[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.184 of  2006

Subhash                                       …………..Appellant

Vs.

State of Haryana            ……..Respondent

J U D G M E N T

HARJIT SINGH BEDI,J.

This appeal arises out of the following facts :  

1. The deceased Anuradha, and the appellant Subhash, a  

resident  of  Mahendargarh  in  the  State  of  Haryana,  were  

married at Ganga Nagar in the State of Rajasthan on the 1st  

February 1984. At the time of the marriage, Kishori Lal PW-2  

the  father  of  the  bride,  a  retired  Sub-Inspector  of  the  

Rajasthan  Police,  spent  a  large  amount  of  money  and  also  

provided  appropriate  dowry  articles  to  her.   It  appears,  

however,  that  the  accused  i.e.  the  husband  Subhash,  his  

father  Siri  Ram,  his  brothers  Sudesh  and  Sukesh,  and  

Kusum, his  sister  were dissatisfied with the dowry articles,  

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and  Subhash  made  an  independent  demand  for  a  scooter.  

Anuradha upset with her husband and in-laws, returned to  

her  parents  home  but    returned  to  Mahendargarh  after  

staying at Ganga Nagar for a day.  Rajinder Gaur PW-10 her  

brother, and his wife also visited Mahendargarh after about 5  

or 7 days and the accused at this stage raised a demand for a  

refrigerator,  a  cooler  and  a  colour  TV.   About  a  month  

thereafter,  Kishori  Lal  PW also  visited  Anuradha’s  home  at  

Mahendargarh and the demand for the aforesaid articles was  

reiterated.  Anuradha also complained to her father that she  

was being mal-treated on account of  the non-satisfaction of  

the  demands.   Kishori  Lal,  accordingly,  brought  Anuradha  

back to Ganga Nagar but a month thereafter Subhash came to  

Ganga Nagar and this time asked Kishori Lal to arrange for a  

sum of Rs.50,000/- as he needed the money to invest  in a  

business.   In  November  1984,  Kishori  Lal  and  his  wife  

Saraswati  Devi  PW-9  visited  Mahendargarh  on  which  the  

demand for Rs.50,000/-  was repeated.  Kishori Lal, however,  

expressed   his   inability  to  meet  the  demand.    Anuradha  

again complained   to her  parents  that  she  was   being  

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repeatedly  harassed  by  the  accused.   On the  8th of  August  

1985  a  daughter  was  born  to  Subhash  and  Anuradha  on  

which  Siri  Ram appellant  addressed  a  letter  to  Kishori  Lal  

wherein he made a demand for several articles including 21  

sarees,  some articles  of  jewellery  and other  garments  to  be  

presented as per custom on the birth of a child.  Owing to his  

illness  Kishori  Lal  could  not  go  to  Mahendargarh  but  

Saraswati Devi PW went to that place and presented several  

articles  such  as  sarees  and  ornaments  worth  Rs.10,000/-.  

The accused,  however,  were completely dissatisfied with the  

gifts and expressed their unhappiness in no uncertain terms.  

As  per  the  prosecution  story,  a  letter  Ex.PF  dated  26th of  

August  1985  was  addressed  by  Siri  Ram to  Kishori  Lal  in  

which the former complained that the gifts sent at the time of  

birth of the child were not in accordance with the status of the  

family.  It appears that at 2.10 a.m. on the night intervening  

26th and 27th October 1985 Anuradha was removed to the Civil  

Hospital,  Mahendargarh with severe burn injuries.   Prior  to  

this, however, Subhash had approached Udai Singh PW-8, a  

car  driver  of  Mahendargarh  at  about  1  a.m.  seeking  his  

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assistance  in  shifting  Anuradha to  Delhi  on account of  her  

burn  injuries.  Udai  Singh,  accompanied  by  Subhash,  

accordingly reached the latter’s house, just as Anuradha was  

being shifted to the Civil  Hospital,  Mahendargarh in a cycle  

rickshaw by the other  accused on which Udai  Singh asked  

Subhash as to what had happened.  Anuradha was thereupon  

taken to the Civil Hospital, Mahendargarh in the car of Udai  

Singh.  A bed-head ticket Ex.PA was accordingly prepared by  

Dr. Janak Raj Singal PW-10, Medical Officer Incharge of the  

Civil Hospital, who found 70% burns on her face, arms, neck,  

chest,  abdomen  and  thighs.   He  also  addressed  a  

communication to the police on which ASI Amir Singh PW-16  

of Police Station Mahendargarh reached the hospital but the  

Doctor opined that Anuradha was unfit to make a statement.  

The ASI then recorded the statement Ex.PGG of Subhash, who  

too was admitted in the hospital with burn injuries, in which  

he attributed the injuries to an accident and sustained while  

she was heating milk for the baby girl  on a kerosene stove.  

Dr.  Janak Raj  PW also advised Anuradha’s  attendants  that  

she be shifted to Safdarjung Hospital, New Delhi on account of  

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her  serious  condition.   She  was,  accordingly,  moved  to  

Safdarjung  Hospital  and  medically  examined  by  Dr.  M.Y.  

Sharif.   On  getting  information  that  Anuradha  was  in  the  

Safdarjung Hospital, her brother Rajinder Gaur PW, who was  

a resident of Delhi, also rushed to the hospital at about 10.30  

a.m. on 27th October 1985 and questioned Siri Ram, Sukesh  

and Sudesh as to what had transpired but they failed to give a  

satisfactory reply.  He then went inside the hospital to meet  

his sister who informed him that she had been treated with  

cruelty by all the accused and also starved for 7 days.  She  

further told him that her thumb impression had been obtained  

on some papers by some police officials who had been brought  

to  the  hospital  by  the  accused.   Rajinder  Gaur  thereupon  

requested the doctor on duty to make arrangements for the  

recording  of  Anuradha’s  statement  by  a  Magistrate.   A  

Magistrate came to the hospital at about 4.00 p.m. on the 27th  

October 1985 but could not record her statement as she was  

found to be unconscious.  It is at this stage that Rajinder Gaur  

lodged a report at Police Station Vinay Nagar, New Delhi on  

the evening of 27th October 1985 and also informed the SHO,  

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Mahendargarh  about  the  admission  of  his  sister  in  the  

Safderjung  hospital.   ASI  Chander  Bhan  also  reached  the  

Safderjung hospital  and recorded her statement on the 27th  

October 1985, which was attested by the doctor, to the effect  

that  the  burn  injuries  had  been  sustained  by  her  in  an  

accident.  On the 28th October 1985, Rajinder Gaur allegedly  

approached  the  Vinay  Nagar  Police  Station  for  recording  of  

Anuradha’s statement but no action was taken on the request.  

He thereafter  approached Ravi  Malik,  PW-13 Sub Divisional  

Magistrate at his residence in Panchsheel Enclave and moved  

an application before him requesting him to record Anuradha’s  

statement in the hospital.  PW-13 then went to the hospital  

and recorded her statement Ex. PCC at 9.00 a.m. on the 28th  

October 1985 after Anuradha had been certified by the doctor  

to be in a fit condition to make a statement.  In this statement,  

she blamed the accused of  having harassed her  which had  

driven  her  to  make  an  attempt  at  suicide.  Kishori  Lal  

accompanied his wife Saraswati Devi also went to the hospital  

at 10.30 a.m. on the 28th October 1985 and she again told him  

about  the  torment  she  had undergone  at  the  hands of  the  

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accused.  On the same day, ASI Amir Singh of Police Station  

Mahendargarh also came to the Safdarjung Hospital on which  

a complaint Ex.PV was presented to him by Rajinder Gaur and  

on its basis,  an FIR was registered.  The investigation was,  

thereafter, set in motion.  Anuradha subsequently died in the  

Safdarjung Hospital.  Her dead body was subjected to a post-

mortem  examination  at  the  All  India  Institute  of  Medical  

Sciences, New Delhi on the 1st November 1985 at 10.30 a.m.  

and several burn injuries were detected thereon, though there  

was  no  smell  of  kerosene  oil  and  the  cause  of  death  was  

opined as shock and septicemia as a result of burn injuries.  

During the course of the investigation, the police also moved  

an application before Shri Balbir Singh, Judicial Magistrate,  

1st Class, Mahendargarh on 23rd October 1985 (after the arrest  

of  Siri  Ram)  for  obtaining  his  specimen  signatures  for  

comparison with the letters Ex.PE and Ex.PF but he declined  

to furnish the same.

2. The trial court relying on the evidence of Kishori Lal PW-

2, Udai Singh PW-8, Saraswati Devi PW-9, Rajinder Gaur PW-

10, Dr. Devansh Sharma PW-11, Dr. R.P.Narayan PW-12, Ravi  

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Malik PW-13, Dr. Chander Kant PW-14 and ASI Amrik Singh  

PW-16 and the oral dying declarations made to Rajinder Gaur,  

Kishori Lal, Saraswati Devi and the dying declaration Ex.PCC  

made to Ravi Malik, SDM held that the case against Siri Ram  

and  Subhash  was  proved  beyond  doubt,  but  as  the  dying  

declaration Ex.PCC did not inculpate  the other accused,  no  

case  was  made out  against  there.   It  is  also  held  that  the  

Letters  DH,  DH/1,  DH/2,  DH/3  allegedly  written  by  

Anuradha,  even  if  proved,  which  showed  the  relationship  

between the couple and her in laws as being cordial, would not  

absolve Siri Ram and Subhash of their misconduct.  The trial  

court, accordingly, in its judgment dated 28th November 1986,  

convicted  Siri  Ram  and  Subhash  for  offences  punishable  

under Sections 306 and 498A of the IPC and by order dated  

29th November 1986 sentenced them to undergo RI for 5 years  

and a fine of Rs.4,000/- and in default to undergo further RI  

for 6 months each under Section 306 of the IPC, and RI for  

one year and a fine of Rs.1000/- in default to undergo further  

RI  for  2  months  each  under  Section  498A;  both  the  

substantive sentences to run concurrently.   An appeal  was,  

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thereafter,  taken to the Punjab and Haryana High Court by  

Subhash and Siri Ram.  The High Court in its judgment dated  

2nd August 2005, has placed almost complete reliance on Ex.  

PCC and has held that this statement was sufficient to prove  

the case against the accused.  Reliance has also been placed  

to  a  very  limited  extent  on  the  statements  of  Kishori  Lal,  

Saraswati Devi and Rajinder Gaur, PWs.  The Court has also  

observed  that  as  the  accused  had  been  charged  under  

Sections  306  and  498A  of  the  IPC,  a  presumption  under  

Section  113A  of  the  Evidence  Act  was  available  to  the  

prosecution.   The  High  Court,  accordingly,  upheld  the  

conviction  but  reduced  the  sentence  of  Siri  Ram  to  that  

already undergone as he was about 75 years of age as on the  

date  of  the  judgment  and  with  this  modification  in  the  

sentence, dismissed the appeal.  This matter is before us after  

the grant of special leave.     

3. As already indicated above, the primary evidence against  

the  appellant  is  the  dying  declaration  Ex.PCC  recorded  by  

PW13 Ravi Malik, SDM.  The trial court and the High Court  

have held that this was the pivot of the prosecution story.  It  

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appears that information about Anuradha’s admission in the  

Safdarjung Hospital  was received in  the  Vinay Nagar  Police  

Station  at  about  3.05  p.m.  on  27th October  1985  but  her  

statement could not be recorded as she was unconscious at  

that  time.    Further  efforts  had  been  made  by  the  Sub-

Inspector to record her statement at 8.30 p.m. which again  

could not be recorded for the same reason.  It appears that  

thereafter  Anuradha’s  statement  had  been  recorded  by  the  

Doctor and attested by ASI Chander Bhan on the 27th October  

1985  in  which  she  stated  that  she  had  been  burnt  in  an  

accident.   It  is  evident,  therefore,  that  repeated  efforts  had  

been made  by  the  investigating  agency  to  record  her  dying  

declaration,  but  there  was  some  delay  because  of  the  

incapacity of the victim.  The dying declaration Ex.PCC was  

recorded by Ravi Malik PW on the 28th October 1985 after an  

application Ex.PBB had been moved before him by Rajinder  

Gaur, PW.  Ravi Malik, when cross-examined in Court, stated  

that  on the  28th October  1985 he  had been present  at  his  

residence  in  Panchsheel  Enclave,  New  Delhi  when  the  

application Ex.PBB had been presented to him on which he  

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had gone to the Safdarjung Hospital and recorded the dying  

declaration after the doctor had certified Anuradha’s fitness to  

make a statement.  He also stated that a copy of the statement  

had been handed over  to  the  police  on the  30th of  October  

1985.   When  cross-examined,  however,  he  admitted  that  

Ex.PBB had not been produced by him before the investigating  

agency and he was tendering this document for the first time  

during his evidence in Court and that there was no noting on  

Ex.PCC that he had gone to the hospital on the application  

Ex.PBB  or  that  a  copy  of  the  dying  declaration  had  been  

handed over  the police  on the  30th October  1985.   He also  

admitted that he had not obtained any opinion in writing from  

the doctor about Anuradha’s fitness to make a statement.  He  

further admitted that the area of Safdarjung Hospital did not  

fall within his jurisdiction but clarified that it was the practice  

that a dying declaration could be recorded by any Magistrate  

when the Magistrate of the area concerned was not available  

but  clarified that  he  had made no efforts  to  find out  as to  

whether  the  Magistrate  of  the  area  in  which  Safdarjung  

Hospital lay was available or not.  He also admitted that he  

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had  not  been  approached  by  the  police  or  the  medical  

authorities for recording the dying declaration, If any doubt is  

left  with  regard  to  the  sanctity  of  this  dying  declaration,  it  

stands  dispelled  by  the  testimony  of  Dr.  Devansh  Sharma  

(who had made the endorsement Ex.PZ. that Anuradha was fit  

to make a statement) when he deposed that the endorsement  

had been taken from him after the statement of Anuradha had  

been  recorded.    This  statement  has  to  be  read  with  the  

admission made by PW Ravi Malik that he had not taken any  

endorsement before actually recording the statement.   We are,  

therefore, of the opinion that the so-called “pivot” that both the  

courts below have found in the dying declaration Ex.PCC is, in  

fact, non-existent.  The very conduct of this witness and the  

manner in which he had recorded the dying declaration, as  

already  indicated  above,  raises  a  deep  suspicion  about  its  

veracity.

4. We have also very carefully gone through the statements  

of the two primary witnesses PW-2 Kishori Lal, the father of  

the victim and PW-10  Rajinder Gaur, her brother.   A bare  

reading of their statements shows that the entire story with  

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regard to the factum of the cruelty, the manner in which the  

deceased was dealt  with,  and the behaviour  of  the  accused  

towards her had been built up during the evidence recorded in  

Court.  We may refer to one significant fact which has been  

omitted in the statements under Section 161, Cr.P.C.  This is  

with regard to the oral dying declarations made to them by the  

deceased and when confronted could give no explanation for  

the omission. In addition, it is clear that the dying declaration  

recorded  Ex.PCC  had  been  maneuvered  at  the  instance  of  

Rajinder Gaur PW.  As already indicated above, the trial court  

as well as the High Court have not placed much reliance on  

the statements of these two witnesses.  We are of the opinion  

that their statements, in fact, inspire no confidence.  We may  

also refer to the Explanation to Section 162 of the Cr.P.C.  The  

same is reproduced hereinbelow:

Explanation. – An omission to state a fact  or circumstance in the statement referred to in  sub-section (1) may amount to contradiction if  the  same  appears  to  be  significant  and  otherwise relevant having regard to the context  in which such omission occurs and whether any  omission  amounts  to  a  contradiction  in  the  particular context shall be a question of fact.”

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5. A bare reading of this Explanation would reveal that if a  

significant  omission  is  made  in  the  statement  of  a  witness  

recorded  under  Section  161  of  the  Cr.P.C.,  the  same  may  

amount to a contradiction and that whether it so amounts is a  

question of fact in each case.  It is clear to us that the ocular  

evidence  with  regard  to  the  events  preceding  the  actual  

incident rested exclusively on the statements of PWs.2 and 10.  

The  glaring  omissions  made  by  them are  writ  large  in  the  

cross-examination.  We are, therefore, of the opinion that the  

present case is one of no evidence and the possibility that the  

deceased had been burnt in an accident cannot be ruled out.  

We, accordingly, allow the appeal, set aside the conviction of  

the appellant and order his acquittal.

……………………………………J. (Harjit Singh Bedi)

………………………………………J. (Chandramauli Kr. Prasad)

New Delhi, Dated:  December 16, 2010

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