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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 84/2019

VINAY TIWARI ….. Appellant
Through: Mr. Kanhaiya Singhal and Mr. Arshid,
Advocates.

versus

STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State

Reserved On: 02nd December, 2019
% Date of Decision: 24th December, 2019

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

JUDGMENT

MANMOHAN, J:

1. Present appeal has been filed by appellant-convict challenging the
judgment dated 22nd December, 2018 and the order on sentence of the same
date passed by the Additional Sessions Judge-04, East, Karkardooma
Courts, Delhi in Sessions Case No. 970/2016 arising out of FIR
No.543/2009 registered with Police Station Mandawali. The appellant-
convict has been convicted under Sections 302/498A IPC and sentenced to
undergo imprisonment for life with fine of Rs. 5,000/- for offence
punishable under Section 302 IPC as well as rigorous imprisonment for
three years with fine of Rs. 1,000/- for offence punishable under Section
498A IPC.

CRL. A. No. 84/2019 Page 1 of 31

CASE OF THE PROSECUTION

2. Briefly stated the case of the prosecution is that the appellant-convict
and Rakhi (deceased) had married each other on 5th April, 2006 and
thereafter, the appellant-convict had subjected Rakhi to cruelty and
harassment for dowry. On 30th October, 2008 Rakhi suffered burn injuries at
her home in Chander Vihar, Mandawali, Delhi and was shifted to the LNJP
Hospital, where ASI Ramesh Chand (PW-14) as well as the Executive
Magistrate (PW-18) recorded her statement on the same day. The deceased
made no allegations against the appellant-convict in these statements.

3. As per the prosecution, on 19th November, 2008 Rakhi called her
parents using the mobile phone of another patient, who was being treated in
the same hospital, bearing No. 9911301654 and informed them about her
condition. Thereafter, her parents came to the hospital and she told them that
the appellant-convict had poured kerosene on her and set her on fire.
Subsequently, the father of the deceased – Prabhu Shankar Tiwari (PW-6)
wrote a letter dated 16th December, 2008 to the SDM (Mark PW-6/A) to
record the statement of his daughter Rakhi again as the first statement dated
30th October, 2008 was recorded under threat. Another letter dated 26th
December, 2008 was addressed to the Hon’ble Chief Justice of this Court by
Rakhi herself, in which she stated that her husband (appellant-convict
herein) had set her on fire after pouring kerosene and that she had been
harassed by her in-laws on account of dowry. On 22nd January, 2009 Rakhi
died while being treated at the LNJP hospital.

4. However, no action was taken for several months and the FIR in the
present case came to be registered only when a copy of the aforesaid letter

CRL. A. No. 84/2019 Page 2 of 31
addressed to the Hon’ble Chief Justice was received in the police station
Mandawali and the statement of the mother of the deceased (PW-3) was
recorded on 23rd October, 2009.

FINDING OF THE TRIAL COURT

5. The Trial Court convicted the appellant-convict under Sections
302/498A IPC. However on account of lack of evidence to prove that the
deceased was treated with cruelty, for or in connection with any demand for
dowry soon before her death, the appellant-convict was acquitted for the
offence punishable under Section 304B IPC. The relevant portion of the
impugned Trial Court judgment is reproduced hereinbelow:-

“32. As far as commission of offence u/s 304B IPC is
concerned, in Sher Singh @ Pratapa v. State of Haryana, Crl.
Appeal No. 1592 of 2011, dated 09.01.2015, the Apex Court held
that it is for the prosecution to prove that a “dowry
death” has occurred namely, (i) that the death of a woman has
been caused in abnormal circumstances by her having been
burned or having been bodily injured, (ii) within seven
years of a marriage, (iii) and that she was subjected to cruelty
or harassment by her husband or any relative of her husband,

(iv) in connection with any demand for dowry and (v) that the
cruelty or harassment meted out to her continued to have a
causal connection or live link with the demand of dowry. It was
further held that once the presence of these concomitants are
established or shown or proved by the prosecution, even by
preponderance of possibility, the initial presumption of
innocence is replaced by an assumption of guilt of the
accused, thereupon transferring the heavy burden of
proof upon him and requiring him to produce evidence
dislodging his guilt, beyond reasonable doubt.(Emphasis
supplied).

xxx xxx xxx

CRL. A. No. 84/2019 Page 3 of 31

62. To conclude, at the cost of repetition, in the light of afore-
discussed entire facts and circumstances, it is evident that the
deceased was conscious and fit to make statements how she
suffered burn injuries. The dying declarations exhibit Ex.
PW14/B and Ex. PW18/A were not made with free will and
voluntarily by the deceased. The evidence available on
record also do not corroborate both the aforementioned
statements. The dying declarations vide letter Ex. PW3/B
was voluntary and truthful, detailing the circumstances leading
to the burn injuries sustained by the deceased. Even otherwise
the kind of burn injuries suffered by the deceased clearly shows
that she was intentionally and deliberately set on fire, which was
not accidental in nature as no burst kerosene stove could be
found on the scene of occurrence. The testimonies of family
members of the deceased as well as the independent witness
namely Neeraj (PW10) remained firm and could not be
contradicted in any manner whatsoever. On the other hand, the
conduct of the accused throughout remained suspicious and
unexplained. Hence, in my considered opinion, it was the
accused and only the accused who intentionally poured kerosene
oil over the deceased and set her on fire on 30.10.2008. The
accused is accordingly held guilty for commission of
offence punishable under section 302 IPC.

63. From the testimonies of Mala Tiwari (PW3), Prabhu Shankar
Tiwari (PW6) and Navin Kumar (PW8) as well as dying
declaration of the deceased Ex. PW3/B, as discussed in detail
above, it is also established that the deceased was subjected to
cruelty by the accused during her life time, which was of such a
nature as is likely to cause grave injury or danger to her life,
limb or health and therefore, accused is also held guilty for
commission of offence punishable u/s 498A IPC.

xxx xxx xxx

65. In view of findings on all points for determination, accused
Vijay Tiwari s/o Subhash Tiwari is accordingly convicted
for the offence punishable u/s 302/498A IPC. Accused,

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however, stands acquitted for commission of offence
punishable u/s 304B IPC.”

ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT

6. Mr. Kanhaiya Singhal, learned counsel for the appellant-convict
stated that there had been no allegations against the appellant-convict in the
MLC (Ex.PW-4/A) as well as dying declaration recorded by the police (Ex.
PW-14/B) or the dying declaration recorded by the Executive Magistrate
(Ex. PW-18/A) and the said statements had been recorded after the deceased
had been duly certified to be in a „fit state of mind’ by the Doctor.
Consequently, according to him, these dying declarations inspire confidence.

7. Learned counsel for the appellant-convict stated that the alleged dying
declaration (Ex. PW-3/B) of the deceased had been fabricated by the parents
of the deceased in conspiracy with Neeraj Kumar (PW-10) and A.K.
Pandey, in order to falsely implicate the appellant-convict. He stated that
there was no postal proof to show as to when the alleged dying declaration
was sent to the Hon’ble Chief Justice of this Court.

8. He laid emphasis on the fact that the prosecution had not proved the
thumb impression that was put on the alleged dying-declaration. He also
stated that there was no medical evidence on record to show that the
deceased was in a „fit state of mind‟ on 26th December, 2008 i.e. the date of
the alleged dying declaration.

9. He contended that a bare perusal of the alleged dying declaration
proved that it was a result of legal advice as the words used in it are those
that are used by experts in the field only. In support of his contention he

CRL. A. No. 84/2019 Page 5 of 31
relied upon the judgment of this Court in State Vs. Kumari Mubin Fatima
Ors., 2013 (2) JCC 1099.

10. He further stated that even though as per the prosecution, the parents
of the deceased had allegedly visited the hospital for the first time on 19 th
November, 2008, yet they had not filed any complaint till 26th December,
2008. He contended that since the father of the deceased (PW-6) was a
press reporter, it can be inferred that he was not an illiterate person. In view
of the said fact, he emphasized that it was unlikely that the father of the
deceased was neither aware nor had been advised by Neeraj Kumar (PW-10)
or his senior to file a complaint in accordance with Section 156(3) of the
Cr.P.C. He also contended that the parents of the deceased had never liked
the appellant-convict and which is why they had concocted false evidence.
In support of his contention, he relied upon the judgment of this Court in
Bhanwar Pal Singh vs. State, Govt. of NCT of Delhi, 163 (2009) DLT 170
(DB).

11. Learned counsel for the appellant-convict contended that when the
appellant-convict had taken the deceased to the hospital, their house was left
open. He stated that since the police had not reached the spot immediately, it
was possible that the stove that had burst and caused burn injuries to the
deceased may have been thrown out by someone or may have missed the
eye, but it did not mean that the burst stove was not present at the spot.

12. Learned counsel for the appellant-convict contended that if there had
been any ill intent on the part of the appellant-convict, he would not have
taken the deceased to the hospital or remained in the hospital for such a long

CRL. A. No. 84/2019 Page 6 of 31
period of time. He emphasized that the conduct of the appellant-convict
proved his innocence and consequently, he should be acquitted and set free.

ARGUMENTS ON BEHALF OF THE STATE

13. Per contra, Ms. Aashaa Tiwari, learned APP for the State stated that
the deceased had made oral dying declarations to her family members i.e.
her mother Mala Tiwari (PW-3), father Prabhu Shankar Tiwari (PW-6) and
her brother Naveen Kumar (PW-8) while she was admitted in the hospital,
wherein she had stated that the appellant-convict had poured kerosene on her
on the day of Bhaiya Dooj (30th October, 2008) and burnt her. She stated
that the testimonies of mother Mala Tiwari (PW-3), father Prabhu Shankar
Tiwari (PW-6) and brother Naveen Kumar (PW-8) had not been
contradicted in cross examination.

14. Ms. Aashaa Tiwari further stated that the same version of the incident
had been reiterated in the letter dated 26th December, 2008 addressed to the
Hon’ble Chief Justice of this Court (Ex. PW-3/B). She emphasized that in
the aforesaid letter, the deceased had stated that since the appellant-convict
had threatened her, she had not disclosed anything to the police or any other
person. She also pointed out that the statements given by the deceased to the
police and executive magistrate were made as per the directions of the
appellant-convict and consequently the said statements were not voluntary.

15. Learned APP for the State stated that the dying declaration letter (Ex.
PW-3/B) had been written by Neeraj Kumar (PW-10) who had deposed that
he was directed by his senior to accompany the father of the deceased to the
hospital to record the statement of the deceased. She emphasized that Neeraj
Kumar (PW-10) had testified that even though the deceased was badly

CRL. A. No. 84/2019 Page 7 of 31
burnt, yet she was conscious and fit to make a statement and consequently,
he had recorded the statement of the deceased, verbatim, in his own
handwriting and the deceased had put her right thumb impression at Point
‘Q’ on the same. She pointed out that the testimony of Neeraj Kumar (PW-

10) had not been impeached in cross examination and was reliable.

16. She submitted that the Supreme Court in Laxman vs State of
Maharashtra AIR 2002 SC 2973 has held that if the officer recording the
dying declaration had stated that the deceased was in a fit and conscious
state to make said dying declaration, the absence of a fitness certificate by
the doctor would not render the dying declaration unacceptable.
Consequently, according to her, the contention of the learned counsel for
appellant-convict that the doctor should have certified the deceased as „fit
for statement‟ was unacceptable.

17. Learned APP for the State pointed out that the deceased, in dying
declaration (Ex. PW-3/B), had mentioned that the appellant-convict had
given away their daughter to a resident of Jammu. She stated that father of
the deceased (PW-6) had informed the police regarding the same and
subsequently, the daughter of the deceased was recovered and handed over
to the mother of the deceased.

18. In view of the foregoing, she contended that the oral dying
declarations made by the deceased to her family members as well as the one
made to Neeraj Kumar (PW-10) which he had reduced into a letter (Ex. PW-
3/B) were voluntary, truthful and could be relied upon.

CRL. A. No. 84/2019 Page 8 of 31

19. Learned APP for the State stated that the dying declaration made to
ASI Ramesh Chand (PW-14) i.e. Ex. PW-14/B and Executive Magistrate
(PW-18) i.e. Ex. PW-18/A, were made in the presence of the appellant-
convict and consequently, the possibility of the deceased being threatened or
intimidated by the appellant-convict, as stated by the deceased in her dying
declaration letter (Ex. PW-3/B), cannot be ruled out. In any event, she
contended that the dying declarations to the ASI Ramesh Chand (PW-14)
and Executive Magistrate (PW-18) were contrary to the evidence available
on record as no stove was found at the spot. In support of her contention she
relied upon the testimonies of ASI Ramesh Chand (PW-14) and HC Anil
Kumar (PW-13) who had reached the spot on the day of the incident.

20. She contended that as per the testimony of Saroj (PW-9), the
appellant-convict was present at the spot at the time of the incident and had
taken the deceased to the hospital. She pointed out that the testimony of
Saroj (PW-9) also negates the content of dying declarations made to ASI
Ramesh Chand (PW-14) and Executive Magistrate (PW-18) as in those
statements it was mentioned that the neighbours had taken the deceased to
the hospital. She emphasized that even in the MLC (Ex. PW-4/A) it had
been recorded that the deceased was brought by her husband, i.e. appellant-
convict, contrary to her dying declarations to the ASI Ramesh Chand (PW-

14) and Executive Magistrate (PW-18).

21. Learned APP for the State contended that as per the Post Mortem
Report (Ex. PW-7/A), the deceased had burn injuries on her back which
could be possible only if kerosene was poured on her and she was set on fire
and not in a case of stove-bursting.

CRL. A. No. 84/2019 Page 9 of 31

22. Learned APP for the State stated that the thumb impressions of the
deceased on her dying declaration to the ASI Ramesh Chand (PW-14) and
Executive Magistrate (PW-18) i.e. Ex. PW-14/B and Ex. PW-18/A
respectively, were not clear and further, her thumb impression on the dying
declaration letter (Ex. PW-3/B) did not disclose sufficient number of ridge
details, which is why these thumb impressions were found unfit for
comparison.

23. Learned APP for the State submitted that in view of Section 8 of
Evidence Act, the conduct of the appellant-convict was an important
circumstance to establish the case of the prosecution. She contended that
after the death of the deceased on 22nd January, 2009, the appellant-convict
had absconded and had surrendered only on 27th July, 2015 when
proceedings under Section 82 Cr. P.C. had been initiated against him and
prior to that, Non Bailable Warrants had also been issued against the
appellant-convict on 10th March, 2015.

24. She further submitted that in view of Section 106 of Evidence Act, the
burden was on the appellant-convict to explain how the deceased had
suffered burn injuries within the four walls of their house; however the
appellant-convict had failed to discharge the said burden in his statement
recorded under Section 313 CrPC and consequently, adverse inference had
to be drawn against him.

25. She relied upon the judgment of the Supreme Court in Koli Chunilal
Savji and Another Vs. State of Gujarat, (1999) 9 SCC 562 and Shudhakar
Vs. State of Madhya Pradesh, (2012) 7 SCC 569.

CRL. A. No. 84/2019 Page 10 of 31

COURT‟S REASONING

SINCE THERE ARE TWO SETS OF CONTRADICTORY DYING
DECLARATIONS HEREIN, THE EVIDENCE ON RECORD HAS TO BE
EXAMINED AND THE DYING DECLARATION WHICH IS
CORROBORATED BY THE EVIDENCE HAS TO BE RELIED UPON.

26. Having heard learned counsel for both the parties, this Court is of the
view that it is essential to first outline the law relating to multiple dying
declarations. The Supreme Court in Jagbir Singh vs. State (NCT of Delhi)
(2019) 8 SCC 779, after analysing previous judgments on this aspect has
held as under:-

“31. A survey of the decisions would show that the principles can
be culled out as follows:

(i) Conviction of a person can be made solely on the basis of
a dying declaration which inspires confidence of the court;

(ii) If there is nothing suspicious about the declaration, no
corroboration may be necessary;

(iii) No doubt, the court must be satisfied that there is no
tutoring or prompting;

(iv) The court must also analyse and come to the conclusion
that imagination of the deceased was not at play in making
the declaration. In this regard, the court must look to the
entirety of the language of the dying declaration;

(v) Considering material before it, both in the form of oral
and documentary evidence, the court must be satisfied that
the version is compatible with the reality and the truth as can
be gleaned from the facts established;

(vi) However, there may be cases where there are more than
one dying declaration. If there are more than one dying
declaration, the dying declarations may entirely agree with

CRL. A. No. 84/2019 Page 11 of 31
one another. There may be dying declarations where
inconsistencies between the declarations emerge. The extent
of the inconsistencies would then have to be considered by
the court. The inconsistencies may turn out to be
reconcilable.

(vii) In such cases, where the inconsistencies go to some
matter of detail or description but are incriminatory in nature
as far as the accused is concerned, the court would look to
the material on record to conclude as to which dying
declaration is to be relied on unless it be shown that they are
unreliable;

(viii) The third category of cases is that where there are more
than one dying declaration and inconsistencies between the
declarations are absolute and the dying declarations are
irreconcilable being repugnant to one another. In a dying
declaration, the accused may not be blamed at all and the
cause of death may be placed at the doorstep of an
unfortunate accident. This may be followed up by another
dying declaration which is diametrically opposed to the first
dying declaration. In fact, in that scenario, it may not be a
question of an inconsistent dying declaration but a dying
declaration which is completely opposed to the dying
declaration which is given earlier. There may be more than
two.

(ix) In the third scenario, what is the duty of the court?
Should the court, without looking into anything else,
conclude that in view of complete inconsistency, the second
or the third dying declaration which is relied on by the
prosecution is demolished by the earlier dying declaration or
dying declarations or is it the duty of the court to carefully
attend to not only the dying declarations but examine the rest
of the materials in the form of evidence placed before the
court and still conclude that the incriminatory dying
declaration is capable of being relied upon?

CRL. A. No. 84/2019 Page 12 of 31

Our conclusion on multiple dying declarations

32. We would think that on a conspectus of the law as laid down
by this Court, when there are more than one dying declaration,
and in the earlier dying declaration, the accused is not sought to
be roped in but in the later dying declaration, a somersault is
made by the deceased, the case must be decided on the facts of
each case. The court will not be relieved of its duty to carefully
examine the entirety of materials as also the circumstances
surrounding the making of the different dying declarations. If the
court finds that the incriminatory dying declaration brings out
the truthful position particularly in conjunction with the capacity
of the deceased to make such declaration, the voluntariness with
which it was made which involves, no doubt, ruling out tutoring
and prompting and also the other evidence which support the
contents of the incriminatory dying declaration, it can be acted
upon. Equally, the circumstances which render the earlier dying
declaration, worthy or unworthy of acceptance, can be
considered.”

(emphasis supplied)

27. Applying the settled law, this Court is of the view that since there are
two sets of contradictory dying declarations herein, the present case falls
under the third category as mentioned in Jagbir Singh (supra). The two sets
of dying declarations are as follows:-

A. The first three which favour the appellant-convict i.e. the MLC
(Ex. PW-4/A), the statement recorded by the ASI Ramesh Chand (PW-
14/B) and the statement recorded by the Executive Magistrate (PW-
18/A); and

B. The four subsequent statements which inculpate the appellant-
convict i.e. the oral dying declarations made by the deceased to her

CRL. A. No. 84/2019 Page 13 of 31
mother (PW-3), father (PW-6) and brother (PW-8) and the letter dated
26th December, 2008 addressed to the Hon’ble Chief Justice of this
Court.

28. In order to establish which of the dying declarations are truthful and
reliable, the evidence on record has to be examined and the dying
declaration which is corroborated by the evidence can be relied upon.

THE TESTIMONIES OF MOTHER (PW-3), FATHER (PW-6) AND
BROTHER (PW-8) OF THE DECEASED, NEERAJ KUMAR (PW-10) AS
WELL AS THE LAST DYING DECLARATION IN FORM OF LETTER
DATED 26th DECEMBER, 2008 (EX. PW-3/B) ARE CLEAR, COGENT,
CONSISTENT, CREDIBLE, TRUSTWORTHY AND CORROBORATED BY
THE EVIDENCE ON RECORD.

29. The mother (PW-3), father (PW-6) and brother (PW-8) of the
deceased had deposed in Court with respect to oral dying declarations made
to them by the deceased. The relevant portion of their testimonies are
reproduced hereinbelow:-

A. Testimony of the mother – Mala Tiwari (PW-3)
“On 19.11.2008, I received a phone call from my daughter
Rakhi from mobile No.9911301654 to inform that her condition
was very serious and asked me to meet her to LNJP Hospital. I
and my husband went to LNJP Hospital and found that Rakhi
was in a badly burnt condition. When I asked as to how she got
burnt, she informed that she was burnt by her husband by
pouring kerosene oil on her on the day of Bhaiya Dooj i.e. on
30.10.2008. She was nine months pregnant at that time. I came
to know that after 4-5 days of this occurrence, she delivered a
baby body which expired because of burn injuries. Accused had
also burnt the daughter of Rakhi and gave her to some other
person at Jammu. She was later recovered by the police from
Sunil Kumar whose number I do not remember now but I have

CRL. A. No. 84/2019 Page 14 of 31
this number in my mobile phone. Accused had not informed us
that my daughter had got burnt and my daughter had secretly
made the telephone call to me. Accused had informed at the
hospital that Rakhi was orphan. He had threatened Rakhi to tell
that she had got burnt because of bursting of the stove and
threatened that he would not get her treated if she made any
complaint and forced her give statement to the SDM to support
him. On our arrival at the hospital, the doctor requested the
SDM to record the statement of the victim again but he refused.

On 26.12.2008, my daughter Rakhi sent a letter to the
High Court and thereafter the FIR was registered on the
directions of the High Court. During treatment, Rakhi expired
on 22.01.2009…..”

B. Testimony of the father – Prabhu Shankar Tiwari (PW-6)
“On 19/11/2008, my daughter Rakhi talked to me on
telephone and her voice was not clear and she told me that she
was in burnt condition and was admitted to Lok Nayak Hospital,
Delhi at burnt ward. I immediately along with my wife reached
Lok Nayak Hospital and I saw that my daughter Rakhi was lying
on a bed in burnt condition. The accused or any of his family
member was not present there. The treatment of my daughter
was going on in the hospital as she was not in proper condition.
During the treatment, my daughter Rakhi told me that she was
forced by the accused Vinay Tiwari and his real uncle
Shatrughan Tiwari to give statement in their favour and she had
given the statement before tehsildar concerned under pressure of
the accused and his uncle Shatrughan Tiwari. My daughter also
told me that she had been burnt by accused Vinay Tiwari by
pouring kerosene oil upon her and lighting it with fire, about 20
days ago and she also told that she was ready to give her real
statement before the authority concerned. Thereafter, I reached
PS Mandawali and requested the then SHO and the IO
concerned to record the statement of my daughter Rakhi and in
this regard I had also given a written application to them but
they refused to record statement of my daughter stating that her

CRL. A. No. 84/2019 Page 15 of 31
statement had already been recorded and there was no need to
record her other statement. I have today brought the copy of the
request letter dated 16/12/08 in this regard written by me, which
is Mark PW-6/A bearing my signatures at point A (copy given)
(objected to by the Ld. Defence Counsel on the ground that his
document has been produced today for the first time and was not
part of investigation).

On 26/11/2008, my statement was recorded by the police
and the same is Ex.PW6/B bearing my signatures at point A.
After the incident, I was not informed by the accused about the
same and I came to know about the incident on 19/11/2008 when
my daughter Rakhi talked to me on telephone.

On 26/12/2008, I got recorded the statement of my
daughter Rakhi in the hospital through Sh. Neeraj Kumar,
Advocate and the statement of my daughter Rakhi was recorded
in my presence as verbatim and she had put her thumb
impression on the same. Only one of the thumb impression was
in proper condition at that time and the other was burnt, I do not
recollect as to which of her thumb impression was put on her
statement. The said statement is already Ex.PW 3/B bearing
right hand thumb impression of my daughter Rakhi at point Q. I
asked from the accused in the hospital with regard to my Nati
Anamika (daughter of deceased) and on the pressure of the
police he told that she had been sent to Jammy and thereafter the
police took the contact number and she was brought from Jammu
and was handed over to me.

XXXXXX by Sh. M.S. Singh, Ld. Counsel for accused.

…..It is correct that I had stated in my statement Ex.PW6/B
dated 26/11/08 that I was having no suspicion on any one. Vol. I
had written so in the said statement as the police officers were
not taking any action properly and I was being harassed and they
were saying that nothing would happened by making complaints
and so on t he saying of the police officers, I have written that I
have not any suspicion on any one. I did not make any complaint
against the police officials to higher police officers in this

CRL. A. No. 84/2019 Page 16 of 31
regard. I had written in my own handwriting in Ex.6/B that I did
not want any legal action. It was written as I was being harassed
by the police officers that no fruitful purpose would be served by
giving complaint against the offender and due to anger by the
conduct of the police officers that I did not want any legal
action….”

C. Testimony of the brother – Naveen Kumar (PW-8)
“……My sister Rakhi was lying admitted in the hospital for
the last about 18-20 days prior to the date when I had visited the
hospital along with my father. My sister was having burn
injuries upwards her waist. So far as I remember, I had visited
the hospital 22.11.2008. I had not asked my sister as to how she
had sustained burn injuries. At least one of my family members
used to remain in the hospital to look after my sister Rakhi. One
day, my sister Rakhi had told me that she had been burnt by
accused Vinay Tiwari by pouring kerosene oil on her. My sister
Rakhi further told me that one day prior to the incident in which
she was burnt, accused Vinay Tiwari had brought one bottle
containing kerosene oil and when she (Rakhi) asked Vinay
Tiwari as to why he had brought the kerosene oil. My sister told
me that accused Vinay Tiwari told her that he had brought the
same to mix it in paint. I asked my sister as to why she had not
given the above said version of the incident of her burning, she
told me that at the time when she had given her statement to the
SDM, she gave her statement under pressure of accused Vinay
Tiwari. My sister Rakhi told me that accused Vinay Tiwari had
pressurized her to make particular statement saying that if she
did not make such a statement, he would not get her treated in
the hospital and would also not look after her. My sister also
told me that Shatrughan Tiwari had also pressurized her to make
a particular statement before the SDM immediately after the
incident. My sister was very much frightened at that time….”

(emphasis supplied)

CRL. A. No. 84/2019 Page 17 of 31

30. Perusal of the abovementioned testimonies would show that the
witnesses have deposed along similar, if not identical, lines and nothing
adverse has come out in their cross-examination.

31. The last dying declaration that was in form of letter dated 26 th
December, 2008 (Ex. PW-3/B) addressed to the Hon’ble Chief Justice of
this Court, had been given by the deceased to Neeraj Kumar (PW-10) who
had completed his law course and was interning with Mr. A.K. Pandey,
Advocate. Neeraj Kumar (PW-10) had recorded the dying declaration
verbatim, in his own hand-writing. It is a matter of record that this dying
declaration letter had been received in this Court on 29th December, 2008 by
Chief Justice Secretariat (CJS) vide diary entry No. 2261. Consequently, the
absence of any postal proof makes no difference to the prosecution’s case as
contended by the learned counsel for the appellant-convict. The English
translation of the said dying declaration is reproduced hereinbelow:-

“CJS/2261
__

29/12
Dated: 26.12.2008
To
Hon‟ble the Chief Justice
High Court of Delhi
New Delhi
Sub: Regarding making an attempt by my in-laws to set me afire
and thus, kill me after harassing me physically and mentally
Sir,
I, Rakhi W/o Sh. Vinay Tiwari have been residing at U-
226, Chander Vihar, PS Mandawli, Delhi C/o Arjun Singh for the
last about 15-20 days. Earlier, I resided at 531, Gali No. 10,
Vinod Nagar, Mandawli, Delhi-110092. I have got a daughter
aged 1 ½ years who was born on 27.09.2007 at LNJP Hospital.

CRL. A. No. 84/2019 Page 18 of 31

I have always harassed by my in-laws for want of dowry
and kept on bearing the physical torture. But I never told about
the same out of my social modesty. My father and brother used
to visit at my earlier address which was never liked by my in-
laws. I had broken my relationship with my parents for the last
3-4 months as per the will and wish of my husband and at the
behest of my in-laws and for the betterment of my daughter and
husband.

On 30.10.2008, on the occasion of „Bhaiya Dooj‟, my
brother-in-law (Jeth) Uday Tiwari, my father-in-law (Sasur) Sh.
Subhash Tiwari along with my mother-in-law Amravati came
over there in the morning and asked me to go out from the room
as my brother-in-law (Jeth) and father-in-law (Sasur) had come
over there. I went out of the room after obeying them. After
staying in the room for about one hour, the said three persons
came out from the room and left. When I came in the room, my
husband asked me to put the clothes and he will make me visit to
my brother as it was „Bhaiya Dooj‟. I became very happy to
hear that. When I had changed my clothes, my husband had
closed the door. In the meantime, my husband closed the door
and set me afire after pouring kerosene oil on me. I kept on
crying and screaming in that burnt state but he did not let me
reach near the door and made me fall in a corner after hitting me
with a stick (danda). The neighbours and the owner of the house
came running after hearing my cries. After making hectic efforts,
my husband opened the door and by that time I was completely
burnt and right from that time I have been in a state of life and
death in ward No. 21 of the LNJP Hospital.

I was along and helpless and taking advantage of my said
condition, my husband threatened me on the date of the incident
not to disclose anything against him and his family else he will
do the same thing with my daughter, parents and brother which
he had done to me. My daughter was weeping in a corner. I was
much scared and in the meantime Police came over there and got
recorded my statement and I made a statement as per the will
and wish of my husband. It can be well understood by your

CRL. A. No. 84/2019 Page 19 of 31
goodself as to what a lady standing at the verge of the death in
60% burnt condition could do at that time. I was not finding any
other hope except God at that time. Right from that time my
husband has been visiting the hospital and threatens me not to
speak or make any complaint else he will strangulate me and will
get kill my daughter as well.

On 19.11.2008, on getting some relief I informed my father
after taking the mobile from a person namely Ghanshyam, lying
adjacent to me through mobile number 9911301654. Right from
that time, my parents are with me. In the meanwhile, I came to
know that my husband had given my daughter to some other
person who resides in Jammu after telling him that there was
none to look after her except him and his wife whereas, my
parents have been residing just adjacent to the hospital for the
last about 7 years.

On the arrival of my parents I apprised them with
everything and subsequently my father met with the concerned
officer and told him everything. The officer told my father that
everything was concocted and handed over a paper to my father
telling him about the statement so made by me earlier out of
coercion. I had made the said statement after seeing the cruelty
of my husband and haughtiness of my in-laws and for the sake of
love and future of my daughter.

Hence, I humbly request to your Lordship to kindly impart
me and my daughter proper justice taking into consideration the
above said circumstances. I, voluntarily, am getting written this
letter in my rightful 5 senses. My father is running from pillar to
post but in vain. I am imploring justice from your Lordship with
a great hope.

Thanking you.

Yours Faithfully
RTI of Rakhi
Ward No. 21
LNJP Hospital,

CRL. A. No. 84/2019 Page 20 of 31
New Delhi 110002
Dated: 26.12.2008
Copy forwarded to:

1. Commissioner of Police, New Delhi

2. DCP (East)

3. Women Commission (-sic-)

4. PS Mandawali”

(emphasis supplied)

32. The aforesaid dying declaration letter (Ex. PW-3/B) written by Neeraj
Kumar (PW-10) on behalf of the deceased had been proved by Vinod
Kumar, Judicial Assistant (PW-17). Further, Neeraj Kumar (PW-10)
withstood the test of cross-examination and the relevant portion of his
testimony is reproduced hereinbelow:-

“…..My senior Sh. A.K. Pandey directed me to accompany Sh.
Prabhu Shankar Tiwari to LNJPN Hospital to record the
statement of injured Rakhi. I accordingly reached LNJPN
Hospital to burn ward where Rakhi was found admitted. She was
badly burnt and she was conscious and fit for statement. I
recorded her statement as verbatim in my own handwriting.
Rakhi had put her right thumb impression on the said statement.
The said statement dated 26.12.2008 is already Ex.PW3/B
bearing right thumb impression of Rakhi at point „Q‟. I had
written a letter to SHO PS Mandawali dated 12.12.2009 with
regard to recording of statement of Rakhi on 26.12.2008 and for
taking necessary step in this regard. My said letter is
Ex.PW10/A bearing my signature and address at point „A‟
(objected to by Ld. Defence counsel)…..

xxx xxxx xxx

…..I had recorded her statement as verbatim and that at that time
Rakhi was conscious and fit for statement.”

(emphasis supplied)

CRL. A. No. 84/2019 Page 21 of 31

33. This Court is also of the view that the contention raised
by the learned counsel for the appellant-convict that the language
used in the dying declaration letter dated 26th December, 2008
raises suspicion on its authenticity, merits no consideration as no
such suggestion/question was put to Neeraj Kumar (PW-10) and
the same cannot be raised at this stage. In Mahavir Singh Vs
State Of Haryana (2014) 6 SCC 716 the Supreme Court has held
as under:-

“16. It is a settled legal proposition that in case the question is
not put to the witness in cross-examination who could furnish
explanation on a particular issue, the correctness or legality of
the said fact/issue could not be raised. (Vide Atluri
Brahmanandam v. Anne Sai Bapuji and Laxmibai v.
Bhagwanthbuva.)”

(emphasis supplied)

34. As per seizure memo Ex. PW-12/A and testimonies of HC Anil
Kumar (PW-13) and ASI Ramesh Chand (PW-14), the items recovered from
the spot included some burnt clothes with smell of kerosene, one bottle
containing kerosene, one steel bowl, few match sticks and a five litre gas
cylinder with a burner. In fact, the FSL Report (Ex. PW-29/A) had
confirmed that the recovered match boxes, matches and plastic bottle
contained kerosene. The relevant portion of the FSL report (Ex.PW-29/A)
is reproduced hereinbelow:-

“Forensic Science Laboratory
Govt. of NCT of Delhi
Sector 14, Rohini, Delhi-10085.

CRL. A. No. 84/2019 Page 22 of 31

Accredited by the National Accreditation Board for Testing and
Calibration Laboratories (NABL).

EXAMINATION REPORT

No. of pages of report 02

1. Report No. FSL. 2015/C-8090 Date: 31.12.15

xxx xxx xxx

8. Details of the Parcels/Exhibits received:

No. of No. of Seals Description of
Parcels/Exhibits seal impression Parcels/Exhibits
Parcel-2 Three seals of One sealed cloth parcel.

“RCS” It was found to contain
exhibit „2‟, kept in a
polythene.

Exhibit-„2‟ Three (3) match box
containing some burnt
and unburnt matchsticks
and one deformed plastic
bottle having approx. 2ml
of transparent liquid.

xxx xxx xxx

11. RESULTS OF EXAMINATION REPORT

On Gas Chromatography examination,

(i) Exhibit „2‟was found to contain „Kerosene‟.

(emphasis supplied)

CRL. A. No. 84/2019 Page 23 of 31

35. Further, there is no evidence on record to support the bald claims
made by the learned counsel for the appellant-convict that the dying
declaration made by the deceased vide letter dated 26th December, 2008 (Ex.

PW-3/B) was false or fabricated.

36. Consequently, this Court is of the view that the testimonies of mother
(PW-3), father (PW-6) and brother (PW-8) of the deceased, Neeraj Kumar
(PW-10) as well as the last dying declaration in form of letter dated 26th
December, 2008 (Ex. PW-3/B) are clear, cogent, consistent, credible,
trustworthy and corroborated by the evidence on record.

THE FINGER PRINT BUREAU REPORT OFFERS NO ASSISTANCE TO
APPELLANT-CONVICT AS IT STATES THAT ADMITTED THUMB
IMPRESSIONS WERE UNCLEAR/BLURRED AND UNFIT FOR
COMPARISON.

37. The fact that the thumb impression of the deceased was not proved is
of no help to the appellant-convict as it was mentioned in the Finger Print
Bureau Report (Ex. PW-21/A) that the admitted thumb impressions with
which the thumb impression of the deceased from letter (Ex.PW-3/B) had to
be compared, were found to be unclear/blurred and unfit for comparison.
The relevant portion of the Finger Print Bureau Report (Ex. PW-21/A) is
reproduced hereinbelow:-

” REPORT
(THE REPORT IS ADMISSIBLE U/S 293 Cr.P.C.)
Subject:-Comparison of Questioned Thumb impressions in
Case FIR No.543/09 U/s 304 B IPC P.S. Mandawali,
Distt. East, Delhi.

CRL. A. No. 84/2019 Page 24 of 31
xxx xxx xxx

III RESULT OF EXAMINATION:

1) Questioned Thumb impression of Rakhi marked
„Q‟ on exhibit NO.2 and Admitted thumb
impression of Rakhi marked „A‟ on exhibit NO.1
are partial and blurred and do not disclose
sufficient number of ridge details in their relative
position for comparison, hence they are UNFIT
for comparison.”

(emphasis supplied)

38. Consequently, both the thumb impressions were partial and blurred
and did not disclose sufficient number of ridge details for comparison.

ABSENCE OF A CERTIFICATE BY A DOCTOR IS NOT FATAL TO ACT
UPON A DYING DECLARATION. THE REQUIREMENT REMAINS THAT
THE PERSON WHO RECORDS THE DYING DECLARATION MUST
ENSURE THAT THE PATIENT WAS IN A FIT CONDITION, BOTH
MENTALLY AND PHYSICALLY, TO GIVE THE DECLARATION.

39. Insofar as the medical opinion before giving a dying declaration is
concerned, it is settled law that medical certification by a doctor is not a pre-
requisite to act upon a dying declaration. It is for the person recording the
dying declaration to ensure that the patient is in a fit state of mind and is
making the dying declaration voluntarily. The Supreme Court in Jagbir
Singh (supra) has held as under:-

“38. The first question, one must bear in mind, is whether the
deceased was in a physical and mental condition to make a dying
declaration. It is not in dispute that in the dying declaration dated
27-1-2008, there is no certificate by the doctor certifying that the
patient was conscious or that the patient was mentally or
physically fit to give the declaration. The patient was, in fact,
admittedly lying in the hospital. Even in the narrative of the dying
declaration, there are no questions seen put by PW 29 to ascertain

CRL. A. No. 84/2019 Page 25 of 31
her condition. Undoubtedly, it is true that the certificate by a
doctor about the patient being conscious and fit to give a dying
declaration would go a long way in inspiring confidence of the
court. However, the Constitution Bench in Laxman v. State of
Maharashtra , has held as follows: (SCC p. 714, para 3)
“3. … Where it is proved by the testimony of the
Magistrate that the declarant was fit to make the statement
even without examination by the doctor the declaration can
be acted upon provided the court ultimately holds the same to
be voluntary and truthful. A certification by the doctor is
essentially a rule of caution and therefore the voluntary and
truthful nature of the declaration can be established
otherwise.”

39. We can proceed on the basis that even absence of the
certificate by a doctor is not fatal to act upon a dying
declaration. However, the requirement remains that the person
who records the dying declaration must ensure that the patient
was in a fit condition, both mentally and physically, to give the
declaration.”

(emphasis supplied)

40. Consequently, the submission of the learned counsel for the
appellant-convict that an essential prerequisite of a valid dying declaration is
medical evidence to show that the deceased was in a „fit state of mind‟, is
untenable in law.

THE FACT THAT FATHER OF THE DECEASED – PRABHU SHANKAR
TIWARI (PW-6) HAD PRIORITISED HIS DAUGHTER‟S HEALTH OVER
THE INVESTIGATION, CANNOT BE A REASON TO DRAW AN ADVERSE
INFERENCE AGAINST THE CASE OF THE PROSECUTION.

41. This Court also finds no merit in the contention of the learned counsel
for the appellant-convict that since the father of the deceased (PW-6) was a
literate man, he had to necessarily file a complaint under Section 156(3)
CrPC. It is a matter of record that the father of the deceased had written a

CRL. A. No. 84/2019 Page 26 of 31
letter dated 16th December, 2008 (Mark PW-6/A) to the concerned SDM to
re-record the statement of his daughter. Even in his statement recorded
under Section 161 Cr.P.C. on 26th November, 2008 (Ex.PW-6/B), he had not
absolved the appellant-convict of his guilt as he had merely stated that at
that point in time, he was focusing on the treatment of his daughter and did
not want to cause any impediment to the same. The fact that father of the
deceased Prabhu Shankar Tiwari (PW-6) had prioritised his daughter’s
health over the investigation, cannot be a reason to draw an adverse
inference against the case of the prosecution. The conduct of the father of
the deceased was normal inasmuch as he reacted how any reasonable parent
would react when his child is lying in a critical condition in a hospital.

THE POST MORTEM REPORT REVEALS THAT THE DECEASED HAD
SUFFERED BURN INJURIES ON HER BACK-WHICH WOULD BE
IMPOSSIBLE IF THE STOVE HAD ACCIDENTLY BURST.

42. The fact that the deceased had been burnt by the appellant-convict by
pouring kerosene finds corroboration from the Post Mortem Report (Ex.
PW-7/A) as well as the photographs marked A1 to A7, which reveal that the
deceased had suffered burn injuries on her back-which would be impossible
if the stove had accidently burst. The relevant portion of the Post Mortem
Report (Ex. PW-7/A) is reproduced hereinbelow:-

“IX. EXTERNAL EXAMINATION (Injuries etc.)

Superficial to deep burns present over face, neck, front and back
of chest, upper front of abdomen, front and back of both upper
limbs, upper part of gluteal region, front of right lower leg and
some parts around both knee joints covering approximately 50%
of total body surface areas. Peeling of skin present at places
revealing greenish, yellowish base covered with greenish,

CRL. A. No. 84/2019 Page 27 of 31
yellowish necrotic slough. Body hairs are burnt and singed off at
places. No other injury present over external surface of body.”

(emphasis supplied)

43. In view of the above, this Court is in agreement with the contention of
the learned APP for the State that the injuries received by the deceased could
be possible only if kerosene was poured on the deceased and she were set on
fire and not by a stove-bursting incident as sought to be contended by
learned counsel for appellant-convict.

IN ABSENCE OF RECOVERY OF ANY STOVE, THE DEFENCE OF THE
APPELLANT-CONVICT FAILS

44. Also, since the primary stance taken by the deceased in the first three
dying declarations was that a stove had burst on account of which she got
injured, recovery of the burst stove was imperative to prove those
statements. However, as per the evidence on record, no stove of any kind or
in any condition was recovered from the spot. In absence of any evidence to
indicate that a stove had burst in the house of the deceased, the first three
dying declarations inspire no confidence.

THE FIRST THREE DYING DECLARATIONS THAT EXCULPATE THE
APPELLANT-CONVICT WERE NOT MADE VOLUNTARILY BY THE
DECEASED AND ARE CONTRARY TO EVIDENCE ON RECORD.

45. Insofar as the first three dying declarations which exculpate the
appellant-convict are concerned, it is pertinent to mention that they were
made on the day of the incident itself i.e. 30th October, 2008 when the
appellant-convict was in the hospital with the deceased. In fact, the deceased
had explained in her subsequent dying declarations that the appellant-

CRL. A. No. 84/2019 Page 28 of 31

convict had threatened her which is why she had not disclosed the true facts
to anyone that day.

46. In any event, those dying declarations are contrary to evidence on
record. In the dying declaration (Ex. PW-18/A) made to the Executive
Magistrate, the deceased had stated that she was brought to the hospital by
her neighbours and the appellant-convict had been informed subsequently by
phone. However, the admitted position is that the deceased was brought to
the hospital by the appellant-convict. The said fact finds corroboration in the
MLC (Ex. PW-4/A) of the deceased wherein it is stated that the deceased
was brought by her husband i.e. appellant-convict as well as the testimony
of Saroj (PW-9) who had also deposed that the appellant-convict was
present at the spot at the time of the incident and had brought the deceased
to the hospital. The relevant portion of the testimony of Saroj (PW-9) is
reproduced hereinbelow:-

“……..One day, I was alone at my home and my husband had
gone to his place of work. I noticed that some smoke there from
the ground floor from the room of the accused. I rushed to the
room of the accused and public persons also gathered there and I
enquired as to what happened. Accused Vinay Tiwari was
present in the said room. I came to know that while boiling the
milk on stove and she got burnt, but how she burnt I do not know
as I had not seen the same. The accused took her to hospital…..”

(emphasis supplied)

47. Consequently, it is proved that the first three dying declarations that
exculpate the appellant-convict were not made voluntarily by the deceased.

CRL. A. No. 84/2019 Page 29 of 31

APPELLANT-CONVICT HAD FAILED TO DISCHARGE THE BURDEN
OF PROOF IMPOSED UPON HIM BY SECTION 106 OF THE
EVIDENCE ACT

48. This Court is also in agreement with the submission of learned APP
for the State that the appellant-convict in his statement recorded under
Section 313 Cr.P.C. has not been able to explain how the deceased had
suffered burn injuries within the house and consequently, he had not
discharged the burden of proof imposed upon him by Section 106 of the
Evidence Act.

THE CONDUCT OF THE APPELLANT-CONVICT POST THE INCIDENT
STRENGTHENS THE CASE OF THE PROSECUTION.

49. In view of Section 8 of the Evidence Act, it is relevant to note that the
conduct of the appellant-convict after the deceased was injured was peculiar
inasmuch as he had given away his minor daughter aged about one and a
half year to a man who was living in Jammu and she was recovered only
after the deceased had disclosed the said fact in her subsequent dying
declarations. The aforesaid fact is corroborated by the testimonies of mother
(PW-3) and father (PW-6) of the deceased, which have been mentioned
earlier. Secondly, even though the family members of the deceased were
residing near the hospital where she was admitted, yet they were not
informed till 19th November, 2008 i.e. the day when the deceased herself had
managed to make a telephone call to them. Thirdly, the appellant-convict
had absconded after the death of the deceased i.e. 22nd January, 2009 and it
was only after proceedings under Section 82 Cr.P.C. were initiated against
him that he surrendered on 27th July, 2015. In view of the aforesaid, the

CRL. A. No. 84/2019 Page 30 of 31
conduct of the appellant-convict post the incident strengthens the case of the
prosecution.

CONCLUSION

50. Consequently, this Court is of the view that the impugned judgment of
conviction and order on sentence do not suffer from any infirmity.
Accordingly, present appeal, being bereft of merit, is dismissed. A copy of
the judgment be supplied to the appellant-convict through the concerned Jail
Superintendent.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
DECEMBER 24, 2019
js/rn/KA

CRL. A. No. 84/2019 Page 31 of 31