{"id":29,"date":"2025-06-08T20:44:28","date_gmt":"2025-06-08T15:14:28","guid":{"rendered":"http:\/\/mynation.net\/docs\/887-1998\/"},"modified":"2025-06-08T20:44:28","modified_gmt":"2025-06-08T15:14:28","slug":"887-1998","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/887-1998\/","title":{"rendered":"ARVIND SINGH vs STATE OF BIHAR"},"content":{"rendered":"

Supreme Court of India<\/strong><\/p>\n

CASE NO.:Appeal (crl.) 887\u00a0 of\u00a0 1998<\/p>\n

PETITIONER:ARVIND SINGH
\n\u00a0Vs.
\nRESPONDENT:STATE OF BIHAR\n<\/p>\n

DATE OF JUDGMENT:\u00a026\/04\/2001<\/p>\n

BENCH:Umesh C. Banerjee & K.G. Balakrishnan<\/p>\n

 <\/p>\n

\nJUDGMENT:BANERJEE,J.
\n\u00a0\u00a0\u00a0 The\u00a0 appeal\u00a0 in question tell the tale of a\u00a0 young\u00a0girl
\ndying\u00a0 out\u00a0 of burn injuries.\u00a0 Whereas the learned\u00a0 Sessions
\nJudge\u00a0 convicted each of the accused being the husband,\u00a0 the
\nfather-in-law,\u00a0the\u00a0 mother-in-law\u00a0 and\u00a0 the\u00a0 brother-in-law
\nunder\u00a0 Section\u00a0304 B of the Indian Penal Code\u00a0and\u00a0 498A\/34
\ntogether\u00a0 with\u00a0120B of the Indian Penal Code and\u00a0 sentenced
\neach of them to undergo imprisonment for life under 304B IPC
\nand a further sentence of 3 years to each of the accused for
\nan\u00a0 offence\u00a0 under\u00a0 498A IPC and in view\u00a0 of\u00a0 the\u00a0 sentences
\npassed,\u00a0 no need was felt to pass any sentence under Section
\n120\u00a0 B\u00a0IPC.\u00a0\u00a0 The\u00a0 appeal taken to the\u00a0 High\u00a0 Court\u00a0 stands
\nallowed\u00a0 so far as the appellant Nos.1,2 and 4 are concerned
\nupon\u00a0 taking\u00a0 into consideration of the facts under\u00a0 Section
\n304\u00a0 B read with Section 34 of the Indian Penal Code as also
\nunder\u00a0 Section\u00a0120B\u00a0 of\u00a0 the\u00a0Code\u00a0 though,\u00a0 however,\u00a0 the
\nconviction\u00a0 under\u00a0 Section 498A read with Section 34 of\u00a0 the
\nCode\u00a0 was confirmed.\u00a0 Arvind Singh, the husband was however,
\nfound\u00a0 guilty\u00a0 for\u00a0 murder of the wife Minta\u00a0 Devi\u00a0 and\u00a0 his
\nconviction\u00a0 under 304 B was converted to Section 302 IPC and
\nwas\u00a0 sentenced\u00a0to\u00a0 undergo imprisonment\u00a0 for\u00a0 life\u00a0 besides
\nmaintaining\u00a0 the\u00a0 conviction under Section 498A IPC.\u00a0 It\u00a0 is
\nthis conviction and sentence which stands challenged in this
\nappeal.<\/p>\n

\u00a0\u00a0\u00a0 Before\u00a0 adverting\u00a0 to the contentions as raised\u00a0 by\u00a0 the
\nappellant\u00a0 the case of the prosecution can be briefly stated
\nto\u00a0 be\u00a0as\u00a0 below:\u00a0\u00a0 On the basis of the\u00a0 fardbeyan\u00a0 of\u00a0 the
\ninformant\u00a0 Phulamati\u00a0 the mother of the deceased,\u00a0 that\u00a0 the
\nappellant alongwith other members of the family on the night
\nof\u00a0 6\/7\u00a0 March,\u00a0 1991 had set her daughter on\u00a0 fire\u00a0 and\u00a0 on
\nhaving\u00a0such information the informant alongwith PWs 3,4 and
\n7\u00a0 reached the Muhalla and found that the daughter was lying
\ninjured\u00a0 due to burn injuries.\u00a0The First Information Report
\nrecorded\u00a0 that the daughter of the informant disclosed\u00a0that
\nher\u00a0 husband, father-in-law, mother-in-law and other\u00a0 family
\nmembers\u00a0 forcibly\u00a0 poured\u00a0 kerosene\u00a0 oil\u00a0 on\u00a0 her\u00a0 body\u00a0 and
\nlighted, on account of which her entire body was burnt.\u00a0 The
\nFIR\u00a0 discloses\u00a0that\u00a0 all the persuasions for removal\u00a0 to\u00a0 a
\nhospital\u00a0 by\u00a0 reason\u00a0 of\u00a0 the\u00a0severe\u00a0burn\u00a0 injuries\u00a0were
\nnegatived\u00a0 by the in-laws and having failed to persuade\u00a0 the
\nin-laws,\u00a0 the\u00a0 parents family themselves wanted to take\u00a0 her
\nback\u00a0 to\u00a0 the\u00a0 hospital but the attempt was\u00a0 not\u00a0 successful
\nsince the deceased succumbed to her injuries.
\n\u00a0\u00a0\u00a0 Incidentally,\u00a0 it\u00a0 may be noted that two specific\u00a0 cases
\nhave\u00a0 been\u00a0 made out in the FIR, firstly, the girl was\u00a0ugly
\nlooking\u00a0 (though some of the witnesses have stated that\u00a0 she
\nhas\u00a0 been a really good looking girl) and secondly this is a
\ncase\u00a0 of bride torture and demand of dowry to the extent\u00a0 of
\nRs.10,000\u00a0 and\u00a0a gold ring and since demands could\u00a0 not\u00a0 be
\nfulfilled\u00a0 the\u00a0accused\u00a0 persons\u00a0\u00a0 conspired\u00a0 together\u00a0 and
\ncommitted the offence which has resulted in the death of the
\ngirl.<\/p>\n

\u00a0\u00a0\u00a0 The factual disputes there are not many since the factum
\nof\u00a0 the death and the cause of death being burn injuries are
\nadmitted.\u00a0\u00a0 As regards the dowry death a specific submission
\nwas made before the High Court to the effect as below:-<\/p>\n

\u00a0\u00a0\u00a0 Mr.\u00a0\u00a0\u00a0 Verma,\u00a0 learned\u00a0 counsel\u00a0\u00a0 appearing\u00a0\u00a0 for\u00a0the
\nappellants\u00a0 firstly contended that from a bare reference\u00a0 to
\nthe\u00a0 FIR\u00a0 it would appear that the Investigating Officer\u00a0 by
\nmaking interpolation has added the allegation with regard to
\ndemand\u00a0of\u00a0 dowry.\u00a0\u00a0 Because\u00a0 the main reason\u00a0 for\u00a0 such\u00a0 an
\noccurrence\u00a0 was\u00a0 that\u00a0 Minta\u00a0 Devi was\u00a0an\u00a0 ugly\u00a0 lady\u00a0and,
\ntherefore,\u00a0\u00a0 accused\u00a0 persons\u00a0 used\u00a0 to\u00a0 torture\u00a0\u00a0 her\u00a0 and
\nultimately committed her murder.\u00a0 The allegation with regard
\nto demand of dowry etc.\u00a0 was virtually inserted in different
\nhand writing at the end of the fact from which interpolation
\nis\u00a0 apparent.\u00a0Learned\u00a0 counsel\u00a0 appearing\u00a0 for\u00a0 the\u00a0 State
\ncontended that true it is that the allegation with regard to
\ndemand\u00a0of dowry was inserted subsequently, but it cannot be
\nalleged\u00a0\u00a0 that\u00a0 such\u00a0an\u00a0\u00a0 allegation\u00a0\u00a0 was\u00a0made\u00a0\u00a0 after
\ninterpolation.<\/p>\n

\u00a0\u00a0\u00a0 The\u00a0 High Court also in no uncertain terms recorded that
\nthe\u00a0 statement\u00a0of Mr.\u00a0Verma stands justified by reason\u00a0 of
\ninterpolation\u00a0 on\u00a0 the First Information Report.\u00a0\u00a0 The\u00a0High
\nCourt\u00a0 also came to the conclusion that there is no evidence
\nwhatsoever\u00a0 that prior to the date of occurrence, there\u00a0 was
\nany demand for dowry by the accused persons and it is on the
\nbasis\u00a0 of\u00a0 the\u00a0aforesaid\u00a0 the\u00a0High\u00a0 Court\u00a0 set\u00a0 aside\u00a0 the
\nconviction and sentence of Janardan Singh, Lilawati Devi and
\nNavin\u00a0 Kumar\u00a0 Singh under Section 304 B read with 34 of\u00a0 the
\nIndian\u00a0Penal\u00a0 Code as also under 120B of the\u00a0 Indian\u00a0 Penal
\nCode.\u00a0The conviction of 498A however, read with Section 34
\nwas\u00a0 confirmed\u00a0and the bail bonds granted in favour of\u00a0 the
\nthree\u00a0 accused\u00a0noticed above were directed to be\u00a0 cancelled
\nand they were ordered to be taken into custody forthwith for
\nserving\u00a0 out\u00a0 the\u00a0 remaining sentences.\u00a0 As\u00a0 regards\u00a0 Arvind
\nSingh\u00a0 the\u00a0 husband, the High Court came to\u00a0 the\u00a0 conclusion
\nthat\u00a0 his conviction ought to be converted from Section 304B
\nto 302 of the Indian Penal Code and sentenced him to undergo
\nimprisonment for life besides the conviction and sentence of
\n3\u00a0 years\u00a0 under Section 498A of the IPC.\u00a0 In the result\u00a0 the
\ncriminal\u00a0 appeal was partly allowed so far as the\u00a0 appellant
\nNos.\u00a0\u00a0 1,2 and 4 were concerned but appellant No.3 being the
\nhusband\u00a0 (Arvind\u00a0 Singh)\u00a0 subject\u00a0 to\u00a0 the\u00a0 modification\u00a0 of
\nconviction\u00a0 was\u00a0 dismissed and hence the appeal before\u00a0this
\nCourt by the grant of special leave.<\/p>\n

\u00a0\u00a0\u00a0 Burn\u00a0 injuries\u00a0 are\u00a0 normally\u00a0\u00a0 classified\u00a0into\u00a0\u00a0 three
\ndegrees.\u00a0\u00a0 The\u00a0first being reddening and blistering of\u00a0 the
\nskin\u00a0 only;\u00a0\u00a0 second being charring and destruction\u00a0 of\u00a0 the
\nfull\u00a0 thickness\u00a0 of the skin;\u00a0 third being charring\u00a0 of\u00a0 the
\ntissues beneath the skin, e.g.\u00a0fat, muscle and bone.<\/p>\n

\u00a0\u00a0\u00a0 Be\u00a0it\u00a0 noted here that if the burn is of a\u00a0 distinctive
\nshape\u00a0 a\u00a0 corresponding hot object may be\u00a0 identified\u00a0 being
\napplied to the skin and thus abrasions will have distinctive
\npatterns\u00a0 but\u00a0 in the event burn injury is a cause of\u00a0 death
\n60%\u00a0\u00a0 cases\u00a0\u00a0 of\u00a0\u00a0 septicaemia\u00a0and\u00a0\u00a0 34%\u00a0\u00a0 cases\u00a0\u00a0 are\u00a0\u00a0 of
\nbronchopneumonia.\u00a0\u00a0\u00a0 Where\u00a0 infection\u00a0was\u00a0 by\u00a0 Pseudomonas
\npyocyanea, spread to unburnt skin with ulceration may occur,
\nand internal infection by this organism is especially liable
\nto\u00a0 damage the walls of blood vessels.\u00a0Gram-negative\u00a0 shock
\nmay\u00a0 also\u00a0 occur.\u00a0\u00a0 The external examination in\u00a0 the\u00a0 normal
\ncases\u00a0 are\u00a0 found\u00a0 in the body being removed\u00a0 from\u00a0 a\u00a0 burnt
\nbuilding\u00a0 and in the event of so removal the cause of\u00a0 death
\nwould\u00a0 be\u00a0 inhalation\u00a0 of fumes rather than\u00a0 septicaemia\u00a0 as
\nnoticed\u00a0 above.\u00a0\u00a0 In the event the body is not removed\u00a0from
\nthe\u00a0 room and the same remains in situ an examination of the
\nscene\u00a0 must\u00a0 be\u00a0 attempted,\u00a0 as\u00a0 with\u00a0 any\u00a0 other\u00a0 scene\u00a0 of
\nsuspicious\u00a0 death, note being taken as regards the\u00a0 position
\nof\u00a0 the\u00a0 body,\u00a0clothes remaining if\u00a0 any\u00a0 and\u00a0identifiable
\nobjects in the room and so on.\u00a0The examination of the burns
\nis\u00a0 also directed to ascertain their position and depth,\u00a0 as
\nto\u00a0 whether they were sustained in life or not, and\u00a0 whether
\ntheir\u00a0 situation\u00a0 gives any indication of the path taken\u00a0 by
\nthe flames or the position of the body when the fire started
\nif the body is very severely burnt then all the skin surface
\nmay\u00a0 be\u00a0 destroyed, even sometimes make it rather\u00a0 difficult
\nfor\u00a0 identification of the body.\u00a0 A body that is badly burnt
\nassume\u00a0the\u00a0 appearance known as pulgilistic attitude\u00a0 and
\nthis\u00a0 is\u00a0 due\u00a0 to\u00a0 heat stiffening and\u00a0contraction\u00a0 of\u00a0 the
\nmuscles, causing the arms to become flexed at the elbows and
\nthe hands clenched, the head slightly extended and the knees
\nbent.\u00a0The\u00a0 appearance resembles the position adopted by\u00a0 a
\nperson\u00a0engaged\u00a0 in\u00a0 a\u00a0fight and has\u00a0 led\u00a0 on\u00a0occasion\u00a0 to
\nsuspicion that death has occurred during some violent crime.
\nIn\u00a0 fact, of course, the body will assume this position when
\nthe\u00a0 fire\u00a0 started.\u00a0 The other aspect of the burn injury\u00a0 is
\nthe\u00a0 heat ruptures may be produced.\u00a0 These are splits of the
\nskin,\u00a0 caused\u00a0 by contraction of the heated\u00a0 and\u00a0 coagulated
\ntissues,\u00a0 and\u00a0 the\u00a0 resultant breaches look\u00a0 like\u00a0 lacerated
\nwounds.\u00a0 They are usually only a few inches, but may be upto
\n1 or 2 ft in length.\u00a0 Normally they lead to no difficulty in
\ninterpretation,\u00a0 since\u00a0they only occur in areas\u00a0 of\u00a0 severe
\nburning,\u00a0 and\u00a0 normally over fleshy areas of the body,\u00a0like
\ncalves and thighs, where lacerations are uncommon.\u00a0 However,
\nwhen\u00a0 they\u00a0 occur\u00a0 in\u00a0 the\u00a0 scalp\u00a0 they\u00a0 may\u00a0 cause\u00a0 greater
\ndifficulties.\u00a0 They can usually be distinguished from wounds
\ninflicted\u00a0 before\u00a0 the body was burnt, by their\u00a0 appearance,
\nposition\u00a0 in\u00a0 areas of maximum burning and on fleshy\u00a0 areas,
\nand\u00a0 by\u00a0 the\u00a0 associated findings on\u00a0 internal\u00a0examination.
\n(See in this context Taylors Medical Jurisprudence)
\n\u00a0\u00a0\u00a0 Although shock due to extensive burns is the usual cause
\nof\u00a0 death,\u00a0 delayed death may be due to inflammation of\u00a0 the
\nrespiratory tract caused by the inhalation of smoke.\u00a0 Severe
\ndamage,\u00a0 at least to the extent of blistering of the\u00a0 tongue
\nand\u00a0 upper\u00a0 respiratory tract, can follow the inhalation\u00a0 of
\nsmoke.
\n\u00a0\u00a0\u00a0 Prosecutions\u00a0\u00a0 definite\u00a0 case\u00a0 in\u00a0the\u00a0 matter\u00a0\u00a0 under
\nreference is kerosene was poured in all round and thereafter
\nwith\u00a0 lighted match stick the girl was burnt to death alive.
\nThe\u00a0 FIR\u00a0 depicts\u00a0 the case of torture in order\u00a0 to\u00a0 attract
\nSection\u00a0 498A\u00a0 together\u00a0 with ingredients\u00a0 of\u00a0 charge\u00a0 under
\nSection\u00a0 304B which stands disbelieved by the High Court and
\nwe\u00a0 in\u00a0the contextual facts accept the observations of\u00a0 the
\nHigh Court pertaining thereto having regard to the fact that
\nthe\u00a0 High Court itself has looked into the original FIR\u00a0 and
\nfound\u00a0 it\u00a0 to be so interpolated as contended and it\u00a0 is\u00a0 on
\nthis score that the High Court acquitted the accused persons
\nunder\u00a0 Section 304B:\u00a0 No exception thus can be taken to\u00a0 the
\norder\u00a0 of\u00a0 acquittal of the charge above and we also\u00a0 record
\nour concurrence therewith.
\n\u00a0\u00a0\u00a0 The High Court however, has not delved into the issue of
\nnon-examination\u00a0 of Investigating Officer.\u00a0 We are at a loss
\nto\u00a0 find\u00a0 such an omission on the part of the High Court\u00a0 on
\nsuch a vital issue.<\/p>\n

\u00a0\u00a0\u00a0 Mr.\u00a0\u00a0 Verma,\u00a0 the\u00a0 learned senior counsel\u00a0 appearing\u00a0 in
\nsupport\u00a0 of\u00a0 the appeal contended that conversion of\u00a0 charge
\nunder\u00a0 Section 304B to 302, cannot by stretch be maintained.
\nIt\u00a0 has\u00a0 been\u00a0 contended that the Court\u00a0 having\u00a0 recorded\u00a0 a
\nfinding\u00a0 that\u00a0 the demand for dowry was\u00a0 interpolated\u00a0 and
\ninserted\u00a0 in the FIR, virtually in a different\u00a0handwriting,
\nwhich\u00a0 was\u00a0 done subsequently\u00a0 it is submitted that, it\u00a0 is
\nunsafe to rely on the informant PW5 and the Prosecution case
\nis\u00a0\u00a0 fit\u00a0 to\u00a0 be\u00a0 rejected\u00a0\u00a0 outright,\u00a0more\u00a0 so,\u00a0 when\u00a0 the
\nInvestigating\u00a0 Officer\u00a0has\u00a0 been kept out\u00a0 of\u00a0court.\u00a0 Mr.
\nVerma\u00a0 contended that since the prosecution failed to\u00a0 prove
\nthe\u00a0 charges\u00a0 against\u00a0 any\u00a0 of\u00a0the\u00a0 accused\u00a0 and\u00a0 that\u00a0 the
\nconviction\u00a0\u00a0 and\u00a0 sentence\u00a0 under\u00a0\u00a0 the\u00a0 aforesaid\u00a0\u00a0 charges
\nincluding\u00a0 that of the appellant having been set aside,\u00a0 the
\nconviction\u00a0 of the appellant under Section 302 IPC is bad in
\nlaw\u00a0 and\u00a0 untenable.\u00a0 The charge under Section 302 IPC is\u00a0 a
\nmajor\u00a0 charge\u00a0 and\u00a0 it\u00a0entails\u00a0\u00a0 more\u00a0severe\u00a0and\u00a0 greater
\nsentence,\u00a0 being\u00a0 death or imprisonment for life\u00a0 and\u00a0 fine,
\nwhereas\u00a0\u00a0 in\u00a0 a\u00a0 charge\u00a0 under\u00a0 Section\u00a0 304B,\u00a0\u00a0 there\u00a0\u00a0 is
\nimprisonment\u00a0 for\u00a0 7\u00a0 years\u00a0 which\u00a0\u00a0 may\u00a0 extend\u00a0 upto\u00a0life
\nimprisonment and in that case the court having set aside the
\nconviction\u00a0 under Section 304B read with 34 and 120B IPC, it
\nis\u00a0 neither open nor permissible to punish the accused under
\nSection\u00a0 302 IPC which in all material particular amounts to
\nenhancement\u00a0 of\u00a0 sentence and inflicting greater\u00a0 punishment
\nunless\u00a0the petitioner is given an opportunity to show cause
\nwithout which the court shall not inflict greater punishment
\n[refer\u00a0to\u00a0 Section385 Cr.P.C.].\u00a0 Mr.\u00a0 Verma contended\u00a0here
\nagain\u00a0 when a distinct offence under Section 302 IPC is made
\nout,\u00a0 charge\u00a0 should\u00a0 have been framed and read out\u00a0 to\u00a0 the
\naccused\u00a0 appellant\u00a0 [refer\u00a0 Section 216\u00a0 Cr.P.C.]\u00a0 to\u00a0 avoid
\nprejudice\u00a0 and\u00a0in\u00a0 that case the circumstances\u00a0 brought\u00a0 in
\nevidence\u00a0 should be put to accused in his examination\u00a0 under
\nSection\u00a0 313 of the Cr.P.C.\u00a0 which has not been done causing
\nserious\u00a0 prejudice\u00a0 in\u00a0defence.\u00a0 In any\u00a0 event\u00a0 Mr.\u00a0\u00a0 Verma
\ncontended\u00a0 that the evidence on record does not justify such
\na\u00a0 conversion\u00a0 of\u00a0 charge\u00a0 There is therefore\u00a0 neither\u00a0any
\nlegal nor even any evidentiary support to such a conversion.
\nThe\u00a0 High\u00a0 Court\u00a0 in\u00a0 introducing Section 302\u00a0 in\u00a0 place\u00a0 of
\nSection\u00a0 304B,\u00a0it has been submitted not only\u00a0committed\u00a0 a
\ngrave\u00a0 error\u00a0 of law but proceeded totally against even\u00a0 the
\nentire\u00a0 tenor\u00a0 of\u00a0 the\u00a0\u00a0 evidence\u00a0 on\u00a0 record.\u00a0\u00a0\u00a0 Criminal
\njurisprudence does not warrant such a conversion on facts of
\nthe matter under consideration.<\/p>\n

\u00a0\u00a0\u00a0 Turning\u00a0 attention\u00a0on\u00a0 to the dying declaration\u00a0 be\u00a0 it
\nnoticed\u00a0 at this juncture that the deceased was supposed\u00a0 to
\nhave\u00a0 spoken to the mother that there was a conjoint\u00a0 effort
\nof\u00a0 all the accused to pour kerosene on all her body and lit
\nthe\u00a0 fire\u00a0\u00a0 The burn injury resulting therefrom has\u00a0 caused
\nher\u00a0 life to death.\u00a0 Prosecution thus treated the same as\u00a0 a
\ndying declaration.<\/p>\n

\u00a0\u00a0\u00a0 Though\u00a0 the earlier view of this Court in Ramnaths case
\n[Ram\u00a0 Nath Madhoprasad & Ors.\u00a0 v.\u00a0 State of Madhya\u00a0 Pradesh:
\nAIR\u00a0 1953 SC 420] stands overruled by a five-Judges judgment
\nin the case of Tarachand Damu Sutar v.\u00a0State of Maharashtra
\n[AIR\u00a0 1962\u00a0 SC 130] but there is no denial of the fact\u00a0that
\ndying\u00a0 declaration ought to be treated with care and caution
\nsince\u00a0 the maker of the statement cannot be subjected to any
\ncross-examination.\u00a0\u00a0 The\u00a0 same is the view taken in\u00a0 a\u00a0case
\nreported\u00a0 in\u00a0 AIR\u00a0 1976 SC 2199 [Munnu Raja and\u00a0 Another\u00a0 v.
\nState of Madhya Pradesh] wherein this Court stated:<\/p>\n

\u00a0\u00a0\u00a0 It is well settled that though a dying declaration must
\nbe\u00a0 approached with caution for the reason that the maker of
\nthe\u00a0 statement\u00a0cannot\u00a0be subjected\u00a0 to\u00a0 cross-examination,
\nthere\u00a0 is neither a rule of law nor a rule of prudence which
\nhas\u00a0 hardened\u00a0 into a rule of law that a\u00a0 dying\u00a0 declaration
\ncannot\u00a0be acted upon unless it is corroborated.\u00a0 Thus Court
\nmust\u00a0 not look out for corroboration unless it comes to\u00a0 the
\nconclusion\u00a0 that\u00a0 the\u00a0 dying declaration suffered\u00a0 from\u00a0 any
\ninfirmity\u00a0 by\u00a0 reason of which it was necessary to look\u00a0 out
\nfor corroboration.<\/p>\n

\u00a0\u00a0\u00a0 In\u00a0the\u00a0 same\u00a0 year\u00a0 this\u00a0 Court\u00a0\u00a0 in\u00a0 the\u00a0case\u00a0 of\u00a0 K.
\nRamachandra\u00a0 Reddy\u00a0 & Anr.\u00a0 V.\u00a0The Public\u00a0 Prosecutor\u00a0[AIR
\n1976 SC 1994] observed:<\/p>\n

\u00a0\u00a0\u00a0 The\u00a0 dying declaration is undoubtedly admissible\u00a0 under
\nSection\u00a0 32\u00a0 and not being a statement on oath so\u00a0 that\u00a0 its
\ntruth could be tested by cross- examination, the Courts have
\nto\u00a0\u00a0 apply\u00a0\u00a0 the\u00a0\u00a0 strictest\u00a0\u00a0 scrutiny\u00a0 and\u00a0\u00a0 the\u00a0\u00a0 closest
\ncircumspection\u00a0to\u00a0 the\u00a0 statement before\u00a0 acting\u00a0 upon\u00a0 it.
\nWhile\u00a0 great solemnity and sanctity is attached to the words
\nof a dying man because a person on the verge of death is not
\nlikely\u00a0to tell lies or to concoct a case so as to implicate
\nan innocent person, yet the Court has to be on guard against
\nthe\u00a0 statement\u00a0of\u00a0 the deceased being a\u00a0 result\u00a0 of\u00a0 either
\ntutoring\u00a0 prompting\u00a0 or a product of his\u00a0 imagination.\u00a0 The
\nCourt must be satisfied that the deceased was in a fit state
\nof mind to make the statement after the deceased had a clear
\nopportunity\u00a0 to observe and identify his assailants and that
\nhe\u00a0 was\u00a0 making\u00a0 the\u00a0 statement\u00a0 without\u00a0 any\u00a0 influence\u00a0 or
\nrancour.\u00a0\u00a0 Once\u00a0 the\u00a0 Court\u00a0 is\u00a0 satisfied\u00a0 that\u00a0 the\u00a0 dying
\ndeclaration\u00a0 is\u00a0 true and voluntary it can be sufficient\u00a0 to
\nfound the conviction even without any further corroboration.<\/p>\n

\u00a0\u00a0\u00a0 A\u00a0 dying\u00a0 declaration\u00a0 which\u00a0 has\u00a0 been\u00a0 recorded\u00a0 by\u00a0 a
\ncompetent\u00a0 Magistrate in the proper manner, that is to\u00a0say,
\nin\u00a0 the\u00a0 form\u00a0 of\u00a0 question\u00a0 and\u00a0\u00a0 answer\u00a0 and,\u00a0 as\u00a0 far\u00a0 as
\npracticable,\u00a0 in the words of the maker of the\u00a0declaration,
\nstands\u00a0on\u00a0 a much higher footing than a\u00a0 dying\u00a0 declaration
\nwhich\u00a0 depends upon oral testimony which may suffer from all
\nthe\u00a0 infirmities\u00a0 of human memory and human\u00a0 character.\u00a0\u00a0 In
\norder\u00a0 to\u00a0 test the reliability of a dying declaration,\u00a0 the
\nCourt\u00a0 has\u00a0 to\u00a0keep\u00a0 in view\u00a0 the\u00a0 circumstances\u00a0 like\u00a0 the
\nopportunity\u00a0 of the dying man for observation, for\u00a0 example,
\nwhether\u00a0 there\u00a0was\u00a0 sufficient\u00a0 light\u00a0 if\u00a0 the\u00a0 crime\u00a0 was
\ncommitted\u00a0 at\u00a0 night;\u00a0whether the capacity of the\u00a0 man\u00a0 to
\nremember\u00a0 the facts stated had not been impaired at the time
\nhe\u00a0 was\u00a0 making the statement, by circumstances\u00a0 beyond\u00a0 his
\ncontrol;\u00a0 the statement has been consistent throughout if he
\nhad\u00a0 several\u00a0 opportunities\u00a0 of making a\u00a0 dying\u00a0 declaration
\napart from the official record of it;\u00a0 and the statement had
\nbeen made at the earliest opportunity and was not the result
\nof tutoring by interested parties AIR 1958 SC 22:\u00a0 Rel.\u00a0 on.
\n\u00a0\u00a0\u00a0 Be\u00a0it\u00a0 noted that the dying declaration herein has\u00a0 not
\nbeen\u00a0 effected before any Doctor or any independent\u00a0 witness
\nbut\u00a0 to the mother who is said to have arrived at the\u00a0 place
\nonly in the morning\u00a0 the mother admittedly is an interested
\nwitness:\u00a0\u00a0 though\u00a0 that\u00a0 by itself would not\u00a0 discredit\u00a0 the
\nevidence tendered in Court but the fact remains the Doctors
\nevidence\u00a0 considering\u00a0 the\u00a0 nature\u00a0 of\u00a0 the\u00a0 burn\u00a0 posed\u00a0 a
\nconsiderable\u00a0 doubt as to whether such a statement could\u00a0 be
\nmade\u00a0 half\u00a0 an hour before the death of the accused.\u00a0 It\u00a0 is
\nnot that the statement of the unfortunate girl was otherwise
\nnot\u00a0 clear or there was existing some doubt as to the\u00a0 exact
\nwords on the contrary the definite evidence tendered is that
\nthere\u00a0 is\u00a0 clear unequivocal statement from the daughter\u00a0 of
\nthe\u00a0 family\u00a0 that the conjoint efforts of\u00a0 putting\u00a0 kerosene
\nthereafter\u00a0 with\u00a0 lighted match stick has resulted the\u00a0burn
\ninjury.\u00a0\u00a0 The severity of the burn injury and its impact\u00a0 on
\nthe\u00a0 body\u00a0 speaks\u00a0 volume\u00a0 by reason of\u00a0 the\u00a0 death\u00a0 of\u00a0 the
\ndeceased.\u00a0 It is the reliance on such a dying declaration by
\nthe\u00a0 High\u00a0 Court\u00a0 shall\u00a0 thus have to\u00a0 be\u00a0 scrutinised\u00a0with
\ncertain degree of caution.<\/p>\n

\u00a0\u00a0\u00a0 Dying\u00a0 declaration\u00a0in the instant matter thus\u00a0 we\u00a0must
\nconfess\u00a0 raised\u00a0 certain amount of eyebrows and\u00a0 Mr.\u00a0\u00a0 Verma
\nalso\u00a0 with\u00a0 his usual eloquence did put a strong protest\u00a0 in
\nregard\u00a0thereto.\u00a0\u00a0 The evidence of this declaration\u00a0 depicts
\nthat\u00a0 just\u00a0 before a few minutes of her death, the\u00a0 deceased
\nwould\u00a0 make\u00a0 a\u00a0declaration\u00a0 quietly to\u00a0 the\u00a0 mother\u00a0 naming
\ntherein\u00a0 all the three relations along with the husband\u00a0 who
\npoured\u00a0kerosene to burn her alive.\u00a0 This is not acceptable,
\nmore\u00a0 so having regard to the declaration being made to\u00a0 the
\nmother\u00a0only.\u00a0In\u00a0 any event, is it\u00a0 conceivable\u00a0 that\u00a0 the
\nhusband\u00a0\u00a0 along\u00a0 with\u00a0the\u00a0 father-in-law,\u00a0\u00a0 mother-in-law,
\nbrother-in-law\u00a0would start pouring kerosene together on\u00a0 to
\nthe girl\u00a0 as if each was prepared with a can of kerosene to
\npour\u00a0 simultaneously\u00a0This\u00a0 not only\u00a0would\u00a0 lead\u00a0 to\u00a0 an
\nabsurdity\u00a0 but\u00a0reliance on such a vague statement would\u00a0 be
\nopposed\u00a0 to\u00a0 the\u00a0 basic\u00a0 tenets of law.\u00a0 Further\u00a0 it\u00a0 is\u00a0 in
\nevidence\u00a0 that the deceased had an extensive burn\u00a0 including
\nher\u00a0 mouth, nose and lips\u00a0 if any credence is to be allowed
\nto\u00a0 the\u00a0 same, then and in that event, the evidence\u00a0 of\u00a0 the
\nmother\u00a0about\u00a0 the\u00a0 confession\u00a0 stands\u00a0 belied\u00a0 by\u00a0 itself.
\nSignificantly,\u00a0the\u00a0 doctors\u00a0 evidence as is\u00a0 available\u00a0 on
\nrecord\u00a0would\u00a0 also go a long way in the unacceptability\u00a0 of
\nthe\u00a0 evidence\u00a0 of the mother as regards confession.\u00a0\u00a0 In\u00a0 no
\nuncertain\u00a0 terms the doctor, P.W.8 stated that the death may
\ntake\u00a0 place at once and within ten seconds by reason of\u00a0 the
\nextensive\u00a0 nature\u00a0 of the burn and the deceased cannot\u00a0have
\nsurvived\u00a0 beyond 10 minutes.\u00a0 Another redeeming feature that
\nthe\u00a0 declaration of the deceased was made only to the mother
\nbut\u00a0 before the arrival of the mother, the incident was made
\nknown to the Police authorities and, in fact, the Police was
\npresent\u00a0 when\u00a0 the\u00a0 mother and the brother arrived.\u00a0\u00a0 It\u00a0 is
\nhighly unlikely that the Police will not make any attempt to
\nhave\u00a0 a\u00a0 statement by the deceased but if it\u00a0 was\u00a0 otherwise
\npossible immediately on its arrival rather than wait for the
\nmother to arrive.\u00a0 Two recent decisions of this Court may be
\nof\u00a0 some\u00a0 assistance\u00a0\u00a0 the first in point of\u00a0 time\u00a0 is\u00a0the
\ndecision of a three judge Bench of this Court in the case of
\nPaparambaka\u00a0 Rosamma and Others v.\u00a0 State of A.P.\u00a0 (1999 (7)
\nSCC\u00a0 695) wherein this Court in no uncertain terms\u00a0 observed
\nthat\u00a0 there ought not to be any hesitancy in the mind of the
\nCourt\u00a0 in regard to the truthfulness and voluntary nature of
\ndisclosure\u00a0 of the incident.\u00a0 In Rosammas case one Dr.\u00a0 K.
\nVishnupriya\u00a0 Devi\u00a0 has stated in the Court that the\u00a0 injured
\nwas\u00a0 conscious but she has not deposed that the injured\u00a0 was
\nin\u00a0 a fit state of mind to make a statement.\u00a0 It did come on
\nrecord\u00a0that the girl has sustained 90% burn injuries and it
\nis in that perspective, this Court held that in the absence
\nof\u00a0 a\u00a0 medical certification that the injured was in\u00a0 a\u00a0 fit
\nstate\u00a0 of\u00a0 mind\u00a0 at the time of making the\u00a0 declaration,\u00a0 it
\nwould\u00a0be\u00a0 very\u00a0 much\u00a0risky\u00a0to\u00a0 accept\u00a0 the\u00a0\u00a0 subjective
\nsatisfaction of a Magistrate who opined that the injured was
\nin\u00a0 a fit state of mind at the time of making a declaration
\n\u00a0 the\u00a0 medical certification, therefore, was felt to\u00a0 be\u00a0 a
\nprimary\u00a0 element\u00a0 in\u00a0 the\u00a0 matter\u00a0 of\u00a0 dying\u00a0 declaration
\nunfortunately we do not have any certification of whatsoever
\nnature,\u00a0 it\u00a0 is\u00a0 only the uncorroborated\u00a0 testimony\u00a0 of\u00a0 the
\nmother\u00a0to\u00a0 whom the deceased was supposed to have made\u00a0 the
\ndeclaration\u00a0 as noticed above.\u00a0In paragraph 9 of the Report
\nin\u00a0 Rosammas\u00a0 case\u00a0 (supra)\u00a0 however, this\u00a0 Court\u00a0 had\u00a0the
\nfollowing to state:<\/p>\n

\u00a0\u00a0\u00a0 9.\u00a0\u00a0 It\u00a0 is\u00a0 true\u00a0that\u00a0\u00a0 the\u00a0 medical\u00a0\u00a0 officer\u00a0Dr.
\nK.Vishnupriya\u00a0 Devi\u00a0 (PW\u00a0 10)\u00a0 at\u00a0\u00a0 the\u00a0 end\u00a0 of\u00a0 the\u00a0 dying
\ndeclaration\u00a0 had\u00a0 certified\u00a0 patient\u00a0\u00a0 is\u00a0 conscious\u00a0 while
\nrecording\u00a0 the\u00a0statement.\u00a0 It has come on record that\u00a0the
\ninjured\u00a0 Smt.\u00a0Venkata Ramana had sustained extensive\u00a0burn
\ninjuries\u00a0 on her person.\u00a0 Dr.\u00a0 P.\u00a0 Koteswara Rao (PW 9)\u00a0 who
\nperformed\u00a0 the\u00a0post-mortem\u00a0 stated\u00a0 that\u00a0 the\u00a0injured\u00a0 had
\nsustained\u00a0 90%\u00a0burn\u00a0 injuries.\u00a0\u00a0 In\u00a0 this\u00a0 case\u00a0 as\u00a0 stated
\nearlier,\u00a0 the\u00a0 prosecution case solely rested on\u00a0 the\u00a0 dying
\ndeclaration.\u00a0It\u00a0 was,\u00a0 therefore,\u00a0\u00a0 necessary\u00a0\u00a0 for\u00a0 the
\nprosecution to prove the dying declaration as being genuine,
\ntrue\u00a0 and free from all doubts and it was recorded when\u00a0 the
\ninjured\u00a0 was\u00a0 in a fit state of mind.\u00a0 In our\u00a0 opinion,\u00a0 the
\ncertificate\u00a0 appended to the dying declaration at the end by
\nDr.\u00a0\u00a0 Smt.\u00a0 K.\u00a0Vishnupriya Devi (PW 10) did not comply with
\nthe requirement in as much as she has failed to certify that
\nthe\u00a0 injured\u00a0 was\u00a0 in\u00a0 a fit state of mind at\u00a0 the\u00a0 time\u00a0 of
\nrecording\u00a0 the\u00a0dying declaration.\u00a0 The certificate\u00a0 of\u00a0 the
\nsaid\u00a0 expert at the end only says that patient is conscious
\nwhile\u00a0 recording the statement.\u00a0 In view of these\u00a0 material
\nomissions,\u00a0 it\u00a0would\u00a0 not\u00a0 be\u00a0safe\u00a0 to\u00a0 accept\u00a0 the\u00a0 dying
\ndeclaration\u00a0 (Ex.P-14) as true and genuine and as made\u00a0when
\nthe\u00a0 injured was in a fit state of mind.\u00a0 From the judgments
\nof\u00a0 the\u00a0 courts below, it appears that this aspect\u00a0 was\u00a0 not
\nkept\u00a0 in\u00a0 mind and resultantly they erred in\u00a0 accepting\u00a0 the
\nsaid\u00a0 dying\u00a0 declaration (Ex.P-14) as true, genuine\u00a0 and\u00a0 as
\nmade\u00a0 when\u00a0 the\u00a0 injured\u00a0 was in a fit state\u00a0 of\u00a0 mind.\u00a0\u00a0 In
\nmedical\u00a0 science two stages namely conscious and a fit state
\nof\u00a0 mind\u00a0 are distinct and are not synonymous.\u00a0One\u00a0 may\u00a0 be
\nconscious\u00a0 but not necessarily in a fit state of mind.\u00a0This
\ndistinction was overlooked by the courts below.
\n\u00a0\u00a0\u00a0 In\u00a0the similar vein, another three judge Bench of\u00a0this
\nCourt\u00a0 in\u00a0 Koli\u00a0 Chunilal\u00a0 Savji and another\u00a0 v.\u00a0\u00a0 State\u00a0 of
\nGujarat\u00a0 (1999 (9) SCC 562) observed that in the absence\u00a0 of
\nthe\u00a0 Doctor\u00a0 while recording a dying declaration,\u00a0 the\u00a0same
\nloses its value and cannot be accepted.\u00a0 In paragraphs 6 and
\n7 of the Report, this Court observed:<\/p>\n

\u00a0\u00a0\u00a0 6.\u00a0 In view of the rival submissions made at the\u00a0 Bar,
\ntwo questions really arise for our consideration:<\/p>\n

\u00a0\u00a0\u00a0 (1) Whether the two dying declarations can be held to be
\ntrue and voluntary and can be relied upon or can be excluded
\nfrom\u00a0 consideration\u00a0 for the infirmities pointed out by\u00a0 Mr.
\nKeswani, appearing for the appellants.<\/p>\n

\u00a0\u00a0\u00a0 (2)\u00a0 Whether the High Court exceeded its jurisdiction in
\ninterfering\u00a0 with\u00a0 the order of acquittal, recorded\u00a0 by\u00a0 the
\nlearned Sessions Judge.<\/p>\n

\u00a0\u00a0\u00a0 7.\u00a0Coming to the first question, the answer to the same
\nwould\u00a0 depend upon the correctness of the submission of\u00a0 Mr.
\nKeswani,\u00a0 that in the absence of the doctor while\u00a0 recording
\nthe\u00a0 dying declaration, the said declaration loses its value
\nand\u00a0 cannot\u00a0 be accepted.\u00a0 Mr.\u00a0Keswani in\u00a0 this\u00a0 connection
\nrelies\u00a0upon\u00a0 the\u00a0 decision\u00a0 of this Court in\u00a0 the\u00a0 case\u00a0 of
\nManiram\u00a0 v.\u00a0 State of M.P.\u00a0 (1994 Supp (2) SCC 539).\u00a0 In the
\naforesaid\u00a0 case, no doubt this Court has held that when\u00a0 the
\ndeclarant was in the hospital itself, it was the duty of the
\nperson\u00a0who\u00a0 recorded the dying declaration to do so in\u00a0 the
\npresence of the doctor and after being duly certified by the
\ndoctor\u00a0that\u00a0 the declarant was conscious and in his\u00a0 senses
\nand\u00a0 was in a fit condition to make the declaration.\u00a0 In the
\nsaid\u00a0 case the Court also thought it unsafe to rely upon the
\ndying\u00a0 declaration on account of the aforesaid infirmity and
\ninterfered\u00a0 with\u00a0 the judgment of the High Court.\u00a0\u00a0 But\u00a0 the
\naforesaid\u00a0 requirements are a mere rule of prudence and\u00a0 the
\nultimate\u00a0 test is whether the dying declaration can be\u00a0held
\nto\u00a0 be a truthful one and voluntarily given.\u00a0 It is no doubt
\ntrue\u00a0 that\u00a0 before\u00a0 recording the declaration,\u00a0the\u00a0 officer
\nconcerned\u00a0 must\u00a0 find\u00a0 that\u00a0 the\u00a0 declarant\u00a0 was\u00a0 in\u00a0 a\u00a0 fit
\ncondition\u00a0 to\u00a0 make\u00a0 the\u00a0 statement in\u00a0question.\u00a0\u00a0 In\u00a0Ravi
\nChander\u00a0 v.\u00a0\u00a0 State of Punjab (1998 (9) SCC 303) this\u00a0 Court
\nhas\u00a0 held\u00a0 that\u00a0 for\u00a0 not examining the\u00a0 doctor,\u00a0 the\u00a0 dying
\ndeclaration\u00a0 recorded\u00a0 by the Executive Magistrate\u00a0 and\u00a0 the
\ndying\u00a0 declaration\u00a0 orally\u00a0 made need not be\u00a0 doubted.\u00a0 The
\nCourt further observed that that the Executive Magistrate is
\na\u00a0 disinterested\u00a0 witness and is a responsible\u00a0officer\u00a0 and
\nthere\u00a0 is\u00a0 no circumstance or material on record to\u00a0 suspect
\nthat\u00a0 the\u00a0 Executive Magistrate had any animus\u00a0against\u00a0 the
\naccused\u00a0 or\u00a0 was\u00a0 in any way interested in\u00a0 fabricating\u00a0 the
\ndying\u00a0declaration\u00a0\u00a0 and,\u00a0 therefore,\u00a0 the\u00a0\u00a0 question\u00a0\u00a0 of
\ngenuineness\u00a0 of\u00a0 the\u00a0 dying\u00a0\u00a0 declaration\u00a0 recorded\u00a0 by\u00a0 the
\nExecutive\u00a0 Magistrate to be doubted does not arise.\u00a0 In\u00a0 the
\ncase\u00a0 of Harjit Kaur v.\u00a0 State of Punjab (1999 (6) SCC\u00a0545)
\nthis\u00a0 Court\u00a0 has examined the same question and held:<\/p>\n

\u00a0\u00a0\u00a0 (SCC p.547, para 5)<\/p>\n

\u00a0\u00a0\u00a0 As regards the condition of Parminder Kaur, the witness
\nhas\u00a0 stated\u00a0 that he had first ascertained from\u00a0 the\u00a0 doctor
\nwhether\u00a0 she was in a fit condition to make a statement\u00a0 and
\nobtained an endorsement to that effect.\u00a0 Merely because that
\nendorsement was made not on the dying declaration itself but
\non\u00a0 the\u00a0 application,\u00a0 that\u00a0 would\u00a0\u00a0 not\u00a0 render\u00a0 the\u00a0 dying
\ndeclartion suspicious in any manner.<\/p>\n

\u00a0\u00a0\u00a0 Dying\u00a0 declarations shall have to be dealt with care and
\ncaution\u00a0 and\u00a0 corroboration thereof though not essential\u00a0 as
\nsuch,\u00a0 but is otherwise expedient to have the same in\u00a0 order
\nto\u00a0 strengthen\u00a0the\u00a0 evidentiary value of\u00a0 the\u00a0declaration.
\nIndependent\u00a0 witnesses may not be available but there should
\nbe\u00a0 proper\u00a0 care and caution in the matter of acceptance\u00a0 of
\nsuch\u00a0 a\u00a0 statement\u00a0 as trustworthy evidence.\u00a0\u00a0 In\u00a0 our\u00a0view
\nquestion of the dying declaration to the mother is not worth
\nacceptance\u00a0 and\u00a0 the\u00a0 High Court thus clearly fell\u00a0 into\u00a0 an
\nerror\u00a0 in such an acceptance.\u00a0 Significantly, the High Court
\nhas\u00a0 set aside the conviction and sentence under Section 304
\nB read with Section 34 and 120 B of the Indian Penal Code so
\nfar\u00a0\u00a0 as\u00a0 the\u00a0 father-in-law,\u00a0the\u00a0 mother-in-law\u00a0 and\u00a0 the
\nbrother-in-law\u00a0 are\u00a0\u00a0 concerned\u00a0\u00a0 though\u00a0\u00a0 maintained\u00a0 the
\nconviction\u00a0 under 498A.\u00a0 So far as the husband is\u00a0 concerned
\nthe High Court converted the charge from 304 B to 302 on the
\nground\u00a0that\u00a0 the\u00a0 only\u00a0 motive\u00a0 of\u00a0 the\u00a0 murder\u00a0 could\u00a0\u00a0 be
\nattributed\u00a0 to\u00a0the\u00a0 husband\u00a0 who\u00a0 must\u00a0 be\u00a0 interested\u00a0 in
\ncommitting\u00a0 such\u00a0 offence\u00a0 so that he\u00a0 can\u00a0 perform\u00a0 another
\nmarriage\u00a0\u00a0 This is rather a far-fetched assumption without
\nany cogent evidence available on record.\u00a0 Needless to record
\nhere\u00a0 that\u00a0 excepting\u00a0 one\u00a0 of the\u00a0 very\u00a0 keenly\u00a0 interested
\nwitness,\u00a0 the\u00a0 episode of the applicant being married\u00a0 again
\ndoes\u00a0 not\u00a0 come\u00a0 from any other witness and\u00a0 the\u00a0 factum\u00a0 of
\nmarriage\u00a0 also\u00a0though stated but devoid of any\u00a0 particulars
\neven\u00a0 as regards the name, the date of marriage etc.\u00a0 It\u00a0 is
\non\u00a0 record that on arrival of the mother and the brother\u00a0 of
\nthe\u00a0 deceased,\u00a0they\u00a0 found an assembly of large\u00a0 number\u00a0 of
\nmahalla people\u00a0but none of them were called to even have a
\ncorroboration\u00a0 to\u00a0 this part of the evidence of the\u00a0 accused
\nmarrying\u00a0 after\u00a0 the death of the deceased:\u00a0 No\u00a0 independent
\nwitness\u00a0 was thought of, though the factum of marriage could
\nhave\u00a0 been\u00a0 corroborated by an outside agency.\u00a0The FIR\u00a0 and
\nthe\u00a0 other oral evidence available if read together and full
\ncredence\u00a0 is attributed to the same but that itself does not
\nand\u00a0 cannot\u00a0 permit\u00a0 the\u00a0 High\u00a0Court to\u00a0 come\u00a0to\u00a0 such\u00a0 an
\nassumption.\u00a0\u00a0 The assumption is faulty and is wholly\u00a0 devoid
\nof\u00a0 any substance.\u00a0 As a matter of fact no special role\u00a0 was
\neven\u00a0 ascribed to the appellant herein for apart leading any
\nevidence\u00a0 thereon.\u00a0\u00a0 Presumptions\u00a0 and assumptions\u00a0 are\u00a0 not
\navailable\u00a0 in criminal jurisprudence and on the wake of\u00a0 the
\naforesaid\u00a0 we\u00a0 are\u00a0 unable\u00a0 to\u00a0 lend\u00a0 concurrence\u00a0 to\u00a0 the
\nassumptions\u00a0 of the High Court as recorded herein before\u00a0 in
\nthis\u00a0 judgment.\u00a0\u00a0 Significantly, even the dying\u00a0 declaration
\nwhatever it is worth, has implicated all the four accused in
\nthe\u00a0 manner\u00a0 similar.\u00a0There\u00a0 is\u00a0 no\u00a0 additional\u00a0 piece\u00a0 of
\nevidence implicating the husband which would permit the High
\nCourt\u00a0 to\u00a0 convert\u00a0 the\u00a0 charge\u00a0 of 304\u00a0 B\u00a0 to\u00a0302\u00a0\u00a0\u00a0 True
\npunishment of life imprisonment is available under 304 B but
\nthat\u00a0 is\u00a0 the\u00a0 maximum available under the Section\u00a0 and\u00a0 for
\nSection\u00a0 302\u00a0 the\u00a0 same is the minimum available\u00a0 under\u00a0 the
\nSection.\u00a0\u00a0 Though\u00a0 discretion\u00a0 to a\u00a0 further\u00a0 award\u00a0 minimum
\ncannot\u00a0be taken away from the Court.\u00a0 Section 302 is a much
\nmore\u00a0 heinous offence and unfortunately there is no evidence
\nof such heinous activities attributable to the husband.\u00a0 The
\nfactum\u00a0of\u00a0 the\u00a0 husband, if interested in\u00a0 committing\u00a0such
\noffence so that he can perform another marriage has not been
\nput to the witnesses and in the absence of which, assumption
\nto\u00a0 that\u00a0 effect,\u00a0 cannot\u00a0 be\u00a0said\u00a0 to\u00a0 be\u00a0 an\u00a0 acceptable
\nassumption\u00a0 since\u00a0 without\u00a0 any\u00a0 evidentiary\u00a0 support.\u00a0 The
\nassumption by itself in our view is untenable.<\/p>\n

\u00a0\u00a0\u00a0 Mr.\u00a0\u00a0 H.L.\u00a0Agrawal, learned senior Advocate ,\u00a0 however,
\nemphatically\u00a0 contended that considering the hour of the day
\nand\u00a0 the\u00a0 factum\u00a0 of\u00a0 the\u00a0 wife being\u00a0 burnt\u00a0 and\u00a0 no\u00a0 other
\nexplanation\u00a0 coming forth, question of the husband\u00a0 escaping
\nthe\u00a0 liability of murder does not and cannot arise.\u00a0 We\u00a0 are
\nhowever\u00a0 unable\u00a0 to lend our concurrence to\u00a0 the\u00a0 aforesaid.
\nWhile\u00a0 it\u00a0 is true that husband being the companion\u00a0 in\u00a0 the
\nbedroom\u00a0 ought to be able to explain as to the circumstances
\nbut there exist an obligation on the part of the prosecution
\nto\u00a0 prove\u00a0 the\u00a0guilt of the accused beyond\u00a0 all\u00a0 reasonable
\ndoubt.\u00a0 Criminal jurisprudential system of the country\u00a0 has
\nbeen\u00a0 to that effect and there is neither any departure\u00a0 nor
\nany escape therefrom.<\/p>\n

\u00a0\u00a0\u00a0 The\u00a0 defence\u00a0 story of early morning\/burst by reason\u00a0 of
\nwarming up of milk from the kitchen has not been accepted as
\ntrue\u00a0 and plausible explanation for the injury by either\u00a0 of
\nthe\u00a0 courts\u00a0 but does that mean and imply\u00a0 that\u00a0 necessarily
\ntherefore\u00a0 the\u00a0husband\u00a0 was guilty of murder\u00a0The\u00a0 answer
\ncannot\u00a0be in the affirmative.\u00a0As the experience goes\u00a0this
\nunfortunate\u00a0 trend has turned out to be a growing menace\u00a0 in
\nthe society and does not warrant any sympathy whatsoever but
\nthat\u00a0 does not however mean non adherence to even the basics
\nof\u00a0 the law.\u00a0 When the parents arrived the girl was lying on
\nthe bed and without there being any evidence as the state of
\nthe\u00a0 linen,\u00a0 the\u00a0 cot\u00a0 and the\u00a0surroundings.\u00a0Is\u00a0 this\u00a0 an
\nomission without having any impact on the entire prosecution
\ncase?<\/p>\n

\u00a0\u00a0\u00a0 Let\u00a0 us, however, scrutinise the evidence in little more
\ngreater\u00a0\u00a0 detail:\u00a0\u00a0 the\u00a0 mother\u00a0\u00a0 was\u00a0 informed\u00a0 about\u00a0 the
\ndaughters burn injury at night\u00a0the parents arrived in the
\nmorning\u00a0 finds\u00a0the daughter in the bed room with\u00a0 excessive
\nburn\u00a0 injuries without however any mention of the impact\u00a0 on
\nthe\u00a0 surroundings\u00a0\u00a0\u00a0 the deceased supposed to have\u00a0 made\u00a0 a
\nstatement\u00a0 to the mother that the in-laws and the husband on
\na\u00a0 conjoint\u00a0 move\u00a0 poured\u00a0 kerosene on to her\u00a0 and\u00a0 threw\u00a0 a
\nlighted\u00a0 match stick so as to cause burn injuries\u00a0 last\u00a0 of
\nthe\u00a0 evidence\u00a0 is that the deceased immediately\u00a0 after\u00a0such
\ncommunication\u00a0 passed away without any medical assistance
\nwould\u00a0 this evidence be sufficient to prove the charges even
\nunder Section 304B and 498A for apart the conversion thereof
\nto 302 by the High Court?\u00a0 We are afraid the evidence is not
\nsufficient enough to reach an irresistible conclusion of the
\ninvolvement\u00a0 of\u00a0 the husband as the murderer or\u00a0 even\u00a0 being
\ncharged with an offence under Section 304B IPC.<\/p>\n

\u00a0\u00a0\u00a0 We\u00a0do\u00a0 feel it expedient to record that the\u00a0 conviction
\nand sentence as imposed against the husband-appellant cannot
\nbe\u00a0 sustained.\u00a0 The sentence of imprisonment for life\u00a0thus
\nunder\u00a0 Section 302 stands set aside.\u00a0 There is no\u00a0 evidence,
\nconvincing,\u00a0 so\u00a0 as\u00a0 to even render\u00a0 the\u00a0 accused\u00a0 appellant
\nsuffer\u00a0such\u00a0 a\u00a0 conviction.\u00a0 There is no challenge\u00a0 by\u00a0 the
\nState\u00a0 as\u00a0 against\u00a0 the order of acquittal\u00a0 of\u00a0other\u00a0 three
\naccused\u00a0 persons\u00a0 under\u00a0 Section\u00a0 304B as such\u00a0we\u00a0 are\u00a0 not
\ninclined to delve into the matter as regards the involvement
\nof\u00a0 the other three persons but the appellants\u00a0explanation
\nof\u00a0 stove-\u00a0 burst\u00a0 being the cause of the\u00a0 event\u00a0 cannot\u00a0 be
\nbrushed aside.\u00a0It is undoubtedly a social and heinous crime
\nto\u00a0 have the wife burnt to death but without any proper\u00a0 and
\nreliable\u00a0 evidence,\u00a0 the\u00a0 law court can not by\u00a0itself\u00a0also
\njustify\u00a0 its conclusion in the matter of involvement of\u00a0 the
\nhusband:\u00a0\u00a0\u00a0 Direct\u00a0 evidence\u00a0 may\u00a0\u00a0 not\u00a0 be\u00a0 available\u00a0 but
\ncircumstantial\u00a0evidence with reasonable probity and without
\na\u00a0 snap in the chain of events would certainly tantamount to
\na definite evidence about the involvement but not otherwise.
\nWhat\u00a0 is\u00a0 the evidence available in the matter\u00a0To\u00a0 put\u00a0 it
\nshortly, there is none!\u00a0 The factum of burn injury cannot be
\ndoubted\u00a0 and\u00a0 the subsequent unfortunate death but\u00a0 that\u00a0 is
\nabout all.\u00a0 Why was the Investigating officer not examined
\nNo answers are forthcoming even at this stage\u00a0 but why not?
\nIs\u00a0 it\u00a0a lacuna?\u00a0 We need not dilate thereon but\u00a0 the\u00a0fact
\nremains\u00a0 there\u00a0is not a whisper in regard thereto!\u00a0\u00a0 Coming
\nback\u00a0 to Section 498A the requirement of the statute is acts
\nof\u00a0 cruelty by the husband of a woman or any relative of the
\nhusband.\u00a0\u00a0 The word cruelty in common English\u00a0 acceptation
\ndenotes\u00a0 a state of conduct which is painful and distressing
\nto\u00a0 another.\u00a0 The legislative intent thus is clear enough to
\nindicate that in the event of there being a state of conduct
\nby the husband to the wife or by any relative of the husband
\nwhich\u00a0 can be attributed to be painful or distressing.\u00a0 The
\nsame\u00a0 would\u00a0 be within the meaning of the Section.\u00a0\u00a0 In\u00a0 the
\ninstant case there is no evidence whatsoever.\u00a0 It is on this
\nscore\u00a0 Mr.\u00a0\u00a0 Verma\u00a0 contended that there\u00a0 is\u00a0 no\u00a0 sufficient
\nevidence\u00a0 for even the dowry demand far less the evidence of
\ncruelty\u00a0 available\u00a0 on record.\u00a0No outside person\u00a0 has\u00a0been
\ncalled\u00a0to give evidence and even the witnesses being in the
\ncategory\u00a0 of\u00a0 interested\u00a0 witnesses\u00a0 also\u00a0 restricted\u00a0 their
\nversion to sufferings of burn injury and the purported dying
\ndeclarations\u00a0 to the matter as noticed herein before\u00a0 apart
\ntherefrom\u00a0 nothing more is available on record to\u00a0 attribute
\nany act or acts on the part of the husband or on the part of
\nhusbands\u00a0 relatives\u00a0 is that evidence sufficient to\u00a0 bring
\nhome\u00a0 the\u00a0 charge under Section 498A?\u00a0 The answer\u00a0 obviously
\ncannot\u00a0 be\u00a0 in\u00a0 the\u00a0 affirmative\u00a0\u00a0 having\u00a0 regard\u00a0 to\u00a0 the
\nnon-availability\u00a0\u00a0 of\u00a0any\u00a0\u00a0 evidence\u00a0\u00a0 in\u00a0\u00a0 the\u00a0\u00a0 matter.
\nSignificantly\u00a0 however,\u00a0 upon\u00a0 recording of the fact\u00a0 of\u00a0 no
\ndowry\u00a0 demand prior to the date of occurrence the High Court
\nthought\u00a0 it\u00a0 fit\u00a0 to record that charge under\u00a0 Section\u00a0498A
\nstands\u00a0proved\u00a0and\u00a0 as such passed the\u00a0 sentence.\u00a0\u00a0 We\u00a0 are
\nhowever unable to record our concurrence therewith – torture
\nis a question of fact\u00a0 there must be proper effort to prove
\nthat\u00a0 aspect\u00a0 of the matter, but unfortunately not\u00a0 even\u00a0 an
\nattempt\u00a0 has been made nor any evidence tendered to\u00a0 suggest
\nthe\u00a0 same excepting the bold interpolated allegations\u00a0 which
\nstand\u00a0 disbelieved and ignored by the High Court, and in our
\nview rightly.<\/p>\n

\u00a0\u00a0\u00a0 On\u00a0the wake of the aforesaid, charge under Section 498A
\nalso\u00a0 cannot be sustained!\u00a0 Both the learned Trial Judge and
\nthe\u00a0 High\u00a0 Court are clearly wrong in not\u00a0 considering\u00a0this
\naspect\u00a0of the matter and thus fell into a serious and clear
\nerror.\u00a0 In\u00a0 that\u00a0 view\u00a0 of the matter\u00a0the\u00a0 conviction\u00a0 and
\nsentence\u00a0 stand\u00a0 set\u00a0 aside.\u00a0The\u00a0 appeal\u00a0 stands\u00a0 allowed
\naccordingly.\u00a0\u00a0 The appellant is acquitted.\u00a0 The appellant be
\nset at liberty forthwith unless required in any other case.<\/p>\n","protected":false},"excerpt":{"rendered":"

Supreme Court of India CASE NO.:Appeal (crl.) 887\u00a0 of\u00a0 1998 PETITIONER:ARVIND SINGH \u00a0Vs. RESPONDENT:STATE OF BIHAR DATE OF JUDGMENT:\u00a026\/04\/2001 BENCH:Umesh C. Banerjee & K.G. Balakrishnan…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[4422,59,47557,47558,48,265,14156,744,1390,15542,13409,15827,15825,3814,4775,4552,1338,2180],"class_list":["post-29","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-arvind-singh","tag-docs","tag-docs1","tag-docs2","tag-dowry","tag-fir","tag-high-court","tag-husband","tag-indian-penal-code","tag-law","tag-prosecution","tag-sc","tag-scc","tag-section","tag-section-302","tag-section-302-ipc","tag-section-304b","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/29","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=29"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/29\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=29"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=29"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=29"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}