CIVIL APPEAL None on 25 July 2001

1. The present appeal has been filed against judgment ofconviction dated 25.7.2001 and order of sentence dated 28.7.2001 passedby the Court of then Additional Sessions Judge, Rewari, vide which presentappellants-accused were convicted for offences under Sections 302, 498-Aread with Section 34 of the Indian Penal Code (hereinafter to be referred as`IPC') and sentenced to undergo imprisonment for life for offence under Section 302/34 IPC. Accused Jamna Devi and Santosh were also sentencedto pay fine of Rs.20,000/- each, failing which to further undergo rigorousimprisonment for a period of two years each, whereas Ved Parkash wassentenced to pay fine of Rs.5,000/- and, in default of payment of fine, tofurther undergo rigorous imprisonment for a period of one year. All theaccused were also sentenced to undergo imprisonment for a period of oneyear and to pay fine of Rs.1000/- each, and in default of payment of fine, tofurther undergo rigorous imprisonment for a period of two months eachunder Section 498-A IPC. However, all the sentences were ordered to runconcurrently.

2. Smt.Mamta (deceased) was daughter-in-law of Jamna Devi-accused and sister-in-law of Santosh-accused, whereas Ved Parkash-accused is her brother-in-law. She sustained about 100% burns in the houseof her in-laws on 3.10.1999 at about 3.00 p.m. and as per case ofprosecution she was set on fire by all the three accused in furtherance oftheir common intention and that they also used to harass and used to treather with cruelty.

3. After the occurrence, Smt.Mamta (deceased) was taken to CivilHospital, Bawal by her husband Madan Lal and however, she was referredto General Hospital, Rewari at about 4.10.p.m. for further treatment as shewas having 100% burns. Smt.Mamta was then taken to General Hospital,Rewari and, however, she was referred to Post Graduate Institute of MedicalScience, (hereinafter to be referred as `PGIMS') Rohtak, where she was gotadmitted by her husband.

4. Medico legal examination of Smt.Mamta was conducted in PGIMS, Rohtak, vide Ex.PE/1 in the presence of her husband Madan Laland her mother Smt.Chanderkanta at 7.50 p.m. and she stated before theMedical Officer that she received burns by pouring of kerosene by hermother-in-law and sister-in-law at her residence at 3.00 p.m. on 3.10.1999.

5. After receipt of Ruqa Ex.PA, Jagat Raj, Assistant Sub Inspectorof Police Station Bawal had visited the General Hospital Rewari,However, he was informed that the patient was referred to PGIMS Rohtakand hence, he reached PGIMS Rohtak and gave application Ex.PF to theMedical Officer and obtained his opinion Ex.PF/1 that the patient was fit tomake statement and he recorded his statement Ex.PG at about 10.00 p.m.,on which he made endorsement Ex.PG/1 and sent the same to the policeStation for registration of FIR, on the basis of which formal FIR Ex.PG/2was recorded at 1.30 a.m. on 4.10.1999 and the special report reached theJudicial Magistrate Ist Class, Rewari at about 10.00 a.m. on 4.10.1999.Smt.Mamta (deceased) wife of Madan Lal, aged about 24 years, CasteChugh, resident of Mohalla Hasanpura, Bawal, got recorded her statementvide Ex.PG with Jagat Raj, ASI on 3.10.1999 at about 10.00 p.m. and thesame reads as under:

“I am a resident of above address. I am a house wife. Iwas married with Madan Lal s/o Daulat Ram, MohallaHasanpura, Bawal, about six years ago. Till date, I could notbear a child. Just after the marriage, my mother-in-law, sister-in-law (Nanad) and brother-in-law (Jeth) used to harass me andstarted taunting me since just after one year of marriage that Iam Banjh (barren) and that I am unable to bear a child and thatI am Badmash (characterless) and as to why I be not die.Since I could not bear a child, so they used to harass me.Today, i.e., on 3.10.1999 at about 3.00 p.m., my mother-in-law- Jamna Devi, sister-in-law- Santosh and brother -in-law -VedParkash had come to me together and my sister-in-law-Santoshand mother-in-law-Jamna Devi jointly poured kerosene oil onme and set me on fire. I was burnt and nobody tried to rescueme. Lateron I was got admitted in civil Hospital, Bawal by myhusband Madan Lal and from there I was brought to Rewariand from Rewari to PGIMS Rohtak. Now you have come. Igot my statement recorded and I have heard the same, which iscorrect.”

6. Thereafter the ASI approached learned Duty Magistrate,Rohtak, for recording the statement of Smt.Mamta. Mrs. Shalini Nagpal,the then learned Judicial Magistrate Ist Class, Rohtak-PW4, visited PGIMSRohtak, on application of police Ex.PC, on which she passed order Ex.PC/1.Dr.Kul Bhushan was on duty. She passed orders Ex.PC/2 to obtain opinionof doctor as to whether Smt.Mamta was fit to make the statement and thedoctor gave his opinion Ex.PC/3 declaring Smt. Mamta fit to make thestatement. She passed another order Ex.PC/4 asking the relatives, otherattendants and the police to clear the room and, thereafter she recorded thestatement of Smt.Mamta on oath, which is Ex.PC/5. The statement was readover to her and she thumb marked the same, after admitting the same to becorrect. The doctor also remained present throughout the time the statementof Smt.Mamta was recorded, who also certified vide Ex.PC/6 that thepatient remained fit throughout the time her statement was recorded.Learned Magistrate also gave certificate Ex.PC/7 after recording thestatement of Smt.Mamta.

7. In statement Ex.PC/5 Smt.Mamta(deceased) stated beforelearned Magistrate that occurrence had taken place at about 3.00 p.m.

yesterday and that she was married about six years ago. She further statedthat her mother-in-law and sister-in-law used to taunt her that she wascharacterless and as to why she be not die and that they also used to harassher as she was unable to bear a child. She further stated that her mother-in-law Smt.Jamna Devi, sister-in-law Smt.Santosh and brother-in-law VedParkash used to harass her and that her mother-in-law and sister-in-law sether on fire by pouring kerosene oil on her body. She further stated that herhusband never used to harass her.

8. Smt.Mamta succumbed to burn injuries and hence offenceunder Section 302 IPC was added. Post mortem examination on the deadbody of Smt.Mamta was got conducted. The accused was arrested byBhagat Singh, SI, on 7.10.1999. After completion of the investigation,report under Section 173 Cr.P.C. was filed against all the three accused.

9. Case was committed to the Court of Sessions by the thenlearned Judicial Magistrate Ist Class, Rewari, vide order dated 6.12.1999,after supplying the copy of challan and accompanying documents to theaccused, as required under Section 207 Cr.P.C.

10. Learned Additional Sessions Judge, Rewari, charged all theaccused for offences punishable under Sections 302/498 read with Section34 IPC, to which they did not plead guilty and claimed trial.

11. In order to substantiate the allegation against the accused theprosecution has examined as many as 14 witnesses.

12. PW1 is Dr.A.S.Dahiya, the then Medical Officer, CHC, Bawal,who examined Smt.Mamta (deceased) when she was brought to CivilHospital, Bawal by her husband Madan Lal and who sent Ruqa Ex.PA to the

police Station and referred her to the General Hospital, Rewari for furthermanagement as she was having 100% burns.

13. PW2 is Rajinder Singh, Draftsman, who had prepared scaledsite plan Ex.PB of the place of occurrence on 18.10.1999.

14. PW3 is Charan Dass, father of deceased Smt.Mamta. Hedeposed that on receiving information that his daughter Smt.Mamta wasburnt, he along with his wife and son had gone to Hospital Rewari andhowever, they came to know that his daughter was already referred toPGIMS, Rohtak and hence, they had gone to Rohtak and found that hisdaughter was crying with pain and that on enquiry she told that her mother-in-law Jamna Devi and sister-in-law Santosh and brother-in-law VedParkash had burnt her.

15. PW4 is Mrs.Shalini Nagpal, the then Chief Judicial MagistrateIst Class, Rohtak, who recorded the statement of Smt.Mamta Ex.PC/5 onpolice request, as detailed above.

16. PW5 is Smt.Chanderkanta, mother of deceased, whocorroborated the version of her husband Shri Charan Dass PW3. Shefurther clarified that her daughter told them that she was set on fire bypouring kerosene oil by her mother-in-law Jamna Devi and sister-in-lawSantosh, while Ved Parkash, her brother-in-law kept standing nearby.

17. PW6 is Puran Chand, photographer, who had takenphotographs of the place of occurrence on police request, positives of whichare Ex.P1 and P2 and negatives are Ex.P3 and P4.

18. PW7 is Jagat Raj, ASI, the Investigating Officer of this case,who first visited Civil Hospital, Rewari and when he came to know that Smt.Mamta was already referred to PGIMS Rohtak, he visited PGIMSRohtak and collected copy of MLR Ex.PE/1 and Ruqa Ex.PE. He gaveapplication Ex.PF and obtained opinion of doctor Ex.PF/1 that Mamta wasfit to make the statement and thereafter recorded her statement Ex.PG, onthe basis of which formal FIR was got registered. He also calledMrs.Shalini Nagpal, the then Duty Magistrate and got statement ofSmt.Mamta recorded under Section 164 Cr.P.C., as detailed above. Hereceived Ruqa Ex.PH regarding death of Smt.Mamta at about 11.15 p.m. onthat day. He recorded statement of father, brother and one of the relatives ofSmt.Mamta. He got conducted post mortem examination on the dead bodyof Smt.Mamta. He also recorded statement of mother of Smt.Mamta on12.10.1999.

19. PW8 is Ram Swroop, Head Constable, who had recordedformal FIR Ex.PG/2 on the receipt of Memo Ex.PG with endorsement ofJagat Raj, ASI from PGIMS Rohtak and sent the special report to IllaqaMagistrate.

20. PW9 is Dr.G.N.Aggarwal, Medical Officer, Civil Hospital,Rohtak, who along with Dr.O.P.Dhania, conducted the post mortemexamination on the dead body of Smt.Mamta and observed as under:

“Superficial to deep burn all over the body except a partof lower abdomen and pelvis and few patches elsewhere, about96% area of burn was seen. Normal skin shows read lineseparately from burn area. Singing of hair of scalp withunderlying ecchymosis was seen. There was soot carbonparticles seen in trachea. External burn over the mouth wasthere.”

21. He further deposed that in their opinion the cause of death wasextensive ante mortem burns and their complications and that probable timethat elapsed between death and post mortem was about 24 hours. He hadproved carbon copy of post mortem report as Ex.PI/13 and deposed that theinquest papers Ex.PI/1 to PI/12 were also signed by him.

22. PW10 is Constable Naresh Kumar, who is a formal witness andwho had tendered in evidence affidavit of his statement Ex.PJ.

23. PW11 is Constable Mangtu Ram, who had delivered specialreport of this case at the residence of the then learned Judicial Magistrate IstClass, Rewari.

24. PW12 is SI Lal Singh, SHO, Police Station Sadar Rewari, whohad prepared report under Section 173 Cr.P.C., after completion of theinvestigation of this case.

25. PW13 is Bhagat Singh, Sub Inspector, who was posted SHO,Police Station Bawal, and who had investigated this case after receivingmessage that Smt.Mamta had succumbed to the injuries. He had arrested allthe three accused in this case on 7.10.1999.

26. PW14 is Dr.K.M.Mariya, Medical Officer, PGIMS Rohtak,who had medico-legally examined Smt.Mamta on 3.10.2000. Hesubsequently deposed that the patient had disclosed history of receivingburns by pouring kerosene oil by her mother-in-law and sister-in-law at herresidence and that he had recorded the same in the MLR itself. He hadproved carbon copy of MLR as Ex.PP.

27. Statement of all the accused in terms of Section 313 Cr.P.C.was recorded in which they denied the version of prosecution witnesses and claimed trial.

28. Ved Parkash accused had taken the plea that the deceasedMamta consigned herself to flames as she was frustrated lover. He hadfurther taken the plea that at the time of occurrence he along with hisbrother Madan Lal was present at his shop and that he used to live separatefrom his brother Madan Lal and was having separate ration card.

29. Smt.Jamna Devi, mother-in-law of the deceased had also takensimilar plea that Mamta committed suicide. She also took plea that she wasnot present at her residence and that her daugther Smt.Santosh accusedalone was in the house and that she was summoned from the house of ShriShanti Swaroop Narula,Chairman of the M.C., Bawal and that when shereached Smt.Mamta was being shifted to Hospital Bawal.

30. Smt.Santosh accused had also taken the plea that Smt.Mamtacommitted suicide as she was in love with somebody and that she picked upa letter, which had slipped from possession of Smt.Mamta.

31. Accused examined as many as 6 DWs in their defence.32.DW1 is Madan Lal, husband of deceased, who deposed that on3.10.1999 at about 2.30 p.m., he along with his brother Ved Parkashaccused were present at the shop when he came to know that his wife setherself on fire and hence he reached there and noticed that his wife wascrying in kitchen at first floor of the house and was saying “Mujhe Bachao,Galti Ho Gai” ( I be saved, I committed a mistake). He further deposedthat he had taken his wife in a Maruti van to Civil Hospital, Bawal. Hefurther deposed that his mother was not present in house when they reachedthere as she had gone to see wife of Shanti Swaroop, Chairman, who was ill.

He further deposed that on information being given by him, his mother-in-law and brother-in-law had reached General Hospital, Rewari, and that theyaccompanied them to PGIMS Rohtak and that however, on the way hermother-in-law pressurized Mamta that she should implicate everybody andthat however, his wife continued to say that there was no fault of anybody.He also deposed that earlier as well there was some dispute between himand his in-laws and the same was compromised vide Ex.DB. In the cross-examination he also deposed that his sister Santosh was present at the housewhen they reached there.

33. DW2 is Sher Singh son of Mam Chand, who deposed that hisshop is situated in front of the house of the accused and that on 3.10.1999,after hearing noise from the house of Madan Lal, he had seen a girl runningtowards the shop of Madan Lal and thereafter, Madan Lal and Ved Parkashreached there. They had taken Smt.Mamta to Civil Hospital, Bawal. Hedeposed that on her enquiry Smt.Mamta told him that she had committed amistake. He also deposed that on the way to Rohtak, mother of Mamta wasasking her that she should implicate her in-laws. 34.DW3 is Vijay Rustogi, Handwriting and Finger Print Expert,who deposed that he had compared disputed thumb impression oncompromise Ex.DB with writing of Mamta taken from letters Ex.DC andfrom red diary Ex.DD and that in his opinion, the disputed signature onCompromise Ex.DB is signed by one and the same person Mamta, who hadwritten the writing Ex.DC and DD.

35. DW4 is Naresh Kumar Chugh son of Shri Radha KrishanChugh, in whose presence compromise Ex.DB was effected between parents of Mamta and her in-laws.

36. DW5 is Manohar Lal son of Bodh Ram, another neighbour ofthe accused. He deposed that he had seen sister of Madan Lal weeping infront of her house. He also deposed that on her enquiry Mamta informedhim that she had committed a mistake.

37. DW6 is Shanti Swaroop son of Shri Moti Ram, who deposedthat on 3.10.1999, Smt.Jamna Devi was present in his house from 1.30 p.m.to 3.00 p.m.

38. Learned trial Court convicted and sentenced the accusedaforementioned against which the present appeal has been filed.

39. We have heard learned counsel for the accused, learnedAdditional Advocate General, Haryana, and have gone through the wholerecord carefully.

40. It may be mentioned, at the very outset, that we have beeninformed that one of the accused, namely, Smt.Jamna Devi has alreadyexpired, hence, appeal filed on her behalf stands abated.

41. It has been argued by learned counsel for the appellants-accused that case of prosecution is based on dying declaration of thedeceased and that however, dying declaration in this case cannot bebelieved as there are discrepancies in the different dying declarations andthat the deceased was not mentally sound to make the statement as she hadreceived 100% burns. He has argued that dying declaration is not adeposition in Court and that it is neither made on oath nor in the presence ofaccused nor its credence is tested by cross-examination and, hence, dyingdeclaration should be subjected to close scrutiny. It has been argued that

Smt.Mamta died just after 15 minutes of the alleged dying declaration beingrecorded by the Magistrate and hence, it cannot be said that she wasmentally sound to make the statement. It is further contended that in thedying declaration recorded by the ASI, she named her brother-in-law, VedParkash, whereas she did not name him before the Medical Officer andbefore the Magistrate. It is further contended that in her statement beforethe Magistrate Smt.Mamta gave date and time of occurrence as yesterdaywhereas the occurrence had taken place on the same day. It has further beencontended that the dying declaration was the result of tutoring by mother ofSmt.Mamta as she accompanied her from Rewari to Rohtak and that in factSmt.Mamta committed suicide, as some letter written by her to her loverwas found by her sister-in-law. He has placed reliance upon DanduLakshmi Reddi vs. State of A.P. 1999 (3) RCR (Criminal) 764.

42. He has further argued that so far as accused Ved Parkash isconcerned, no role has been attributed to him by deceased and that merelybecause he was also present at the time of occurrence, it cannot be said thathe shared the common intention with his co-accused to burn Smt.Mamta.

43. On this point he has placed reliance upon Suresh and anothervs. State of U.P. 2001 (2) AIJ (SC) 160 and Mithu Singh vs. State ofPunjab AIR 2001 Supreme Court 1929.

44. On the other hand, it has been argued by learned AdditionalAdvocate General, Haryana, that all the three dying declarations areconsistent so far as factum of setting the deceased Smt.Mamta on fire bySmt.Jamna Devi and Smt.Santosh is concerned and there is no materialdiscrepancy in the three dying declarations. It is further contended that mother of Smt.Mamta did not accompany her to PGIMS Rohtak and rathershe along with her husband and son had directly reached Rohtak and hence,there was no question of tutoring of Mamta by her mother. It is furthercontended that dying declaration of Smt.Mamta is believable one as thesame was given by her in the presence of her husband and she did notimplicate her husband or any other member of the family. It is furthercontended that it was by slip of tongue that Smt.Mamta stated before theMagistrate that occurrence had taken place yesterday at 3.00 p.m., asadmittedly the occurrence had taken place on 3.10.1999 at 3.00 p.m. It isfurther contended that husband of deceased is deposing falsely just to savehis relatives after the death of his wife. Hence, it is argued that no reliancecan be placed upon his testimony and other defence witnesses as no suchversion was given by husband of deceased to the police or to some otherhigher authorities after the occurrence.

45. In recent judgment rendered in Jaishree Anant Khandekar vs.State of Maharastra 2009 (3) RCR (Criminal) 765, Hon'ble Apex Courtreiterated the principles for accepting the dying declaration under Section32 of the Indian Evidence Act. Relevant paragraph of the same reads asunder:

“The judicially evolved rules of caution for acceptanceof dying declaration have been stated by this Court in Paniben(Smt.) (supra), and in para Nos.18 and 19 of the said report,this Court has formulated several principles for acceptingdying declaration, which have been laid down in variousjudgments of this Court in the last few decades. Theprinciples stated in Paniben (Smt.) (Supra) have been againrepeated by this Court in Shakuntala (Smt.) vs. State of Haryana 2007 (3) RCR (Criminal) 925: 2007 (4) RAJ 216:(2007) 10 SCC 168. The said principles are so salutary andcardinal in nature that they deserve to be reiterated and thisCourt does so herein below:

“(i)There is neither rule of law nor ofprudence that dying declaration cannot be actedupon without corroboration. (See Munnu Raja v.State of M.P., (1976(3) SCC 104)

(ii) If the Court is satisfied that the dyingdeclaration is true and voluntary it can baseconviction on it, without corroboration (See Stateof U.P. v. Ram Sagar Yadav and Ramawati Deviv. State of Bihar, 1985 (1) RCR (Criminal) 600(SC).

(iii) The court has to scrutinize the dyingdeclaration carefully and must ensure that thedeclaration is not the result of tutoring, promptingor imagination. The deceased had an opportunityto observe and identify the assailants and was in afit state to make the declaration. (SeeK.Ramachandra Reddy v. Public Prosecutor (1976(3) SCC 618).

(iv) Where dying declaration is suspicious, itshould not be acted upon without corroborativeevidence. (See Rasheed Beg v. State of M.P.(1974 (4) SCC 264).

(v) Where the deceased was unconscious andcould never make any dying declaration theevidence with regard to it is to be rejected. (SeeKake Singh v. State of M.P., (1981 Supp. SCC25).

(vi) A dying declaration which suffers frominfirmity cannot form the basis of conviction. (SeeRam Manorath v. State of U.P., (1981 (2) SCC

654)

(vii) Merely because a dying declaration does notcontain the details as to the occurrence, it is not tobe rejected. (See State of Maharashtra v.Krishnamurti Laxmipati Naidu, (1980 Supp. SCC455).

(viii) Equally, merely because it is a briefstatement, it is not to be discarded. On thecontrary, the shortness of the statement itselfguarantees truth. (See Surajdeo Ojha v. State ofBihar, (1980 Supp. SCC 769))

(ix) Normally the court in order to satisfywhether deceased was in a fit mental condition tomake the dying declaration look up the medicalopinion. But where the eyewitness said that thedeceased was in a fit and conscious state to makethe dying declaration, the medical opinion cannotprevail. (See Nanhau Ram v. State of M.P., (1988Supp.SCC 152)

(x) Where the prosecution version differs from theversion as given in the dying declaration, the saiddeclaration cannot be acted upon. (See State ofU.P. v. Madan Mohan, (1989(3) SCC 390)

(xi) Where there are more than one statement inthe nature of dying declaration, one first in pointof time must be preferred. Of course, if theplurality of dying declaration could be held to betrustworthy and reliable, it has to be accepted.(See Mohanlal Gangaram Gehani v. State ofMaharashtra (1982 (1) SCC 700)”

13. In the light of the above principles, the acceptability ofthe alleged dying declaration in the instant case has to beconsidered. The dying declaration is only a piece of untestedevidence and must, like any other evidence, satisfy the court

that what is stated therein is the unalloyed truth and that it isabsolutely safe to act upon it. If after careful scrutiny, thecourt is satisfied that it is true and free from any effort toinduce the deceased to make a false statement and if it iscoherent and consistent, there shall be no legal impediment tomake it the basis of conviction, even if there is nocorroboration. (See Gangotri Singh v. State of U.P.,Goverdhan Raoji Ghyare v. State of Maharashtra, MeesalaRamakrishan v. State of A.P. and State of Rajasthan v.Kishore.)

14. There is no material to show that the dying declarationwas the result or product of imagination, tutoring orprompting. On the contrary, the same appears to have beenmade by the deceased voluntarily. It is trustworthy and hascredibility.”

46. As the present case is based on dying declarations of thedeceased given, firstly, before the Medical Officer at the time of hermedical examination and thereafter before the ASI and thereafter beforeJudicial Magistrate Ist Class, we are to see by applying the aforementionedsettled principles of law as to whether reliance can be placed upon the sameor not.

47. In the present case, admittedly, the occurrence had taken placeon 3.10.1999 at about 3.00 p.m. at Bawal. The injured was removed toHospital Bawal by her husband Madan Lal. The Medical Officer at CivilHospital, Bawal examined her and found that she was having 100% burninjuries and hence, she was referred to General Hospital Rewari for expertmanagement and, accordingly, Ruqa Ex.PA was also sent to Police StationBawal by the Medical Officer on 3.10.1999 at 4.10.p.m. From General

Hospital, Rewari, she was referred to PGIMS Rohtak, where she wasexamined by Dr.K.M.Mariya, PW14, vide MLR Ex.PE/1 at 7.45 p.m.. Thedeceased gave history before the Medical Officer as to how she sustainedburn injuries in the presence of her husband and her mother and in the saidhistory she stated that she sustained burns by pouring of kerosene oil by hermother-in-law and sister-in-law at her residence at 3.00 p.m. on 3.10.1999.It has been so deposed by Dr.K.M.Mariya. He also deposed that the patientwas conscious. There is no delay in recording the version of the occurrenceby the Medical Officer as given by the deceased herself and the same can betaken as the first dying declaration made by the deceased. There is nothingas to why Dr.K.M.Mariya, PW14, should have deposed falsely.48.Initially the case was investigated by ASI Jagat Singh, PW7.On receipt of Ruqa Ex.PA from Civil Hospital, Bawal, he visited GeneralHospital, Rewari, and moved application PD before the Medical Officerand the Medical Officer made his endorsement on the application that thepatient was already referred to PGIMS, Rohtak and hence, he reachedRohtak and collected Ruqa Ex.PE and copy of MLR Ex.PE/1. He gaveapplication Ex.PF and obtained opinion of the doctor Ex.PF/1 to the effectthat the patient was fit to make the statement and thereafter, he recorded thestatement of Smt.Mamta, Ex.PG, on the basis of which FIR was gotregistered. In Ex.PG as well the deceased stated that she was set on fire byher sister-in-law Santosh and mother-in-law Jamna Devi, however, in thesaid statement she stated that her brother-in-law Ved Parkash was alsopresent there. However, no role had been attributed by her to Ved Parkashin setting her on fire. The said statement was recorded at about 10.00 p.m.

Thereafter, he called learned Duty Magistrate to record the statement of theinjured. Mrs. Shanti Nagpal, the then Judicial Magistrate Ist Class, Rohtak,PW4, deposed that application Ex.PC was moved before her by the policefor recording the statement of Smt.Mamta. A perusal of Ex.PC shows thatthe same was given to her at about 10.00 p.m. on which she passed orderEx.PC/1. Immediately she reached Ward No.6 of PGIMS Rohtak, wherepatient was lying admitted. She deposed that she found Dr.Kul Bhushanon duty there. She passed order Ex.PC/2 seeking opinion of Dr.KulBhushan as to whether patient was fit to make statement. The opinion ofMedical officer is Ex.PC/3 given at 10.20 p.m., that the patient was fit andconscious to give her statement. Learned Magistrate asked relatives,attendants and parents to go out so that she could conduct the proceedingsand she passed order in this regard as well, which is Ex.PC/4. In Ex.PC/4,she specifically mentioned that she explained to Smt.Mamta that she wasgiving statement before a Magistrate and that she should give the statementfreely and voluntarily, without any fear, pressure or undue influence.Thereafter, she recorded her statement on oath, which is Ex.PC/5, in whichshe reiterated her previous version that she was set on fire by her mother-in-law Jamna devi and sister-in-law Santosh. She specifically deposed thatSmt.Mamta remained fully conscious and that the medical Officer alsoremained present there throughout the period of recording of her statement.She also obtained another certificate from the Medical Officer at the end ofthe statement of Smt.Mamta, which is Ex.PC/6 to the effect that the patientremained fit and conscious throughout the time, her statement was recorded.Thereafter, learned Magistrate appended Certificate, Ex.PC/7 that the statement of Smt.Mamta was read over to her and she accepted the same ascorrect and that the same contains full and true account of what she said.

49. Hence all the three dying declarations are consistent on thepoint that Smt.Mamta was set on fire by her mother-in-law Jamna Devi andSister-in-law Santosh. She was fit and conscious to make the statement.Merely on the ground that she succumbed to injuries at about 11.15 p.m., itcannot be said that Smt.Mamta was not fit and conscious to make thestatement. Hence, Dandu Laxshmi Reddy's case (Supra), which has beenrelied upon by the counsel for the appellants-accused, is not applicable tothe facts of the present case.

50. Further all the three dying declarations also find corroborationfrom deposition of parents of deceased, i.e., Charan Dass, father (PW3) andSmt.Chanderkanta, mother (PW5). Both of them also deposed that she usedto be harassed by her mother-in-law, sister-in-law and brother-in-law, as shewas not conceiving a child. They specifically deposed that on receivingintimation they reached General Hospital, Rewari and however, theyinformed that Smt.Mamta was already taken to PGIMS Rohtak, and hence,they had directly gone to Rohtak. They denied that they accompaniedSmt.Mamta from Rewari to Rohtak. Immediately after reaching Rohtakstatement of Smt.Mamta was recorded by the Medical Officer, as alreadydiscussed above. Hence, there was no occasion for parents of Mamta tohave tutored her to give a particular statement implicating her in-laws.

51. Deposition of husband of deceased and the procured witnesseson the point that Smt.Mamta allegedly committed suicide and that she gavefalse statement due to tutoring of her parents cannot be accepted as the same

is an after thought version. The husband of the deceased did not give anyapplication to any higher authority of the police or to the Magistrate that thestatement given by Smt.Mamta was due to tutoring of her parents. No suchapplication was also given to the village panchayat as well or to the BiradariPanchayat. It has come on the record that earlier Biradari Panchayat washeld and the dispute was settled, however, after the death of Smt.Mamtanothing has come on the record that any such Biradari Panchayat was againconvened.

52. Even as per version of the accused his sister Smt.Santosh waspresent in the house at the time of the occurrence and his mother was out ofthe house. Mother-in-law of deceased had also taken the plea that herdaughter was present in the house at the time of occurrence, however,deceased was removed to Hospital by her husband alone. Mother-in-lawand sister-in-law of the deceased did not accompany her. Thoughadmittedly accused Santosh was present in the house, however, she did notsustain any burn injury on her hands. Had Smt.Mamta Committed suicidein her presence, she should have tried to extinguish the fire and she and hermother should have accompanied her being ladies to save her life.

53. Motive for the setting Smt.Mamta on fire by her mother-in-lawand sister-in-law has also come in the statement of Smt.Mamta given beforethe Magistrate that they used to harass her and torture her as she was unableto bear a child despite the fact that six years had expired after the marriageand they were also suspecting that she was characterless. Even as perdefence put up on behalf of the accused some letter, allegedly written by thedeceased, fell into the hands of Smt.Santosh. She was having no grudge against her husband and hence she did not name him. She also did not statethat her brother-in-law Ved Parkash also participated in the occurrence,though in her statement given before the ASI she stated that he was alsopresent. Hence, dying declaration given by Smt.Mamta in this case againsther mother-in-law and sister-in-law inspires our confidence and the same isbelievable and the defence version put up on behalf of the accused thatSmt.Mamta committed suicide cannot be accepted. Her husband was notannoyed with her. Her husband was not suspecting her to be ofcharacterless. Her husband was not having any grudge against her onaccount of the fact that she could not bear a child. Hence, in view of thisfact, merely on the ground that her mother-in-law and sister-in-law were nothappy with her, there is nothing as to why she should have put to an end toher life herself.

54. Though plea has been taken that deceased and her husbandused to live separate and that they were having separate ration card,however, no such documentary evidence has been produced on behalf of theaccused, rather as per deposition of husband of deceased when he reachedhis house, he found that his sister was present there and that his wife hadsustained burn injuries. As his wife had already expired and he is having noissue from his wife, he is now deposing falsely that his wife committedsuicide just to save his mother, sister and brother. Hence, there is force inthe argument of learned Additional Advocate General, Haryana, that noreliance can be placed upon his testimony and his procured witnesses whoare his neighbours as the version given is an after thought version.

55. However, there is force in the argument of learned counsel for

55. However, there is force in the argument of learned counsel for the appellants-accused that even from the various dying declarations givenby the deceased, no offence against Ved Parkash is made out. Smt.Mamta(deceased) had not attributed any role to him even in her statement beforethe ASI in which she named him for the first time. In her first dyingdeclaration recorded by the Medical officer she did not name him. Even inher statement before the Magistrate, she did not name him and even if it istaken that he was also present there when Smt.Mamta was set on fire by hermother-in-law and sister-in-law, it cannot be said that Ved Parkash accusedshared common intention with his mother and sister to set Smt.Mamta onfire.

56. In Mithu Singh's case (supra), Hon'ble apex Court observedthat to substantiate a charge under Section 302 with the aid of Section 34, itmust be shown that the criminal act complained against was done by one ofthe accused persons in furtherance of the common intention of the both andthat common intention has to be distinguished from same or similarintention. It was further observed that merely on the ground that the co-accused was armed with a pistol and also had knowledge of previousenmity between co-accused and the deceased, inference that accused hadcommon intention to kill cannot be drawn.

57. In Suresh and another's case (supra) it was observed by theHon'ble apex Court that it is difficult to conclude that a person, merelybecause he was present at or near the scene of crime, without doinganything more, and without even carrying a weapon, could also beconvicted with the aid of Section 34 IPC for the offence committed by theother accused.

58. As already discussed above, Smt.Mamta (deceased) had notattributed any role to Ved Parkash accused. She specifically stated in herdying declaration that she was set on fire by her mother-in-law and sister-in-law. Hence accused Ved Parkash cannot be held guilty for the offence withthe aid of Section 34 IPC even if it is taken that he was present whenSmt.Mamta was set on fire by her mother-in-law and sister-in-law.

59. In view of the above discussion, we are of the view thatprosecution has failed to prove the offence against accused Ved Parkashbeyond any shadow of doubt and hence by accepting his appeal, we acquithim for the charges framed against him by setting aside judgment ofconviction and order of sentence passed against him by learned trial Court.

60. As already stated above, it was brought to our notice thatSmt.Jamna Devi has since expired and hence appeal filed on her behalfstands abated.

61. However, so far as appeal filed by Smt.Santosh is concerned,we do not find any merit in the same. Hence the same is, hereby, dismissedand the judgment of conviction and order of sentence passed by learnedtrial Court against her is, hereby, upheld.

(Mehtab S.Gill) Judge

(Ram Chand Gupta) Judge

November 11, 2009meenuNote:Whether to be referred to reporter?Yes/No.