PHULEL SINGHversusSTATE OF HARAYANA

                  [2023] 12 S.C.R. 793 : 2023 INSC 863



                             CASE DETAILS

                             PHULEL SINGH
                                       v.
                         STATE OF HARAYANA
                    (Criminal Appeal No. 396 of 2010)
                          SEPTEMBER 27, 2023
          [B. R. GAVAI, PAMIDIGHANTAM SRI NARASIMHA
            AND PRASHANT KUMAR MISHRA, JJ.]
                               HEADNOTES
       Issue for consideration: Whether in the totality of the circumstances,
it can be said that the dying declaration (Ex. P.L.) is free from doubt; whether
evidence prove beyond reasonable doubt that the deceased was harassed on
account of non-fulfillment of demand of dowry.
     Evidence Act, 1872 – Dying Declaration – Dying declartion free
from doubt or not – Doubt whether the dying declaration recorded
was voluntary or it was tutored – Doubt regarding fitness of victim –
Variation in statement made by victim:
      Held: The present case mainly rests on the dying declaration of the
deceased – In the present case, the dying declaration is recorded by PW-5,
Executive Magistrate – It is relevant to note that the deceased received burn
injuries on 05.11.1991 but the dying declaration came to be recorded on
08.11.1991 after an application was made by the relatives of the deceased to
the SDM – PW-5, Executive Magistrate, in his evidence, admitted that the
boys (related to deceased), who had brought the application containing the
order of the SDM had told him that the statement of the deceased should be
recorded and that she was in a position to make the statement – He further
admitted that those boys had told him that whatever they had to tell the
deceased, they had told her and that he should accompany them to record
her statement – There is a grave doubt as to whether the dying declaration
recorded by PW-5, Executive Magistrate was a voluntary one or tutored at
the instance of respondent No.5 – It is also doubtful as to whether PW-8 had
really examined the deceased with regard to her fitness prior to her statement

                                     793
794          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


being recorded by PW-5, Executive Magistrate – PW-8-doctor had further
stated that the deceased had also narrated that her husband had extinguished
fire by pouring water on her – In the totality of the circumstances, it cannot
be said that the dying declaration (Ex. P.L.) is free from doubt. [Paras 10,
11, 12, 13 and 14]
     Penal Code, 1860 – Dowry death – High Court partly allowed the
appeal filed by the accused persons; accused no.1, father of the appellant
herein was acquitted of the charge u/s. 304-B of the IPC, however, the
conviction and sentence qua appellant was upheld – Propriety:
       Held: Dying declaration of deceased was not free from doubt – The
most glaring aspect that is required to be considered is that the High Court
itself has disbelieved the dying declaration insofar as father-in-law of the
deceased is concerned – It is difficult to understand that how the same dying
declaration could have been made basis for conviction of the appellant
when the same was disbelieved insofar as another accused is concerned –
PW-9-investigating officer had stated in his deposition that he had come
to the conclusion that the present case was not a case u/s. 307 of IPC or
s.498-A of IPC but a case u/s. 309 of IPC – He had further stated that
during investigation, it was revealed that the deceased was short-tempered
and that accused no.1 (father of appellant) was not there in the village on
the fateful day – Insofar as harassment with regard to non-fulfillment of
demand of dowry is concerned, except the vague allegation, there is nothing
in their evidence to support the prosecution case – PW-6-Sarpanch of the
village stated that he was informed by PW-4, father of the deceased that
in-laws of the deceased were harassing her and therefore they should go to
village, however, nothing was said regarding any harassment on account
of non-fulfillment of demand of dowry – There is no evidence to prove
beyond reasonable doubt that the deceased was harassed on account of
non-fulfillment of demand of dowry – Therefore, no case u/s. 304-B of IPC
is made out by the prosecution. [Paras 15, 16 and 17]

       LIST OF CITATIONS AND OTHER REFERENCES

      Makhan Singh v. State of Haryana 2022 SCC OnLine SC 1019 –
referred to.
             PHULEL SINGH v. STATE OF HARAYANA                          795



       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
396 of 2010.
     From the Judgment and Order dated 24.07.2009 of the High Court of
Punjab & Haryana at Chandigarh in CRLA No.909 of 1999.
     Appearances:
     Rajul Bhargav, Sr. Adv., Rajiv K. Garg, Ashish Garg, Lalit Nagar, T.
L. Garg, Advs. for the Appellant.
   Samar Vijay Singh, Raj Singh Rana, Keshav Mittal, Ms. Sabarni Som,
Aman Dev Sharma, Pankaj Kumar Singh, Advs. for the Respondent.

       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT
     B. R. GAVAI, J.
      1. This appeal challenges the judgment and order dated 24th July 2009
passed by the Division Bench of the High Court for the States of Punjab and
Haryana in Criminal Appeal Nos. 413-DBA of 2001 and 909-SB of 1999
along with Criminal Revision No. 134 of 2000, wherein the Division Bench
partly allowed the appeal filed by the accused persons; whereby Jora Singh
(Accused No. 1), father of the appellant herein was acquitted of the charge
under Section 304-B of the Indian Penal Code, 1860 (“IPC” for short) and
the conviction and sentence qua the appellant herein rendered by the learned
court of Mrs. Nirmal Yadav, Sessions Judge, Sirsa (hereinafter referred to
as “the trial court”) in Sessions Trial No. 122 of 1994 vide judgment and
order dated 14th September 1999 for the offence punishable under Section
304-B of IPC and sentence to undergo rigorous imprisonment for a period
of seven years was upheld. Whereas, Criminal Appeal No. 413-DBA of
2001 filed by the State of Haryana and Criminal Revision No. 134 of 2000
filed by Pavitar Singh (PW-3), brother of Kiran Kaur (hereinafter referred
to as “deceased”) challenging the acquittal of the accused persons for the
charge under Section 302 of IPC were dismissed.
796           SUPREME COURT REPORTS                          [2023] 12 S.C.R.


      2. Shorn of details, the facts leading to the present appeal, are as under:
      2.1 The marriage between the deceased and the appellant was solemnized
in March, 1987, and they were blessed with a girl and a boy. It is the
prosecution case that the appellant used to harass the deceased on account of
insufficiency of dowry. It is further the prosecution case that, succumbing to
the demands of the appellant, the parents of the deceased paid Rs.20,000/- to
the appellant in cash and in 1990, they gave a scooter and gold ornaments
weighing 2.5-3 tolas to the appellant. Further, the deceased would tell her
parents and her brother about the harassment and ill-treatment meted out
to her at the hands of the appellant whenever she visited her parental house
and eventually refused to reside in the house of the appellant. However, on
account of the assurance and responsibility undertaken by Mohan Singh, the
son-in-law of Jora Singh, father-in-law of the deceased, she was brought back
to her matrimonial house. Even then, the deceased was not treated properly by
the appellant. According to the prosecution allegations, Pavitar Singh (PW-
3), brother of the deceased had come to see the deceased at her matrimonial
home in village Chatha about 3 to 4 days prior to the Diwali of 1991 when
the deceased had informed him about the demand for dowry being made by
the appellant and his family. When Pavitar Singh (PW-3) returned home and
informed his parents about the said harassment being meted out to the deceased
in lieu of demand for dowry, Randhir Singh (PW-4), father of the deceased,
went to Major Singh (PW-6), Sarpanch of his village, who assured him that
they would go to the house of the appellant for counselling them after Diwali.
Following which, on 5th November 1991, i.e., on the festive day of Diwali,
Dr. Sharma of Bhagwangarh had come to Rama Mandi. On his return, he
informed Pavitar Singh (PW-3) and other family members that the deceased
had been burnt and that she was being taken to Ludhiana. Thereupon, Pavitar
Singh (PW-3), Randhir Singh (PW-4) and cousin Gur Raj Singh reached the
Daya Nand Medical College and Hospital, Ludhiana (hereinafter referred to
as “DMC, Ludhiana”) where the deceased was admitted and lay unconscious.
On 5th November 1991, Dr. Jasmeet Singh Dhir (PW-7), the Medical Officer
at DMC, Ludhiana, who had medico-legally examined the deceased, opined
that she had 91% burns on her body and accordingly sent ruqa (Ex.-P.J) to
the Station House Officer (SHO), Police Station Sarabha Nagar, Ludhiana
on the same day at about 05.10 p.m. regarding admission of the deceased in
the hospital.
              PHULEL SINGH v. STATE OF HARAYANA                          797
                        [B. R. GAVAI, J.]

      2.2 On 7th November 1991, when the deceased regained consciousness,
she told Pavitar Singh (PW-3) and others that it was the appellant who had
burnt her. Following which, Randhir Singh (PW-4) made an application (Ex.
P.D./1) to the Sub-Divisional Magistrate (SDM), Ludhiana, for recording
of the statement of the deceased. On the following day, i.e., 8 th November
1991, Mr. Sadhu Singh (PW-5), the then Executive Magistrate, Ludhiana
received the said application along with endorsements of the SDM, Ludhiana
(Ex. P.D/2 and P.D/3). Upon receiving the same, the Executive Magistrate,
Ludhiana reached the DMC, Ludhiana and moved another application (Ex.
P.S.) before the Medical Officer at about 04.15 p.m. thereby seeking his
opinion with regards to the fitness of the deceased. When Dr. Jatinder Pal
Singh (PW-8) gave his opinion (Ex. P.S/1) that the deceased was fit to make
a statement, Mr. Sadhu Singh (PW-5) proceeded to record the statement of
the deceased (Ex. P.L.) on the same day at about 04.40 p.m. The statement
was read over and explained to the deceased, who had put her thumb
impression on the same after admitting to its contents to be correct. A First
Information Report (“FIR” for short) (Ex. P.E./1) was recorded based on
the said statement of the deceased against Jora Singh, father-in-law of the
deceased, appellant herein and Dhan Kaur, mother-in-law of the deceased,
for the offences punishable under Sections 498-A, 307, 406 and 34 of IPC.
On 18th November 1991, at about 06.00 p.m., Dr. Jatinder Pal Singh (PW-
8) sent ruqa (Ex. P.M.) to the Police Station Sarabha Nagar, Ludhiana,
regarding the death of the deceased. Following which, the Assistant Sub
Inspector (ASI), Sri Bhagwan (PW-9) prepared an inquest report at the
DMC, Ludhiana on 19th November 1991 with regards to the dead body
of the deceased and made an application for conducting of post-mortem
examination as well (Ex. P.R./1).
      2.3 Upon completion of investigation, a charge-sheet came to be filed
in the court of jurisdictional Magistrate. Since the case was exclusively
triable by the learned Sessions Judge, it came to be committed to the learned
Sessions Court. Charges were framed for the offences punishable under
Section 302 read with Section 34 of IPC and Section 304-B of IPC. The
accused pleaded not guilty and claimed to be tried.
     2.4 In order to substantiate the charges levelled against the accused
persons, the prosecution examined as many as nine witnesses. Thereafter,
798           SUPREME COURT REPORTS                          [2023] 12 S.C.R.


the accused persons were examined under Section 313 of the Code of
Criminal Procedure, 1973 (“Cr.P.C.” for short). They denied the prosecution
allegations regarding demand for dowry and harassment of the deceased and
alleged that they were being falsely implicated. The accused persons also
denied that the deceased was set ablaze by them. At the conclusion of trial,
the learned trial court convicted all the three accused persons for the offence
punishable under Section 304-B of IPC for causing the dowry death of the
deceased and accordingly sentenced them to undergo rigorous imprisonment
for a period of seven years along with fine. However, the learned trial court
was pleased to extend the benefit of doubt qua the charge under Section 302
of IPC and thus, acquitted the accused persons of the said charge.
       2.5 Being aggrieved thereby, the accused persons preferred an
appeal before the High Court with regards to the conviction and sentence
awarded by the learned trial court; whereas, the State of Haryana and
Pavitar Singh (PW-3) also filed their respective appeals before the High
Court with regards to the acquittal of the accused persons for the charge
under Section 302 of IPC. The High Court, by the impugned judgement,
while observing that the appeal preferred by Dhan Kaur, mother-in-law
of the deceased stood abated as she had died during the proceedings;
dismissed the appeals filed by the State of Haryana and Pavitar Singh
(PW-3), and partly allowed the appeals filed by Jora Singh, father-in-law
of the deceased and the appellant herein thereby acquitting Jora Singh,
father-in-law of the charge levelled against him under Section 304-B of
IPC, but confirmed the conviction and sentence awarded by the learned
trial court to the appellant herein.
      3. Being aggrieved thereby, the present appeal.
     4. We have heard Shri Rajul Bhargav, learned Senior Counsel
appearing on behalf of the appellant and Shri Samar Vijay Singh, learned
counsel appearing on behalf of the State.
      5. Shri Bhargav submitted that the trial court as well as the High Court
has grossly erred in convicting the appellant. He submits that the reliance
placed on the dying declaration is totally unsustainable. He submits that
the very first information given by the deceased herself to the doctor while
admitting to the hospital, would show that the deceased had put up kerosene
on herself and set herself on fire. He submits that as a matter of fact, it is the
             PHULEL SINGH v. STATE OF HARAYANA                         799
                       [B. R. GAVAI, J.]

present appellant who had tried to extinguish the fire. The learned Senior
Counsel therefore submits that the subsequent dying declaration, which is
recorded after 3-4 days of the accident, could not have been relied on by
the courts. He submits that the said dying declaration was a tutored one at
the instance of her relatives and the conviction solely based on the same
is not sustainable. The learned Senior Counsel relies on a recent judgment
of this Court in the case of Makhan Singh v. State of Haryana1 decided
on 16th August 2022 to which two of us (B.R. Gavai, J., Pamidighantam
Sri Narasimha, J.) were on the Bench.
      6. Shri Bhargav further submitted that the case under Section 304-B
of IPC is also not made out. He submitted that there is no evidence on
record to show that the deceased was meted out to any harassment on
account of non-fulfillment of demand of dowry. He submitted that even
if the evidence of the relatives of the deceased is taken on face value, it
would not show that there was any harassment to the deceased on account
of non-fulfillment of demand of dowry. He submitted that even the evidence
of independent witness Major Singh (PW-6), Sarpanch of the village would
also not support the prosecution case.
     7. Shri Singh, on the contrary, submitted that the prosecution has
proved the case beyond reasonable doubt. He further submitted that the
dying declaration is recorded by the Executive Magistrate. He further
submitted that Dr. Jatinder Pal Singh (PW-8) has testified that the deceased
was in the sound state of mind and fit to make the statement. He therefore
submitted that the conviction recorded on the basis of the said dying
declaration warrants no interference.
     8. Shri Singh further submitted that the evidence of PWs 3 and
4, who were relatives of the deceased along with Major Singh (PW-6),
Sarpanch of the village would establish, beyond all reasonable doubt, that
the deceased was meted out harassment on account of non-fulfillment of
demand of dowry. He therefore prays for dismissal of the present appeal.
     9. With the assistance of the parties, we have perused the evidence
and materials placed on record.


1   2022 SCC OnLine SC 1019
800          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


      10. The present case mainly rests on the dying declaration of the
deceased. No doubt, that a conviction can be solely recorded on the basis
of dying declaration. However, for doing so, the court must come to a
conclusion that the dying declaration is trustworthy, reliable and one which
inspires confidence. In the present case, the dying declaration is recorded by
Shri Sadhu Singh (PW-5), Executive Magistrate. He stated that he obtained
the certificate from the doctor regarding the fitness of the deceased to make
the statement. He further stated that he recorded the statement of the deceased
and thereafter it was read over and explained to her. He further states that
she had thumb marked the same after admitting its contents to be correct.
In the dying declaration recorded by Shri Sadhu Singh (PW-5), Executive
Magistrate, the deceased is said to have stated that on 5th November 1991
at around 12.00 noon, her husband Phulel Singh, i.e., the appellant herein,
Jora Singh, father-in-law and Dhan Kaur, mother-in-law caught hold of her.
Her husband, the appellant herein put kerosene on her person and set her
ablaze. She further stated that when she was set on fire, she raised an alarm
but the accused overpowered her.
      11. It is relevant to note that the deceased received burn injuries
on 5th November 1991 but the dying declaration came to be recorded on
8th November 1991 after an application was made by the relatives of the
deceased to the SDM, Ludhiana. Shri Sadhu Singh (PW-5), Executive
Magistrate, in his evidence, admitted that the boys, who had brought the
application containing the order of the SDM, Ludhiana had told him that the
statement of the deceased should be recorded and that she was in a position
to make the statement. He further admitted that those boys had told him that
whatever they had to tell the deceased, they had told her and that he should
accompany them to record her statement. He has further admitted that those
2-3 boys were related to the deceased and some other persons were also in
the room in which he recorded the statement of the deceased.
     12. It could thus be seen that there is a grave doubt as to whether
the dying declaration recorded by Shri Sadhu Singh (PW-5), Executive
Magistrate was a voluntary one or tutored at the instance of respondent
No.5. It is further relevant to note that Dr. Jatinder Pal Singh (PW-8), in his
deposition itself, states that Shri Sadhu Singh (PW-5), Executive Magistrate
had recorded the dying declaration of the deceased on 8th November 1991
              PHULEL SINGH v. STATE OF HARAYANA                            801
                        [B. R. GAVAI, J.]

at 04.40 p.m. whereas the opinion with regard to her fitness was given by
him at 06.00 p.m. on 8th November 1991. He has further admitted that he
had not mentioned in the bed-head ticket that he had attested the statement
of the deceased at 04.40 p.m. on 8th November 1991. It is thus doubtful as
to whether Dr. Jatinder Pal Singh (PW-8) had really examined the deceased
with regard to her fitness prior to her statement being recorded by Shri Sadhu
Singh (PW-5), Executive Magistrate.
      13. It is further relevant to note that Dr. Jasmeet Singh Dhir (PW-7) has
stated that the history recorded by him while admitting the deceased, was
narrated by the deceased herself. He has further stated that the deceased had
also narrated that her husband had extinguished fire by pouring water on her.
     14. In the totality of the circumstances, it cannot be said that the dying
declaration (Ex. P.L.) is free from doubt.
      15. The most glaring aspect that is required to be considered is that
the High Court itself has disbelieved the dying declaration insofar as Jora
Singh, father-in-law of the deceased is concerned. We fail to understand as to
how the same dying declaration could have been made basis for conviction
of the appellant when the same was disbelieved insofar as another accused
is concerned.
      16. It will also be apposite to refer to the deposition of Shri Bhagwan,
ASI, Investigating Officer (PW-9). He has stated in his deposition that he had
come to the conclusion that the present case was not a case under Section
307 of IPC or Section 498-A of IPC but a case under Section 309 of IPC. He
has further stated that the higher authorities that is Shri Sukhdev Singh, DSP
and Shri Rajinder Singh, SHO had verified the investigation conducted by
him and found the same as correct and agreed with his conclusions. He has
further stated that during investigation, it was revealed that the deceased was
short-tempered and that accused Jora Singh was not there in the village on
the fateful day and that he had gone to Rama Mandi for making purchases
for Diwali.
      17. Insofar as the evidence regarding harassment on account of non-
fulfillment of demand of dowry is concerned, the prosecution relies on the
evidence of Pavitar Singh (PW-3), brother of the deceased, Randhir Singh
(PW-4), father of the deceased and Major Singh (PW-6), Sarpanch of the
802            SUPREME COURT REPORTS                      [2023] 12 S.C.R.


village. Insofar as PWs 3 and 4 are concerned, they are relatives of the
deceased and their evidence will have to be scrutinized with greater care,
caution and circumspection. Insofar as harassment with regard to non-
fulfillment of demand of dowry is concerned, except the vague allegation,
there is nothing in their evidence to support the prosecution case. Insofar
as Major Singh (PW-6), Sarpanch of the village is concerned, he stated
that he was informed by Randhir Singh (PW-4), father of the deceased that
in-laws of the deceased were harassing her and therefore they should go to
village Chatha. However, he also does not state that he was informed by
Randhir Singh (PW-4), father of the deceased that the deceased was meted
out to any harassment on account of non-fulfillment of demand of dowry.
We are therefore of the considered view that there is no evidence to prove
beyond reasonable doubt that the deceased was harassed on account of
non-fulfillment of demand of dowry. We therefore find that the case under
Section 304-B of IPC is not made out by the prosecution.
      18. In the result, we pass the following order:
      (i) The appeal is allowed;
     (ii) The judgment and order of conviction as recorded by the trial court
dated 14th September 1999 and affirmed by the High Court vide its impugned
judgment and order dated 24th July 2009 are quashed and set aside; and
     (iii) The appellant is acquitted of all the charges levelled against him
and his bail bonds shall stand discharged.
     19. Pending application(s), if any, shall stand disposed of in the above
terms.


Headnotes prepared by:                                          Appeal allowed.
Ankit Gyan