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CASE NO.: Appeal (crl.)  244 of 2006

PETITIONER: Dayal Singh

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 03/05/2007

BENCH: G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

1.      This appeal, by special leave, has been preferred against the  judgment and order dated 28.1.2005 of Bombay High Court  (Aurangabad Bench), by which the appeal filed by the appellant Dayal  Singh was dismissed and his conviction under Section 498-A and 302  IPC and sentence of six months R.I. and imprisonment for life  respectively, as recorded by the learned Second Additional Sessions  Judge, Nanded, by the judgment and order dated 23.3.1990, were  affirmed.   2.      The case of the prosecution, in brief, is that the deceased  Tejinder Kaur, daughter of the complainant PW.1 Chamanbai, was  married to the appellant five or six years prior to the incident and she  had two daughters, Pritpal and Sharanpal.  The appellant started ill- treating Tejinder Kaur right from the beginning and used to pressurize  her to bring money from her parents. About four months prior to the  incident, which took place on 22.3.1989, the appellant took Tejinder  Kaur to her mother’s house, who also resided in Nanded, and after  making a demand of Rs.5,000/- he came back alone leaving his wife  there.   On the next day, he went to the house of his mother-in-law  Chamanbai with a naked sword in his hand and asked Tejinder Kuar  to accompany him and also bring Rs.5,000/-.  The money could not be  paid by the mother of the deceased.   It is alleged that after Tejinder  Kaur came back to her husband’s house, she sent some letters to her  mother through a milk vendor complaining about ill-treatment being  meted out to her. At about 3.00 p.m. on 22.3.1989, Chamanbai  received information that Tejinder Kaur had received burn injuries  and she was admitted in the Civil Hospital.  She immediately rushed  to the hospital and on enquiry Tejinder Kaur disclosed that she was set  ablaze by the accused by pouring kerosene on her person.  Chamanbai  along with her son Sher Singh went to Police Station Wazirabad,  where an FIR of the incident was lodged at 6.30 p.m. P.S.I. Murkute  visited the house of the appellant at 7.00 p.m. on 22.3.1989 which  consisted of only one room and seized half burnt sari, petticoat,  woolen blanket, mattresses, quilt, pillow, etc.  He found two sunmics  cots partially burnt, a stove, a kerosene tin and an empty gas cylinder.   He then visited the hospital and instructed Head Constable PW.10  Dattatray Vinkar to record the statement of Tejinder Kaur when she  regained consciousness. Tejinder Kaur regained consciousness at  about 10.30 p.m., information regarding which was given by her  brother PW.4 Sher Singh to Head Constable Dattatray Vinkar.  The  Head Constable immediately summoned PW.9 Dr. Mohammad  Khursheed Ahmad, Duty Medical Officer, who examined the injured  and found her conscious.  Thereafter, the statement of Tejinder Kaur  was recorded by PW.10 where she gave details of the occurrence,

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namely, demand of dowry by the appellant and how the appellant had  set her on fire by pouring kerosene.  The statement Ex.31 was  recorded by PW.10 and Dr. Khursheed Ahmad made an endorsement  thereon that the patient was conscious throughout her statement.   At  about 00.45 hours on 23.3.1989 Tejinder Kaur succumbed to her  injuries.  After inquest had been held, the body was sent for post  mortem examination, which was carried out by two doctors who  found 83% burns thereon.   According to the opinion of the doctors,  the death was due to the extensive burns which caused hypovolenic  and neurogenic shock leading to cardio- respiratory failure.  The  seized clothes were sent for medical examination and the report  thereof indicated presence of kerosene.

3.      After completion of the investigation, charge-sheet was  submitted against the appellant under Section 498-A and 302 IPC.   The appellant pleaded not guilty and claimed to be tried. His main  defence was that he had never made any demand for money and in  fact he had deposited some money in the account of Tejinder Kaur  and had also purchased land in her name.  He further stated in his  statement which was given in writing that Tejinder Kaur caught fire  when she was cooking food on stove and at that time he was not  present in the house.  He also stated that after coming to know about  the fire, he rushed inside the house and tried to extinguish the fire, in  which process he also received burn injuries and he remained  admitted in the hospital for treatment till 8.4.1989.   The learned  Sessions Judge believed the case of the prosecution which primarily  rested on the dying declaration recorded by PW.10 and convicted and  sentenced the appellant, as stated above.   The High Court affirmed  the findings recorded by the learned Sessions Judge and dismissed the  appeal.

4.      The present appeal has been filed under Article 136 of the  Constitution.  It is well settled that in an appeal under Article 136 of  the Constitution, the Court will normally not enter into reappraisal or  the review of evidence unless the trial Court or the High Court is  shown to have committed an error of law or procedure and the  conclusions arrived at are perverse.   The Court may interfere where  on proved facts, wrong inference of law are shown to have been  drawn.  (See Ramanbhai Naranbhai Patel v. State of Gujarat (2000) 1  SCC 358 and Chandra Bihari Gautam v. State of Bihar (2002) 9 SCC  208).  We will, therefore, briefly refer to the evidence in order to  examine whether the case comes within the parameters of Article 136  of the Constitution which may warrant interference by this Court.   

5.      PW.1 Chamanbai (mother of the deceased) has deposed that the  marriage of Tejinder Kaur was performed with the appellant Dayal  Singh about six years prior to the incident.  After her marriage, she  started living with the appellant at Gurdwara Gate No.2, Nanded.   Initially, the parents, brothers and sisters of the appellant were all  residing together but some time thereafter, the appellant started living  separately.  The appellant used to ill-treat Tejinder Kaur and used to  ask her to bring money from her parents.  Whenever Tejinder Kaur  visited her parental home, she used to complain about the ill-treatment  being meted out to her.   About 4 months prior to the incident, the  appellant came along with Tejinder Kaur to her parental house and  demanded Rs.5,000/- from his mother-in-law.  He held out a threat  that Tejinder Kaur should not return until she brought Rs.5,000/-.    Next day at about 8.00 p.m. he came armed with a sword and  threatened Tejinder Kaur that he would kill her if the amount was not  given.   She has further deposed that she begged the accused not to  behave in that manner as she had no money.  Thereafter the appellant  took Tejinder Kaur along with him and went away on his motor cycle.   She also produced two letters which were allegedly sent by the  deceased to her through a milk vendor.   Regarding the main incident,  she deposed that at about 3.00 p.m. on 22.3.1989 one Biru Singh came

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and informed that Tejinder Kaur had received burn injuries and was in  the hospital. She immediately rushed to the Civil Hospital and saw  Tejinder Kaur admitted in the ward.  On enquiry she informed her  mother that her husband Dayal Singh had set her on fire by pouring  kerosene on her body.  After learning about the incident, the witness  along with her son Sher Singh went to the Police Station Wazirabad  and lodged an FIR of the incident.  She has further deposed that some  time after she had returned, Tejinder Kaur regained consciousness.   Head Constable Dattatray Vinkar then asked the family members to  leave the ward and thereafter statement of Tejinder Kaur was  recorded.  Though she was subjected to a lengthy cross-examination,  but she stuck to her statement that the appellant used to make demand  of money and used to threaten Tejinder Kaur and she was afraid of  him. PW.4 Sher Singh is brother of Tejinder Kaur. He has  corroborated the statement of his mother Chamanbai regarding the ill- treatment being meted out by the appellant to his sister and the  demand of money and the earlier incident when the appellant had  come armed with a sword and had given threats when the money was  not paid to him.  He has further deposed that at about 10.00-10.30  p.m. Tejinder Kaur regained consciousness and disclosed to him and  his mother that the accused had sprinkled kerosene on her and had set  her on fire.   He has also deposed that when the Head Constable had  called the doctor for recording the statement of the victim, he and  other relations were asked to leave the ward.   

6.      PW.2 Dr. Sanjay has deposed that he is M.S. in General  Surgery and was posted in Civil Hospital, Nanded, as a Duty Medical  Officer on 22.3.1989.  He had admitted Tejinder Kaur in the hospital  in Ward No.4 and at that time she was conscious.  PW.10 Head  Constable Dattatray Vinkar has deposed that he was posted on duty in  the hospital from 8.00 p.m. on 22.3.1989 till 8.00 a.m. on the next  day.   At about 10.30 p.m. he received orders from P.S.I. Murkute to  record statement of Tejinder Kaur.  He, therefore, went to Ward No.4  where Tejinder Kaur was admitted and after finding her in a conscious  state, he went to Dr. Khursheed Ahmad, Duty Medical Officer, and  requested him to come and examine the victim as her statement had to  be recorded.   Dr. Khursheed Ahmad then examined the victim and  informed him that she was conscious and he could record her  statement.  The witness has further deposed that he put questions to  Tejinder Kaur to which she gave replies in Marathi, which he  recorded in his own hand.   In her statement (Ex.31) Tejinder Kaur  stated that her marriage with the appellant had taken place 5 years  back.   At 2.00 p.m. on that day i.e. 22.3.1989 there was a quarrel  between her and her husband on account of domestic reasons, namely,  about visiting her mother’s house and she was asked to bring money  from her mother.  The appellant then tore her blouse and sari and tried  to drag her out of the house.  She protested and said that she will not  leave the house. At that stage, the appellant poured kerosene upon her  and set her on fire by lighting a match stick.   When she caught fire,  she cried for help, on which her mother-in-law and neighbours came  there and extinguished the fire by pouring water. Her daughter  Sharanpal, who was sitting near her, had also sustained some burns  and was taken outside by the appellant.   She further stated that as she  was wearing a polyester sari, she immediately caught fire and  sustained burns in her chest, abdomen, legs and private parts.  Her  father-in-law brought her to the hospital for treatment.  The statement  was thumb marked by the victim.  Thereafter, Dr. Khursheed Ahmad  made an endorsement on the same and put his signatures thereon.    The witness has categorically deposed that whatever was stated by  Tejinder Kaur was recorded in her own words.   In his cross- examination, he stated that the information had earlier been sent to  Special Judicial Magistrate for recording statement of the victim.    The recording of the statement commenced at 22.50 hours on  22.3.1989 and it took about 15-20 minutes.

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7.      PW.9 Dr. Mohammad Khursheed Ahmad has deposed that he is  MBBS & MD and was posted as Medical Officer in SGGM Hospital,  Nanded for the past four years.   He was on duty on 22.3.1989 when  he was called to Ward No.4.   He examined Tejinder Kaur at about  11.00 p.m. and found that she was conscious and was in a position to  give her statement.   The Head Constable then recorded her statement  and he was throughout present by her side.   After the statement had  been recorded, he put an endorsement on the same to the effect \026  "Patient is conscious throughout statement".  He had put his signature  below that endorsement.   In his cross-examination he has reiterated  that he had examined Tejinder Kaur and had a talk with her and after  being satisfied that she was conscious, he asked the Head Constable to  record her statement. He was subjected to a fairly lengthy cross- examination but nothing has come out which may discredit his  testimony.    

8.      The statements of PW.1 Chamanbai who is  the mother and  PW.4 Sher Singh who is the brother of the deceased, conclusively  establish the fact that the appellant was ill-treating the deceased  Tejinder Kaur as his demand for bringing money from her parental  home had not been fulfilled.  These witnesses have also deposed that  Tejinder Kaur gave a statement when she was admitted in the hospital  that it was the appellant who had poured kerosene upon her and had  set her on fire. A formal dying declaration of Tejinder Kaur was  recorded by PW.10 Dattatray Vinkar, Head Constable in the presence  of PW.9 Dr. Khursheed Ahmad who was the Duty Medical Officer in  the hospital.  Dr. Khursheed Ahmad is a highly qualified person being  MBBS and MD and was posted in the Civil Hospital, Nanded, and his  duty hours were from 8.00 p.m. on 22.3.1989 to 8.00 a.m. on the  following day.  He has clearly deposed that he had examined the  victim and had talked to her and she was conscious throughout when  her statement was being recorded by PW.10.   There is absolutely no  reason to cast any doubt on the testimony of PW.10 Dattatray Vinkar  and PW.9 Dr. Md. Khursheed Ahmad.  Both are government servants  and they did not at all know the appellant Dayal Singh and had  absolutely no reason to fabricate a document, viz., the dying  declaration to falsely implicate him in a murder case.   

9.      Shri M.N. Rao, learned senior counsel for the appellant, has  submitted that the original dying declaration is in Marathi language  and Tejinder Kaur being a sikh lady, she could not have made a  statement in the said language as in normal course of events, she  would have spoken in Gurmukhi.  The evidence shows that even the  parents of Tejinder Kaur were residing in Nanded which is in  Maharashtra and is a Marathi speaking area. After marriage she  continued to live in the said place, viz., Nanded.  It has come in the  statement of her brother PW.4 Sher Singh that Tejinder Kaur had  studied upto 10th class in a Marathi medium school.  Having lived in  Nanded and having studied upto 10th class in a Marathi medium  school, there is nothing abnormal in Tejinder Kaur giving her  statement in Marathi language.   That apart, the fact that she gave a  statement \026 Ex.31 has not only been deposed to by PW.10 Dattatray  Vinkar, Head Constable, but also by PW.9 Dr. Khursheed Ahmad  who is highly qualified and responsible government servant.   There is  thus absolutely no reason to doubt the authenticity of the dying  declaration.   10.     Shri Rao, learned senior counsel, has next submitted that the  dying declaration has not been recorded by a Magistrate but by a Head  Constable and, therefore, it will not be safe to rely upon the same.  He  has also challenged the dying declaration on the ground that the same  was not recorded in a question-answer form but has been recorded in  the form of a narrative.   

11.     The law regarding the dying declaration and the value which is  to be attached to it has been examined in considerable detail in State

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of Karnataka v. Shariff (2003) 2 SCC 473, by a Bench of which one  of us was a member and paragraphs 18, 19, 20, 22 and 23 of the  decision are being reproduced below :- 18. The earliest case in which the law on the point of  dying declaration was considered in detail by this Court  is Khushal Rao v. State of Bombay AIR 1958 SC 22.   The Court ruled that it cannot be laid down as an absolute  rule of law that a dying declaration cannot form the sole  basis of conviction unless it is corroborated; each case  must be determined on its own facts keeping in view the  circumstances in which the dying declaration was made;  it cannot be laid down as a general proposition that a  dying declaration is a weaker kind of evidence than other  pieces of evidence; a dying declaration stands on the  same footing as another piece of evidence and has to be  judged in the light of surrounding circumstances and with  reference to the principles governing the weighing of  evidence. It has been further held that in order to pass the  test of reliability, a dying declaration has to be subjected  to a very close scrutiny, keeping in view the fact that the  statement has been made in the absence of the accused  who had no opportunity of testing the veracity of the  statement by cross-examination. But once the Court has  come to the conclusion that the dying declaration was the  truthful version as to the circumstances of the death and  the assailants of the victim, there is no question of further  corroboration. 19. In State of Uttar Pradesh v. Ram Sagar Yadav (1985)  1 SCC 552 the Court speaking through Chandrachud,  C.J. held as under: "It is well settled that, as a matter of law, a dying  declaration can be acted upon without  corroboration. See Khushal Rao v. State of  Bombay AIR 1958 SC 22; Harbans Singh v. State  of Punjab AIR 1962 SC 439; Gopalsingh v. State  of M.P. 1972(3) SCC 268. There is not even a rule  of prudence which has hardened into a rule of law  that a dying declaration cannot be acted upon  unless it is corroborated. The primary effort of the  Court has to be to find out whether the dying  declaration is true. If it is, no question of  corroboration arises. It is only if the circumstances  surrounding the dying declaration are not clear or  convincing that the Court may, for its assurance,  look for corroboration to the dying declaration....." 20. In K. Ramachandra Reddy and Anr. v. The Public  Prosecutor (1976) 3 SCC 618 it was held that a great  solemnity and sanctity is attached to the words of a dying  man because a person on the verge of death is not likely  to tell lies or to concoct a case so as to implicate an  innocent person yet the Court has to be on guard against  the statement of the deceased being a result of either  tutoring, prompting or a product of his imagination. It  was further held that the Court must be satisfied that the  deceased was in a fit state of mind to make the statement  after the deceased had a clear opportunity to observe and  identify his assailants and that he was making the  statement without any influence or rancour. Once the  Court is satisfied that the dying declaration is true and  voluntary it can be sufficient to found the conviction  even without any further corroboration. In Pothakamuri  Srinivasulu v. State of AP (2002) 6 SCC 399 it has been  held that if the deceased made statement to the witnesses  and their testimony is found to be reliable the same is  enough to sustain the conviction of the accused. In

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Mafabhai Nagarbhai Raval v. State of Gujarat (1992) 4  SCC 69 it was held that the Doctor who has examined the  victim was the most competent witness to speak about  her condition. 22. The other reason given by the High Court is that the  dying declaration was not in question-answer form.  Very  often the deceased is merely asked as to how the incident  took place and the statement is recorded in a narrative  form.  In fact such a statement is more natural and gives  the version of the incident as it has been perceived by the  victim. The question whether a dying declaration which  has not been recorded in question-answer form can be  accepted in evidence or not has been considered by this  Court on several occasions. In Ram Bihari Yadav v. State  of Bihar and Ors. (1998) 4 SCC 517, it was held as  follows: "It cannot be said that unless the dying declaration  is in question answer form, it could not be  accepted. Having regard to the sanctity attached to  a dying declaration as it comes from the mouth of  a dying person though, unlike the principle of  English law he need not be under apprehension of  death, it should be in the actual words of the maker  of the declaration. Generally, the dying declaration  ought to be recorded in the form of questions and  answers but if a dying declaration is not elaborate  but consists of only a few sentences and is in the  actual words of the maker the mere fact that it is  not in question-answer form cannot be a ground  against its acceptability or reliability. The mental  condition of the maker of the declaration, alertness  of mind, memory and understanding of what he is  saying, are matters which can be observed by any  person. But to lend assurance to those factors  having regard to the importance of the dying  declaration, the certificate of a medically trained  person is insisted upon...." 23. In Padmaben Shamalbhai Patel v. State of Gujarat  (1991) 1 SCC 744 it was held that the failure on the part  of the medical men to record the statement of the  deceased in question-and-answer form cannot in any  manner affect the probative value to be attached to their  evidence. This view was reiterated in State of Rajasthan  v. Bhup Ram (1997) 10 SCC 675 and Jai Prakash and  Ors. v. State of Haryana (1998) 7 SCC 284.   12.     In Kulwant Singh v. State of Punjab (2004) 9 SCC 257 it has  been held that it is not essential that a dying declaration should be  made only before a Magistrate.  Section 32 of the Evidence Act  nowhere states that the dying declaration must be recorded in the  presence of a Magistrate or in other words any statement which has  not been recorded before the Magistrate cannot be treated to be dying  declaration.   In Vidhya Devi v. State of Haryana (2004) 9 SCC 476  challenge to a dying declaration recorded by a police officer in the  presence of doctor, who had given an opinion that the deceased was in  a fit state of mind to make the statement, was held to be credible and  reliable and sufficient to establish the guilt of the accused.  

13.     PW.10 Head Constable Dattatray Vinkar has deposed that  information was sent to the Magistrate.  The date of incident viz.  22.3.1989 was "Holi" and being an occasion of festivity it is possible  that the Magistrate may not have been present at his residence or the  information may not have been conveyed to him personally.  We do  not find any ground on which the dying declaration recorded by  PW.10 which contains a certificate by PW.9 Dr. Khursheed Ahmad

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which adds to its authenticity should be discarded or should not be  acted upon. 14.     Mr. Rao has next submitted that Investigating Officer did not  record the statements of PW-9 Dr. Mohammad Khursheed Ahmad and  PW-10 Dattatray Vinkar under section 161 Cr.P.C. during the course  of investigation and, therefore, their testimony should not be relied  upon.  In support of his submission he has relied upon certain  observations made in Ram Lakhan Singh and others vs. State of Uttar  Pradesh (1977) 3 SCC 268.  It may be noticed that PW-9 and PW-10  are not witnesses of actual occurrence, namely, the pouring of  kerosene by the appellant on Tejinder Kaur and setting her on fire.   They are witnesses of recording of dying declaration and the  certificate given by the doctor regarding the mental condition of the  victim.  It is not the case of the appellant that dying declaration was  not immediately sent to the court of concerned magistrate or that its  copy was not given to him in accordance with section 207 Cr.P.C.  before the commitment of the case.  In such circumstances the mere  fact that the Investigating Officer did not record the statement of the  aforesaid two witnesses under section 161 Cr.P.C. can hardly have  any bearing.  In Tilkeshwar Singh and others vs. The State of Bihar  AIR 1956 SC 238 statements of three witnesses were jointly recorded  by the Investigating Officer in violation of section 161(3) Cr.P.C.  It  was contended that the evidence of the said three witnesses in court  was inadmissible as there was no record of their statement under  section 161 Cr.P.C.  The contention was repelled and it was held that  while the failure to comply with the requirements of section 161(3)  Cr.P.C. might affect the weight to be attached to the evidence of the  witnesses, it does not render it inadmissible.  In the facts and  circumstances of the present case we are of the opinion that the  testimony of PW-9 and PW-10 cannot be discarded on the ground  urged by the learned counsel for the appellant and the trial court and  the High Court rightly relied upon their statement which was given in  court. 15.     We have given out careful consideration to the material on  record.   We are fully satisfied that the charge against the appellant is  fully established from the evidence on record and there is absolutely  no ground to take a different view from what has been taken by the  learned Sessions Judge and also by the High Court.  

16.     In the result, the appeal fails and is hereby dismissed.