Raj Kumari vs State N.C.T. Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30.09.2026
Pronounced on: 30.10.2026
Uploaded on: 30.10.2026
# CNR No. DLHC010061662002
CRL.A. 599/2002
RAJ KUMARI .....Appellant
Through: Mr. D. B. Goswami, Mr. S.
Gaurav Sasan, Mr. S. Saurabh
Sasan and Mr. Arunansh B.
Goswami, Advocates
versus
STATE N.C.T. OF DELHI .....Respondent
Through: Mr. Aman Usman, APP with
Mr. Manvendra Yadav,
Advocate.
# CNR No. DLHC010061692002
CRL.A. 600/2002
TILAK RAJ & ORS. .....Appellants
Through: Mr. D. B. Goswami, Mr. S.
Gaurav Sasan, Mr. S. Saurabh
Sasan and Mr. Arunansh B.
Goswami, Advocates.
versus
STATE N.C.T. OF DELHI .....Respondent
Through: Mr. Aman Usman, APP with
Mr. Manvendra Yadav,
Advocate.
Signature Not Verified
Signed By:PRATEEK
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Date:30.10.2026
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CRL.A. 599/2002& CRL.A 600/2002. Page 1 of 31
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE ARUN BHARDWAJ
J U D G M E N T
ARUN BHARDWAJ, J
1. Present appeals assail the judgment of conviction dated
11.07.2002 and the order on sentence dated 12.07.2002 passed by the
learned Additional Sessions Judge, Karkardooma Courts, Shahdara,
Delhi (hereinafter referred to as the ‘ Trial Court ’), in Sessions Case
No. 171/1999, arising out of FIR No. 527/1998 registered at Police
Station Kalyan Puri, Delhi for offences punishable under Sections
498A/307/354/201/302 read with Section 34 of the Indian Penal Code
(hereinafter referred to as ‘ IPC ’).
2. Vide the impugned judgment, the learned Trial Court convicted
appellant Tilak Raj, ASI in Delhi Police (husband of the deceased
Dayawati), Prem Singh (father-in-law of the deceased) and Anokhi
Devi (mother-in-law of the deceased) for the offences under Sections
302/34, 201/34 and 498A/34 of the IPC. Appellant Raj Kumari was
convicted for the offence punishable under Section 498A/34 of the
IPC.
3. For the offence under Section 302/34 of the IPC, Tilak Raj
(appellant no.1), Prem Singh (appellant no.2) and Anokhi Devi
(appellant no.3) were sentenced to undergo life imprisonment and to
pay a fine of Rs. 5,000/- each, failing which they were directed to
undergo Simple Imprisonment (SI) for one year. They were further
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sentenced to undergo Rigorous Imprisonment(RI) for two years each
for offences under Sections 201/498A of the IPC read with Section 34
of the IPC and to pay a fine of Rs.1,000/- each for both the offences,
failing which they were to undergo RI for one month.
4. Appellant Raj Kumari has been sentenced to undergo RI for two
years and to pay a fine of Rs.1,000/-, failing which she was directed to
undergo SI for one month.
5. Aggrieved by the same, Tilak Raj (appellant no.1), Prem Singh
(appellant no.2) and Anokhi Devi (appellant no.3) have challenged
their conviction vide Crl.A. 600/2002 and Raj Kumari has challenged
her conviction vide Crl.A. 599/2002.
6. Prem Singh, appellant no.2, died during pendency of the appeal
and as per order dated 05.05.2014, the appeal qua him has abated.
7. The accused persons, their relationship with the deceased, the
offences for which they were convicted, and the status of their respective
appeals are set out below:
Sr. No. Name Relationship The offence
convicted
for
Details of
appeal
1. Tilak Raj, ASI
in Delhi Police
Husband 302/34,
201/34 and
498A/34 of
the IPC
Crl. A. No.
600/2002.
2. Prem Singh Father-in-law 302/34,
Crl. A. No.
600/2002.
(Since
deceased,
and the
appeal qua
201/34 and
498A/34 of
the IPC
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him has
abated vide
order dated
05.05.2014)
3. Anokhi Devi Mother-in-
law
302/34,
201/34 and
498A/34 of
the IPC
Crl. A. No.
600/2002.
4. Raj Kumari Sister-in-law 498A/34 of
the IPC
Crl.A. No.
599/2002
5. Sharmishtha Sister-in-law 302/34,
201/34 and
498A/34 of
the IPC
Crl. A. No.
709/2005
(being
decided
vide
separate
order)
6. Sudesh Sister-in-law Proclaimed
Offender
Not
applicable
7. Hans Raj Brother-in-
law
Proclaimed
Offender
Not
applicable
Case of the Prosecution :
8. Case of the prosecution is that the deceased Dayawati had got
married to appellant no. 1 Tilak Raj s/o Prem Singh on 09.05.1997 as
per Hindu rites and ceremonies and at the relevant time, appellant no.1
was working as ASI with Delhi Police.
9. The prosecution alleged that Dayawati was subjected to
harassment and cruelty in her matrimonial home in connection with
demands for money and a Maruti car.
10. On receipt of DD No. 22-A, at 09.35 PM by PW-7 that
Dayawati was admitted in the LNJP Hospital due to burns on
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21.10.1998, ASI Sobran Singh (PW-18) along with constable Surat
Singh (PW 8) went to that hospital.
11. The deceased had suffered 100% burn injuries. When she was
brought to the hospital at about 09:00 PM, she was declared unfit to
make her statement.
12. ASI Sobran Singh (PW-18) went to House No. D15/1, Budh
Vihar, Kondli, the residence of the family of the accused and found
that the floor of the house was cleaned but smell of kerosene was
coming from the premises. On 22.10.98, at 12:15 PM, Dr. Vishal
Raina (PW-20) declared that the patient was fit to make the statement.
SDM Ravi Dadhich (PW-4) was informed that the patient is fit for
recording her statement. SDM arrived at the hospital at 12.20 PM and
recorded her statement in Hindi, in question-answer form as under:-
Statement – LNJP Hospital, Delhi
1. नाम ा है :दयावती
2. पित का नाम :ितलकराज
3. रहतीकहाँ है : D-15/1, कोंडली, िद ी
4. ऐसीहालत ों ई: ये मुझे तंग करते थे। मेरा घर वाला तंग करता था।
दोबार 50-50 हजार पयेलाई ँ। मा तीकारलाने के िलए मेरा
घरवालाकहताथा। िम ीकातेलिछड़किछड़ककरमुझेजलािदया–
गैलरीम ।मेराघरवाला, ससुर, सास, 2 ननद, देवर, सभीथे।घरवाला
ितलकराज, ससुर ेमिसंह, अनोखीदेवी, 2 ननद– एकसुरेश, एक
सिम ा, देवरहंसराज।देवरहंसराजने 2-3 बारमेरीइ तपरहमलाभी
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िकया।रातको 09- 9.30 बजेसभीनेपकड़कर, ननदनेब ीलगाई।
पितनेकहाकीभैया-दूजकोघरजाऔरमा तीकारलेकरआ।तीसरी
ननदराजकुमारीमेरठसेआआकरिसखाकरजातीथी– कलयहाँनहीं
आईथी।मेरापितमुझेमारता था, मुझसेबोलतानहींथा।मुझेधमकी
देताथा।
13. English translation of this statement, as available on record, is
as under:
“Statement LNJPN Delhi
1. What is your name? Dayawait
2. What is your husband’s name? Tilak Raj
3. Where do you live? D-15/I Kondli, Delhi
4. Why such a condition? These people harass
me. My husband used to harass me. I have
brought Rs.50,000/- twice. My husband used
to ask me to bring a Maruti Car. I was set
ablaze after pouring Kerosene oil on me in
the gallery. My husband, father-in-law
mother-in-law, two sisters-in-law and
brother-in-law (Devar) were all present.
Their names are Tilak Raj (my husband)
Prem Singh (Father-in-law), Anokhi Devi
(Mother-in-law) Sudesh and Sharmishtha
(two sisters-in-law) and Hans Raj (brother-
in-law). The brother-in-law, Hans Raj had
even tried to outrage my modesty two-three
times. In the night at about 9/9-30, all of
them caught hold of me and my sister-in-law
set me ablaze. My husband had asked me to
go to my house on the eve of Bhaiya –Duj
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and bring a Maruti Car. My third sister-in-
law Raj Kumari used to come from Meerut
and use to do back-biting. She had not come
here yesterday. My husband used to give
beatings to me. He was not on talking terms
with me and he used to advance threats to
me.”
14. On the basis of her statement, FIR No. 527/98 (Ex-PW-17/A)
under Sections 498A/307/201/354/34 of the IPC was recorded at PS
Kalyan Puri at 01.45 PM.As Dayawati succumbed to her injuries on
23.10.1998, the case was converted to Section 304-B of the IPC.
15. Unfortunately, the father, mother and one of the brothers of the
deceased, who were star prosecution witnesses met with an accident
and died before their statements could be recorded in this case.
Proceedings before the learned Trial Court
16. All the aforesaid four accused were charged for the offence
under Section 304B read with Section 34 of the IPC and in alternative
the offence under Section 302/34 of the IPC. The charge was also
framed against all the accused under Section 498A/34 of the IPC and
Section 201/34 of the IPC.
17. The prosecution, in order to bring home the guilt of the accused
persons, examined 21 witnesses, including Ashok Kumar, brother of
the deceased (PW-3), Ravi Dadhich, the then Sub-Divisional
Magistrate, who recorded the dying declaration of the deceased (PW-
4), and the police officials and medical witnesses associated with the
investigation and treatment of the deceased.
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18. The appellants in their defence examined three defence
witnesses being DW-1, DW-2 and DW-3.
19. In their statements recorded under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘ CrPC ’), the
accused persons pleaded not guilty and denied the allegations levelled
against them and claimed trial.
Findings of the learned Trial Court :
20. The learned Trial Court relied upon the evidence of the Dr.
Vishal Raina, PW-20 who had declared the patient fit for recording
her statement vide endorsement Ex.PW-20/A.
21. The learned Trial Court further relied upon the evidence of PW-
4 Ravi Dadich, SDM, Preet Vihar, Delhi, who had recorded the
statement of the victim in his own handwriting, Ex. PW-4/A, and
treated the same as relevant fact as the said statement was made by the
victim as to the cause of her death including circumstances of the
transaction which resulted in her death, as in the case in hand, the
question involved was the cause of victim’s death.
22. The learned Trial Court also relied on the evidence of Dr. Rajiv
Ahuja, HOD, Plastic Surgery, LNJP Hospital, Delhi who was
examined as a Court Witness and had stated that a patient can become
fit to give statement even if he receives 100% burns because the initial
disorientation is a result of shock state which can be corrected by
resuscitative measures. He clarified that in no case of burns of this
nature, the brain is ever burnt because the injury is limited to the skin
and other organs are affected by hypovolemia and later by infection.
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23. The learned Trial Court relied on the evidence that the place of
incident was cleaned up to corroborate the dying declaration, and
convicted the husband, mother and father-in-law of the deceased for
the offence under Sections 302/201/498A/34 of the IPC and convicted
the sister-in-law Raj Kumari for the offence under Sections 498A/34
of the IPC.
Submissions on behalf of the learned counsel for the Appellants
24. Mr. D. B. Goswami, learned counsel for the appellants assailed
the impugned order by reading the evidence on record in detail, to
submit that the statement of the deceased recorded by the SDM is
unreliable.
25. It is argued that the conviction of the appellants in this case is
based solely on dying declaration recorded by SDM, Ravi Dadich
(PW-4). He submitted that the way dying declaration is alleged to be
recorded by PW-4, the same is not free from doubts.
26. It is argued that PW-4 Ravi Dadich was the SDM and an
independent witness, therefore, doubt cannot be raised on his
intention, but he is also a human being and is therefore not infallible.
It is argued that PW-4 put so much reliance on IO of the case, ASI
Sobran Singh and it is not clear who found the patient Dayawati to be
fit to make the statement.
27. Referring to evidence of Dr. Vishal Raina (PW-20), the
argument is that the doctors never inform the police on their own that
the patient is fit to make the statement. It is argued that Dr. Vishal
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Raina has affirmed the endorsement made on the MLC but did not
disclose which police personnel produced the MLC before him.
28. It is argued that PW-18 ASI Sobran Singh stated in his
examination-in-chief that on 22.10.1998 he was informed by Ct. Surat
Singh PW-8 that the patient is fit to make statement and this fact was
conveyed to the SDM who came to the hospital for recording the
statement of the victim, but PW-8 Surat Singh has not stated that he
informed ASI Sobran Singh about the patient being fit for recording
her statement.
29. It is submitted that according to the evidence of the SDM Ravi
Dadich, he had received information from ASI Sobran Singh at about
11:00 AM on 22.10.1998 that the victim is fit to make statement,
whereas as per the endorsement on the MLC, Doctor Vishal Raina
(PW-20) had declared the victim fit for making statement at 12:15
PM, which raises a question that the said ASI could not have informed
the SDM almost one hour and fifteen minutes before the victim
becoming fit to make the statement to come to the hospital for
recording the statement of the victim.
30. On the basis of these deficiencies in the statements of PW-4
SDM Ravi Dadich, PW-8 Ct. Surat Singh, PW-18 ASI Sobran Singh
and PW-20 Dr. Vishal Raina, it is argued that the alleged dying
declaration of the victim is nothing but a statement manipulated by IO
ASI Sobran Singh.
31. It is emphatically argued that the Dr. Bhim Singh (PW-15), who
had conducted the post-mortem of the victim, has said that in case of
100% burns, the victim suffers from degloving, which means due to
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burn, skin is separated from the body and it is not possible for anyone
to take thumb impression of such a patient, but the dying declaration
of the victim is containing the right hand thumb impression of the
deceased Dayawati, which is not possible.
32. Reliance is placed on the statement of the Dr. Bhim Singh (PW-
15) to submit that after development of shock, the patient cannot give
exact statement regarding what is happening on him/her and it is not
possible for the patient to make a speech or a statement.
33. It is submitted that according to Dr. Bhim Singh (PW-15), in
view of the report given by himEx.PW-15/A, under the heading of
neck, it is not possible for the patient to make a speech or a statement.
34. It is argued that, contrary to the opinion given by Dr. Bhim
Singh, in this case, the victim has given not only the names of all the
members of her in-law’s family, but she has also narrated how her
brother-in-law on two to three occasions had tried to outrage her
modesty. The learned counsel for the appellants submits that PW-15 is
a prosecution witness and not a defence witness and his testimony is
totally against the case setup by the prosecution.
35. He further submits that the evidence of the SDM Ravi Dadich
and Dr. Bhim Singh is the evidence of independent witnesses, the
victim was not a relative of the SDM but the possibility cannot be
ruled out that ASI Sobran Singh manipulated the statement of the
victim and by the time SDM reached the hospital, the victim was not
in a position to make her statement, because Dr. Vishal Raina, PW-20
has stated that the statement of the victim was not recorded by the
SDM in his presence and had the SDM Ravi Dadich reached the
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hospital at 12:05/12:10 PM, he would have recorded the statement of
the victim in the presence of Dr. Vishal Raina and would have taken
the endorsement of Dr. Vishal Raina on the statement of the victim
but it is not done.
36. The appellants have sought to give the reason for suicide by the
deceased (which is their defence) by stating that the deceased was
frustrated as she was not conceiving a child and the doctors had
reported that she cannot conceive a child, and consequently she was
mentally upset and, in this frustration, she took this drastic step.
37. It is the submission of the appellants that the FIR was not
recorded by the IO on 21.10.1998 itself, though from the hospital he
had gone to the place of incident and made inquiries from the
neighbours. According to him, this is a suspicious material which
shows that the investigation was not fair but is manipulated to falsely
implicate innocent persons.
38. A plea of alibi, stating that Prem Singh and Anokhi Devi were
not present at the place of incident on 21.10.1998 as they had gone to
Bulandshahr to celebrate ‘ bhaiya-duj ’, has also been taken and
reliance is placed on the testimony of Karan Singh (DW-2), who is the
brother of Anokhi Devi, to submit that Prem Singh and Anokhi Devi
were not at home at the time of incident.
39. It is submitted that had the police found their complicity in the
commission of crime, they would have been arrested on 22.10.1998
when accused Tilak Raj was arrested, but these two accused were
arrested on 26.10.1998.
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40. In support of innocence of Raj Kumari, it is argued that she was
married at the time of marriage of Tilak Raj and had three children
and was residing at her matrimonial home at Ghaziabad. It is argued
that even if the alleged demand of main accused, that is, Tilak Raj,
had been fulfilled by his in-laws, she would have gained nothing and
therefore, there is no motive on the part of Raj Kumari to harass her
sister-in-law for the sake of dowry.
41. It is further submitted that the fact the deceased has not even
spared the married sister of her husband, shows that the case is falsely
made by the police at the instance of someone.
42. Lastly, the learned counsel for the appellants has argued that
had there been any truth in the prosecution’s case, the prosecution
witnesses Ashok Kumar (PW-3) brother of the deceased, Puran Lal
(PW-5), Pradhan of Gam Nagar Colony, Faridabad, and Bablu Lal
(PW-12), from the in-laws side of the accused Tilak Raj, would have
supported the prosecution’s story, but during the trial, they turned
hostile and did not support the case of the prosecution, which casts
doubt on the veracity of the prosecution’s story.
Submissions by the learned APP on behalf of the State:
43. Mr. Aman Usman, learned APP for the State, submitted that the
appellants are doubting the visit of the SDM to the hospital and have
suggested that the Investigating Officer himself recorded the statement
of the deceased and subsequently supplied the same to the SDM, who
merely reproduced it in his handwriting and procured a fabricated
thumb impression. He submits that the SDM had entered the witness
box as PW-4 and has deposed about his visit to the hospital and
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recording of the statement of the victim. The presence of the SDM and
the fact of recording of the statement by him are supported by PW-3,
PW-8 and PW-13, the Investigating Officer.
44. It is further submitted that the appellants are trying to substitute
a theory of fabrication for the consistent testimony of an independent
public officer and the corroborative evidence of other prosecution’s
witnesses and that there is no material to show any reason for the
SDM to falsely implicate the appellants.
45. It is argued on behalf of the State that PW-20 Dr. Vishal Raina
had declared the victim to be medically fit to make the statement at
about 12:15 PM and the statement was recorded by the SDM at about
12:20 PM, which shows that the SDM acted upon the medical
assessment of the patient’s fitness for recording the statement of the
victim.
46. Insofar as arguments of the appellant that a patient with 100%
burns cannot give a coherent statement, reliance is placed on evidence
of CW-2 Dr. Rajiv Ahuja, HOD of Plastic Surgery, who has clarified
that even a patient who has suffered from 100% burns can, after
medical resuscitation, regain consciousness and can be capable of
making a coherent statement and 100% burns do not necessarily
render a person incapable of speaking. Reliance is placed on State of
M.P. Vs. Dal Singh & Ors., (2013) 14 SCC 159, to submit that mere
percentage of burns cannot lead to an automatic conclusion that the
deceased was incapable of making a dying declaration.
47. Regarding degloving of the skin due to severe burns and
thereby inability to procure thumb impression, it is argued that the
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SDM has deposed that thumb of the deceased was intact and thumb
impression was accordingly taken. Reliance is again placed on M.P.
Vs. Dal Singh (supra), to submit that whether the thumb itself had
been burnt was a question of fact and possibility of an intact thumb
cannot be ruled out merely because the deceased had suffered
extensive burns.
48. For the posting of Dr. Vishal Raina, PW-20, it is submitted that
the fitness endorsement given by the doctor has not been challenged in
cross examination in a manner sufficient to establish that the doctor
could not have examined the deceased or could not have certified her
fitness.
49. The learned APP for the State has sought to rely on the
evidence of PW-3, submitting that he has deposed about the facts
which were personally known to him in relation to the matrimonial
circumstances of the deceased. The reason for PW-3 not supporting
the case of the prosecution is that after the death of the deceased, his
mother, father and brother also died in quick succession in an accident
and that may be the reason for PW-3’s unwillingness or lack of
emotional capability to support the prosecution version during trial. It
is submitted that prosecution had recorded the statements of several
family members of the deceased but before they could enter into the
witness box, they died in an accident.
50. The learned APP has also submitted that the scene of
occurrence had been cleaned, notwithstanding the persistence of the
smell of kerosene. It is submitted that if, as the defence suggests, the
deceased had voluntarily committed suicide, the subsequent cleaning
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of the scene assumes considerable significance and requires an
explanation. The circumstance becomes even more relevant
considering the deceased’s specific account that kerosene had been
sprinkled upon her before she was set on fire. It is submitted that the
conduct of cleaning the scene is inconsistent with an innocent
explanation and provides circumstantial support to the prosecution’s
version.
51. He has further submitted that the husband Tilak Raj gave a false
history of commission of suicide by the deceased to the doctor in the
alleged history.
Analysis/Reasoning
52. This Court has gone through the records of the case and
examined the arguments addressed by the learned counsel for the
appellant as also the learned APP.
53. The deceased Dayawati was admitted to hospital on 21.10.1998
with burn injuries (100%) and subsequently died on 23.10.1998. Her
statement was recorded by the SDM on 22.10.1998 at about 12:20
PM, (PW 4/A) after the doctor (PW-20 Vishal Raina) had endorsed
that she was fit to make a statement. The SDM Ravi Dadhich
recorded her statement in question-answer format. The same has been
reproduced above.
54. The case of the prosecution primarily rests on the following
parameters;
(i) the reliability of the dying declaration recorded by the
SDM(PW-4);
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(ii) the medical evidence concerning deceased’s condition;
and
(iii) the ability of Dayawati to make a statement and affix her
thumb impression on the said dying declaration.
55. The learned counsel for the appellant had laid much emphasis
on the Death Summary (Ex PW 19/A) as recorded by Dr. Rekha T
(PW-21) which recorded alleged history of getting burnt (suicidal
attempt) by the patient after her brother and her husband had a quarrel.
It further recorded that the patient poured kerosene over herself and
set herself on fire at 08:00pm on 21.10.1998. PW-21 in her statement,
stated that the above history is written by the examining doctor and
she had prepared the death summary on the basis of history sheet.
56. In view of the reference to an alleged suicide in the death
summary, the Court examined CW-2, Dr. Rajiv Ahuja to clarify the
circumstances in which the history had been recorded by Dr.Rekha T.
CW-2, Dr. Rajiv Ahuja, stated that the time of preparation of the death
summary, the history of the incident was taken from the existing case
record, which had been recorded by his colleague or the treating doctor.
He further stated that the history provided to the treating doctor in the
department had been given by the husband of the deceased and was
recorded in Ex. CX-1. He further stated that the MLC also recorded
the history as provided by the husband of the deceased. In his cross
examination, CW-2 stated that, a patient who had suffered 100
percent burns, it was not possible to predict precisely when the
patient would be fit to make a statement, he explained that the initial
disorientation could result from the state of shock and could be
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corrected by resuscitative measures. He further stated that in burns of
this nature, the brain itself is not burnt and the injury is primarily to
the skin, while other organs could be affected due to hypovolaemia
and by infection.
57. In view of the above, the history of the burn injury suffered by
the deceased as recorded in the Death Summary, cannot come to the
aid of the appellants, the same being based on the say-so of the
appellant Tilak Raj alone.
58. The submission of the appellants that the deceased had 100%
burns and, due to trauma, could not have given a detailed statement,
and that due to resultant degloving, the deceased could not have
affixed her right hand impression on the dying declaration (Ex PW
4/A) recorded by the SDM Ravi Dadich, is squarely met by the
evidence of Dr. Rajiv Ahuja (CW-2) who stated during his cross-
examination, that it cannot be said when the patient will become fit to
give statement if he/she has received 100% burns, because the initial
disorientation is a result of shock state which can be corrected by
resuscitative measures. CW-2 further clarified that in no case of burns
of this nature is the brain ever burnt because the injury is limited to the
skin and other organs are affected because of hypovolemia and later
by infection.
59. Testimony of CW-2 therefore provides an explanation for the
deceased having been declared unfit to make a statement on
21.10.1998 and fit to make a statement on 22.10.1998.It shows that
though the patient was suffering with 100% burns and would have
been disorientated as a result of shock state on 21.10.1998, but was
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corrected by resuscitative measures following the treatment given to
her.
60. In so far as the degloving of the skin of the patient and
therefore, the inability to affix thumb impression is concerned, the
learned counsel for the State has relied on State of M.P. v. Dal Singh
and Others , ( supra ). The question involved in the said case was
whether 100% burnt person can make a dying declaration or can put a
thumb impression. The decision underscores that the percentage of the
burn injuries by itself is not determinative of the declarant’s ability to
make a statement, the issue must therefore be assessed with reference
to the medical evidence and the facts of the particular case. While
deciding the said case, the earlier decision in the case of Mafabhai
Nagarbhai Raval v. State of Gujarat , (1992) 4 SCC 69 was referred
to, where a person had suffered 99% burn injuries and it was held that
the doctor who had conducted the post-mortem was a competent
person and unless there existed some inherent and apparent defect, the
Court could not have substituted its opinion for that of the doctor’s.
Therefore, the dying declaration was found to be worthy of reliance as
the same had been made truthfully and voluntarily and there was no
evidence that the victim had given a tutored version. Consequently,
the argument of the defence that the condition of the deceased was so
serious that she could not have made such a statement, was not
accepted and the dying declaration was relied upon.
61. Reliance is also placed in this judgment on the case of Laxman
v. State of Maharashtra , (2002) 6 SCC 710 where it was held that the
dying declaration can be oral or in writing and communicated by any
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adequate method and use of words, signs or otherwise will be
sufficient provided the indication is positive and definite. There is no
specified statutory form for recording of the dying declaration and
therefore, evidentiary value or weight that has to be attached to a
dying declaration depends on the facts and circumstances of each
individual case. It is the satisfaction of the person who records a dying
declaration that the deceased was in a fit state of mind and where the
same is proved by the testimony of the Magistrate, in such a case,
even without examining the doctor, the said declaration can be relied
and acted upon, provided it inspires the confidence of the Court that
the same is voluntary and definite. Certification by a doctor is
essentially a rule of caution and therefore, voluntary and truthful
nature of the declaration can also be established otherwise .
62. To the same effect is the judgment of the Supreme Court in the
case of Govindappa v. State of Karnataka , (2010) 6 SCC 533 where
the Executing Magistrate while recording the dying declaration did not
get any certificate from the medical officer regarding the condition of
the deceased and it was held that such a circumstance itself is not
sufficient to discard the dying declaration. Certification by a doctor
regarding the fit state of mind of the deceased, for the purpose of
giving a dying declaration, is essentially a rule of caution and,
therefore, the voluntary and truthful nature of such a declaration, may
also be established otherwise . The dying declarations are recorded on
the basis that normally a person on the verge of death would not
implicate somebody falsely and therefore, must be given due-weight
in defence.
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63. In State of Punjab v. Gian Kaur , (1998) SCC (Cri) 942, the
issue before the Court was regarding the acceptability in evidence of
the thumb impression of the deceased that appeared on the dying
declaration as the Trial Court had found that there were clear ridges
and curves and the doctor was unable to explain how such ridges and
curves could be present when the skin of the thumb had been
completely burnt.
64. Applying the above principles to the facts of the present case,
neither a doctor’s certificate nor a thumb impression is a legal
requirement for a valid dying declaration, but rather a rule of caution.
In the present case, the dying declaration PW 4/A was recorded by the
SDM duly supported by a medical endorsement, thereby satisfying the
rule of caution.
65. In these peculiar circumstances, to satisfy the conscience of this
Court, the physical records of the case were called rather than merely
relying upon the softcopy of the Trial Court record. A perusal of the
Trial Court record showed that the thumb impression on the dying
declaration did not disclose any discernible curves or ridges which,
therefore, appropriately matches with the medical condition of the
victim, that is, 100% burns and degloving of both hands.
66. An SDM recording a dying declaration cannot be expected to
have the medical knowledge of a skin or burn specialist. There is no
material on record to show that the SDM was made aware that due to
degloving, the thumb impression of the victim will not be meaningful.
It appears that the thumb impression of the deceased was obtained as a
cautionary measure and without realizing the degloving of the skin.
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The physical record of the Trial Court makes it clear that, although the
thumb impression of the deceased was taken but it resulted in no
discernable curves or ridges and is almost blank, which shows that
whatever impression could be gathered of the thumb impression, was
taken on the endorsement and the impression is almost blank, which
in turn explains and establishes that the thumb impression of the
victim was taken but due to degloving, it turned out to be blank in the
absence of clear curves or ridges.
67. The learned ASJ in its impugned judgment had also recorded
that although the thumb impression of the deceased has light
impression, yet there lies no bar in affixing her RTI, in whatever
condition it may be.
68. There is objection of the learned counsel for the appellants
regarding manner and time of intimation to the Investigating Officer
that the patient is fit for recording her statement/the time of intimation
to the SDM that the patient is fit for recording her statement/time of
examination by the doctor to declare the patient fit for statement.
69. PW-8 Ct. Surat Singh has stated that ASI Sobran Singh was in
the hospital at about 11.30 a.m. on 22.10.98, when the doctor had
declared the patient fit for making her statement. This witness, as well
as ASI Sobran Singh both were present in the hospital when the SDM
was called in the hospital/when the SDM recorded the statement of the
victim. PW-8Ct. Surat Singh has stated that ASI Sobran Singh had
instructed him that he should be informed immediately as and when
the patient appeared to be fit to make a statement and so declared by
the doctor. It explains intimation of appearance of fit condition of the
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victim for recording her statement by PW-8 Ct. Surat Singh to ASI
Sobran Singh. Further, ASI Sobran Singh has deposed that on
receiving information from PW-8 Ct. Surat Singh that the patient is fit
for making statement, he informed the SDM. That explains the
intimation to the SDM that the patient was fit for recording her
statement.
70. Some difference in the timings of such intimation by PW-8 Ct.
Surat Singh to ASI Sobran Singh is understandable as the evidence of
these witnesses was recorded after more than two years of the incident
which explains such discrepancies in the timings.
71. The learned Trial Court has also dealt with this issue in the
impugned judgment as under:
“The contradictions pointed out by the Id.
defence counsel are not very insignificant and
do not rock the boat to a dangerous extent.
Such like contradictions happen even in the
testimony of the true witnesses. It must be
borne in mind that the incident took place on
21.10.98. The statement of the SDM was
recorded on 2.5.2000, statement of constable
Surat Singh, PW 8, was recorded on 17.7.2000
and 30.8.2000, statement of ASI Sobran Singh
was recorded on 21.9.2000, 14.3.01 and
12.4.01 and statement of Dr. Vishal Raina was
recorded on 14.3.01. It is well settled that with
the passage of time the human memory
vicissitudes. The apex Court in an authority
reported as State of Punjab Vs. Wassan Singh
AIR 1981 SO 697 held,
"Where the witnesses are examined at thetrial,
17 months after the incident
suchdiscrepanciesin regard to collateral
andsubsidiary facts or maters of details
occureven in the statements of truthful
witnesses,particularly when they are examined
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to deposeto events which happened long
before theirexamination. Such discrepancies
are hardly aground to reject the evidence of
thewitnesses when there is general agreement
andconsistency in regard to the substratum
ofthe prosecution case.”
72. Courts have to be conscious of the fact that the human mind
neither possesses a video camera nor a tape recorder, button whereof
can be pressed, to re-run a picture or re-run the voice recording. In
fact, such kind of memory lapses, far from discrediting a witness, lend
credence to his words for the reason perfect truths are seldom to be
found, but perfect lies are often to be found. In this regard reliance is
placed on Suresh @ Suresh Singh v. State (NCT) Delhi ,
2010:DHC:1455-DB.
73. Therefore, there is nothing doubtful in the manner and time of
giving information to the IO by PW-8 and to the SDM by the IO about
fitness of the deceased to record her statement.
74. The truthfulness of the dying declaration is also evident from
the fact that the deceased did not nail one and all in the family of her
husband and truthfully stated that Raj Kumari was not present on the
date of incident. Had the statement been a tutored one, then no one in
the family would have been spared.
75. The motive for murder can also be said to be made clear by the
dying declaration of the deceased in which she has stated that her
husband was asking for a Maruti Car and she had brought from her
parents Rs.50,000/- on two occasions. The husband was demanding
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the car on “ bhaiya-duj ” and in the evening of “ bhaiya-duj ” as the
demand was not fulfilled, the wife was set on fire.
76. As regards to the submission of the appellants that the deceased
had committed suicide as she was not able to give birth to a child, the
learned Trial Court has recorded in the impugned order as under:
“The accused have examined two DWs.
Dr.RakeshSingh, SMC, LBS Hospital,
appeared as DW 1. He deposedthat he was
posted in Balak Ram hospital from 11.7.98
to10.10.98 as SMC. He explained that OPD
treatment card Ex.PX/1-5 belongs to
Dayawati. He stated that test tubalblock was
conducted but not by him. He explained that
hehad referred the case to Sr.Gynaecologist
because thiscase was regarding the
production of the child. In hiscross-
examination he could not say about the final
resultof this case. He explained that he had
treatedtuberculosis treatment.”
77. The learned Trial Court has returned the following findings in
this regard:
“The story set up by the accused does not just
stackup. There is no clinching evidence that
the accused wasnot in a position to give birth
to a child. The finalreport was withheld. Even
if it is assumed that she dieddue to abovesaid
depression, why did she name the accused.”
78. This Court agrees with the findings returned by the learned ASJ
in this regard.
79. Regarding the plea of alibi taken by the appellant no.3 (Anokhi
Devi) and appellant no.4 (Prem Singh), the brother of Anokhi Devi
DW-2 Karan Singh has stated that Prem Singh and Anokhi Devi were
at his place in Bulandshahr on the occasion of “ bhaiya-duj ”. On the
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other hand, during the recording of evidence of ASI Sobran Singh
(PW-18) on 21.09.2000, it has come during his cross-examination that
he had gone to the spot at the midnight at about 12:30 AM or 01
o’clock (the start of 22.10.1998) and on the spot, he had met with the
parents of the accused and two three other persons. He denied the
suggestion that parents of Tilak Raj were not present or they had been
called from Bulandshahr from where they had come on the next day.
He stated that he had made enquiries from the parents of Tilak Raj
regarding the incident but they denied knowledge. During his further
cross-examination on 12.04.2001, the IO again denied the suggestion
that the parents of Tilak Raj were not present on the day of incident at
their house as they had gone to celebrate the festival of “ bhaiya-duj ”
at Bulandshahr in Uttar Pradesh and they had returned back on the
next day morning after they received the information regarding this
incident.
80. Moreover, DW-2 Karan Singh, being the real brother of Anokhi
Devi, has every reason to give false statement to save her on the
defence of alibi. Had Prem Singh and Anokhi Devi been at
Bulandshahr on the day of incident, they would have been in a
position to have evidence of their presence / travel to Bulandshahr on
the said date from independent sources also. In view of the statement
of the deceased and the evidence of IO, their plea of alibi is
unbelievable and unacceptable.
81. The submission of the appellants is that ASI Sobran Singh
manipulated the dying declaration, but there is no reason given as to
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why a colleague of Tilak Raj in Delhi Police will go out of the way to
harm him. Both were ASI in Delhi Police at that time.
82. As far as the conviction under Section 201 of the IPC is
concerned, it is to be noted that Tilak Raj himself is ASI in Delhi
Police and therefore, would have this much training that the site of
crime is required to preserved but when the IO visited the house, the
same was found to be cleaned but there was smell of kerosene. It
clearly shows committing of offence under Section 201 of the IPC,
that is, destruction of evidence of the offence by the accused.
83. Therefore, there is nothing to doubt the prosecution’s story and
conviction of Tilak Raj and Anokhi Devi is therefore, confirmed for
the offence under Section 302/34 of IPC.
84. To consider whether offence of Section 498A of IPC is made
out, we may first reproduce Section 498A of IPC as under: -
" 498A. Husband or relative of husband of a
woman subjecting her to cruelty. -Whoever,
being the husband or the relative of the
husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment
for a term which may extend to three years
and shall also be liable to fine.
Explanation. --For the purposes of this
section, "cruelty" means--
(a) any willful conduct which is of such a
nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether mental
or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or
any person related to her to meet any unlawful
demand for any property or valuable security
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or is on account of failure by her or any
person related to her to meet such demand."
85. The ingredients for an offence to be made out under Section
498-A of IPC require that there has to be cruelty inflicted against the
victim which is either likely to drive her to commit suicide or cause
grave injury to herself or lead to such conduct that would cause grave
injury or danger to life, limb or health. The second part of this Section
refers to harassment with a view to satisfy an unlawful demand for
any property or valuable security raised by the husband or his
relatives.
86. PW-3, Ashok Kumar, the brother of the deceased has stated that
the deceased had told his mother as well as his wife-Om Wati that the
husband of the deceased Tilak Raj, and her other in-laws Anokhi
(mother-in-law of the deceased), Prem Singh (father-in-law of
deceased) and her nanad Raj Kumari and other two nanads started
harassing and torturing the deceased regarding dowry demands. He
stated that the deceased, however, never told him the above facts
directly. He has stated that on the second Bhaiya-Duj of his sister on
21.10.98, his sister Dayawati had given a phone call to his wife and
his brother Naresh Kumar to tell that she was being harassed by her
in-laws. He has also stated that his deceased sister Dayawati did not
tell anything to him or in his presence how she got burnt.
87. The learned APP for the State submitted that the above
statement is admissible as the same is due to personal knowledge
gained by PW-3 being a family member of the deceased. However,
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this Court does not agree with his submissions and treats the
deposition as hearsay. Whereas the mother, father and another brother
of the deceased namely Naresh Kumar died in a road accident and
therefore, the prosecution was deprived of their evidence but the wife
of PW-3 namely Omwati should have been examined, who according
to PW-3, was told about the harassment being suffered by the
deceased Dayawati at the hands of her husband and in-laws for
demand of dowry.
88. That leaves us only with the statement of the deceased, insofar
as subjecting her to cruelty is concerned.
89. The deceased has deposed in her last statement that “ Yeh mujhe
tang karte the” .This is only a matter of conjectures and surmises
whether she is referring to all her in-laws in this statement.
90. However, when she says “… मेरा घर वाला तंग करता था। दो बार
50-50 हजार पयेलाई ँ। …मा तीकारलाने के िलए मेरा घरवाला
कहताथा। ...पित ने कहा की भैया दूज को घर जा और मा ती कार लेकर
आ ”, it leaves no doubt that her husband Tilak Raj subjected her to
cruelty and harassed her with a view to coercing her to meet unlawful
demand for car. The offence of cruelty under section 498Aof the IPC
is therefore made out against him.
91. However, there is no specific allegation of demand of dowry
against mother-in-law Anokhi Devi. It is ambiguous whether she was
referring to her mother- in-law when she says “Yeh mujhe tang karte
the”. Therefore, Anokhi Devi is given the benefit of doubt and
acquitted of the charge under Section 498A of the IPC.
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92. The only allegation against sister-in-law Raj Kumari is that
“ तीसरीननदराजकुमारीमेरठसेआआकरिसखाकरजातीथी – कलयहाँ
The expression sikha kar jaati thi is that she must be
नहींआईथी।“. “ ”
conveying something inimical against the deceased Dayawati or she
was abetting them for some offence. Though in the circumstances, one
can guess that she was referring to instigating the other accused to
harass the deceased with the aim of pressing her for dowry, but
conviction cannot be upheld on the basis of guess work. Therefore,
Raj Kumari is also acquitted of the offence of cruelty.
93. The conviction of Tilak Raj is therefore upheld for the offence
under Sections 302/201/498A/34 of the IPC. The conviction of
Anokhi Devi is upheld for the offence under Sections 302/201/34 of
the IPC. She is acquitted of the offence under Section 498A of the
IPC. As per nominal roll, she has undergone sentence for five years
seven months and one day. She is 77 years of age. Her sentence is
therefore modified to period undergone i.e., five years, seven months
and a day. The conviction of Raj Kumari is set aside for the offence
under Sections 498A/34 of the IPC.
94. The convict Tilak Raj shall surrender before the Jail
Superintendent within three working days from today as his bail bond
is cancelled. Otherwise, State will take appropriate steps to arrest him
so that he serves the remaining sentence awarded to him.
95. Before closing, it must be observed that this Court has felt that
it is difficult to accept that the daughter and son of an ASI of Delhi
Police, namely, Sudesh and Hans Raj could not be apprehended and
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are proclaimed offenders since the year 1998. This Court is of the
opinion that strict action is required to arrest both the proclaimed
offenders to do complete justice to the victim. For this purpose,
Commissioner of Police is requested to initiate all possible steps to
arrest the proclaimed offenders for putting them to trial. Let monthly
progress report in this regard, till their arrest be filed before the
learned Trial Court, who will give such further directions in the matter
as may be required, in accordance with law.
96. Let a copy of this judgment be communicated to the Jail
Superintendent as also the learned Trial Court for information and
compliance in respect of Sudesh and Hans Raj who are the proclaimed
offenders and thereafter, the file be consigned to the record room.
ARUN BHARDWAJ, J
NAVIN CHAWLA, J
OCTOBER 30, 2026/akr
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