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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1779 OF 2009
Rakesh and Another .... Appellant(s)
Versus
State of Haryana .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the final judgment
and order dated 15.05.2006 passed by the High Court of
Punjab and Haryana at Chandigarh in Criminal Appeal No.
575-DB of 2001 whereby the Division Bench of the High
Court dismissed the appeal preferred by the appellants
herein and confirmed the judgment on conviction and
sentence dated 27.09.2001 and 28.09.2001 respectively,
passed by the Additional Sessions Judge, Sonepat, Haryana
in Sessions Case No. 39 of 1998/2001 holding the appellants
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guilty for the offence punishable under Sections 498-A and
302 read with Section 34 of the Indian Penal Code, 1860 (for
short ‘IPC’) and sentenced them to undergo rigorous
imprisonment (RI) for one year for the offence punishable
under Section 498-A and a fine of Rs.500/- each and RI for
life for the offence punishable under Section 302 read with
34 IPC and a fine of Rs.2000/- each, in default, to undergo RI
for one year and both the sentences to run concurrently.
2) Brief facts:
(a) The case of the prosecution is that the deceased -
Kailash was married to Rakesh, resident of Gohana, Sonepat
about 8 years prior to the date of the incident. Out of the
wedlock, four children were born to them. At the time of
marriage, adequate dowry was given by the parents of the
deceased. However, being unsatisfied with the dowry,
Kailash has been subjected to harassment and cruelty in her
matrimonial home by Rakesh (A-1) and Smt. Ram Piari, (A-2)
mother-in-law. 15 days prior to the occurrence, the
deceased attended the marriage of her sister along with her
husband and in-laws. The accused started harassing her for
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not bringing adequate amount after seeing the marriage of
her sister.
(b) On 14.05.1998, at about 11 p.m., a quarrel took place in
the house of Rakesh (A-1) where he put his leg on the neck
of the deceased and beaten her mercilessly. Thereafter,
Ram Piari (A-2) caught hold of the hands of the deceased
while Rakesh (A-1) sprinkled kerosene upon her and set her
ablaze. At that time, Lala, younger brother of Rakesh (A-1)
was also present in the house. On the same night, Rakesh
(A-1), Ram Piari (A-2) and Siri Ram - father-in-law took the
deceased to the hospital and admitted her in the hospital on
15.05.1998 at 1.30 a.m. After getting a telephonic message,
the parents of the deceased also reached the hospital.
(c) On 16.05.1998, on receipt of telephonic information
about the admission of Kailash in PGI MS, Rohtak, on account
of burn injuries, the police contacted Kailash and an
application was moved by the investigating officer to the
Duty Magistrate at 5.50 p.m. Ms. Shalini Nagpal, Judicial
Magistrate, on getting the permission of the doctor at 6.10
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p.m. about the fitness of the victim to make a statement,
recorded her statement.
(d) On the same day, a copy of the statement was sent to
the police station for registration of the case. An FIR was
registered and the investigating officer took the case for
investigation on 17.05.1998.
(e) On 21.05.1998, Rakesh was arrested and got medically
examined by the doctor who opined that his hands were
found to be having superficial to deep burns. On his
disclosure, a stove containing the kerosene was recovered.
(f) On 29.05.1998 Ram Piari– mother-in-law of the
deceased was also arrested. Ultimately, on 04.06.1998,
Kailash succumbed to her injuries in Safdarjung Hospital at
New Delhi.
(g) On completion of the investigation, charges for the
offence punishable under Sections 498-A and 302 read with
Section 34 IPC were framed against the accused.
(h) The Additional Sessions Judge, Sonepat, after
examination of all the witnesses, vide judgment 27.09.2001,
convicted the accused persons guilty for the offences
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punishable under Sections 498-A and 302 read with Section
34 IPC. By judgment dated 28.09.2001, the trial Judge,
sentenced the accused persons to RI for one year and a fine
of Rs.500/- under Section 498-A and RI for life and a fine of
Rs.2000/- under Section 302/34 IPC and in default of
payment of fine, both the accused shall have to undergo RI
for one year. Both the sentences shall run concurrently.
(i) Being aggrieved, the accused persons (A-1 and A-2)
filed an appeal before the High Court of Punjab and Haryana
at Chandigarh. After hearing both the parties, by impugned
judgment dated 15.05.2006, the High Court confirmed the
judgment of the trial Court and dismissed the appeal
preferred by the appellants herein.
(j) Questioning the conviction and sentence, Rakesh (A-1)
and Smt. Ram Piari (A-2) preferred this appeal by way of
special leave before this Court and leave was granted on
11.09.2009.
3) Heard Mr. R.N. Kush, learned counsel appearing for the
appellants-accused and Mr. Kamal Mohan Gupta, learned
counsel appearing for the respondent-State.
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Contentions:
4) Mr. R.N. Kush, learned counsel for the appellants, at the
foremost, contended that since the deceased - Kailash was
not fit to make a statement as she was suffering from 85%
burn injuries, reliance and conviction based on the dying
declaration cannot be sustained. He further submitted that
Rakesh (A-1) also suffered injuries which are indicative of the
fact that he came to rescue her wife on seeing her burning.
On the other hand, Mr. Gupta, learned counsel for the
respondent-State contended that the dying declaration was
recorded by the Judicial Magistrate only after the duty doctor
duly certified that she was in a fit condition to make a
statement and the same was rightly relied on by both the
courts below. As regards the second contention, it is pointed
out by that if the injuries alleged to have been sustained by
Rakesh (A-1) as claimed by him, nothing prevented him from
taking treatment on the date of the incident, particularly
when he took the deceased to the Hospital. However, the
fact remains that only on 21.05.1998, when he was arrested
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by the police, he showed his alleged injuries to the doctor
which itself create a doubt about his version.
5) We have perused all the relevant materials and
considered the rival contentions.
Discussion:
6) It is not in dispute that the deceased – Kailash
sustained burn injuries at the house of the accused – Rakesh
where they were living for about eight years. The incident
occurred at 11.00 p.m. on 14.05.1998 and she was admitted
in the hospital on 15.05.1998 at about 1.30 a.m. It is also
not in dispute that the deceased was under the supervision
of doctors as well as the accused Rakesh till 10.00 a.m. on
16.05.1998.
7) Now, let us consider the dying declaration, its contents,
and the procedure followed while recording the same. It is
seen that after knowing the condition of the deceased, the
police requested Ms. Shalini Nagpal, the Judicial Magistrate,
Ist Class, Rohtak (PW-10) for recording her statement. It is
further seen that before recording her statement, the
Magistrate (PW-10) asked for the opinion of the duty doctor
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about her condition whether she was fit to make a
statement. The record shows that after obtaining the
opinion of doctor, all the police officials and relatives were
directed to leave the ward. Dr. Raman Sethi (PW-6)
explained to the patient that she is deposing before the
Magistrate and apprised that she is free to make her
statement voluntarily without any fear or pressure. After
satisfying her position to make a statement, the Magistrate
(PW-10) recorded the statement of the deceased. It reads as
follows:
“Q: How many years have passed to your marriage?
Ans: 8 years
Q: How many children have you?
Ans: Four
Q: On which day the incident took place?
Ans: The quarrel was continuing for the last 15 days.
Q: On the night of last Thursday at 11.00 P.M. what
happened with you?
Ans: My husband used to say as to why I did not bring
money in the marriage of my sister. He used to demand
money from my father. My mother-in-law Ram Piari and
father-in-law Siri Ram used to harass/tease me for dowry.
It was Thursday, my mother-in-law, Devar (husband’s
younger brother) Lala were at home. My mother-in-law
caught hold of my hand and my husband set me on fire
with match stick after sprinkling kerosene oil. My devar
came afterwards, when I was set on fire. My husband gave
beating to me and set me ablaze. Then my husband put
his leg on my neck and I was beaten up mercilessly. After
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that my father-in-law came, but he did not set me on fire.
My husband, mother-in-law and father-in-law brought me
to the hospital.
Q: Do you want to say any thing else?
Ans: No
(Right great Toe impression of Patient) Sd/- J.M.I.C.(D)
R.O. & A.C.
Patient remained fit and conscious during the statement
Sd/- in English Dr. Raman Sethi
P.G. Surg 5/IV”
8) In order to strengthen the above statement, the
prosecution examined Dr. Raman Sethi (PW-6) who certified
the condition of the deceased. In his evidence, he deposed
that on 16.05.1998, Ram Kumar (ASI) moved an application
(Ex. PD) before him seeking opinion regarding fitness of
Kailash, W/o Rakesh, resident of Gohana for making a
statement. PW-6 declared her fit to make a statement at
6.30 p.m. on 16.05.1998. Basing on his statement, the duty
Magistrate recorded her statement. Even after recording the
statement, PW-6 again examined Kailash and opined that
the deceased remained fit and conscious during her
statement. He also stated that the statement was over
within 20 minutes and also informed that he did not treat the
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patient at any stage and denied that he gave wrong opinion
at the behest of Magistrate.
9) Ms. Shalini Nagpal, Judicial Magistrate, Ist Class,
Rohtak, who recorded the dying declaration of the deceased
was examined as PW-10. According to her, on 16.05.1998,
the police had moved an application before her for recording
the statement of Kailash, and she had visited PGIMS, Rohtak
at about 5.50 p.m. on the same day and contacted the
doctor concerned in Ward No.5 and sought his opinion about
her fitness to make a statement. She asserted that the
doctor had declared Kailash fit to make a statement (Memo
Ex PB/3). She further explained that thereafter, she
recorded her statement in the form of question and answers
form which is Ext. PB. The statement was concluded by her
at 6.25 p.m and PW-6, after examining the deceased
certified that Kailash was in her sense throughout the period
of her examination. She also deposed that the statement
(Ex.PB) had been recorded by her in the very language of
Kailash without any addition or omission and her certificate
to that effect is Ex.PB/5. The certificate of the doctor about
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the physical condition of the deceased during the course of
examination is Ex.PB/4. She also informed the Court that the
statement was read over to Kailash who accepted the
contents to be correct. She also stated that she did not
obtain the thumb impression of the patient as both her
hands were burnt, hence she elected to obtain the
impression of her right toe. In the cross examination, she
admitted that the document exhibited as Ex.PB by her is the
carbon copy prepared by her in the same process. It is also
clear from her evidence that before recording the statement
of the deceased, she specifically directed the police officials
and relatives to leave the ward so that the patient was not
under any influence while making the statement before her.
Though, in the evidence, it has come on record that few of
the relatives were standing in the ward, in view of the
assertion of the Magistrate (PW-10) who recorded her
statement, mere presence of some of the close relatives
would not affect the contents of the declaration.
10) Dr. S.P. Chug, Casualty Medical Officer, PGIMS, Rohtak
was examined as PW-11. In his evidence, he deposed that
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on 15.05.1998 at about 1.30 a.m., he examined Kailash W/o
Rakesh and on examination he found that the patient was
conscious, pulse and BP were unrecordable. He further
stated that there were superficial to deep burns involving
almost all the body except the legs below the knees. There
was approx. 85% burns which were subjected to surgeon’s
opinion and was kept under observation. Though it was
pointed out that while recording the history of the patient,
he noted that it was the accidental fire while cooking food, in
view of categorical statement by the deceased in her dying
declaration the reference made by PW-11 while recording
the history of the patient would not affect the prosecution
case.
11) Dr. B.S.Kadian, Medical Officer of CHC, Gohana was
examined as PW-7. In his evidence, he explained the nature
of burn injuries.
12) Dr. L.K. Barua, who was examined as PW-13 has
conducted the post mortem on the dead body of Kailash and
submitted the report vide (Ex.PH). He asserted that the
death was due to burn injuries.
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13) Hiralal, father of the deceased was examined as PW-14.
He explained the manner in which the in-laws of Kailash was
behaving with her prior to the occurrence. He has supported
the entire prosecution version.
14) Madhu – daughter of Rakesh aged about 12 years, was
examined as a defence witness. Though she deposed that
her mother caught fire, per chance, from the kersone stove,
however, she admitted that her father Rakesh was present in
the house at the time of the incident.
15) It is not in dispute that the accused did not inform the
parents of the deceased about the incident. Though it is the
claim of A-1 that it was he who informed PW-14, father of the
deceased, in his evidence, he denied the same and
according to him, he received a message from Hukum
Chand. It is also relevant to note that only after arrival of
PW-14 and on seeing the deteriorating condition of her
daughter, he complained to the doctor concerned to shift her
to Safdarjung Hospital, New Delhi. The fact remains that the
accused did not take any such step.
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16) The statement of the deceased in the form of dying
declaration is fully acceptable since on receipt of intimation
from the police, the Judicial Magistrate (PW-10) reached the
hospital and after satisfying herself through the statement of
the duty doctor that the deceased was conscious and fit to
make a statement, recorded her statement in the form of
question and answers. In the dying declaration, which we
have extracted in the earlier part of our order, she had
specifically stated that her husband scolded her for not
brining money in the marriage of her sister. He used to
demand money from her father. Her in-laws used to
harass/tease her for not bringing sufficient dowry and on the
relevant date her mother-in-law caught hold of her hands
and her husband set her on fire with a match stick after
sprinkling kerosene oil. It is also seen from her dying
declaration that before she was set on fire, her husband
gave beat on her neck with his leg and she was beaten up
mercilessly. Considering the materials placed by the
prosecution about the recording of dying declaration,
procedure followed, her fitness to make a statement, the
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evidence of doctor and the evidence of Magistrate, who
recorded her statement, it amply prove their case.
17) Coming to the claim that inasmuch as the husband
Rakesh also sustained burn injuries in his hands, it is highly
impossible to set her ablaze, it is relevant to note that the
incident occurred late night on 14.05.1998, though the
accused-husband took her to the hospital admittedly, he did
not tried to get any treatment from the doctor for the
alleged burn injuries. As rightly pointed out by the learned
counsel for the State, if he had sustained burn injuries in his
hands nothing prevented him from taking treatment on the
same day from the same doctor. Admittedly, he did not get
treatment till he was arrested on 21.05.1998. In view of the
same, the argument of the learned counsel for the appellant
that inasmuch as the burn injuries were found on the hands
of the husband, it was necessary to look for corroboration is
liable to be rejected. In view of the factual position, the
decisions of various Courts relied on by the counsel for the
appellants on this aspect are not applicable to the case on
hand and there is no need to refer the same.
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18) The claim that there was wrong description of names in
the dying declaration and some of the relatives were present
at the time of recording of dying declaration are not material
contradictions which would affect the prosecution case.
19) Though learned counsel for the appellants contended
that in view of the conduct of A-1 taking the deceased to the
hospital and he also sustained injuries on his hand prayed
for altering the conviction from Section 302 to Section 304
Part I, in view of our earlier discussion, we are not in a
position to accept the same. It is not in dispute that the
occurrence took place in the house of the accused where
Kailash was residing, and unfortunately, even after having
four children, she died at the matrimonial home due to burn
injuries at the instance of the accused appellants. There is
no valid ground to alter the conviction as pleaded by the
counsel for the first appellant.
20) Inasmuch as the second appellant-Ram Piari had been
released after 14 years on the orders of the appropriate
Government, no argument was advanced about the decision
of the courts below.
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21) In view of the above discussion, we are satisfied that
the prosecution has established its case beyond reasonable
doubt and we are in entire agreement with the conclusion
arrived at by the trial Court as well as the High Court.
Consequently, the appeal fails and the same is dismissed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(M. Y. EQBAL)
NEW DELHI;
MARCH 22, 2013.
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