SUBHASHversusSLATE OF HARYANA

              [2010] 14 (ADDL.) S.C.R. 1067


                         SUBHASH                                  A
                              V.
                    Sl'ATE OF HARYANA
             (Criminal Appeal No. 184 of 2006)
                   DECEMBER 16, 2010
                                                                  B
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]

      Penal Code, 1860 - ss. 306 and 498A -Death of married
woman due to 70% burn injuries - Dying declaration recorded       C
by Magistrate to the effect that the victim suffered harassment
on account dowry demands and as a result she made an
attempt to commit suicide - Conviction of husband and
father-in-law by courts below u/ss. 306 and 498A - On appeal,
held: Dying declaration recorded by Magistrate not reliable       D
- In the statements uls. 161 Cr.P.C., fatherand brother of the
victim omitted to state as regards the oral dying declarations
made to them by the victim, thus, their statements does not
inspire confidence - Dying declaration recorded was planned
at the instance of the brother of the victim - Possibility that   E
 victim was burnt in an accident cannot be ruled out - Thus,
conviction of appellant set aside - Code of Criminal
Procedure, 1973 - ss. 161 and 162 - Crime against women
- Evidence - Dying declaration.

     According to the prosecution case, the victim was            F
repeatedly harassed by the appellant-husband, her
parents-in-law and other in-laws for not bringing
sufficient dowry and raised dowry demands. On the
fateful day, the victim suffered 70% burn injuries and later
succumbed to her injuries in the hospital. The doctor             G
recorded the statement of the victim which was attested
by the Sub-Inspector. PW 13, the SOM, recorded the
dying declaration of the victim that she made an attempt
to commit suicide on account of the harassment meted
                             1067                                 H
   1068 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A out to her. The trial court on basis of the evidence of the
  relatives of the victim, the doctors, the Sub Inspector, the
  dying declaration recorded by PW 13 and the oral
  declaration mad& to PW 10, the brother of the victim,
  convicted the appellant and his father for the offences
s punishable under Sections 306 and 498A IPC and
  sentenced them to rigorous imprisonment for five years.
  The High Court upheld the conviction of both appellant
  and his father but while doing so, reduced the sentence
  of the appellant's father to that already undergone by him.
c Therefore, the appellant filed the instant appeal.
       Allowing the appeal, the Court

       HELD: 1.1 The primary evidence against the
  appellant is the dying declaration recorded by PW13 -
o SOM. It appears that information about victim's admission
  in the Hospital was received in the police station at about
  3.05 p.m. on 27.10.1985 but her statement could not be
  recorded as she was unconscious at that time. The Sub:..
  Inspector made efforts to record her statement at 8.30
E p.m. but the same could not be recorded for the same
  reason. It appears that, thereafter, the victim's statement
  was recorded by the doctor and attested by ASI on
  27.10.1985 in which she stated that she was burnt in an
  accident. Therefore, it is evident that the investigating
F agency made repeated efforts to record her dying
  declaration, but there was some delay because of the
  incapacity of the victim. The dying declaration was
  recorded by PW-13 on 28.10.1985 after an application
  was moved before him by PW-10, brother of the victim.
  PW 13-SDM, when cross-examined in court, stated that
G on 28.10.1985 he was present at his residence when the
  application was presented to him on which he went to the
  Hospital and recorded the dying declaration after the
  doctor certified the victim's fitness to make a statement.
  He also stated that a copy of the statement was handed
H
         SUBHASH v. STATE OF HARYANA                    106CJ


over to the police on 30.10.1985. However, he admitted          A
that the application was not produced by him before the
investigating agency and he was tendering this
document for the first time during his evidence in court
and that there was no noting on the dying declaration that
he had gone to the hospital on the application or that a        B
copy of the dying declaration was handed over the police
on 30.10.1985. He also admitted that he did not obtain
any opinion in writing from the doctor about the victim's
fitness to make a statement. He further admitted that the
area of the Hospital did not fall within his jurisdiction but   c
clarified that it was the practice that a dying declaration
could be recorded by any Magistrate when the Magistrate
of the area concerned was not available but clarified that
he had made no efforts to find out as to whether the
Magistrate of the area in which the said Hospital lay was       0
available or not. He also admitted that he was not
approached by the police or the medical authorities for
recording the dying declaration. If any doubt is left with
regard to the sanctity of the dying declaration, it stands
dispelled by the testimony of the doctor (who had made          E
the endorsement that the victim was fit to make a
statement) when he deposed that the endorsement had
been taken from him after the statement of victim had
been recorded. This statement was to be read with the
admission made by PW-13 that he had not taken any
endorsement before actually recording the statement.            F
Therefore, the so-called pivot that both the courts below
have found in the dying declaration is, in fact, non-
existent. The very conduct of PW-13, SOM and the manner
in which he had recorded the dying declaration, raises a
deep suspicion about its veracity. [Para 3) [1075-F-H;          G
1076-A-H; 1077-A-B]

     1.2 A bare reading of the statements of the two
primary witnesses PW-2, the father of the victim and PW-
10, the brother of the victim shows that the entire story       H
    1070 SUPREME COURT REPORTS [201 OJ 14 (ADDL.) S.C.R.


A with regard to the factum of the cruelty, the manner in
  which the deceased was dealt with, and the behaviour of
  the accused towards her had been built up during the
  evidence recorded in court. One significant fact which
  was omitted in the statements under Section 161 Cr.P.C.
B was with regard to the oral dying declarations made to
  them by the deceased for which no explanation was
  given. In addition, it is clear that the dying declaration
  recorded was maneuvered at the instance of PW-10. The
  trial court as well as the High Court did not place much
c reliance on the statements of these two witnesses. Their
  statements, in fact, do not inspire confidence. [Para 4]
  [1077-C-F]

       1.3 A bare reading of Explanation to Section 162
  Cr.P.C. would reveal that if a significant omission is made
D in the statement of a witness recorded under Section 161
  Cr.P.C., the same may amount to a contradiction, though,
  whether it so amounts, is a question of fact in each case.
  In the instant case, the ocular evidence with regard to the
  events preceding the actual incident rested exclusively
E on the statements of PWs.2 and 10. The glaring
  omissions made by them are writ large in the cross-
  examination. Therefore, the instant case is one of no
  evidence and the possibility that the deceased was burnt·
  in an accident cannot be ruled out. The conviction of the
F appellant is set aside and the order of acquittal is passed.
  [Para 5] [1077-H; 1078-A-C]

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 184 of 2006.

G       From the Judgment & Order dated 02.08.2005 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    No. 812 SB of 1986.

          R.P. Gupta, P.O. Gupta, Tara Chandra Sharma, A.K. Tiwari
H   for the Appellant.
          SUBHASH v. STATE OF HARYANA                      1071


    Rao Rajit for the Respondent.                                   A

    The Judgment of the Court was delivered by

    HARJIT SINGH BEDl,J.

    This appeal arises out of the following facts :                 B

     1. The deceased Anuradha, and the appellant Subhash,
a resident of Mahendargarh in the State of Haryana, were
married at Ganga Nagar in the State of Rajasthan on the 1st
February 1984. At the time of the marriage, Kishori Lal PW-2
the father of the bride, a retired Sub-Inspector of the Rajasthan
                                                                    c
Police, spent a large amount of money and also provided
appropriate dowry articles to her. It appears, however, that the
accused i.e. the husband Subhash, his father Siri Ram, his
brothers Sudesh and Sukesh, and Kusum, his sister were
                                                                    D
dissatisfied with the dowry articles, and Subhash made an
independent demand for a scooter. Anuradha upset with her
husband and in-laws, returned to her parents home but returned
to Mahendargarh after staying at Ganga Nagar for a day.
Rajinder Gaur PW-10 her brother, and his wife also visited
Mahendargarh after about 5 or 7 days and the accused at this        E
stage raised a demand for a refrigerator, a cooler and a colour
TV. About a rnonth thereafter, Kishori Lal PW also visited
Anuradha's home at Mahendargarh and the demand for the
aforesaid articles was reiterated. Anuradha also complained
to her father that she was being mal-treated on account of the      F
non-satisfaction of the demands. Kishori Lal, accordingly,
brought Anuradha back to Ganga Nagar but a month thereafter
Subhash came to Ganga Nagar and this time asked Kishori
Lal to arrange for a sum of Rs.50,000/- as he needed the
money to invest in a business. In November 1984, Kishori Lal        G
and his wife Saraswati Devi PW-9 visited Mahendargarh on
which the demand for Rs.50,000/- was repeated. Kishori La/,
however, expressed his inability to meet the demand. Anuradha
again complained to her parents that she was being repeatedly
harassed by the accused. On the 8th of August 1985 a daughter       H
    1072 SUPREME COURT REPORTS [2010] 14 {ADDL.) S.C.R.


A was born to Subhash and Anuradha on which Siri Ram
  appellant addressed a letter to Kishori Lal wherein he made a
  demand for several articles including 21 sarees, some articles
  of jewellery and other garments to be presented as per custom
  on the birth of a child. Owing to his illness Kishori Lal could not
B go to Mahendargarh but Saraswati Devi PW went to that place
  and presented several articles such as sarees and ornaments
  worth Rs.10,000/-. The accused, however, were completely
  dissatisfied with the gifts and expressed their unhappiness in
  no uncertain terms. As per the prosecution story, a letter Ex.PF
c dated 26th of August 1985 was addressed by Siri Ram to
  Kishori Lal in which the former complained that the gifts sent
  at the time of birth of the child were not in accordance with the
  status of the family. It appears that at 2.10 a.m. on the night
  intervening 26th and 27th October 1985 Anuradha was
D removed to the Civil Hospital, Mahendargarh with severe burn
  injuries. Prior to this, however, Subhash had approached Udai
  Singh PW-8, a car driver of Mahendargarh at about 1 a.m.
  seeking his assistance in shifting Anuradha to Delhi on account
  of her burn injuries. Udai Singh, accompanied by Subhash,
  accordingly reached the latter's house, just as Anuradha was
E being shifted to the Civil Hospital, Mahendargarh in a cycle
  rickshaw by the other accused on which Udai Singh asked
  Subhash as to what had happened. Anuradha .was thereupon
  taken to the Civil Hospital, Mahendargarh in the car of Udai
  Singh. A bed-head ticket Ex.PA was accordingly prepared by
F Dr. Janak Raj Singal PVv-10, Medical Officer lncharge of the
  Civil Hospital, who found 70% burns on her face, arms, neck,
  chest, abdomen and thighs. He also addressed a
  communication to the police on which ASI Amir Singh PW-16
  of Police Station Mahendargarh reached the hospital but the
G Doctor opined that Anuradha was unfit to make a statement.
  The ASI then recorded the statement Ex.PGG of Subhash, who
  too was admitted in the hospital with burn injuries, in which he
  attributed the injuries to an accident and sustained while she
  was heating milk for the baby girl on a kerosene stove. Dr.
H Janak Raj PW also advised Anuradha's attendants that she be
          SUBHASH v. STATE OF HARYANA                      1073
              [HARJIT SINGH BEDI, J.]

shifted to Safdarjung Hospital, New Delhi on account of her         A
serious condition. She was, accordingly, moved to Safdarjung
Hospital and medically examined by Dr. M.Y. Sharif. On getting
information that Anuradha was in the Safdarjung Hospital, her
brother Rajinder Gaur PW, who was a resident of Delhi, also
rushed to the hospital at about 10.30 a.m. on 27th October          B
1985 and questioned Siri Ram, Sukesh and Sudesh as to what
had transpired but they failed to give a satisfactory reply. He
then went inside the hospital to meet his sister who informed
him that she had _been treated with cruelty by all the accused
and also starved for 7 days. She further told him that her thumb    c
impression had been obtained on some papers by some police
officials who had been brought to the hospital by the accused.
Rajinder Gaur thereupon requested the doctor on duty to make
arrangements for the recording of Anuradha's statement by a
Magistrate. A Magistrate came to the hospital at about 4.00         D
p.m. on the 27th October 1985 but could not record her
statement as she was found to be unconscious. It is at this
stage that Rajinder Gaur lodged a report at Police Station Vinay
Nagar, New Delhi on the evening of 27th October 1985 and
also informed the SHO, Mahendargarh about the admission of
his sister in the Safderjung hospital. ASI Chander Bhan also        E
reached the Safderjung hospital and recorded her statement
on the 27th October 1985, which was attested by the doctor,
to the effect that the burn injuries had been sustained by her in
 an accident. On the 28th October 1985, Rajinder Gaur
allegedly approached the Vinay Nagar Police Station for             F
recording of Anuradha's statement but no action was taken on
the request. He thereafter approached Ravi Malik, PW-13 Sub
 Divisional Magistrate at his residence in Panchsheel Enclave
and moved an application before him requesting him to record
Anuradha's statement in the hospital. PW-13 then went to the        G
hospital and recorded her statement Ex. PCC at 9.00 a.m. on
the 28th October 1985 after Anuradha had been certified by
the doctor to be in a fit condition to make a statement. In this
statement, she blamed the accused of having harassed her
which had driven her to make an attempt at suicide. Kishori Lal     H
    1074 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A accompanied his wife Saraswati Devi also went to the hospital
  at 10.30 a.m. on the 28th October 1985 and she again told him
  about the torment she had undergone at the hands of the
  accused. On the same day, ASI Amir Singh of Police Station
  Mahendargarh also came to the Safdarjung Hospital on which
B a complaint Ex.PV was presented to him by Rajinder Gaur and
  on its basis, an FIR was registered. The investigation was,·
  thereafter, set in motion. Anuradha subsequently died in the
  Safdarjung Hospital. Her dead body was subjected to a post-
  mortem examination at the All India Institute of Medical
c Sciences, New Delhi on the 1st November 1985at10.30 a.m.
  and several burn injuries were detected thereon, though there
  was no smell of kerosene oil and the cause of death was
  opined as shock and septicemia as a result of burn injuries.
  During the course of the investigation, the police also moved
  an application before Shri Balbir Singh, Judicial Magistrate, 1st
0
  Class, Mahendargarh on 23rd October 1985 (after the arrest
  of Siri Ram) for obtaining his specimen signatures for
  comparison with the letters Ex.PE and Ex.PF but he declined
  to furnish the same.

E      2. The trial court relying on the evidence of Kishori Lal PW-
  2, Udai Singh PW-8, Saraswati Devi PW-9, Rajinder Gaur PW-
  10, Dr. Devansh Sharma PW-11, Dr. RP.Narayan PW-12,
  Ravi Malik PW-13, Dr. Chander Kant PW-14 and ASI Amrik
  Singh PW-16 and the oral dying declarations made to Rajinder
F Gaur, Kishori Lal, Saraswati Devi and the dying declaration
  Ex.PCC made to Ravi Malik, SOM held that the case against
  Siri Ram and Subhash was proved beyond doubt, but as the
  dying declaration Ex.PCC did not inculpate the other accused,
  no case was made out against there. It is also held that the
G Letters DH, DH/1, DH/2, DH/3 allegedly written by Anuradha,
  even if proved, which showed the relationship between the
  couple and her in laws as being cordial, would not absolve Siri
  Ram and Subhash of their misconduct. The trial court,
  accordingly, in its judgment dated 28th November 1986,
H convicted Siri Ram and.Subhash for offences punishable under
          SUBHASH v. STATE OF HARYANA                     1075
              [HARJIT SINGH BEDI, J.]

Sections 306 and 498A of the IPC and by order dated 29th           A
November 1986 sentenced them to undergo RI for 5 years and
a fine of Rs.4,000/- and in default to undergo further RI for 6
months each under Section 306 of the IPC, and RI for one year
and a fine of Rs.1000/- in default to undergo further RI for 2
months each under Section 498A; both the substantive               8
sentences to run concurrently. An appeal was, thereafter, taken
to the Punjab and Haryana High Court by Subhash and Siri
Ram. The High Court in its judgment dated 2nd August 2005,
has placed almost complete reliance on Ex. PCC and has held
that this statement was sufficient to prove the case against the   C
accused. Reliance has also been placed to a very limited extent
on the statements of Kishori Lal, Saraswati Devi and Rajinder
Gaur, PWs. The Court has also observed that as the accused
had been charged under Sections 306 and 498A of the IPC, a
presumption under Section 113A of the Evidence Act was
available to the prosecution. The High Court, accordingly,         D
upheld the conviction but reduced the sentence of Siri Ram to
that already undergone as he was about 75 years of age as
on the date of the judgment and with this modification in the
sentence, dismissed the appeal. This matter is before us after
the grant of special leave.                                        E

     3. As already indicated above, the primary evidence
against the appellant is the dying declaration Ex.PCC recorded
by PW13 Ravi Malik, SOM. The trial court and the High Court
have held that this was the pivot of the prosecution story. It     F
appears that information about Anuradha's admission in the
Safdarjung Hospital was received in the Vinay Nagar Police
Station at about 3.05 p.m. on 27th October 1985 but her
statement could not be recorded as she was unconscious at
that time. Further efforts had been made by the Sub-Inspector      G
to record her statement at 8.30 p.m. which again could not be
recorded for the same reason. It appears that thereafter
Anuradha's statement had been recorded by the Doctor and
attested by ASI Chander Bhan on the 27th October 1985 in
which she stated that she had been burnt in an accident. It is
                                                                   H
    1076 SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.


A evident, therefore, that repeated efforts had been made by the
   investigating agency to record her dying declaration, but there
   was some delay because of the incapacity of the victim. The
   dying declaration Ex.PCC was recorded by Ravi Malik PW on
   the 28th October 1985 after an application Ex.PBS had been
8 moved before him by Rajinder Gaur, PW. Ravi Malik, when
   cross-examined in Court, stated that on the 28th October 1985
   he had been present at his residence in Panchsheel Enclave,
   New Delhi when the application Ex.PBS had been presented
   to him on which he had gone to the Safdarjung Hospital and
C recorded the dying declaration after the doctor had certified
 · Anuradha's fitness to make a statement. He also stated that a
   copy of the statement had been handed over to the police on
   the 30th of October 1985. When cross-examined, however, he
   admitted that Ex.PBS had not been produced by him before
   the investigating agency and he was tendering this document
D for the first time during his evidence in Court and that there was
   no noting on Ex.PCC that he had gone to the hospital on the
   application Ex.PBS or that a copy of the dying declaration had
   been handed over the police on the 30th October 1985. He also
   admitted that he had not obtained any opinion in writing from
E the doctor about Anuradha's fitness to make a statement. He
   further admitted that the area of Safdarjung Hospital did not fall
   within his jurisdiction but clarified that it was the practice that a
   dying declaration could be recorded by any Magistrate when
   the Magistrate of the area concerned was not available but
F clarified that he had made no efforts to find out as to whether
   the Magistrate of the area in which Safdarjung Hospital lay was
   available or not. He also admitted that he had not been
   approached by the police or the medical authorities for
   recording the dying declaration, If any doubt is left with regard
G to the sanctity of this dying declaration, it stands dispelled by
   the testimony of Dr. Devansh Sharma (who had made the
   endorsement Ex.Pl. that Anuradha was fit to make a statement)
   when he deposed that the endorsement had been taken from
   him after the statement of Anuradha had been recorded. This
H statement has to be read with the admission made by PW Ravi
          SUBHASH v. STATE OF HARYANA                      1077
              [HARJIT SINGH BEDI, J.]

Malik that he had not taken any endorsement before actually         A
recording the statement. We are, therefore, of the opinion that
the so-called "pivot" that both the courts below have found in
the dying declaration Ex.PCC is, in fact, non-existent. The very
conduct of this witness and the manner in which he had
recorded the dying declaration, as already indicated above,         B
raises a deep suspicion about its veracity.

      4. We have also very carefully gone through the statements
of the two primary witnesses PW-2 Kishori Lal, the father of the
victim and PW-10 Rajinder Gaur, her brother. A bare reading         C
of their statements shows that the entire story with regard to
the factum of the cruelty, the manner in which the deceased was
dealt with, and the behaviour of the accused towards her had
been built up during the evidence recorded in Court. We may
refer to one significant fact which has been omitted in the
statements under Section 161, Cr.P.C. This is with regard to        D
the oral dying declarations made to them by the deceased and
when confronted could give no explanation for the omission. In
addition, it is clear that the dying declaration recorded Ex.PCC
had been maneuvered at the instance of Rajinder Gaur PW.
As already indicated above, the trial court as well as the High     E .
Court have not placed much reliance on the statements of these
two witnesses. We are of the opinion that their statements, in
fact, inspire no confidence. We may also refer to the Explanation
 to Section 162 of the Cr.P.C. The same is reproduced
herein below:                                                       F

            Explanation. - An omission to state a fact or
     circumstance in the statement referred to in sub-section
     (1) may amount to contradiction if the same appears to be
     significant and otherwise relevant having regard to the        G
     context in which such omission occurs and whether any
     omission amounts to a contradiction in the particular
     context shall be a question of fact."

     5. A bare reading of this Explanation would reveal that if
a significant omission is made in the statement of a witness        H
    1078 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A recorded under Section 161 of the Cr.P.C., the same may
  amount to a contradiction and that whether it so amounts is a
  question of fact in each case. It is clear to us that the ocular
  evidence with regard to the events preceding the actual incident
  rested exclusively on the statements of PWs.2 and 10. The
B glaring omissions made by them are writ large in the cross-
  examination. We are, therefore, of the opinion that the present
  case is one of no evidence and the possibility that the
  deceased had been burnt in an accident cannot be ruled out.
  We, accordingly, allow the appeal, set aside the conviction of
c the appellant and order his acquittal.
    N.J.                                         Appeal allowed.