Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 125 OF 2009

Vijay Kumar Arora       ... Appellant

Versus

State Govt. of NCT of Delhi        ... Respondent

J U D G M E N T

J.M. PANCHAL, J.

1. This appeal by special leave, questions the legality of  

Judgment dated May 15, 2008 rendered by Division Bench  

of High Court of Delhi in Criminal Appeal No.183 of 1992 by  

which Judgment dated September 29, 1992 passed by the  

Learned Additional Sessions Judge, Delhi in Sessions Case  

No.100 of 1989 convicting the appellant under Section 302

IPC and sentencing him to R.I. for life and fine of Rs.2000/-

in default R.I. for one year, is confirmed.  

2. The facts emerging from the record of the case are as  

under:

The marriage of deceased Shashi was solemnised with  

the  appellant  on  January  30,  1982.   After  marriage,  the  

deceased started  living with the  appellant  at  his  place  of  

residence situated at Chandigarh.

3. During the subsistence of the marriage, the deceased  

gave birth to a girl child on January 2, 1983 at New Delhi.  

Thereafter, the deceased went to Chandigarh to reside with  

the appellant.  On April 4, 1983, the appellant with his wife  

and child came to Delhi from Chandigarh.  After visiting the  

parents  of  the  appellant,  they  went  to  the  house  of  the  

parents of the deceased and took dinner there.  After taking  

dinner,  the  appellant  and  the  deceased  with  the  child  

returned to the house of parents of the appellant at about  

11.30 pm and retired to bed.  At about 2.30 am on April 6,  

1983,  shrieks  of  the  deceased  were  heard  and  she  was  

found engulfed  in  the  flames.   At  about  2.45 am on the  

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night  intervening  between April  5  and April  6,  1983,  the  

deceased was admitted to Lok Nayak Jai  Prakash Narain  

Hospital, New Delhi (LNJPN Hospital, for short) with burn  

injuries.   The Duty Constable posted at the said hospital  

sent a telephonic message at about 3.00 am that Shashi,  

aged about 26 years, with burn injuries sustained in her  

house  was  admitted  by  her  husband,  i.e.,  the  appellant.  

This message was recorded at DD No.6A.  On receipt of the  

message, ASI Hans Raj along with Constable Umrao Singh  

went to the hospital.  He collected MLC of injured Shashi  

wherein it was mentioned that the injured was got admitted  

at 2.45 am by her husband and Dr. S.K. Bindal.  It was also  

mentioned  therein  that  the  accident  occurred  due  to  the  

exploding of the stove.  It was further mentioned in the said  

certificate that her clothes were smelling of kerosene oil and  

she had received extensive burns all over the body and face.

4. As  per  the  endorsement  recorded  on  the  MLC,  the  

injured was declared unfit to make statement at about 4.30  

am and 11 am on April 6, 1983.  Under the circumstances,  

ASI Hans Raj recorded the statement of the appellant in the  

hospital wherein the appellant claimed that at about 2.15  

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am, his wife Smt. Shashi had got up for boiling the milk for  

their three months’ old child and he had got up from the  

bed on hearing her shouts “Raje Raje”.  In his statement,  

the  appellant  mentioned that  he  immediately  rushed and  

found his wife Shashi in flames in the kitchen and that her  

clothes had caught fire while Shashi was boiling the milk on  

the stove.   It  was also mentioned by the appellant in his  

statement that he had received burn injuries on palm when  

he had made attempt to extinguish the fire to save his wife.  

The record shows that said injured Shashi succumbed to  

her burn injuries in the hospital at about 3.15 pm on April  

6, 1983.  On the same day, Mr. Ram Nath Mehra, the father  

of  the deceased submitted a written complaint  before the  

Police mentioning that his daughter was burnt to death by  

Beena Arora who was her mother in law as well as by V.K.  

Arora who was her husband and by other family members  

on the night intervening between April 5 and April 6, 1983.  

It  was  mentioned  by  Mr.  Mehra  in  his  complaint  that  

injured Shashi had regained her senses in the hospital at  

about  12.15  pm  on  April  6,  1983  and  had  declared  

weepingly in his presence and in the presence of his other  

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relatives that she had been set on fire by her mother-in-law,  

the appellant and his other family members.  On the basis  

of  the  complaint,  offences  punishable  under  Section  302  

read with Section 34 IPC were registered and investigation  

commenced.  On completion of investigation, the appellant  

and his mother Mrs.  Beena Arora were chargesheeted for  

commission of offence punishable under Section 302 read  

with  Section  34  IPC.   As  the  offence  punishable  under  

Section 302 is exclusively triable by the Court of Sessions,  

the case was committed to Sessions Court, Delhi for trial.

5. The learned Additional Sessions Judge, to whom the  

case  was  made  over  for  trial,  framed  charge  against  the  

appellant  and  his  mother  under  Section  302  read  with  

Section 34 of the Indian Penal Code.  The same was read  

over and explained to them.  The appellant and his mother  

did not plead guilty to the same and claimed to be tried.  

Therefore, the prosecution examined several witnesses and  

produced  documents  in  support  of  its  case  against  the  

appellant and his mother.   On completion of recording of  

evidence  of  prosecution  witnesses,  the  learned  Sessions  

Judge  explained  to  the  appellant  and  his  mother  the  

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circumstances  appearing  against  them in the  evidence  of  

the  prosecution  witnesses  and  recorded  their  further  

statements  as  required  by  Section  313  of  the  Code  of  

Criminal  Procedure,  1973.   As  far  as  the  mother  of  the  

appellant  is  concerned,  she  claimed that  she  was  falsely  

involved in the case and was innocent.  The appellant in his  

further statement claimed that when he was asleep, he was  

awakened  by  the  shrieks  of  his  wife  and,  therefore,  had  

come out in the verandah and had seen his wife in flames.  

According to him, he tried to extinguish the fire  with his  

hands and water and in that process received burn injuries  

on his hands.  What was claimed by the appellant was that  

he called a doctor and rang up his father-in-law but he was  

not remembering the exact time at which the information  

about  the  deceased  having  sustained  burn  injuries  was  

conveyed to his father-in-law.  It was stated by him that he  

told the family of his father-in-law to come to the hospital  

and that his injured wife herself had told him that she had  

caught fire while she was boiling milk on the stove.  It was  

also mentioned by him in his further statement that he was  

informed by his wife that the stove had inflamed (bhabhak  

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gaya).   He claimed in his statement that he would file  a  

written statement if so advised.

6. On  appreciation  of  evidence  adduced  by  the  

prosecution, the learned Judge of Trial Court held that ASI  

Mr. Hans Raj to whom DD report was marked at about 3 am  

on  the  night  intervening  April  5  and  April  6,  1983  

conducted  himself  in  the  most  dishonest  and  partisan  

manner in making enquiry and in conducting investigation  

after registration of the first information report.  The learned  

Judge further noticed that the conduct of Mr. V.P. Gupta,  

who was the then SHO of  P.S.  Moti  Nagar and presently  

ACP was not above board.  According to the learned Judge,  

the  then  SHO Mr.  V.P.  Gupta  had  passed  on  his  entire  

burden  on  the  shoulders  of  ASI  Hans  Raj  without  doing  

absolutely anything in the name of fair investigation.  After  

noticing that the deceased had sustained accidental burns  

leading to her death on the night intervening April 5 and  

April  6,  1983 at  her  matrimonial  home located  at  F-503,  

Karam Pura,  Delhi,  the learned Judge held that the case  

against  the  appellant  and  his  mother  was  based  on  

circumstantial evidence.  The learned Judge considered the  

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circumstances established by the prosecution and held that  

the  deceased  had neither  committed  suicide  nor  received  

burn  injuries  accidentally  but  was  set  ablaze  by  the  

appellant.   According  to  the  learned  Judge,  the  

circumstances brought on record were inconsistent with the  

innocence  of  the  appellant  and  established  that,  in  all  

human probability, the act of murder of the deceased was  

committed by the appellant.  The learned Judge noticed that  

no  satisfactory  evidence  could  be  adduced  by  the  

prosecution to establish the guilt of original accused No.2  

who  was  mother  of  the  appellant.   In  view  of  the  said  

conclusions,  the  learned  Judge,  by  judgment  dated  

September 29, 1992, convicted the appellant under Section  

302 IPC and sentenced him to rigorous imprisonment for  

life and a fine of Rs.2,000/- (Rupees two thousand only) in  

default  rigorous imprisonment for  one year and acquitted  

his mother.  

7. Feeling aggrieved, the appellant filed Criminal Appeal  

No.183  of  1992  before  Delhi  High  Court.   The  Division  

Bench of the High Court has dismissed the appeal, giving  

rise to the instant appeal.

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8. This  Court  has  heard  the  learned  counsel  for  the  

parties at length and in great detail.  This Court has also  

considered the documents forming part of the appeal.   

9. It is not in dispute that the case against the appellant  

rests on circumstantial evidence.  It would be advantageous  

to  restate  the  well  settled  law  relating  to  appreciation  of  

circumstantial evidence.  The evidence tendered in a court  

of law is either ‘direct’ or ‘circumstantial’.  Evidence is said  

to be ‘direct’ if it consists of an eye-witness account of the  

facts  in  issue  in  a  criminal  case.   On  the  other  hand,  

circumstantial  evidence  is  evidence  of  relevant facts  from  

which,  one  can,  by  process  of  intuitive  reasoning,  infer  

about the existence of facts in issue or  factum probandum.  

Essential  ingredients  to  prove  the guilt  of  an accused by  

circumstantial evidence are :

The  law  relating  to  circumstantial  evidence  is  well  

settled.  In  dealing  with  circumstantial  evidence,  there  is  

always a danger that conjecture or suspicion lingering on  

mind may take place of proof.  Suspicion, however, strong  

cannot be allowed to take place of proof and, therefore, the  

Court has to be watchful and ensure that conjectures and  

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suspicions do not take place of legal proof. However, it is no  

derogation  of  evidence  to  say  that  it  is  circumstantial.  

Human agency may be faulty in expressing picturisation of  

actual  incident,  but  the  circumstances  can  not  fail.  

Therefore, many a times it is aptly said that "men may tell  

lies, but circumstances do not". In cases where evidence is  

of a circumstantial  nature,  the circumstances from which  

the conclusion of guilt is to be drawn should, in the first  

instance, be fully established.  Each fact sought to be relied  

upon must  be  proved individually.   However,  in  applying  

this  principle,  a  distinction  must  be  made  between facts  

called primary or basic on the one hand and inference of  

facts to be drawn from them, on the other.   In regard to  

proof of primary facts, the court has to judge the evidence  

and decide whether that evidence proves a particular fact  

and if  that fact is  proved,  the question whether that fact  

leads to an inference of guilt of the accused person should  

be considered.  In dealing with this aspect of the problem,  

the  doctrine  of  benefit  of  doubt applies.   Although,  there  

should not be any missing links in the case, yet it is not  

essential that each of the links must appear on the surface  

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of the evidence adduced and some of these links may have  

to  be  inferred  from  the  proved  facts.   In  drawing  these  

inferences,  the  court  must  have  regard  to  the  common  

course of natural events and to human conduct and their  

relations to  the  facts  of  the particular  case.    The  Court  

thereafter  has  to  consider  the  effect  of  proved  facts.   In  

deciding the sufficiency of the circumstantial  evidence for  

the purpose of conviction, Court has to consider the total  

cumulative effect of all the proved facts, each one of which  

reinforces the conclusion of guilt and if the combined effect  

of all these facts taken together is conclusive in establishing  

the guilt of the accused, the conviction would be justified  

even though it may be that one or more of these facts by  

itself  or  themselves  is,  or  are  not  decisive.   The  facts  

established should be consistent only with the hypothesis of  

the  guilt  of  the  accused  and  should  exclude  every  

hypothesis, except the one sought to be proved.  But this  

does not mean that before the prosecution can succeed in a  

case  resting  upon circumstantial  evidence  alone,  it  must  

exclude  each  and  every  hypothesis  suggested  by  the  

accused, howsoever,  extravagant and fanciful  it  might be.  

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There must be a chain of evidence so complete as not to  

leave any reasonable ground for the conclusion consistent  

with the innocence of the accused and must show that in all  

human  probability  the  act  must  have  been  done  by  the  

accused;  and  where  the  various  links  in  a  chain  are  in  

themselves  complete,  then a false  plea or a false  defence  

may be called into aid only to lend assurance to the Court.   

10. Having noticed the principles governing the case based  

on  the  circumstantial  evidence,  this  Court  proposes  to  

consider the circumstances relied upon by the prosecution.

11. The first circumstance sought to be relied upon by the  

prosecution is that the deceased died a homicidal death.  A  

human death may be  a  natural  one  or  homicidal  one  or  

accidental or suicidal one.  It is not the case of anyone that  

the deceased Shashi had died a natural death.  Therefore,  

the question which falls for determination of this Court is  

whether she died a homicidal death or a suicidal death or  

an accidental death.  The medical evidence on record shows  

that after the deceased had succumbed to her burn injuries,  

post  mortem  examination  was  conducted  by  Dr.  G.K.  

Sharma  on  April  7,  1983  at  12  noon.   On  external  

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examination,  the  doctor  found that  there  were  superficial  

burns  all  over  the  body except  patches  over  scalp,  lower  

front of abdomen, perineum, left buttock and inner part of  

right  buttock.   According  to  the  doctor,  the  approximate  

area of burn was about 90%.  When the post mortem was  

being performed, the doctor could not smell  kerosene oil.  

On internal examination, it was found by the doctor that all  

the  organs were  congested.   According to  the  doctor,  the  

death of the deceased was due to shock and toxemia due to  

burns  by  fire.   What  is  important  to  notice  is  that  the  

defence had not cross-examined Dr. G.K. Sharma at all.

12. Having regard to the nature of injuries noticed by Dr.  

G.K. Sharma, who had performed autopsy on the dead body  

of the deceased, the Court will have to examine the question  

whether those injuries were received by the deceased while  

committing suicide.  It may be mentioned that in the further  

statement  recorded  under  Section  313  of  the  Code  of  

Criminal Procedure, 1973, the case of the appellant is that  

the deceased had died accidentally while boiling milk for the  

infant  and  it  was  never  claimed  by  him  in  his  further  

statement  that  the  deceased  had  committed  suicide.  

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However,  it  was  argued  by  the  learned  counsel  for  the  

appellant that personal diary maintained by the deceased  

indicates  that  she  was  a  highly  sensitive  woman  who  

expected wholehearted love and affection from the appellant  

but  having  been  thoroughly  disappointed,  out  of  sheer  

disgust, frustration and depression, she might have chosen  

to end her life.  The relevant passage from the diary of the  

deceased relied  upon by  the  defence  has  been quoted  in  

paragraph 24 of the impugned judgment.  A critical analysis  

of those paragraphs from the diary does not indicate any  

suicidal  tendencies  on  the  part  of  the  deceased.   No  

suggestion  was  made  by  the  defence  to  any  of  the  

prosecution  witnesses  that  the  deceased  had  developed  

suicidal  tendencies.   It  is  well  to  remember  that  the  

deceased was well  educated and a teacher  by profession.  

She had a three months old child.  The paragraphs from the  

diary quoted in the impugned judgment make it more than  

clear that the relations between the deceased on the one  

hand and her husband and members of his family on the  

other, were strained one.  However, those paragraphs do not  

indicate  that  the  deceased  was  of  feeble  mind  and  had  

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developed  tendency  to  commit  suicide.   It  is  relevant  to  

notice that it is nobody’s case that the deceased was not a  

caring  mother.   The  lingering  doubt  about  the  uncertain  

future of the infant aged three months would surely deter  

the  deceased  from  committing  the  suicide.   As  noticed  

earlier, the deceased in the company of the appellant and  

her  child  had  come  to  the  house  of  the  parents  of  the  

appellant from the house of her parents after taking dinner.  

It  could not even be remotely  suggested on behalf  of  the  

appellant  either  to  the  father  or  to  the  mother  or  to  the  

sister  of  the  deceased  that  when  the  deceased,  in  the  

company of  the  appellant,  had come for  dinner,  she  was  

found  to  be  disheartened  or  gloomy  or  nervous  or  

depressed.  The passages quoted in the impugned judgment  

from the diary maintained by the deceased indicate a firm  

resolve on the part of the deceased to lead a life for herself  

away from her husband and her in-laws.  The testimony of  

the father of the deceased makes it more than clear that the  

behaviour of the father-in-law of the deceased towards the  

newly  born  child  was  not  good  at  all.   Under  the  

circumstances, if the deceased had decided to put an end to  

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her life by committing suicide, in normal course, she would  

have left her daughter to the care of her own parents but no  

attempt, at any point of time, was made by the deceased to  

leave  the  infant  child  to  the  care  of  her  parents.   The  

evidence  of  the  father  of  the  deceased  on  the  contrary  

makes it very clear that the appellant wanted to leave the  

infant daughter with the parents of the deceased but the  

deceased had not agreed to the said suggestion.  Further,  

what is normally found in a case of suicide by a recently  

married woman who has given birth to a child shortly before  

the suicide is that she would bolt  herself  in a room or a  

kitchen  or  a  bathroom  to  see  that  no  one  makes  any  

attempt to save her and would commit suicide along with  

the child.   However,  the facts of the present case do not  

indicate that the deceased had locked herself inside a room  

or  kitchen  or  bathroom  nor  the  record  shows  that  any  

attempt was made by her to commit suicide with her infant.  

As noticed earlier, the deceased was highly educated lady  

and  was  blessed  with  motherhood.   Normally,  a  woman  

committing  suicide  will  leave  a  suicidal  note.   But  it  is  

nobody’s case that any suicidal note written by the deceased  

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was found after she had received burn injuries.  Further, if  

the deceased had been fed up with her life and had decided  

to commit suicide, she would not have failed to inform the  

appellant that because of lack of love and affection on his  

part she had set herself ablaze.  

On overall  view of the circumstances brought on the  

record of the case, this Court is of the firm opinion that the  

deceased did not die a suicidal death.

13. The next question which falls for consideration of the  

Court is whether the deceased died an accidental death.  As  

observed in the earlier part of this judgment, the case of the  

appellant  is  that  while  boiling  milk  for  the  infant,  the  

clothes of the deceased caught fire accidentally because of  

the flames emanating from the stove as a result of which  

she  died.   The  panchnama  of  the  place  of  incident  

establishes that the place suggested by the defence where  

the deceased was found engulfed in fire is a narrow passage  

where several articles were lying.  If the deceased had died  

because of the flames emanating from the stove, the other  

articles lying nearby would have been found to be burnt.  

However,  admittedly  the  panchnama  of  place  of  incident  

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does not indicate that any article was burnt except a towel  

which was found partially  burnt.   Further,  the  story  put  

forth by the appellant that at midnight the deceased had got  

up  for  boiling  milk  for  the  infant  itself  does  not  inspire  

confidence of the Court.  The deceased who was a teacher  

by profession and well educated must be breastfeeding her  

three months old infant and it would not be reasonable to  

infer that the infant was being fed buffalo or any other milk.  

It may also be mentioned that the deceased in the company  

of the appellant had left her parental home between 11 pm  

to 11.15 pm on April 5, 1983 and must not have gone to  

sleep  before  11.30  pm.   From  this  fact,  it  would  be  

reasonable to hold that before going to the sleep, the young  

infant child must have been fed and the child would not  

have  required another  feed within  two hours.   Thus,  the  

story that deceased got up at 2.00 am in the night to boil  

the milk for the infant does not inspire confidence of the  

Court.  The panchnama of the place of incident also makes  

it clear that there was a kitchen in which there was a gas  

cylinder.   Therefore,  even if  it  is assumed for the sake of  

argument  that  the  deceased  had  got  up  at  2.00  am for  

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boiling milk for the infant, it does not sound reasonable to  

believe that she would attempt to light a kerosene stove in  

the dingy and cramped passage normally used for washing  

clothes, utensils etc. and would not go in the kitchen and  

use  gas  connection  for  the  purpose  of  heating  the  milk.  

Further, as per the panchnama of place of the incident, the  

milk  container  without  any  handle  was  lying  near  the  

kerosene  stove  but  no  pliers  or  tangs  were  found.   It  is  

difficult to comprehend or entertain a belief by a prudent  

man that  an  educated  lady  like  the  deceased  would  use  

such a milk pot without a handle for boiling the milk.  The  

photograph of the place of occurrence brought on the record  

of  the  case  makes  it  more  than  clear  that  a  small  

aluminium milk container was lying near the stove and a  

partially burnt towel hanging on a peg at a height of about  

5½” from the floor level of the gallery was also found.  But  

as  noticed  earlier,  no  other  article  lying  nearby  was  

damaged due to the burns.  As the record does not show  

that  other  articles  lying  in  the  narrow  passage  were  

extensively burnt, it becomes highly doubtful whether the  

incident in question had at all took place in the passage as  

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suggested  by  the  appellant.   What  is  claimed  by  the  

appellant is that because of the  bhabhak of the stove, the  

cotton garments put on by the deceased had caught fire.  

However, a brief burst of flames, i.e.,  bhabhak at the time  

when the stove is ignited first time would cause at the best  

first  degree  burns  and  could  not  have  been sufficient  to  

totally and completely ignite the cotton garments.  Normally,  

it  is  inconceivable that the deceased would have received  

90% burns in spite of the fact that she was wearing a cotton  

nightgown.  Further, the evidence of prosecution witnesses  

establishes beyond pale of  doubt that when the deceased  

was removed to the hospital, her clothes and her body were  

smelling of kerosene.  It is also inconceivable that due to  

initial bhabhak, the clothes and body of the deceased would  

be  soiled  with  kerosene  unless  it  had  burst.   The  CFSL  

report  on  the  record  shows  that  kerosene  oil  stove  was  

found in normal working order.  Therefore, the presence of  

kerosene oil on the body of the deceased and clothes put on  

by her, rules out the theory of accidental fire as suggested  

by the defence.  The medical evidence on record makes it  

evident that soot particles were present in the stomach of  

20

the deceased.   According to Dr.  Bernard Knight  who has  

authored  ‘Medical  Jurisprudence  and  Toxicology’  if  soot  

particles are found in Larynx Trachea or into stomach, it is  

commonly  a  case  of  conflagration.   The  presence  of  soot  

particles  in the stomach indicates  that the injuries could  

have been sustained by the deceased only in a conflagration  

and that too in a closed area.  The instinct of survival would  

have made the deceased to run into an open place but in  

this  case,  the  record  does  not  indicate  that  any  such  

attempt was made by the deceased to run towards any open  

space and positively establishes that she was found at the  

end of the passage which hardly admeasures 12’ x 3’.  The  

case  of  the  appellant  is  that  on  hearing  shrieks  of  the  

deceased, he was woken up and he found that the deceased  

was engulfed in the fire.   It  is also his case that he had  

made an attempt to extinguish fire on her and had received  

burn injuries on the dorsum and wrist of the right hand.  

Having regard to the common course of natural events and  

human conduct in their  relation,  when a loving husband  

finds his wife engulfed in fire, he try his best to extinguish  

the fire either with the help of a gunny bag or blanket or  

21

sheet  of  cloth  and  would  not  make  any  attempt  to  

extinguish the fire with bare hands.  Even if it is assumed  

for  the  sake  of  argument  that  in  the  instant  case,  the  

appellant had made an attempt to extinguish fire with his  

bare  hands,  it  is  reasonable  to  infer  that  he  would have  

received extensive burn injuries because the whole body of  

the deceased was on fire and ultimately it was found that  

she had received almost 100% burn injuries.  The medical  

evidence  on  record  indicates  that  Dr.  R.P.  Saraswat  had  

examined the appellant on April 8, 1983 and found that the  

appellant had sustained first to second degree burns over  

the  dorsum and  wrist  of  his  right  hand  with  blisters  at  

places, some of which had already burst.  The case of the  

appellant that the deceased had informed him that she had  

sustained burn injuries because the kerosene oil stove had  

burst into a vaporized flame does not inspire the confidence  

at all.  Any one who is little conversant with operation of a  

kerosene  stove  would  understand  that  the  brief  

inflammation  which  may  be  caused  during  the  initial  

ignition of the stove is because of little excess oil escaping  

through the feeder hole and not for any other reason.  The  

22

so called bhabhak of the stove would not result into release  

of kerosene from the stove in such a large quantity so as to  

fully drench the whole body and the clothes of the deceased  

with kerosene.  As observed earlier, a gas cylinder and a gas  

stove were available in the kitchen.  Therefore, the use of  

kerosene stove by the deceased becomes highly improbable  

and doubtful.  Mr. M.R. Kundal, PW5, has mentioned in his  

testimony that he had visited the site on April 8, 1983 and  

found the gas cylinder and the gas stove in working order  

with  no  gas  leakage.   The  established  facts  of  the  case  

abundantly indicate that kerosene oil stove was planted at  

the site in a fake attempt to hide the homicidal death.  The  

record of  the  case,  as  noticed  earlier,  establishes  beyond  

pale of doubt that the deceased had suffered more than 90%  

burns of 3rd to 5th degree category.    If the deceased had  

suffered extensive burns because of her clothes catching fire  

accidentally, she would have run for her life either in the  

open backyard or rolled on the floor or would have wrapped  

a curtain or any mattress around herself to extinguish the  

fire.  However, the record does not indicate that any such  

attempt  was  made  by  the  deceased.   The  presence  of  

23

extensive burns with more than 90% burn injuries out the  

theory of accidental fire.  Applying the principle laid down in  

Surinder Kumar v. State (Delhi Administration) AIR 1987 SC  

692 to the facts of the present case, it becomes clear that if  

the  stove  had  burst  as  suggested  by  the  defence,  the  

deceased would not have sustained burns on the face, neck,  

trunk,  upper  limbs  etc.  and  her  clothes  would  not  have  

been found containing kerosene oil.  Further, at no point of  

time, any complaint was made either by the appellant or his  

family members to the company which had manufactured  

the stove or the owner of the stove from which the store was  

purchased  that  the  stove  was  defective  or  faulty  or  had  

burst  causing  death  of  the  deceased.   Thus,  the  

circumstances proved by the prosecution establish beyond  

pale of doubt that the deceased had died a homicidal death  

and not an accidental death as suggested by the defence.

14. The evidence of Ram Nath Mehra who is father of the  

deceased would indicate that the deceased was subjected to  

physical and mental cruelty for bringing insufficient dowry.  

According to the said witness,  he had given dowry worth  

Rs.75,000/- to the appellant and his family members at the  

24

time of  marriage  of  the  deceased.   On one  occasion,  the  

deceased was asked to bring gold set for her mother in law  

but the witness was not able to make arrangement of the  

funds  for  gold  set  and  had,  therefore,  purchased  a  gold  

chain and given it to the appellant.   His evidence further  

shows that the appellant had demanded scooter from the  

deceased and he was not able to meet the said demand of  

the appellant because of his weak financial conditions.  The  

evidence of B.L. Sharma, PW6, who is friend of the father of  

the deceased shows that in order to fulfil the demands made  

by  the  appellant,  the  father  of  the  deceased  had  sought  

financial assistance from him but he could not render any  

financial help to the father of the deceased because of his  

own weak financial conditions.  The testimony of the father  

of  the  deceased  regarding  physical  and  mental  cruelty  

meted  out  to  his  daughter  gets  corroboration  from  the  

testimony of the mother of the deceased and the sister of the  

deceased.   The record further  shows that 22 letters were  

recovered  from  the  tenanted  premises  of  the  appellant.  

Those  letters  were  written  by  one  Ms.  Chhaya  from  

Bangalore.  A close analysis of those letters makes it very  

25

clear  that  the  appellant  was  very  much  fond  of  and  

infatuated  with  Ms.  Chhaya.   The  very  fact  that  the  

appellant had preserved all these letters even after one year  

and  two  months  of  his  marriage  with  the  deceased  

persuades this Court to infer that he was carrying on and  

wanted  to  carry  on  a  quite  affair  with  Ms.  Chhaya  

notwithstanding his marriage with the deceased.  Some of  

the  letters  show  that  the  appellant  was  simultaneously  

carrying affairs with two/three girls.  The evidence relating  

to cruelty meted out by the appellant to the deceased for  

bringing insufficient dowry and his extra-marital  relations  

with Ms. Chhaya would show that he had a strong motive to  

do  away  with  the  deceased.   Thus,  the  second  

circumstances  of  motive  sought  to  be relied upon by the  

prosecution is also firmly established.

15. Yet  another  circumstance  relied  upon  by  the  

prosecution against the appellant is that the deceased had  

made a verbal dying declaration to (1) Ram Nath Mehra, her  

father; (2) Ravi Kanta Mehra, her mother; (3) Meena Mehra,  

her sister;  (4)  B.L.  Sharma; (5)  Kamlesh Sharma; and (6)  

Sudarshan Lal at about 12.00 Noon in Burns Ward of LNJP  

26

Hospital on April 6, 1983.  It may be stated that the Trial  

Court  found that  deceased was conscious and had made  

statements.  The Trial Court further held that the quality of  

evidence  lead  to  establish  the  oral  dying  declaration  was  

insufficient to record conviction but the same could be used  

as a corroborative piece of evidence.  From the impugned  

judgment,  it  becomes  evident  that  the  High  Court  

considered the question whether acquittal of mother of the  

appellant was proper or not in view of the principles laid  

down in  Sunder  Singh vs.  State  of  Punjab AIR 1962 SC  

1211.  After considering the evidence led by the prosecution  

to prove oral  dying declaration of  the deceased,  the High  

Court  has  come  to  the  conclusion  that  the  oral  dying  

declaration  is  not  reliable.   On  the  facts  and  in  the  

circumstances  of  the  case,  this  Court  also  proposes  to  

consider the evidence led by the prosecution witnesses for  

the purpose of satisfying whether the deceased had made  

oral dying declaration before her close relatives and others.

The evidence of  above witnesses would indicate  that  

the deceased had stated before them that she was held by  

27

her husband, i.e., the appellant and her mother-in-law had  

poured kerosene oil over her before she was set on fire.

Witness  Ravi  Kanta  Mehra,  the  mother  of  the  

deceased,  stated  before  the  Court  that  she  had  met  her  

daughter Shashi at about 12.00 Noon who had told her that  

her husband had caught hold of her while her mother-in-

law had sprinkled kerosene oil on her.  Her evidence further  

shows  that  she  had  beseeched  Sub-Inspector  Bakshi  to  

record  the  statement  of  her  daughter  but  Sub-Inspector  

Bakshi refused to record the same saying that the doctor  

had  declared  Shashi  unfit  to  make  the  statement.   Her  

evidence also shows that thereafter she in the company of  

her relative had searched for the doctor and some quarrel  

had ensued between them and the doctor.

The reliable testimony of Mr. B.L. Sharma shows that  

he  had  enquired  with  injured  Shashi  as  to  what  had  

happened  whereupon  Shashi  had  told  him that  she  had  

been set on fire by the accused and other family members.  

The witness has asserted before the court that on seeing  

Shashi’s condition, he felt that she was not likely to survive  

for  a  long and thought  that  it  would be proper  to call  a  

28

Magistrate to record her statement.  What is mentioned by  

the  witness  is  that  he,  therefore,  rushed  to  Moti  Nagar  

Police Station and met the SHO and took along with him  

one Sub-Inspector in a jeep to reach Tees Hazari Courts and  

contacted the SDM whose name perhaps was Mr. Mathai.  

The  witness  has  further  mentioned  that  from  the  court  

premises, they reached the hospital  at about 3.15 pm by  

which time Shashi had expired.

The assertion made by witness Sudarshan Lal on oath  

is that he had rushed to LNJP Hospital on learning that the  

deceased  was  admitted  in  the  said  hospital  with  burn  

injuries.  According to him, he had met Shashi and Shashi  

told him about the incident implicating the appellant.  What  

this  witness  has  asserted  is  that  thereupon  he  had  

requested  one  Assistant  Sub-Inspector  who  was  sitting  

inside the ward to record the statement of Shashi but the  

said  Assistant  Sub-Inspector  had  refused  to  do  so  and,  

therefore, he immediately had left the hospital and gone to  

the  shop  where  he  was  serving  which  is  situated  in  

Canaught Place to bring a tape recorder.  The witness has,  

further stressed before the Court that he had reached the  

29

hospital at about 1.30 pm with tape recorder to record the  

statement  of  injured  Shashi  but  the  hospital  staff  and  

nurses had not permitted him to take a tape recorded inside  

the burns ward.  

The  reliable  testimony  of  witness  Ram Nath  Mehra,  

father of the deceased shows that the deceased had made a  

statement to him in trembling voice that the appellant, his  

mother  and  other  members  had  set  her  on  fire.   His  

testimony  would  further  show  that  thereafter  he  had  

requested Mr.  Khan,  Assistant  Commissioner  of  Police  to  

record  the  statement  of  Shashi  but  the  Assistant  

Commissioner of Police had refused to oblige saying that on  

her MLC, it was mentioned that she was unfit  to make a  

statement.  The witness has further stated that thereafter  

he had met Doctor Tiwari who was in charge of Burns Ward  

and requested him to record the statement of the deceased  

but he had refused to record the same saying that he had to  

attend some operation.

The  High  Court,  while  disbelieving  the  evidence  

adduced by the prosecution to prove oral dying declaration  

of the deceased held that “ASI Hans Raj, it is plain to us, is  

30

both  an  untrustworthy  witness  and  also  an  incompetent  

investigator”.   Having held so, it was noticed by the High  

Court  that he was not suggested by the prosecution that  

Shashi was conscious at various times and periods and that  

she had spoken to several members of her family and her  

neighbour who had entered the room where she was being  

treated.  Therefore, the High Court held that the assumption  

that Shashi was conscious to make a statement would run  

foul to court’s duty.  The High Court further concluded that  

the  evidence  of  four  witnesses  before  whom  oral  dying  

declaration was allegedly made did not indicate as to who  

had set the deceased on fire whereas Police statements of  

Mr.  B.L.  Sharma PW6,  Mrs.  Kamlesh Sharma PW10 and  

Sudarshan Lal  PW11,  were  recorded after  the  passage  of  

about one month from the date of the death of Shashi and,  

therefore, the evidence adduced by the prosecution to prove  

dying declaration was not satisfactory.  On reappraisal  of  

the evidence, this Court finds that it is true that the police  

statements  of  the  above-named  three  witnesses  were  

recorded after one month from the date of the death of the  

deceased.   However,  neither  an  explanation  was  sought  

31

from any of the witnesses as to why their police statements  

were  recorded  after  a  delay  of  one  month  nor  the  

Investigating  Officer  was  questioned  about  the  delay  in  

recording statements of those witnesses.  The law on the  

point  is  well  settled.   Unless  the  Investigating  Officer  is  

asked questions about delay in recording statements and  

explanation is  sought from the witnesses as to why their  

statements  were  recorded  late,  the  statements  by  

themselves did not become suspicious or concocted.  The  

evidence of the above-mentioned witnesses would indicate  

that  though  they  are  neighbours  of  the  father  of  the  

deceased, they were neither got up or concocted witnesses.  

Even remotely, it was not suggested to any of the witnesses  

that the witness was close to the father of the deceased and,  

therefore, out of love and affection for him, he was falsely  

deposing before the Court.  No enmity is suggested to any of  

the witnesses with the appellant.  Under the circumstances,  

this Court is of the opinion that their evidence could not  

have been rejected on the ground stated by the High Court  

unless  the  same  was  found  suffering  from  inherent  

improbability.  The evidence of Ram Nath Mehra, the father  

32

of  the  deceased,  Ravi  Kanta  Mehra,  the  mother  of  the  

deceased, B.L. Sharma and Sudershan Lal would indicate  

that  each  of  them  had  entreated  and  implored  different  

authorities to get the statement of the deceased recorded.  

The testimony of B.L. Sharma would indicate that he had  

gone  to  the  extent  of  visiting  Tees  Hazari  Courts  in  the  

company of one Sub-Inspector deputed by the SHO of Moti  

Nagar Police Station and had gone to the hospital with an  

SDM  to  record  the  statement  of  the  deceased.   The  

testimony of  Sudershan  Lal  satisfactorily  establishes  that  

when the Assistant Sub-Inspector sitting inside the Burns  

Ward had refused to record the statement of the deceased,  

he had immediately gone to the shop being run in the name  

of  M/s.  Bright Electricals  situated at Cannaught Place to  

bring a tape recorder and had returned to the hospital with  

tape recorder but the hospital staff and nurses on duty had  

prevented  him  from  taking  the  tape  recorder  inside  the  

burns ward and, therefore, he could not record the dying  

declaration of the deceased.  The statements made on oath  

by these witnesses as well as Kamlesh Sharma and Meena  

Mehra would indicate that the deceased Shashi was in a fit  

33

state  of  mind to make a statement and was talking and,  

therefore, the four witnesses had made frantic efforts and  

craved different authorities to record the statement of the  

deceased.  There is no manner of doubt that if the deceased  

was not talking and was not in a fit state of mind to make  

statement,  these  witnesses  would  not  have  run  helter  

skelter  or  contacted  different  authorities  to  get  the  

statement  of  the  deceased  recorded.   This  aspect  of  the  

matter has been totally lost sight of by the Trial Court and  

the High Court.  It is true that on MLC of the deceased, it  

was endorsed that she was unfit  to make a statement at  

about 4.30 am and 11.00 am on April 6, 1983.  However,  

keeping in view the statements on oath made by the above-

named witnesses which are not seriously challenged in their  

searching cross-examination, it would be safe to infer and  

conclude that medical record at about 12.00 Noon or 12.30  

pm did not mention at all that the deceased was not in a fit  

state of mind to make a statement.  On the facts and in the  

circumstances of the case, this Court has no hesitation in  

relying  upon  the  truthful  testimony  of  the  relatives  and  

neighbours  of  the  deceased  which  unerringly  establishes  

34

that the deceased had made dying declaration before those  

witnesses  implicating  the  appellant.   This  Court,  on  

reappraisal  of  the  evidence  on  record,  comes  to  the  

conclusion  that  the  circumstance,  namely,  deceased  had  

made dying declaration before six witnesses implicating the  

appellant is firmly established.

16. On  reappraisal  of  the  evidence  adduced  by  the  

prosecution, this Court finds that the circumstances from  

which the conclusion about the guilt of the appellant is to  

be drawn are fully proved.  The circumstances proved are  

conclusive  in  nature.   All  the  facts  so  established  are  

consistent only with the hypothesis of guilt of the appellant  

and inconsistent  with his  innocence.   The circumstances  

proved exclude the possibility of guilt of any person other  

than the appellant.   As noticed earlier, the appellant had  

taken  the  defence  that  the  deceased  had  received  burn  

injuries  accidentally.   The  defence  is  disbelieved  by  the  

Sessions Court and the High Court as well as by this Court.  

This false  plea/defence of  the appellant is  called into aid  

only to lend assurance to this Court that the circumstances  

35

taken in cumulative suggest that it was the appellant who  

had murdered his wife.

17. On the facts and in the circumstances of the case, this  

Court is of the opinion that no error is committed either by  

the Trial Court or the High Court in convicting the appellant  

under Section 302 IPC for committing murder of his wife.  

Therefore, the appeal which lacks merit deserves dismissal.

18. For  the  foregoing  reasons,  the  appeal  fails  and  is  

dismissed.

…………………………….,J. [Harjit Singh Bedi]

…………………………….,J. [J.M. Panchal]

New Delhi; January 13, 2010

36