IMPORTANT POINTS
Statement of the deceased not recorded directly and not pertaining to cause of death will not be a dying declaration.
Section 304B IPC will not be attracted in case of death due to accidental burn injury.
A school going student will not be liable to be convicted u/s 498A in absence of any evidence.

Headnote:(a) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – Deceased suffering burn injury on 18.06.1998 – Statement recorded the same day – Deceased dying after seven weeks – ASI not directly recording statement given by deceased – What was recorded was statement given to Tehsildar which in turn was dictated by Tehsildar to ASI – Tehsildar having no problem in recording the statement could have done it himself – Not a case of translation – Statement not pertaining to cause of death or circumstances of the transaction which resulted in death – Death not due to burns but due to avoidable septicemia – Statement not a dying declaration. (Para 14, 16, 17, 18)
       (1998) 2 SCC 45 – Referred
       (b) Indian Penal Code, 1860 – Section 304B – Death should be caused by burns or bodily injury or that she should have died otherwise than under normal circumstances – Instantly, although the deceased suffering 45% burn injury but not dying because of that – Dying due to septicemia on account of improper management of wounds – Further, burn not caused on account of somebody pouring kerosene on her body and setting her on fire – Section 304B not attracted – Trial court acquitting appellants – No infirmity. (Para 19, 20)
       (c) Code of Criminal Procedure, 1973 – Section 378 – Interference with order of acquittal – Permissible only if the order passed on no evidence or perverse or wholly unreasonable or not a plausible view or non-consideration of any evidence or palpable misreading of evidence – Instantly, High Court reversing order of acquittal merely because another view was possible – Not permissible. (Para 21)
       (2014) 5 SCC 154 – Relied upon
       (d) Indian Penal Code, 1860 – Section 498A – Trial court finding all accused guilty of offence u/s 498A, including accused A-4 – A4, a school student at the relevant time – No evidence of harassment towards deceased against him – Conviction of A4 u/s 498A cannot be sustained. (Para 23)
       (e) Indian Penal Code, 1860 – Section 498A – Appellants 1 to 5 convicted – Appellants 1 and 5 dying – Appellant 4 acquitted – Appellants 2 and 3 already served imprisonment for around two years – Sentence reduced to period already undergone. (Para 24)
       (f) Administration of Justice – Compensation – Appellants keeping deceased initially in two government hospitals and thereafter, for a long period, in two private hospitals – Deceased dying for lack of proper medical care – Appellants liable to compensate parents of deceased – Compensation quantified at Rs. one lac. (Para 26)
       Facts of the case:
       The appellants were tried under Section 498A read with section 304B and section 34 of the Indian Penal Code, 1860.
       The trial court acquitted them under Section 304B of IPC but convicted them under Section 498A.
       The High Court allowed the appeal filed by the State and convicted them under Section 304B of IPC also.
       Findings of the Court:
       Appellants are not liable to be convicted u/s 304B. Appellant 4 is liable to be acquitted u/s 498A. Appellants 2 and 3 are liable to pay compensation to parents of the deceased.
       Result: Appeal allowed.

JUDGMENT

KURIAN, J.:

1. The appellants faced trial under Section 498A read with Section 304B read with Section 34 of the Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’). The trial court acquitted them under Section 304B of IPC but convicted them under Section 498A of IPC. The State took up the matter in appeal before the High Court against the non-conviction under Section 304B of IPC. The High Court allowed the appeal and convicted them under Section 304B of IPC also. During the pendency of the appeal, appellant no.1-father-in-law of the deceased and appellant no.2-mother-in-law of the deceased expired. Therefore, the appeals survive only in respect of appellant no. 2-husband of the deceased, appellant no.3-elder brother of the deceased and appellant no.4-younger brother of the deceased.

2. The deceased Chander Kalan was the sister of PW-12-Mahabir and PW-13-Satpal and the wife of accused-Ramesh Kumar. The marriage was on 14.04.1995. The allegation is that on account of non-payment of the dowry as demanded by the husband and in-laws, she was being ill-treated. One such incident was on 01.01.1997 and she lost a couple of teeth. There was a Panchayat and the matter was compromised and therefore, the case then registered under Section 498A read with Section 323 of IPC was not pursued. It is alleged that even thereafter the attitude of the in-laws did not change. On 18.06.1998, it is alleged that she was beaten and pushed out of the house and at around 02.00 p.m., the accused sprinkled kerosene on her and set her on fire. She was admitted in the hospital by 05.00 p.m. and examined by PW-1-Dr. S.D. Goyal, who found that Chander Kalan suffered burn injuries which were approximately 45%. On his request, PW-16-ASI Jagdeep Singh recorded Exhibit-PM-dying declaration. Thereafter, she was admitted in the hospital of PW-9-Dr. Soni on 19.06.1998 and, on 17.07.1998, she was further shifted to the hospital of PW-5-Dr. SubhashVerma, where she died on 04.08.1998. PW-2-Dr. V.K. Kawatra conducted the postmortem along with Dr. Arun Gupta.

3. The trial court chose not to believe Exhibit-PM-dying declaration, but relied on the evidence of PW-5-Dr. Subhash Verma and PW-6-Lalman, Tehsildar and ruled out the possibility of burning by the accused. However, having found that there is evidence to establish cruelty, all the accused were convicted under Section 498A of IPC. The High Court, in the appeal by the State, entered the following conclusion at paragraphs-8 to 10:

“8. Ex.PM the dying declaration of Chander Kalan recorded by PW16 ASI Jagdeep Singh and PW6 Lalman Tehsildar is found to be an important document which ultimately determines the crime committed by the accused. PW1 Dr. S.D. Goyal who examined Chander Kalan on 18.6.1998 at about 5.00 pm has deposed that Chander Kalan was in a fit state of mind. PW6 Lalman Tehsildar and PW16 ASI Jagdeep Singh also would depose that the dying declaration of Chander Kalan was recorded by PW16 ASI Jagdeep Singh only after the opinion was expressed by the doctor that Chander Kalan was in a fit state of mind. It is relevant to note at this state that the occurrence took place as early as on 18.6.1998 at about 2:00 pm. Unfortunately Chander Kalan passed away only on 4.8.1998 in the hospital of Dr. Subhash Verma who was examined as PW5. Chander Kalan had survived for about one and a half month with 40 to 45% burn injuries on her person. The above materials would go to establish that Chander Kalan was infact in a fit state of mind to give declaration as to the cause of her death.

9. PW16 ASI Jagdeep Singh should have in all fairness approached the Judicial Magistrate for recording the dying declaration. Anyway the position of the law is very clear that the dying declaration may not be in writing. The dying declaration of a dying person can be given to any person for that matter, as otherwise the person who is in the death bed would pass away before the respectable person comes to the hospital for recordi

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2014 Supreme(SC) 913

SUPREME COURT OF INDIAKURIAN JOSEPH, ABHAY MANOHAR SAPRE, JJ.Banarsi Dass and others - Appellant(s)VersusState of Haryana - Respondent(s)CRIMINAL APPEAL NO(S). 534-535 OF 2012Decided On: 18-12-2014

Cases Referred (2)

SUPREME COURT OF INDIA
KURIAN JOSEPH, ABHAY MANOHAR SAPRE, JJ.
Banarsi Dass and others - Appellant(s)
Versus
State of Haryana - Respondent(s)
CRIMINAL APPEAL NO(S). 534-535 OF 2012
Decided On: 18-12-2014