Phulel Singh vs State Of Haryana

2023INSC863 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 396 OF 2010

PHULEL SINGH …APPELLANT(S) VERSUS STATE OF HARAYANA …RESPONDENT(S)

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 Signature Not Verified Digitally signed by Penal Code, 1860 (“IPC” for short) and the conviction and Narendra Prasad Date: 2023.09.27 17:21:55 IST

sentence qua the appellant herein rendered by the learned Reason:

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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.

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

2 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.

3 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.

2.2 On 7th November 2011, 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., 8th

4 November 2011, 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

5 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, 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

6 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

7 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 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

8 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

1 2022 SCC OnLine SC 1019

9 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.

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.

10 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

11 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 8 th

November 1991 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

12 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 13 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 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

14 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.

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19. Pending application(s), if any, shall stand disposed of in

the above terms.

….……..….......................J. [B.R. GAVAI]

……………………..….........................J. [PAMIDIGHANTAM SRI NARASIMHA]

……………..….........................J. [PRASHANT KUMAR MISHRA]

NEW DELHI;

SEPTEMBER 27, 2023.

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