Monday 19 January 2015

Whether dying declaration should not be relied on the ground that it is in question answer form?

The  submission  of  Ms.  Meenakshi  Arora,  learned  senior  counsel
appearing for the appellant that the dying declaration  is  untenable  being
without mentioning the time when the statement was recorded as also  not  in
the question  answer  form,  cannot  be  sustained.   Merely  because  dying
declaration was not in question answer form,  the  sanctity  attached  to  a
dying declaration as it comes from the mouth of a  dying  person  cannot  be
brushed aside and its reliability cannot be doubted.
                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL APPEAL NO. 1422 OF 2009

Prem Kumar Gulati                            ….Appellant


State of Haryana and another            ..Respondents

Read original judgment here;click here
Citation; 2015 CRLJ159 SC

       These  appeals  are  directed  against  judgment  and   order   dated
06.09.2008 passed by the High  Court  of  Punjab  and  Haryana  in  Criminal
Appeal No. 342-DB of 2006, whereby the High Court dismissed  the  appeal  of
the accused persons and upheld the judgment dated 25.04.2006 passed  by  the
Additional Sessions Judge, Bhiwani (Haryana) in Sessions Case  No.8  RBT  of
18.3.2004, inflicting sentence with rigorous  imprisonment  for  life  under
Section 302/498-A read with Section 34, Indian Penal Code and  imposed  fine
with default clause.

2.    The facts leading to the prosecution  story  are  that  on  16.1.1995,
Rajni-deceased was married with Mahender Singh  alias  Mahender  Gulati  and
out of this wedlock, three children were born.  Both the appellants,  namely
Mahender Gulati and Prem Kumar Gulati (brother in-law  (jeth)  of  deceased)
are the brothers.  The prosecution case is that on receipt of  V.T.  message
on 10.12.2003, ASI  Ram  Singh  rushed  to  PGIMS,  Rohtak  with  regard  to
admission  of  Rajni  in  burnt   condition.    After   obtaining   Doctor’s
certificate regarding fitness of the victim to  give  statement,  Additional
Chief  Judicial   Magistrate,   Rohtak   recorded   her   statement   (dying
declaration) to the effect that on 9.12.2003, at around 9.30/10.00 P.M.  the
accused persons being her husband, Jeth and Jethani poured kerosene  oil  on
her and set ablaze.   It is also stated in her dying  declaration  that  her
husband had illicit relation with his Bhabi   Bimla (since  deceased),  with
the result she used to pick up  quarrel  with  him.  Her  husband  gave  her
beatings  under  the  influence  of  intoxication.   None  made  attempt  to
extinguish fire.

3.    On the basis of the above dying declaration a case was registered  and
the investigation agency swung into action.  Statements  of  witnesses  were
accordingly recorded under Section 161, Cr.P.C.  The  Investigating  Officer
investigated the spot and prepared rough site  plan  with  correct  marginal
notes and took  into  possession  burnt  clothes  of  Rajni,  ash  of  burnt
clothes, one kerosene lamp after converting the  same  into  sealed  parcel.
On the night of 12.12.2003, message was received  from  PGIMS,  Rohtak  that
Rajini had died as a result  of  burn  injuries.   Post  mortem  report  was
obtained, site plan  was  sketched  and  FSL  report  was  obtained.   After
completion of investigation, only  accused  Mahender  Singh  alias  Mahender
Gulati was arraigned to stand  trial  under  Sections  302/498A,  I.P.C.  by
Police, whereas Prem Kumar Gulati and Smt. Bimla alias Nirmla were  summoned
to face trial along with other accused Mahender, as additional  accused,  by
invoking the provisions of Section 319, Cr.P.C.

4.     In order to substantiate the charges, the prosecution  examined  nine
witnesses.  According to Dr. Ravi Kanta (PW-1), who  conducted  post  mortem
examination, burn injuries were approximately 50%  and  cause  of  death  of
Rajni was due to ante mortem burns, which were sufficient to cause death  in
ordinary course of nature.  According to Dr. Naresh  Kumar  Kardwal  (PW-3),
who medico-legally examined the deceased, found superficial deep  burns  all
over the body except back, hip,  lower  leg,  left  hand  and  forearm.   He
stated that possibility of burn injuries in this case by  fall  of  kerosene
oil on the head  cannot  be  ruled  out.   Agyapal  (PW-7),  father  of  the
deceased, stated that accused person started harassing  his  daughter  three
months after marriage for  want  of  dowry  although  sufficient  dowry  was
given. Ultimately, she was shunted out from the matrimonial  abode  and  her
husband filed a divorce petition.  Later, the matter  was  resolved  on  the
apology being tendered and assurance given by  the  accused  persons  before
the panchayat on 1.12.1996.  Ironically she fell prey to recurrence and  was
turned out from the matrimonial  house  in  the  year  1997.   His  daughter
divulged about the illicit relations between her husband and  sister-in-law.
  Again  accused  persons  were  apologized  before  the  Panchayat  on  the
assurance given by them.  In 2001, a criminal  case  was  filed,  which  was
also compromised with the intervention of  panchayat.   Against  willingness
of his daughter, he persuaded and sent her daughter back to the  matrimonial
house through panchayat.  He further highlighted that about one  week  prior
to  the  occurrence,  his  daughter  informed   him   telephonically   about
harassment and requested him to take her to parental house.  Thereafter,  on
10.12.2003 at around 5.00 A.M. a telephonic message,  was  received  and  he
along with his wife and  son  rushed  to  the  hospital,  where  the  victim
disclosed that accused Prem and Bimla caught hold of  her  and  her  husband
Mahender poured kerosene oil and set her on fire.  PW8,  brother  of  Rajni,
supported the version of his father PW7.

5.    Accused denied all the charges and in defence accused  Mahender  Singh
stated that at the time of occurrence he was present  on  the  ground  floor
and was working at flour mill.  His wife and  children  were  on  the  first
floor.  After hearing cries of children,  he  went  upstairs  on  the  first
floor and saw that his wife was having burn  injuries  accidentally  due  to
falling of a lamp upon her in the kitchen.  Complaint  against  his  brother
and bhabhi, who were residing separately, was filed at the instance  of  her
parents.  The accused examined deceased’s eight years’ old  daughter  Kumari
Manshu (DW-1), who deposed that  she  heard  cries  of  her  mother  in  the
kitchen.  She came out and told that she had caught fire due to  falling  of
burning lamp on her as glass of the lamp got broken after falling upon  her.
 The Child called her father, who was on the ground floor in the flour  mill
at that time.  Her father and neighbours  extinguished  fire  and  took  her
mother to the hospital.  Upon this, trial court has opined  that  the  child
has been tutored as she was residing with accused persons, namely, Prem  and
Bimla, after the death of her mother and she had come  along  with  them  on
the date of examination in the Court.  Trial  court  further  observed  that
broken glasses of the lamp had  fallen  in  the  verandah  and  not  in  the

6.    After careful  examination  of  the  evidence  and  pleadings  of  the
parties, the trial court held that  the  prosecution  has  proved  that  the
accused persons, in furtherance of the common intention, subjected Rajni  to
cruelty  as  her  husband  had  illicit  relations  with  co-accused   Bimla
(Bhabhi).  The Trial Court convicted all the  three  accused  persons  under
Section 302/498-A read with Section 34 IPC and sentenced them with  rigorous
imprisonment for life and imposed a  fine  of  Rs.5,000/-under  Section  302
read with Section 34 IPC and rigorous imprisonment  for one  year  and  fine
of Rs. 500/- under Section 498A-read with Section 34  IPC  on  each  accused

7.    Aggrieved by the decision of the  trial  court,  the  accused  persons
preferred criminal appeal before the High Court of  Punjab  and  Haryana  at
Chandigarh, which was dismissed by the Division  Bench  of  the  High  Court
upholding the judgment of the trial Court.  Hence, the  present  appeals  by
special leave by two accused persons.

8.    Mrs.  Meenakshi  Arora,  learned  senior  counsel  appearing  for  the
appellants assailed the judgment of conviction as being contrary to law  and
the facts of the case and that the  prosecution  has  not  proved  the  case
beyond reasonable  doubt.   At  the  very  outset,  learned  senior  counsel
submitted that two of the accused persons, viz., Prem Kumar Gulati  and  his
wife were in no way involved in the commission of the alleged offence.   She
drew our attention to the evidence of PW-2  Sub-Inspector  who  investigated
the case and recorded the  statement  of  witnesses  under  Section  161  of
Cr.P.C.  He deposed that during investigation the accused Prem Kumar  Gulati
and his wife were found innocent.  Hence they  were  not  summoned  to  face
trial along with the deceased’s husband Mahender Singh  Gulati.   Similarly,
PW-9 ASI Ram Singh Investigating Officer in  the  case  deposed  inter  alia
that  the  accused  appellant  Prem  and  his  wife  Bimla   were   residing
separately.  However, they could not escape themselves from the clutches  of
law on the basis of so called  dying  declaration.   She  further  submitted
that the dying declaration cannot be relied upon and  conviction  cannot  be
based on vague statement.  She submitted  that  in  the  dying  declaration,
there is neither anu mention of time of  its  recording  nor  there  is  any
mention about the state of mind of the deceased while making  her  statement
before the Magistrate.  The  dying  declaration  is  also  not  in  question
answer  form.   Learned  senior  counsel  submitted  that  in  case  of  any
inconsistency between the dying declaration and the evidence adduced by  the
prosecution such dying declaration cannot be relied  upon.   Learned  senior
counsel relied upon few of the decisions of this Court viz.,  P.  Mani   vs.
State of Tamil Nadu, (2006) 3 SCC 161; Mohan  Lal  &  Ors.   vs.   State  of
Haryana, (2007) 9 SCC 151.

9.    Mrs. Arora further submitted that there is no eye-witness in the  case
except one eight year old daughter of the deceased who was examined  as  DW-
1.  She further submitted that it is wrong to disbelieve the  child  on  the
ground that she is  a  tutored  witness  being  residing  with  the  accused
persons after the death of her mother and on  the  date  of  examination  in
court, she had come along with them.     It was  contended  that  father  of
the deceased (PW-7) did not express that he would  keep  the  child  in  his
care and guardianship. Learned counsel submitted that because  of  the  past
history of alleged torture and several litigations,  the  motive  of  giving
dying declaration cannot be ruled out.

10.   Mrs. Arora, specifically  mentioned  the  innocence  of  the  accused-
appellant Prem Kumar Gulati (brother of  the  main  accused)  who  is  found
innocent during the investigation and was not put on  trial.   It  was  only
after the orders passed under Section 319 of  Cr.P.C.  he  faced  the  trial
along with the main accused.  Finally, she submitted that in the absence  of
eye-witness to the incident the  prosecution  story  based  on  inconsistent
evidence of the witnesses cannot be relied upon.

11.   Mr. Rupansh Purohit, learned Addl.  Advocate  General   appearing  for
the State, firstly submitted that the statement made by the deceased on  the
dying declaration is sufficient to convict the appellants  for  the  offence
committed by them.    Ld.  AAG  submitted  that  dying  declaration  is  not
necessary to be  in  question  answer  form,  rather  dying  declaration  in
narrative form is more  natural.   In  this  connection  he  relied  upon  a
decision of this Court in State of Karnataka  v.  Shariff (2003) 2 SCC  473.
 Learned AAG further submitted that evidence given by the father  (PW-7)  is
more  reliable evidence and there is nothing on record to suggest  that  the
deceased made a dying declaration on the influence of her  father.   Lastly,
he submitted that the accused Prem Kumar Gulati and his wife  were  residing
in the same building  and  there  is  no  evidence  that  they  were  living

12.   First  of  all  we  shall  consider  the  authenticity  of  the  dying
declaration recorded by the Magistrate.   The  dying  declaration  reads  as

“Statement of Rajni  W/o  Mahender,  aged  28  years,  Household,  Jamalpur,
District Bhiwani.

Stated that yesterday night at 9.30/10.00 my husband Mahender, my Jeth  Prem
Gulati, my Jethani Bimla have poured kerosene oil upon me.  My husband  used
to reside with his bhabhi.  There  was  quarrel  between  us  daily.   After
drinking  liquor,  I  was  beaten  up  with  lathi  and  shoes.   None   has
extinguished the fire.  I have three children.  I have heard  my  statement,
which is correct. I do not want to say anything else.”

RO & AC                           Sd/-
Sd/-                         ACJM, Rohtak
R.T.I. Rajni                      10.12.2003”

13.   It is well settled that a truthful and reliable dying declaration  may
form the sole basis of  conviction  even  though  it  is  not  corroborated.
However, the  reliability  of  declaration  should  be  subjected  to  close
scrutiny and the courts must be satisfied that the declaration is  truthful.
 In the case of Godhu & Anr. vs. State of Rajasthan, (1975)  3  SCC  241,  a
three Judge Bench of this Court has  thoroughly  discussed  the  evidentiary
value and reliability of dying declaration observed:-

“16. We are also unable to subscribe to the view  that  if  a  part  of  the
dying declaration has not been proved to be  correct,  it  must  necessarily
result in  the  rejection  of  the  whole  of  the  dying  declaration.  The
rejection of a part of the dying declaration would  put  the  court  on  the
guard and induce it to apply a rule of caution. There may be  cases  wherein
the part of the dying declaration which is not found to  be  correct  is  so
indissolubly linked with the other part of the dying declaration that it  is
not possible to sever the two parts. In such an event the court  would  well
be justified in rejecting the whole of the  dying  declaration.  There  may,
however, be other cases wherein the two parts of a dying declaration may  be
severable and  the  correctness  of  one  part  does  not  depend  upon  the
correctness of the other part. In the last mentioned cases the  court  would
not normally act upon a part of the dying declaration,  the  other  part  of
which has not been found  to  be  true,  unless  the  part  relied  upon  is
corroborated in material particulars by the other  evidence  on  record.  If
such other evidence shows that part of the dying declaration relied upon  is
correct and trustworthy the court can  act  upon  that  part  of  the  dying
declaration despite the fact that another part of the dying declaration  has
not been proved to be correct.”

14.   In the case of K. Ramachandra Reddy vs. Public  Prosecutor,  (1976)  3
SCC 618, this Court observed that:-

“6. The accused pleaded innocence and averred that  they  had  been  falsely
implicated due to enmity. Thus it would appear that the  conviction  of  the
accused depends entirely on the reliability of the dying declaration Ext. P-
2. The dying declaration is undoubtedly admissible under Section 32  of  the
Evidence Act and not being a statement on oath so that its  truth  could  be
tested  by  cross-examination,  the  courts  have  to  apply  the  strictest
scrutiny and the closest circumspection to the statement before acting  upon
it. While great solemnity and sanctity is attached to the words of  a  dying
man because a person on the verge of death is not likely to tell lies or  to
concoct a case so as to implicate an innocent person yet the  court  has  to
be on guard against the statement of the deceased being a result  of  either
tutoring, prompting or a product of  his  imagination.  The  court  must  be
satisfied that the deceased  was  in  a  fit  state  of  mind  to  make  the
statement after  the  deceased  had  a  clear  opportunity  to  observe  and
identify his assailants and that he was making  the  statement  without  any
influence  or  rancour.  Once  the  court  is  satisfied  that   the   dying
declaration is true  and  voluntary  it  can  be  sufficient  to  found  the
conviction even without any further corroboration. The law  on  the  subject
has been clearly and explicitly enunciated by this Court in Khushal  Rao  v.
State of Bombay, AIR 1958 SC 22, where the Court observed as follows:
“On a review of the relevant provisions of  the  Evidence  Act  and  of  the
decided cases in the different High Courts in India and in  this  Court,  we
have come to the conclusion, in agreement  with  the  opinion  of  the  Full
Bench of the Madras High Court, aforesaid, (1) that it cannot be  laid  down
as an absolute rule of law that a dying declaration  cannot  form  the  sole
basis of convictiorn unless it is corroborated; (2) that each case  must  be
determined on its own facts keeping in view the circumstances in  which  the
dying declaration was made; (3) that it cannot be laid  down  as  a  general
proposition that a dying declaration is  a  weaker  kind  of  evidence  than
other pieces of evidence; (4) that a dying declaration stands  on  the  same
footing as another piece of evidence and has to be judged in  the  light  of
surrounding  circumstances  and   with   reference   to[pic]the   principles
governing the weighing of evidence; (5) that a dying declaration  which  has
been recorded by a competent Magistrate in the proper  manner,  that  is  to
say, in the form of questions and answers, and, as far  as  practicable,  in
the words of the maker of the declaration, stands on a much  higher  footing
than a dying declaration which depends upon oral testimony which may  suffer
from all the infirmities of human memory and human character, and  (6)  that
in order to test the reliability of a dying declaration, the  court  has  to
keep in view the circumstances like the opportunity of  the  dying  man  for
observation, for example, whether there was sufficient light  if  the  crime
was committed at night, whether the capacity of  the  man  to  remember  the
facts stated had not been impaired at the time he was making the  statement,
by circumstances beyond his control; that the statement has been  consistent
throughout if he had several opportunities of  making  a  dying  declaration
apart from the official record of it; and that the statement had  been  made
at  the  earliest  opportunity  and  was  not  the  result  of  tutoring  by
interested parties.
Hence, in order to pass the test of reliability, a dying declaration has  to
be subjected to a very close scrutiny, keeping in view  the  fact  that  the
statement  has  been  made  in  the  absence  of  the  accused  who  had  no
opportunity of testing the veracity of the statement by cross-examination.”
The above observations made by this Court were fully endorsed by a Bench of
five Judges of this Court in Harbans Singh v. State of Punjab AIR 1962 SC
439. In a recent decision of this Court in Tapinder Singh v. State of
Punjab,(1970) 2 SCC 113, relying upon the earlier decision referred to
above, this Court observed as follows: [SCC p. 119, para 5]
“It is true that a dying declaration is not a deposition in court and it  is
neither made on oath nor in the presence of the accused. It  is,  therefore,
not tested by cross-examination on  behalf  of  the  accused.  But  a  dying
declaration is admitted in evidence by way of an exception  to  the  general
rule against the admissibility of hearsay  evidence,  on  the  principle  of
necessity. The weak points of a  dying  declaration  just  mentioned  merely
serve to put the court on  its  guard  while  testing  its  reliability,  by
imposing on  it  an  obligation  to  closely  scrutinise  all  the  relevant
attendant circumstances.”
In Lallubhai Devchand Shah v. State of Gujarat, (1971)3 SCC 767, this  Court
laid special stress on the fact that one  of  the  important  tests  of  the
reliability of a dying declaration is that the person who recorded  it  must
be satisfied that the deceased was in a fit state of mind  and  observed  as
follows: [SCC p. 772 : SCC (CRI) p. 18, para 9]
“The Court, therefore, blamed Dr Pant for not questioning Trilok Singh  with
a view to test whether Trilok Singh was in a ‘fit state  of  mind’  to  make
the statement. The ‘fit state of mind’ referred to is  in  relation  to  the
statement that the dying man was making.  In  other  words,  what  the  case
suggests is that  the  person  who  records  a  dying  declaration  must  be
satisfied that the dying man was making a conscious and voluntary  statement
with normal understanding.”

15.   In the case of Kali Ram v. State of Himachal  Pradesh,  (1973)  2  SCC
808, a three Judge Bench of this Court elaborately  discussed  the  mode  of
appreciation  of evidence and the general principles  regarding  presumption
of innocence of the accused.  The Bench observed:-

“25. Another golden thread which runs through the web of the  administration
of justice in criminal cases is that  if  two  views  are  possible  on  the
evidence adduced in the case, one pointing to the guilt of the  accused  and
the other to his innocence, the view which  is  favourable  to  the  accused
should be adopted. This principle has a special relevance in  cases  wherein
the guilt of the accused is  sought  to  be  established  by  circumstantial
evidence. Rule has accordingly been  laid  down  that  unless  the  evidence
adduced in the case is consistent only with the hypothesis of the  guilt  of
the accused and is inconsistent  with  that  of  his  innocence,  the  Court
should refrain from recording a finding of guilt of the accused. It is  also
an accepted  rule  that  in  case  the  Court  entertains  reasonable  doubt
regarding the guilt of the accused, the accused must  have  the  benefit  of
that doubt. Of course, the doubt regarding the guilt of the  accused  should
be reasonable; it is not the doubt of a mind which is either so  vacillating
that it is incapable of reaching a firm conclusion or so timid  that  is  is
hesitant and afraid to take things to their natural consequences.  The  rule
regarding the benefit of doubt  also  does  not  warrant  acquittal  of  the
accused by report to surmises, conjectures or  fanciful  considerations.  As
mentioned  by  us  recently  in  the  case  of  State  of  Punjab  v.  Jagir
Singh(1974)3SCC 227 a criminal trial is not like a fairy  tale  wherein  one
is free to give flight  to  one’s  imagination  and  phantasy.  It  concerns
itself with the question as to whether the accused arraigned  at  the  trial
is guilty of the offence with which he is charged.  Crime  is  an  event  in
real life and is the product of interplay of different  human  emotions.  In
arriving at the conclusion about the guilt of the accused charged  with  the
commission of a crime, the Court has to judge the evidence by the  yardstick
of probabilities, its intrinsic worth and the  animus  of  witnesses.  Every
case in the final  analysis  would  have  to  depend  upon  its  own  facts.
Although the benefit of every  reasonable  doubt  should  be  given  to  the
accused, the Courts should not at the same time reject evidence which is  ex
facie trustworthy on  grounds  which  are  fanciful  or  in  the  nature  of

27. It is no doubt true that wrongful acquittals are undesirable  and  shake
the confidence of the people in the judicial system,  much  worse,  however,
is the wrongful conviction of an innocent person. The  consequences  of  the
conviction  of  an  innocent  person  are   far   more   serious   and   its
reverberations cannot but  be  felt  in  a  civilised  society.  Suppose  an
innocent person is convicted  of  the  offence  of  murder  and  is  hanged,
nothing further can undo the mischief  for  the  wrong  resulting  from  the
unmerited conviction is irretrievable.  To  take  another  instance,  if  an
innocent person is sent to jail and undergoes the sentence, the  scars  left
by the miscarriage of justice cannot be erased  by  any  subsequent  act  of
expiation. Not many persons undergoing the pangs of wrongful conviction  are
fortunate like Dreyfus to have an Emile Zola to  champion  their  cause  and
succeed in getting the verdict of guilt annulled. All  this  highlights  the
importance of ensuring,  as  far  as  possible,  that  there  should  be  no
wrongful conviction of an innocent person. Some risk of  the  conviction  of
the  innocent,  of  course,  is  always  there  in   any   system   of   the
administration of criminal justice. Such a risk can  be  minimised  but  not
ruled out altogether. It may in this connection be apposite to refer to  the
following observations of Sir Carleton Alien quoted on p. 157 of  The  Proof
of Guilt by Glanville Williams, 2nd Edn.:
“I dare say some sentimentalists would assent to the proposition that it  is
better that a thousand or even a million guilty persons should  escape  than
that one innocent person should suffer; but  no  responsible  and  practical
person would accept such a view. For it is obvious  that  if  our  ratio  is
extended indefinitely, there comes a point when the whole system of  justice
has broken down and society is in a state of chaos.”

16.    The  submission  of  Ms.  Meenakshi  Arora,  learned  senior  counsel
appearing for the appellant that the dying declaration  is  untenable  being
without mentioning the time when the statement was recorded as also  not  in
the question  answer  form,  cannot  be  sustained.   Merely  because  dying
declaration was not in question answer form,  the  sanctity  attached  to  a
dying declaration as it comes from the mouth of a  dying  person  cannot  be
brushed aside and its reliability cannot be doubted.

17.    In the light of the law settled by the Supreme Court, we shall  first
examine the case of the accused appellant  Prem  Kumar  Gulati,  whose  wife
(Bimla, since  deceased)  was  also  co-  accused.   Immediately  after  the
occurrence took place, the  police  reached  the  place  of  occurrence  and
recorded the statement of witnesses in course  of  investigation  and  found
that the said accused  Prem  Kumar  Gulati  was  innocent  and  he  was  not
involved in the commission of the offence.

18.   Admittedly, they were not put on trial along with  the  main  accused-
appellant Mahender Singh.  It was only at the stage of Section 319,  Cr.P.C.
the accused persons namely Prem Kumar Gulati and his wife were summoned  and
put on trial.  Except dying  declaration  there  is  nothing  on  record  to
strongly suggest that they were involved in the commission of crime.   There
is nothing in the findings of sessions court which  suggest  that  the  said
accused persons participated in the commission of the aforesaid  crime,  and
this fact has been reiterated by the High Court also.

19. As noticed above, in the dying declaration, the deceased  declared  that
her husband Mahender Singh along with the  accused  Prem  Kumar  Gulati  and
Bimla (deceased) have poured kerosene oil upon her.   Except  that,  nothing
has been said in the dying declaration as against  the  accused  Prem  Kumar
Gulati or his wife- Bimla as to which accused poured kerosene oil  upon  her
and the accused lighted the fire.  In the later part of  dying  declaration,
the deceased stated that her husband Mahender Singh used to reside with  his
Bhabhi.  After drinking liquor, she was beaten up by her husband with  lathi
and shoes.  In other words, in her  dying  declaration  she  said  that  her
husband Mahender Singh used to beat her after drinking liquor.  There is  no
eye-witness to the occurrence.  PW-2, the police  officer  deposed  that  he
recorded the statement of several  persons  and  collected  all  the  papers
including ration card and compromise letter written to  the  Panchayat  etc.
He further deposed that during the investigation,  the  accused  Prem  Kumar
and Bimla  were found innocent as they  were  living  separately.   Although
the trial court and the appellate court  convicted  both  the  accused  Prem
Kumar Gulati and his wife Bimla, but after scrutiny of all the evidence,  we
are of the view that there are no corroborative  evidence  to  come  to  the
conclusion that these two participated along with the main accused  Mahender
Singh for the commission of the offence.   As  noticed  above,  one  of  the
accused Bimla already expired.  We do not find any  reason  why  Prem  Kumar
also participated in the commission of the offence.  Admittedly, neither  in
the dying declaration nor in the statement  of  witnesses  it  has  come  in
light as to what act was done by the accused- Prem Kumar.

20.   In our considered opinion, the benefit of doubt  should  be  given  to
accused-appellant Prem Kumar and his conviction cannot be sustained.

21.   Sufficient evidence  has  come  on  record  and  the  prosecution  has
established the case that it  was  Mahender  Singh  at  whose  instance  and
instigation she was subjected to death by pouring kerosene oil  and  lit  on
fire.  We are, therefore, of the view  that  the  finding  recorded  by  the
trial court as also by the Appellate Court as against main  accused  Mahnder
Singh (husband of the deceased) cannot be interfered with.

22.   We, therefore, dismiss Criminal Appeal No. 1423  of  2009  and  uphold
the conviction of Mahender Singh.

23.   Criminal Appeal No.1422 of 2009 is  allowed  and  the  appellant  Prem
Kumar Gulati is acquitted from charges.   He  is  directed  to  be  released

                                                                (M.Y. Eqbal)

                                                      (Pinaki Chandra Ghose)
New Delhi,
September 23, 2014.

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