REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO. 1902    OF 2010

SHINDO ALIAS SAWINDER KAUR AND ANR. ..  APPELLANT(S)

vs.

STATE OF PUNJAB ..  RESPONDENT(S)

O  R D E R

This appeal arises out of the following facts:

On the 19th March, 1999 ASI Gurmit Singh posted at  

police station, Mehta received information from the Guru  

Nanak Dev Hospital, Amritsar to the effect that one Balbir  

Kaur was lying admitted in the hospital with severe burn  

injuries.  The police officer rushed to the hospital at  

about 8.15 p.m. and found her lying admitted in the 5th

Surgical Ward. An application was thereafter moved by the  

police officer seeking the opinion  of the doctor regarding  

her  fitness  to  make  a  statement  as  her  condition   was  

critical.  The  ASI  then  went  on  to  record  the  statement  

(Ext.PC). In her statement Balbir Kaur  stated that she had  

been married with Jarnail  Singh about three years prior to  

the date of the incident and two children had been born  

from the marriage and that during the course of the  

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deliberations  before  the  marriage  and  even  thereafter  

several articles of dowry had been given to satisfy the

demands  of  the  two  accused  Shindo-her  mother-in-law  and  

Paramjit  Kaur-her  married  sister-in-law.   She  further  

stated that on account of the harassment meted out to her  

by the two accused an additional sum of rupees one lakh had  

been obtained by her from her father and handed over to  

them.  She further went on to say that at about 2.20 p.m.  

on that date the two accused  who were present along with  

her in the house had asked her  to bring more money from  

her parents but she had replied that as her father had  

already given sufficient dowry as per his status nothing  

more  would  be  brought  by  her  and  this  had  apparently  

annoyed the accused and whereas Shindo had  poured kerosene  

oil on her, Paramjit Kaur had set her alight causing severe  

burn  injuries.   She  further  stated  that  on  receiving  

information about the happening, her husband Jarnail Singh  

had rushed back from his shop and after arranging a vehicle

had taken her to Amritsar and had got her admitted to the  

hospital.  On the very next day i.e. on the 20th March, 1999  

Ajit  Singh  (PW.2)  Balbir  Kaur's  father,   moved  an  

application  (Ext.  P.H.)  requesting  the  Chief  Judicial  

Magistrate,  Amritsar  to  record  the  statement  of  his  

daughter  as  the  police  was  not  doing  the  necessary  

investigations.  The CJM directed the duty Magistrate to do  

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the needful whereupon the Judicial Magistrate, Ist Class,  

recorded another statement of Balbir Kaur in the hospital  

after obtaining  a certificate of fitness from Dr. Rahul

Gupta, the attending doctor. In this statement she gave  

almost the same details as in the statement made to the  

ASI.  Balbir Kaur died on the 23rd march 1999 and a case  

under  Sections  304-B  and  498-A  was  registered.  On  the  

completion  of  the  investigation  a  charge  under  Section  

302/34 and in the alternative 304-B/34 read with Section  

498-A of the IPC was framed against the two accused. The  

Trial Court in the Course of an elaborate judgment observed  

that the two dying declarations, one made by the ASI, and  

another  to  the  Judicial  Magistrate  could  not  be  relied  

upon,  primarily for the reason that Balbir Kaur  was in a  

very serious condition with 100% burn injuries and would  

not have been able to give a dying declaration  to the ASI.  

The second dying declaration was rejected as well on the  

additional ground that  Dr. Rahul Gupta who had given the  

endorsement of her fitness had not even been cited as a

prosecution witness during the  trial.  The trial Judge  

also rejected the evidence with regard to the demand of  

dowry  of PW.2 Ajit Singh, as it  was brought out during  

the course of the cross examination that in his statement  

under  Sec.161  Cr.P.C.  he  had  not  referred  to  any  such  

demands having been made by the accused. The Trial Court  

accordingly acquitted both the accused.

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An appeal was thereafter taken by the State to the  

Punjab and Haryana High Court.  The High Court has endorsed  

the  opinion  of  the  Trial  Court   that  both  the  dying  

declarations deserved to be rejected.  However, the High

Court relying on the evidence of PW.2, held that demands  

for dowry soon before the death had indeed been made and  

that some parts of two dying declarations supported the  

allegations  of  such  demands  and  as  the  death  was  

undoubtedly unnatural the ingredients of Section 304-B were  

spelt out against the  accused.  The judgment of the Trial  

Court   was  accordingly  reversed  and  the  accused  were  

convicted under Section 304-B of the IPC and 498-A of the  

IPC and sentenced to imprisonment for seven years and under  

498-A to  two years  with a fine of Rs.5000/- in default,  

to further undergo rigorous imprisonment for a period of  

six months, both the sentences to run concurrently.This  

appeal has been filed challenging the order of the High  

Court.  

During the course of the hearing today Mr. Nagender  

Rai,  the  learned  senior  counsel  for  the  appellant,  has

argued  that  in  the  light  of  the  fact  that  the  dying  

declarations had been rejected by both the Courts the only  

other evidence if at all was the statement of PW.2 Ajit  

Singh and as his evidence pertaining to the  demands of  

dowry  was uncertain his statement could not be relied  

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upon. He has also taken us to the evidence of PW.2 Ajit  

Singh and we have gone through the same very carefully. In  

his examination in chief he did refer to the fact that  

demands for dowry had been made and that Balbir Kaur, his  

daughter, had been harassed on that account.  However, he

was confronted with his statement under Section  161 of the  

Cr.P.C. and has forced to  admit that no such demand had  

been referred to in the said statement. We find that the  

improvements made by PW.2 Ajit Singh in his evidence in  

Court clearly spells out a case of doubt with regard to the  

veracity of his evidence.  It is also extremely significant  

that in the applications Exh. PH(2) and PH(3) dated 20th  

March, 1999 which he had had made before the CJM requesting  

that the the dying declaration of his daughter be recorded,  

he had referred to the fact that the demands for dowry had  

been made by her husband Jarnail Singh and he was the one  

to have set her alight. We find that there is no reference  

whatsoever  to  the  appellants  before  us  either  to  the  

demands of dowry or their involvement in any manner.

Mr.  Kuldip  Singh,  the  learned  State  counsel  has  

however argued that the dying declarations particularly the

one recorded by the Magistrate required to be accepted. He  

has pointed out that though Dr. Rahul Gupta had not been  

cited as a witness but from the evidence of the Dr.Jagdish  

Singh Gill(Pw.1) who had conducted the post-mortem  

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examination, it was clear that a person with  100% burn  

injuries could  also make a lucid statement and as such it  

was apparent that  Balbir Kaur had been in a fit condition  

to make a statement. We see from the evidence of PW.1 that  

his evidence was general in nature  with regard to the  

capacity of a person suffering from 100% burn injuries to

make a statement.  In the case before us, however, Dr.  

Rahul Gupta had given a positive opinion that she was in a  

fit condition to make a statement  but he was not even  

cited  as  a  prosecution  witness.   Both  the  Courts  have  

therefore found that the two dying declarations were not  

trustworthy or capable of reliance.

We also notice that the High Court was dealing with  

an appeal against  acquittal. Undoubtedly in a case of a  

dowry death under Section 304-B, a presumption of Sec.113-B  

does arise against the accused.  However, the presumption  

is relateable to the fact that the prosecution must first  

spell out the ingredients of the offence and  then only can  

a presumption arise. In the present case we find that  the  

death was an unnatural one and had taken place within seven  

years of the marriage but the third ingredient that any  

demand for dowry had been made soon before the death has

not  been  proved.   In  this  view  of  the  matter  the  

presumption under Section. 113-B of the evidence cannot be  

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raised. We accordingly allow this appeal; set aside the  

judgment/order of the High Court.

The  appellants  are  in  custody;  they  shall  be  

released forthwith if not required in any other case.

                   .................J.         (HARJIT SINGH BEDI)  

                    New Delhi,     March 31, 2011.         

              ....................J.                                   (CHANDRAMAULI KR. PRASAD)