Supreme Court of India
BANARSI DASS AND OTHERSversusSTATE OF HARYANA
- Citation
- 2014 INSC 891
- Decided
- 18 December 2014
- Disposal
- Case Partly allowed
- Bench
- KURIAN JOSEPH
Holding
The dying declaration was not valid under Section 32(1) and the death was not caused by burns, so Section 3048 does not apply; convictions under 3048 are set aside while convictions under 498A are upheld against the specified appellants.
Summary
The deceased, Chander Kalan, suffered 40-45% burns after an alleged kerosene incident on 18 June 1998 and died on 4 August 1998 from septicemia. The trial court acquitted the accused of Section 3048 IPC (death caused by burns) but convicted them under Section 498A IPC (dowry harassment). The High Court reversed the acquittal on the basis of a dying declaration recorded on the day of the incident. The Supreme Court held that the statement did not satisfy the requirements of a dying declaration under Section 32(1) of the Evidence Act because the deceased was not expecting imminent death and the statement did not relate to the cause of death. It also found that the death was not caused by the burns but by septicemia, so Section 3048 IPC was inapplicable. Consequently, the convictions under Section 3048 were set aside, while convictions under Section 498A were upheld against appellants 1, 2, 3 and 5; appellant 4 was acquitted. The sentences of appellants 2 and 3 were limited to time already served and they were ordered to pay Rs.1,00,000 compensation to the deceased’s parents.
Issues considered
- Whether the statement recorded on 18 June 1998 qualifies as a dying declaration under Section 32(1) of the Evidence Act.
- Whether Section 3048 of the IPC applies where death resulted from septicemia rather than directly from burns.
- Whether the convictions under Section 498A of the IPC are sustainable against each accused.
- Whether the High Court erred in overturning the trial court's acquittal under Section 3048.
Legislation cited
- Indian Evidence Act, 1872s. 32(1)
- Indian Penal Code, 1860s. 3048, s. 34, s. 498A
Subjects
Dying declarationSection 32 Evidence ActSection 3048 IPCSection 498A IPCDowry harassmentSepticemiaBurn injuriesCriminal appealCompensation
Judgment
• [2014] 11 S.C.R. 341
BANARSI DASS AND OTHERS
v.
A
STATE OF HARYANA
(Criminal Appeal Nos. 534-535 of 2012)
DECEMBER 18, 2014.
B
[KURIAN JOSEPH AND
ABHAY MANOHAR SAPRE, JJ.]
Penal Code, 1860 - ss. 3048 and 498A rlw. s. 34 -
Prosecution under - Of five accused - Trial court acquitted c
all the accused u/s. 3048 and convicted them u/s. 498A -
High Court relying on the Dying Declaration convicted them
also uls. 3048 - On appeal, held: In the facts and
circumstances of the case, the declaration of the deceased
did not meet the requirements of dying declaration - The D
ingredients of s. 3048 are also not made out against the
accused in the facts of the case - Case u/s. 498A is made
out against all the accused except accused No. 4 - Therefore,
all the accused are acquitted u/s. 3048 and except accused
No. 4 their conviction uls. 498A is upheld - Appeal against E
accused Nos. 1 and 5 stands abated - Sentence of accused
Nos. 2 and 3 is limited to the period already undergone -
Accused persons also directed to pay compensation of Rs.
1 lakh to the parents of the deceased for meeting the medical
expenses made on the deceased - Evidence Act, 1872 - s.
F
32(1) - Dying Declaration.
Maxim - ' Nemo moriturus praesumitur mentire' -
Applicability.
Partly allowing the appeals, the Court G
HELD: 1.1 Section 32(1) of the Evidence Act deals
with cases in which statement of the cause of death, by
a person who is dead, becomes a relevant fact. A
341 H
A
342 SUPREME COURT REPORTS [2014) 11 S.C.R.
statement by a person made before his death to be
•
relevant, the following ingredients are to be satisfied: i)
The statement is made by a person who is conscious and
believes or apprehends that death is imminent. ii) T h e
statement must pertain to what the person believes to be
B the cause or circumstances of death. iii) What is recorded
must be the statement made by the person concerned,
since it is an exception to the rule of hearsay evidence.
The statement must be confidence bearing, truthful and
credible. The statement should not be one made on
c tutoring or prompting. vi) The court may also scan the
statement to see whether the same is prompted by any
motive of vengeance. [Paras 15 and 16] [353-C; 354-A-F]
Laxman v. State of Maharashtra (2002) 6 SCC 710;
Malle/la Shyamsunder v. State of Andhra Pradesh 2014 (12)
D JT 214 - relied on.
1.2. In the present case, the incident occurred on
18.06.1998 whereas the death is on 04.08.1998. Exhibit-
PM-dying declaration was recorded on 18.06.1998 itself.
At the time of recording of the statement, the condition
E of the patient was very stable and she was in a very good
state of mind as recorded by the doctor. The bum injury
was only 40-45% of the body and, according to doctor
40-45% burns is not fatal and such a patient can be saved
if given proper treatment. It has also come out in evidence
F that the death is not caused by the burns but because
of septicemia, an infection on account of improper
management of the wounds. It is fairly clear that the
patient on 18.06.1998 was not apprehending death, not
merely because she lived for more than seven weeks after
G the incident but because of the nature of the burn injuries.
[Para 17] [354-G, H; 355-A-B]
Najjam Faraghi @ Nijjam Faruqui v. State of West
Bengal (1998) 2 SCC 45: 1997 (5) Suppl. SCR 148;
Basappa v. State of Karnataka (2014) 5 SCC 154: 2014 (3)
H SCR 391 - relied on.
• BANARSI DASS v. STATE OF HARYANA
1.3. In the instant case, however, the dying A
declaration does not either show the cause of death or
343
the circumstances of the transaction which resulted in
the death of the declarant-deceased. In the facts and
circumstances of the present case, Exhibit-PM-
declaration does not meet the requirements of a dying B
declaration under Section 32(1) of the Evidence Act. The
very foundation of the reliability of the dying declaration
is the principle of Nemo moriturus praesumitur mentire
which literally means that no one at the point of death is
presumed to lie since one is normally afraid to meet his c
maker with a lie on his mouth at the time of death. [Paras
17 and 18] (356-C-E]
2.1. In order to attract Section 3048 of IPC, one of the
essential ingredients is that death of the m,arried woman
should be caused by burns or bodily injury or that she D
should have died otherwise than under normal
circumstances. In the instant case, it has clearly come out
in evidence that the death is not caused by the burns: it
is caused by septicemia on account of improper
management of wounds. The ingredients of Section 3048 E
of IPC are also not made out. The nature of the burn
injuries, the extent of the same and the parts of the body
affected from face to umbilicus, and the same only on the
front of the body, would clearly show that it was an
accident caused while clearing the choked nozzle of the F
stove. [Paras 19, 20 and 22] [356-E-G; 358-D, G]
2.2. The High Court even otherwise is not justified in
reversing the acquittal under Section 3048 of IPC on a
mere possibility of another view, if at all possible, on the G
evidence. Unless the judgment of acquittal is passed on
no evidence or is perverse or the view taken by the court
is wholly unreasonable or is not a plausible view or there
is non-cons'ideration of any evidence or there is a
palpable misreading of evidence, the High Court is not H
344 SUPREME COURT REPORTS (2014] 11 S.C.R. •
A justified in interfering with the order of acquittal. [Para 21]
[358-E-F]
3. The trial court found that there is evidence
available regarding harassment of the deceased by the
accused/appellant Nos. 1, 2, 3, and 5. But. in the case of
8 accused/appellant No. 4 who was studying in the school
at the relevant time, there is no evidence as to any
harassment. Therefore, while maintaining conviction
under Section 498A of IPC in respect of appellant Nos.
1, 2, 3 and 5, appellant No. 4 is liable to be acquitted under
C Section 498A of IPC as well. [Para 23] [359-B-C]
4. Thus, the conviction under Section 3048 of IPC in
respect of all the appellants is set aside. The conviction
under Section 498A of IPC in respect of appellant No. 4
is set aside. The conviction under Section 498A of IPC is
0
maintained in respect of accused/appellant Nos. 1, 2, 3
and 5. Accused/appellant Nos. 1 and 5 are no more and
the appeal as against them is abated. The sentence of
accused/appellant Nos. 2 and 3 is limited to the period
already undergone. [Para 25] [359-F, G]
E
5. Since the de.ceased had been undergoing
treatment initially in two government hospitals and
thereafter, for a long period, in two private hospitals, the
accused/appellants should be made liable to pay
F compensation to the parents of the deceased. Accused/
appellant Nos. 2 and 3 are directed to pay total
compensation of Rs.1,00,000/- to the parents of the
deceased. [Para 26] [359-H; 360-A]
Case Law Reference:
G (2002) 6 sec 110 relied on Para 16
2014 (12) JT 214 relied on Para 16
1997 (5) Suppl. SCR 148 relied on Para 17
2014 (3) SCR 391 relied on Para 21
H
• 8ANARSI DASS v. STATE OF HARYANA
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
345
A
Nos. 534-535 of 2012.
From the Judgment & Order dated 26.07.2011 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
113-S8 of 2000 and Crl. Appeal No. 467-D8A of 2000. 8
Rishi Malhotra for the Appellants.
Nupur Choudhary (for Dr. Monika Gusain) for the
Respondent.
c
The Judgment of the Court was delivered by
KURIAN, J. 1. The appellants faced trial under Section
498A read with Section 3048 read with Section 34 of the
Indian Penal Code (45 of 1860) (hereinafter referred to as
D
'IPC'). The trial court acquitted them under Section 3048 of IPC
but convicted them under Section 498A of IPC. The State took
up the matter in appeal before the High Court against the non-
conviction under Section 3048 of IPC. The High Court allowed
the appeal and convicted them under Section 3048 of IPC also.
E
During the pendency of the appeal, appellant no.1-father-in-law
of the deceased and appellant no.2-mother-in-law of the
deceased expired. Therefore, the appeals survive only in
respect of appellant no. 2-husband of the deceased, appellant
no.3-elder brother of the deceased and appellant no.4-younger
F
brother of the deceased.
2. The deceased Chander Kalan was the sister of PW-12-
Mahabir and PW-13-Satpal and the wife of accused-Ramesh
Kumar. The marriage was on 14.04.1995. The allegation is that
on account of non-payment of the dowry as demanded by the G
husband and in-laws, she was being ill-treated. One such
incident was on 01.01.1997 and she lost a couple of teeth.
There was a Panchayat and the matter was compromised and
therefore, the case then registered under Section 498A read
with Section 323 of IPC was not pursued. It is alleged that even H
346 SUPREME COURT REPORTS [2014] 11 S.C.R.
A thereafter the attitude of the in-laws did not change. On
•
18.06.1998, it is alleged that she was beaten and pushed out
of the house and at around 02.00 p.m., the accused sprinkled
kerosene on her and set her on fire. She was admitted in the
hospital by 05.00 p.m. and examined by PW-1-Dr. S.D. Goyal,
B who found that Chander Kalan suffered bum injuries which were
approximately 45%. On his request, PW-16-ASI Jagdeep Singh
recorded Exhibit-PM-dying declaration. Thereafter, she was
admitted in the hospital of PW-9-Dr. Soni on 19.06.1998 and,
on 17.07.1998, she was further shifted to the hospital of PW-
C 5-Dr. SubhashVerma, where she died on 04.08.1998. PW-2-
Dr. V.K. Kawatra conducted the postmortem along with Dr.
Arun Gupta.
3 . The trial court chose not to believe Exhibit-PM-dying
o declaration, but relied on the evidence of PW-5-Dr. Subhash
Verma and PW-6-Lalman, Tehsildar and rul,ed out the
possibility of burning by the accused. However, having found
that there is evidence to establish cruelty, all the accused were
convicted under Section 498A of IPC. The High Court, in the
E appeal by the State, entered the following conclusion at
paragraphs-8 to 10:
"8. Ex.PM the dying declaration of Chander Kalan recorded
by PW16 ASI Jagdeep Singh and PW6 Lalman Tehsildar
is found to be an important document which ultimately
F determines the crime committed by the accused. PW1 Dr.
S.D. Goyal who examined Chander Kalan on 18.6.1998
at about 5.00 pm has deposed that Chander Kalan was
in a fit state of mind. PW6 Lalman Tehsildar and PW16
ASI Jagdeep Singh also would depose that the dying
G declaration of Chander Kalan was recorded by PW16 ASI
Jagdeep Singh only after the opinion was expressed by
the doctor that Chander Kalan was in a fit state of mind. It
is relevant to note at this state that the occurrence took
place as early as on 18.6.1998 at about 2:00 pm.
H Unfortunately Chander Kalan passed away _only on
• BANARSI DASS v. STATE OF HARYANA
(KURIAN, J.]
4.8.1998 in the hospital of Dr. Subhash Verma who was A
examined as PW5. Chander Kalan had survived for about
347
one and a half month with 40 to 45% burn injuries on her
person. The above materials would go to establish that
Chander Kalan was infact in a fit state of mind to give
declaration as to the cause of her death. B
9. PW16 ASI Jagdeep Singh should have in all fairness
approached the Judicial Magistrate for recording the dying
declaration. Anyway the position of the law is very clear
that the dying declaration may not be in writing. The dying C
declaration of a dying person can be given to any person
for that matter, as otherwise the person who is in the death
bed would pass away before the respectable person
comes to the hospital for recording the dying declaration.
In this case the deceased survived for about one and a
half month. She sustained only 40 to 45% bum injuries. She D
was also iri'a fit state of mind at the time when PW16
inquired about her health from the doctor who gave
treatment to her. As already pointed out by me PW16 had
associated PW6 Lalman Tehsildar for recording the dying E
declaration of Chander Kalan. Just because PW16 failed
to associate the learned Judicial Magistrate, the Court
cannot throw away the dying declaration given by Chander
Kalan, if the dying declaration is found to be truthful and is
found to have been given without any influence from
outside. F
10. Of course, PW6 Lalman Tehsildar would depose that
PW13 Satpal was very much present and he was found
chatting with Chander Kalan at the time when they
descended on the ward to record the dying declaration of G
Chander Kalan. The relatives of the injured person fighting
for life would naturally inquire about the health of the injured
person. The relatives cannot be kept away from their
natural inquiry about the health of the injured just because
dying declaration was to be recorded from the dying H
348 SUPREME COURT REPORTS [2014] 11 S.C.R. •
'
A person. PW13 Satpal was very much present when the
dying declaration was recorded. In fact PW13 Satpal had
subscribed his signatur~ to dying declaration Ex.PM as a
witness to the same document. The presence of the
relative does not ipso facto cast a doubt on the veracity
8 of the dying declaration."
4. On the basis of the above discussion, the High Court
entered the following finding at paragraph-12, which reads as
follows:
c "12. I find that the dying declaration given by Chander
Kalan to PW16 ASI Jagdeep Singh in the presence of
PW6 Lalman Tehsildar is found to be truthful and the same
has been given without any external influence. The dying
declaration gave a graphic account of the earlier
D occurrence wherein she received an attack from these
accused and the persistent demand of dowry made by the
accused which culminated in the present occurrence
wherein she was put to death by sprinkling kerosene upon
her and setting fire by the accused. I do not entertain any
E doubt as to the veracity of the dying declaration given by
Chander Kalan. The trial court has rejected the dying
declaration not only on the flimsy ground but also on pure
surmise."
5. Heard learned Counsel appearing for.both the parties.
F
6. According to learned Counsel appearing for the
appellants, there is absolutely no justification in convicting the
appellants under Section 3048 of IPC and Section 498A of
IPC. However, learned counsel appearing for the respondent-
G State contends that in view of the overwhelming evidence which
has been minutely discussed by the High Court, the conviction
under both Section 3048 of IPC and Section 498A of IPC are
to be sustained.
H 7. In the nature of the view we propose to take in this case,
• BANARSI DASS v. STATE OF HARYANA
[KURIAN, J.]
349
particularly since the conviction by the High Court is only on the A
basis of Exhibit-PM-dying declaration, we do not think it
necessary to go elaborately into the evidence. It will be
sufficient to refer to the evidence of PW-16-ASI Jagdeep Singh,
who recorded the dying declaration and the medical evidence.
It is seen that the request for recording the statement was first B
made Before the First Divisional Magistrate, Hisar, who in turn
directed the Executive Magistrate, Hisar to record the same.
The Executive Magistrate, viz., Tehsildar, Hisar took along with
him PW-16-ASI Jagdeep Singh. PW-16 states thus in his
evidence: C
" ... On reaching the ward Chander Kalan made statement
to Tehsildar in my presence and on the asking of Tehsildar
I recorded that statement on the dictation of Tehsildar. The
statement made by Chander Kalan to the Tehsildar in my D
presence and dictated to me by Tehsildar Sh. Lal man is
Ex.PM. Chander Bhan and Satpal brother of Chander
Kalan were standing inside the gate of the ward. They were
called and in their presence the statement was read over
by me to Chander Kalan and after admitting her statement E
as correct Chander Kalan thumb marked the statement
Ex.PM. Chander Bhan and Satpal also put their signatures
under the statement which was attested by the Tehsildar.
This statement was forwarded by me to the police station
with my endst. Ex.PM/1 got registration of case."
F
(Emphasis supplied)
8. PW-1 is Dr. S.D. Goyal who examined the deceased
when she was first brought to the Community Health Centre,
Uklana Mandi. He stated as follows: G
"The entire face was having burns. The skin had
collected at the edges. The front and back of neck was
burnt. The entire front of chest was having burns. Both
sides of chest extending a bit to back burnt. Front of
abdomen and sides were having burns above umbilicus. H
350 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A There was a small burn patch in lower part of back. Both
the arms were having burns in front and back except some
part of right fore-arm on back. The hands in front and back
were having burns. B.P. was 110/70, pulse 90 per minute,
patient was conscious. The duration of injury being within
B 6 hours. The percentage of burns was 45% approximately."
(Emphasis supplied)
9. In cross-examination, it is stated by him that she was
brought to the clinic by her husband-Ramesh Kumar along with
C 3/4 more persons whom the doctor could not identify. It has also
clearly come out in the evidence that "except burn injLiries, no
other injury caused by any other weapon blunt or incised was
found on the person of Chander Kalan". And still further, it was
noted that there was no sign of any burn mark below umbilicus
D and on the back of the deceased except one small patch on
lower part of the back. The long hair was not affected at all
which indicates that the fire was extinguished soon after it
caught the clothes of Chander Kalan. According to him, a
patient with 45% burns can survive if good and proper medical
E aid is given to him or her.
10. On the request of PW-1, the patient was shifted to the
General Hospital at Hisar for further treatment. PW-9 is Dr. S.K.
Soni of Soni Nursing Home, Hisar where the deceased was
F treated from 19. 06.1998 to 17. 07. 1998. Being a very crucial
piece of evidence, we shall extract the same as such:
"When Chander Kalan was discharged from my hospital
she was not having any symptom of septicemia due to
infection of burn. Slight infection was there in the burn
G injuries. This infection could have been cured by skin
grafting but the relation of the patient were not prepared
for skin grafting operation and for keeping the patient in
my hospital. If kerosene had fallen of any part of the body
are on the cloth that part of the body and even it
H surrounding and the cloth if set ablaze shall catch fire
• BANARSI DASS v. STATE OF HARYANA
[KURIAN, J.]
immediately. The burns on the body of Chander Kalan
351
were in the front portion of the body from face to umbilicus.
I had advised Chander Kalan and her attendant that
A
Chander Kalan should remain admitted in my clinic for
S()flle more days for her complete cure but her relation did
not agree and she was discharged. There was no bed sore B
on the body of Chander Kalan till she remained admitted
in mv clinic. There were chances of survival of the patient
where the burns were 40% if continuous medical care has
been given to the patient."
(Emphasis supplied) C
11. PW-2 is Dr. V.K.Kawatra, Medical Officer, General
Hospital, Hisar, who conducted postmortem. The descriptions
of the burns, as noted by him, reads as follows:
D
"There was a dressed wound on the anterior surface
of the both upper limbs, anterior surface of the chest and
part of the abdomen above the umbilicus, the anterior
surface of the neck and lower part of the face, both
shoulders and a little part on the posterior surface of the E
chest and neck. The dressing was opened. The granulation
tissue was present on the front of the chest, arms and neck.
There was pus-discharge seen at various places. There
were bed sores on the back and at the sacral region. Pus
was also seen it. The approximate percentage of burn was F
45%."
12. According to Dr. V. K. Kawatra, "the cause of death in
the instant case was septicemia due to infected burns". The
burns were ante-mortem in nature and sufficient to cause death
in the ordinary course of nature. G
13. In cross-examination, PW-1-Dr. V.K. Kawatra has
deposed as follows:-
"lt is correct to suggest that if proper care should have H
352 SUPREME COURT REPORTS (2014] 11 S.C.R. •
A been taken then the bedsore should not have occurred.
There was a great possibilitv that infection of burn causing
. , septicemia could have been avoided if proper care and
. b treatment had been given to Chander Kalan. I agree in
''' · 'good institution. if there is a proper treatment 45% burns
s on the parts of the body as found in this case could not
have been fatal."
(Emphasis supplied)
14. From the evidence which we have extensively
C extracted above, the emerging factual position is that the dying
declaration does not come under Section 32(1) of the Indian
Evidence Act, 1872 (hereinafter referred to as "the Evidence
Act") and, hence, itis ·not relevant for the following reasons:
D a. The alleged incident of pouring of kerosene on the
deceased was on 18.06.1998 at around 02.00 p.m.
and the statement is said to have been recorded
on the same day.
b. PW-16-ASI Jagdeep •Singh, who is also the
E investigating officer, had not recorded the statement
given by the deceased. What he recorded was the
statement made by the deceased to the Tehsildar
and what the Tehsildar dictated to him. It has come
in evidence that the Tehsildar did not have any
F problem or difficulty in recording the statement
himself. It is also not a case of any translation.
c. The statement does not pertain to the cause of
death or circumstances of the transaction which
G resulted in death. The death in this case on
04.08.1998, after seven weeks of the incident, is
not caused by the burns but on account of a serious
infection, septicemia caused due to improper
management of the wounds.
H
• BANARSI DASS v. STATE OF HARYANA
d.
(KURIAN, J.]
353
It is to be noted that the patient was initially at the A
Community Health Centre. Th~reafter, she was
shifted to General Hospital, from 19.06.1998 to
17.07.1998, she was in Dr. Soni's Hospital and,
thereafter, from 17 .07.1998 till her death on
04.08.1998 at the Hospital of Dr. Subhash Verma. B
The available medical evidence clearly shows that
the death is not due to the burns. It is due to
septicemia and the infection could have been
avoided by proper medical care.
15. Section 32(1) of the Evidence Act deals with cases in
c
which statement of the cause of death, by a person who is dead,
becomes a relevant fact. To quote:
"32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is D
relevant-Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount
of delay or expense which, under the circumstances of the E
case, appears to the Court unreasonable, are themselves
relevant facts in the following cases:-
(1) when it relates to cause of death.-When the
statement is made by a person as to the cause of F
his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in
which the cause of that person's death comes into
question.
Such statements are relevant whether the person G
who made them was or was not, at the time when
they were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into question."
H
354 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A 16. A bare analysis of the provision, for the purpose of the
case at hand, would show that a statement by a person made
before his death to be relevant, the following ingredients are
to be satisfied:
(i) The statement is made by a person who is
B conscious and believes or apprehends that death
is imminent.
(ii) The statement must pertain to what the person
believes to be the cause or circumstances of death.
c
(iii) What is recorded must be the statement made by
the person concerned, since it is an exception to
the rule of hearsay evidence.
(iv) The statement must be confidence bearing, truthful
D and credible as held by this Court in Laxman v.
State of Maharashtra' and consistently followed
including the very recent one in Mallella
Sh~amsunder v. State of Andhra Pradesh {in
Criminal Ai;meal No.' 1381 of 2011 decided on
E 29.10.2014).
(v) The statement should not be one made on tutoring
or prompting.
(vi) The court may also scan the statement too see
F whether the same is prompted by any motive of
vengeance.
17. In the case before us, the incident occurred on
18.06.1998 whereas the death is on 04.08.1998. Exhibit-PM-
G dying declaration was recorded on 18.06.1998 itself. At the
time of recording of the statement, the condition of the patient
, no doubt was very stable and she was in a very good state of
mind as recorded by the doctor. The burn injury was only 40-
H 1. c2002) 6 sec 11 o.
• BANARSI DASS v. STATE OF HARYANA
[KURIAN, J.]
355
45% of the body and, according to doctor 40-45% burns is not A
fatal and such a patient can be saved if given proper treatment.
It has also come out in evidence that the death is not caused
by the burns but because of septicemia, an infection on account
of improper management of the wounds. It is fairly clear that the
patient on 18.06.1998 was not apprehending death, not merely B
because she lived for more than seven weeks after the incident
but because of the nature of the burn injuries which we have
referred to above. No doubt, as laid down by this Court in
Najjam Faraqhi@ Niiiam Farugui v. State of West Benga12,
merely because a person died long after making the dying c
declaration, the statement does not become irrelevant. It was
a case where the incident was on 29.06.1985 and death was
on 31.07 .1985 and in that case, there was a certificate by the
doctor who conducted the postmortem that death was due to
ante-mortem bums and the burns were extending over the whole D
body. To quote:
"9. There is no merit in the contention that the appellant's
wife died long after making the dying declarations and
therefore those statements have no value. The contention E
overlooks the express provision in Section 32 of the
Evidence Act. The second paragraph of sub-section (1)
reads as follows:
"Such statements are relevant whether the person
who made them was or was not, at the time when F
they were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into question."
No doubt it has been pointed out that when a person is G
expecting his death to take place shortly he would not be
indulging in falsehood. But that does not mean that such a
statement loses its value if the person lives for a longer time
than expected. The question has to be considered in each
2. (1998) 2 sec 45. H
356 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A case on the facts and circumstances established therein.
If there is nothing on record to show that the statement
could not have been true or if the other evidence on record
corroborates the contents of the statements, the court can
certainly accept the same and act upon it. ... "
8
(Emphasis supplied)
In the instant case, however, Exhibit-PM-dying declaration
does not either show the cause of death or the circumstances
of the transaction which resulted in the death of the declarant-
C Chander Kalan. The burns were not fatal either.
18. In the facts and circumstances of the present case,
Exhibit-PM-declaration does not meet the requirements of a
dying declaration under Section 32(1) of the Evidence Act. It
o has to be noted that the very foundation of the reliability of the
dying declaration is the principle of Nemo moriturus
praesumitur mentire which literally means that no one at the
point of death is presumed to lie since one is normally afraid
to meet his maker with a lie on his mouth at the time of death.
E
19. The other major issue is on applicability of Section
3048 of IPC. In order to attract Section 3048 of IPC, one of
the essential ingredients is that death of the married woman
should be caused by burns or bodily injury or that she should
have died otherwise than under normal circumstances. In the
F instant case, it has clearly come out in evidence that the death
is not caused by the burns: it is caused by septicemia on
account of improper management of wounds. The parts of the
body affected by the burns would clearly show that the burns
G are not caused on account of somebody pouring kerosene on
her body and setting her on fire. As can be seen from the
medical evidence and the postmortem report, the injuries are
on front side of the body from face up to the umbilicus. Her long
hair was not burnt at all. The approach of the trial court seems
to be quite proper and reasonable, and which, in our view, could
H not have been better explained. To quote from paragraph-17:
• BANARSI DASS v. STATE OF HARYANA
[KURIAN, J.)
"According to the version of the accused persons Rajesh
accused had come from school and he asked Chander
357
A
Kalan to prepare meal for him. Chander Kalan who wanted
to live separately started grumbling. When Rajesh insisted
upon Chander Kalan to prepare meal for him she started
lighting the stove and kerosene got sprinkled on her blouse B
from the stove and it caught fire. Rajesh and his mother
Urmila immediately extinguished the fire with the help of a
bed sheet and quilt cover. Absence of burn injuries below
umbilicus and on the long hair and back of Chander Kalan
and recovery of partially burnt bed sheet, partially burnt quilt c
cover with pieces of blouse of Chander Kalan sticking to
these lends support to the defence version that clothes of
Chander Kalan caught fire when she was lighting the stove
and the fire was immediately extinguished by her mother-
in-law Urmila and her husband's brother Rajesh accused. 0
If a stove containing kerosene is filled with air by pumping
and a pin is used for opening the choked nozzle of its
burner, the kerosene will gush out of the nozzle with a force
and if at that moment a burning stick of match box is used
for lighting the stove kerosene will burst into flames which
E
may sometimes rise upto more than a feet. Since the
kerosene in such circumstances is partially burnt it may get
sprinkled over the face and front portion of the upper
garments of the person who is lighting the stove and the
garments may catch fire by coming into contact with the
rising flames. So, the defence version that clothes of F
Chander Kalan caught fire when she was lighting the stove
appears to be very natural. There is one more aspect of
the defence story which lends it credibility. The relation
between Chander Kalan and the accused persons were
highly strained. All the accused persons subjected her to G
cruelty in connection with their demand for dowry. Even her
teeth were broken by them on 1st January, 1997. The
accused also misappropriated the cash and the articles
of dowry given to Chander Kalan must have been insisting
upon the accused persons to allow her to live separate H
358 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A from them. Because of her strained relations Chander
Kalan also must not have liked to cook meal for her
husband's brother Rajesh when he came from the school
at 2.00 p.m. When she was forced to cook meal for
Rajesh, Chander Kalan unwillingly went to the stove in a
B tense mood and because of tension she must have
pumped the air in the stove vigorously and neglected to
keep her face and body at a safe distance from the nozzle
of the burner of the stove. It was these circumstances which
resulted in sprinkling of kerosene on the face and clothes
c of Chander Kalan and her suffering burn injuries."
20. We are in respectful agreement with the view taken by
the trial court as far as the possible version of the burn injuries.
The nature of the burn injuries, the extent of the same and the
parts of the body affected from face to umbilicus, and the same
D only on the front of the body, would clearly show that it was an
accident caused while clearing the choked nozzle of the stove.
21. The High Court even otherwise is not justified in
reversing the acquittal under Section 3048 of IPC on a mere
E possibility of another view, if at all possible, on the evidence.
Unless the judgment of acquittal is passed on no evidence or
is perverse or the view taken by the court is wholly
unreasonable or is not a plausible view or there is non-
consideration of any evidence or there is a palpable misreading
F of evidence, the High Court is not justified in interfering with the
order of acquittal as held by this Court in Basappa v. State
of Karnataka'.
22. Thus, Exhibit-PM-statement in the instant case cannot
G be relied upon at all to convict the accused. The ingredients of
Section 3048 of IPC are also not made out.
23. The High Court has also found that the appellants are
liable to be convicted under Section 498 of IPC holding also
H 3. (2014) s sec 154.
• BANARSI DASS v. STATE OF HARYANA
[KURIAN, J.]
359
that the conviction by the trial court in that regard is to be A
maintained. On going through the judgment of the trial court, it
is fairly evident that the conviction under Section 498A of IPC
is on account of the incident on 01.01.1997. That was
compromised among the parties and all proceedings were
dropped. Thereafter, there is no clear evidence as to any B
cruelty. However, as found by the trial court, there is evidence
available regarding harassment of the deceased by the
accused/appellant nos. 1, 2, 3, and 5. But in the case of
accused/appellant no. 4-Rajesh, who was studying in the school
at the relevant time, there is no evidence as to any harassment. c
Therefore, while maintaining conviction under Section 498A of
IPC in respect of appellant nos. 1, 2, 3 and 5, appellant no. 4-
Rajesh is liable to be acquitted under Section 498A of IPC as
well.
D
24. Now, regarding the sentence, it is brought to our notice
that appellant nos. 2 and 3 have served imprisonment for
around two years. Since the appellants are acquitted under
Section 3048 of IPC and the conviction is only under Section
498A of IPC and since accused/appellant nos. 1 and 5 are no E
more, and having regard to the facts and circumstances of the
case, we are of the view that the sentence of accused/appellant
nos. 2 and 3 is to be limited to the period already undergone.
25. In the result, the conviction under Section 3048 of IPC
in respect of all the appellants is set aside. The conviction F
under Section 498A of IPC in respect of appellant no. 4-Rajesh
is set aside. The conviction under Section 498A of IPC is
maintained in respect of accused/appellant nos. 1, 2, 3 and 5.
Accused/appellant nos. 1 and 5 are no more and the appeal
as against them is abated. The sentence of accused/appellant G
nos. 2 and 3 is limited to the period already undergone.
26. It is seen that the deceased had been undergoing
treatment from 18.06.1998 till her death on 04.08.1998, initially
in two government hospitals and thereafter, for a long period, H
360 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A in two private hospitals. Therefore, we are of the view that the
accused/appellants should be made liable to pay compensation
to the parents of the deceased. Accused/appellant nos. 2 and
3 are directed to pay total compensation of Rs.1,00,000/- to
the parents of the deceased-Chander Kalan within a month from
B today. In the event of default, the District Magistrate, Hisar shall
take appropriate coercive action to recover the amount from
accused/appellant nos. 2 and 3 and pay the same to the
parents of the deceased, within another six months.
27. The appeals are allowed as above.
c
Kalpana K. Tripathy Appeals partly allowed.
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