappeared from the scene
and from the trial, and is even not produced as a witness. The fact that
the appellants were not feeding the deceased or that the deceased was
feeling threatened that they may kill her, could have been deposed by
the said other bua , however, she was not examined. Non-examination
of this important and material witness casts further doubt on the
statement of PW-1/ Bimla Yadav .
48. What is even more important is that even the parents of the
deceased, PW-7/ Smt. Patashi Devi and PW-8/ Parkash Singh do not
support the case of the prosecution or the story narrated by the PW-
1/ Bimla Yadav .
49. Given the above circumstances, we find the statement of PW-
1/ Bimla Yadav regarding the deceased having made a dying
declaration to her to be doubtful and not wholly credible.
50. Coming now to the third dying declaration of the deceased, that
is, the statement made to PW-3/ Smt. Satbir Silas , the then SDM. We
would first take note of the deposition of PW-3 /Smt. Satbir Silas , who
deposed that on 30.10.1988, she was informed by PW-17/ SI Chhida
Nand that the deceased had been admitted in the JPN Hospital in a
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burnt condition. She went to the hospital to record the statement of the
deceased and the nurse took her to the deceased. She met the doctor
attending to the deceased, who declared her fit to make a statement.
She then recorded the statement of the deceased (Ex. PW-3/A), and
obtained her thumb impression thereon. She thereafter came across
PW-1/ Bimla Yadav , PW-7/ Smt. Patashi Devi , and PW-8/ Parkash
Singh , and recorded their statements- Ex. PW-3/C, Ex. PW-3/D and
Ex. PW-3/E, respectively. In her cross-examination, she admitted that
she did not make any application to the doctor in-charge seeking his
opinion if the deceased was fit to make a statement. She further stated
that she recorded the statement of the deceased after the deceased had
been declared fit for statement, which was at 03:30 P.M. She admitted
that she has mentioned in Ex. PW-3/A that she had finished recording
the statement of the deceased at 03:30 P.M.
51. Therefore, the fitness certificate seems to have been taken by
PW-3 /Smt. Satbir Silas after recording the statement of the deceased
and not before. The said exhibit (Ex. PW-3/A) also indicates that the
report of the doctor regarding the deceased being fit for making the
statement was taken after the statement had been recorded. While this,
by itself, is not sufficient to cast a doubt on the dying declaration
recorded by PW-3/ Smt. Satbir Silas , in our view, when considered
with the other circumstances discussed hereinbelow, it plays an
important part in not relying upon this dying declaration.
52. PW-3/ Smt. Satbir Silas admitted that she had seen the MLC
Report, and despite the fact that in the MLC Report, the manner of the
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deceased getting burnt was, allegedly, on the information of the
deceased, described as getting burnt while cooking food, PW-3/ Smt.
Satbir Silas did not seek any explanation from the deceased on the
contradiction in her two statements about the cause of the burns.
53. PW-3/ Smt. Satbir Silas also did not inquire from the deceased
regarding if she had met any of her relatives prior to making the
statement, so as to rule out the possibility of her being tutored. In fact,
it is the prosecution‟s own case that PW-1/ Bimla Yadav had remained
in the company of the deceased for a substantial time before her
statement was recorded. PW-3/ Smt. Satbir Silas also stated that she
could not say if the deceased had been tutored by her relatives to
implicate the appellants. Therefore, possibility of tutoring the
deceased, could not be completely ruled out.
54. From the statement of PW-3 /Smt. Satbir Silas , it would be
apparent that there is a contradiction on whether the opinion of the
doctor about the deceased being fit to make the statement, was taken
by the SDM or was she merely informed of the same by PW-17/ SI
Chhida Nand . Further, the doctor who has given the fitness certificate
to the deceased has not been examined by the prosecution, as she was
not available in the hospital anymore.
55. Further, the manner in which the alleged dying declaration,
Ex.PW-3/A, has been recorded by PW-3/ Smt. Satbir Silas, also leaves
us with a sense of doubt on the credibility to be placed on the same.
For the sake of ready reference, we reproduce it hereinbelow:
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56. From a reading of the above, what strikes us is the manner in
which the leading questions were put to the deceased. It appears as if
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the SDM, PW-3/ Smt. Satbir Silas, had been informed of the exact
statement that was to be taken from the deceased.
57. Applying the test regarding the acceptance of dying
declarations, which we have set out in detail above, we, therefore, are
of the opinion that the dying declarations of the deceased alleged to
have been made to PW-1/ Bimla Yadav and to PW-3/ Smt. Satbir Silas
cannot be accepted.
58. The learned APP has also stated that the post-mortem Report
had also reported that the bladder of the deceased was empty and there
was green colour fluid in the stomach, which, according to him,
corroborates the statement of PW-1/ Bimla Yadav that the deceased
had informed her that she had not been fed any food for last three
days. We are not impressed by the said submission. While seeking the
post-mortem Report, as is evident from the requisition for the same,
opinion on any signs of starvation was specifically asked for.
However, in spite of the same, the post-mortem Report does not give
any specific opinion of the deceased being starved. On the other hand,
it says that though the bladder of the deceased was empty and there
was presence of a green liquid, no abnormality was detected.
59. We would also like to examine the case of the prosecution in
light of the statements of the parents of the deceased, that is, PW-
7/ Smt. Patashi Devi and PW-8/ Parkash Singh .
60. PW-7/ Smt. Patashi Devi , the mother of the deceased, deposed
that the deceased had never complained of any dowry-related
harassment or ill-treatment by the appellants. She denied making any
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statement before the police or the SDM, and stated that she had
become unconscious on hearing about the death of her daughter. She
further stated that she along with others present in the hospital had
advised the deceased not to make statement regarding her burning
herself as otherwise she might not be put to some trouble. She stated
that the appellants are on visiting terms with her even after the
incident.
61. PW-8/ Parkash Singh , the father of the deceased, deposed that
the deceased was happy in her matrimonial home and there were no
dowry demands made by the appellants, nor were there any
complaints against them. He further stated that the deceased was hot-
tempered and had died due to burn injuries at the house of the
appellants. He denied having made any statement before the SDM and
alleged that his signatures had been taken on blank papers.
62. Therefore, the parents of the deceased have supported the
appellants‟ case. Having lost their daughter, they would ordinarily be
more inclined to implicate the appellants in the offence rather than to
give them a clean chit. Though they were cross-examined by the
learned APP appearing before the learned Trial Court, no reason for
them to falsely depose in favour of the appellants could be gathered.
This also casts a doubt on the case of the prosecution.
63. From the above, we find that the alleged dying declarations
made by the deceased are not wholly reliable and have an element of
doubt. The other surrounding circumstances alleged by the
prosecution also do not form a complete chain that can persuade us to
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form an opinion that the appellants are guilty of the offence charged
beyond reasonable doubt. Therefore, we hold that the prosecution has
been unable to establish the charge against the appellants beyond
reasonable doubt.
64. We again note that, unfortunately, appellant no.1 in Crl.A. No.
909/2002, namely, Raj Pal, and the appellant no.2 in Crl.A No.
938/2002, namely, Smt. Phoolwati, have since passed away, and the
appeals have, therefore, abated qua them.
65. The appeals are allowed qua the surviving appellants.
66. The impugned judgment of conviction dated 04.10.2002 and
Order on Sentence dated 07.10.2002, insofar as they relate to the
surviving appellants, are set aside. The surviving appellants are
acquitted of the charges framed against them.
67. Their personal bonds and surety stand discharged.
68. A copy of this judgment be communicated to the concerned Jail
Superintendent as also to the learned Trial Court for necessary
compliance and information.
NAVIN CHAWLA, J.
RAVINDER DUDEJA, J.
JULY 2, 2026/ ns/Yg
Signature Not Verified
Digitally Signed
By:REYMON VASHIST
Signing Date:02.07.2026
16:40:17
CRL.A. 909/2002 & 938/2002 Page 36 of 36