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SUPREME COURT OF INDIA
M.Y. EQBAL & PINAKI CHANDRA GHOSE, JJ.
Prem Kumar Gulati & Another – Appellants
Versus
State of Haryana & Another – Respondents
Criminal Appeal No. 1422 of 2009 With Criminal Appeal Nol.1423 of 2009
Decided On : 23-09-2014
(B) Indian Evidence Act, 1872—Section 32(1)—Dying declaration—Evidentiary value—A truthful and reliable dying declaration may form sole basis of conviction even though it is not corroborated—However, reliability of declaration should be subjected to close scrutiny and courts must be satisfied that declaration is truthful—One of important tests of reliability of a dying declaration is that person who recorded it must be satisfied that deceased was in a fit state of mind. (Paras 13 and 14)
(1975) 3 SCC 241; (1976) 3 SCC 618; (1973) 2 SCC 808; (1971)3 SCC 767; AIR 1962 SC 439; (1970) 2 SCC 113—Relied.
Facts of Case—Instant appeals emanate from judgment and order dated passed by High Court of Punjab and Haryana in Criminal Appeal whereby High Court dismissed appeal accused persons and upheld judgment passed by Additional Sessions Judge, inflicting sentence with rigorous imprisonment for life under Section 302/498-A read with Section 34, Indian Penal Code and imposed fine with default clause.
Findings of Court—Neither in dying declaration nor in statement of witnesses it has come in light as to what act was done by accused- Prem Kumar. Benefit of doubt should be given to accused-appellant Prem Kumar and his conviction cannot be sustained. Sufficient evidence has come on record and prosecution has established the case that it was Mahender Singh at whose instance and instigation she was subjected to death by pouring kerosene oil and lit on fire. Finding recorded by the trial court as also by Appellate Court as against main accused Mahender Singh (husband of deceased) cannot be interfered with.
Judgment :-
M.Y. Eqbal, J.
These appeals are directed against judgment and order dated 06.09.2008 passed by the High Court of Punjab and Haryana in Criminal Appeal No. 342-DB of 2006, whereby the High Court dismissed the appeal of the accused persons and upheld the judgment dated 25.04.2006 passed by the Additional Sessions Judge, Bhiwani (Haryana) in Sessions Case No.8 RBT of 18.3.2004, inflicting sentence with rigorous imprisonment for life under Section 302/498-A read with Section 34, Indian Penal Code and imposed fine with default clause.
2. The facts leading to the prosecution story are that on 16.1.1995, Rajni-deceased was married with Mahender Singh alias Mahender Gulati and out of this wedlock, three children were born. Both the appellants, namely Mahender Gulati and Prem Kumar Gulati (brother in-law (jeth) of deceased) are the brothers. The prosecution case is that on receipt of V.T. message on 10.12.2003, ASI Ram Singh rushed to PGIMS, Rohtak with regard to admission of Rajni in burnt condition. After obtaining Doctor’s certificate regarding fitness of the victim to give statement, Additional Chief Judicial Magistrate, Rohtak recorded her statement (dying declaration) to the effect that on 9.12.2003, at around 9.30/10.00 P.M. the accused persons being her husband, Jeth and Jethani poured kerosene oil on her and set ablaze. It is also stated in her dying declaration that her husband had illicit relation with his Bhabi Bimla (since deceased), with the result she used to pick up quarrel with him. Her husband gave her beatings under the influence of intoxication. None made attempt to extinguish fire.
3. On the basis of the above dying declaration a case was registered and the investigation agency swung into action. Statements of witnesses were accordingly recorded under Section 161, Cr.P.C. The Investigating Officer investigated the spot and prepared rough site plan with correct marginal notes and took into possession burnt clothes of Rajni, ash of burnt clothes, one kerosene lamp after converting the same into sealed parcel. On the night of 12.12.2003, message was received from PGIMS, Rohtak that Rajini had died as a result of burn injuries. Post mortem report was obtained, site plan was sketched and FSL report was obtained. After completion of investigation, only accused Mahender Singh alias Mahender Gulati was arraigned to stand trial under Sections 302/498A, I.P.C. by Police, whereas Prem Kumar Gulati and Smt. Bimla alias Nirmla were summoned to face trial along with other accused Mahender, as additional accused, by invoking the provisions of Section 319, Cr.P.C.
4. In order to substantiate the charges, the prosecution examined nine witnesses. According to Dr. Ravi Kanta (PW-1), who conducted post mortem examination, burn injuries were approximately 50% and cause of death of Rajni was due to ante mortem burns, which were sufficient to cause death in ordinary course of nature. According to Dr. Naresh Kumar Kardwal (PW-3), who medico-legally examined the deceased, found superficial deep burns all over the body except back, hip, lower leg, left hand and forearm. He stated that possibility of burn injuries in this case by fall of kerosene oil on the head cannot be ruled out. Agyapal (PW-7), father of the deceased, stated that accused person started harassing his daughter three months after marriage for want of dowry although sufficient dowry was given. Ultimately, she was shunted out from the matrimonial abode and her husband filed a divorce petition. Later, the matter was resolved on the apology being tendered and assurance given by the accused persons before the panchayat on 1.12.1996. Ironically she fell prey to recurrence and was turned out from the matrimonial house in the year 1997. His daughter divulged about the illicit relations between her husband and sister-in-law.
Again accused persons were apologized before the Panchayat on the assurance given by them. In 2001, a criminal case was filed, which was also compromised
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