The reliability and truthfulness of the dying declaration were crucial in establishing the guilt of the accused under the Indian Penal Code, 1860.

Judgment under challenge dated 31st January, 2000 convicts Mahender Kaushik and his mother Rameshwari under Sections 302 read with Section 34 and 498A read with Section 34 of the Indian Penal Code, 1860 (IPC, for short) for having committed murder of Anita, wife of Mahender Kaushik and for having subjected her to cruelty on account of dowry, unlawful demands and harassment. By order on sentence also dated 31st January, 2000, the appellants have been sentenced to imprisonment for life, fine of Rs.10,000/- each and in default to undergo simple imprisonment of one month under Section 302/34 IPC and rigorous imprisonment for three years, fine of Rs.5,000/- each and in default to undergo simple imprisonment of 15 days for the offence under Section 498A/34 IPC.

2. The undisputed and accepted position is that deceased Anita and the appellant-Mahender Kaushik had got married on 16th January, 1992 and thereafter, deceased Anita started residing in her matrimonial home at A-27, New Gobindpura, Delhi. Anita and Mahender Kaushik had two children, and Anita was carrying a child in her womb, when she suffered extensive burn injuries on 21st May, 1996 at her aforesaid matrimonial home. Dr. Ashish Gupta (PW-1) on 21st May, 1996 at about 1 P.M., had examined Anita when she was brought to Lifeline Hospital, A-13, Priyadarshini Vihar, Delhi with about 70% burns mostly deep in nature. Anita was smelling of kerosene. Dr. Ashish Gupta (PW-1) had prepared MLC vide Ex.PW-1/A, which we will be referring to subsequently. At about 3 P.M. on 21st May, 1996, Anita was shifted to the Guru Teg Bahadur Hospital (GTB Hospital), where she died at about 1.45 A.M. on 22nd May, 1996 as per death summary report, Ex.PW-6/E. The post-mortem report (Ex.PW-5/A) records the time of death as 1.45 A.M. on 22nd May, 1996 and that the deceased had ante-mortem superficial to deep burn wounds present over head, face, neck, upper half of chest, whole of back, hips and thighs (back), left upper extremity, right arm upper half and few patches over her legs covering about 60% of the total body surface. The cause of death was shock due to ante-mortem superficial to deep burn wounds covering 60% of the total body surface, which it was opined was likely to be produced by flame. The aforesaid report was proved by Dr. S.K Verma (PW-5), who had conducted the post-mortem and whose court testimony has remained unchallenged.

3. The core and the main issue raised in the present appeal is whether the two appellants were the perpetrators, who had committed the offence under Section 302 read with Section 34 IPC by deliberately and intentionally causing burn injuries or the deceased Anita had suffered accidental burns while cooking food. The occurrence in question it is accepted had taken place in the matrimonial home of the deceased Anita. The prosecution version does not rely on any eye witnesses and is primarily predicated on the dying declaration recorded by Vishwamohan (PW-2), Sub-Divisional Magistrate, Shahdara marked Ex.PW-2/A recorded on 21st May, 1996 at about 5.50 P.M. in the GTB Hospital. The said dying declaration has been translated and reproduced in the impugned judgment and for the sake of clarity and convenience, we would also like to reproduce:-

‘Q:-1 What is your name?

A: Anita.

Q:-2 What is your husband’s name?

A: Mahender.

Q:-3 When were you married?

A: Five years back.

Q:-5 Have you any children?

A: Two: Rahul and Ricky.

Q:-6 How did you get burnt?

A: I was cooking food. My husband poured kerosene on me. Mother-in-law showed the match stick. Then they started throwing water in order to show this to mohallawallas.

Q:-7 When did this happen?

A: At about 12 noon.

Q:-8 What is the name of your mother-in-law?

A: Rameshwari.

Q:-9 What was the complaint of your in-laws?

A: Mother used to say that my father does not give 10/10 sarees. Husband used to say my father does not give maruti. Taunts were hurled daily that you were ‘kanjari’ (Prostitute) and when you would die,