IN THE COURT OF SESSION JUDGE AT BHOPAL (M.P.

)
HON’BLE S.K. KUMAR, J.
CRIMINAL APPELLATE JURISDICTION
Case. No. 5632 of 1995

In the matter of:

STATE OF MADHYA PRADESH …COMPLAINANT

V.

MAHESH SINGH & OTHERS …ACCUSED

JUDGMENT
S.K. KUMAR, J

• Brief facts of the case are as follows:

i. The deceased Varsha Singh d/o Jethmal Singh and the accused Mahesh Singh s/o
Shelendra singh got married on 13.08. 1993
ii. The in laws of the deceased started demanding for dowry soon after the marriage
iii. Surbhi Sharma neighbour of the deceased heard hue and cry, on 07.11.1995 around
05:30 in the evening and when she reached the house of the accused found Vinita in a
severely burnt condition lying on the floor. She immediately took her to Police station to
report the incident and then took her to the Hospital.
iv. For treatment Varsha was admitted in the Hamidia Hospital, Bhopal at 07:10 in the
evening. Her first dying declaration was recorded there itself by the ASI Mr. Praveen
Sharma & Second dying declaration was recorded by Executive Magistrate Mr.T.S.
Yadav at 07:40.
v. It was found that the deceased suffered 3rd and 4th degree burns on her body in the
autopsy and the reason for death was recorded to be Shock due to burn Injuries.
• Police registered the FIR under following sections of IPC:

• 498-A – Husband or relatives of husband of a woman subjecting her to cruelty

• 302 – Punishment of Murder

• 304-B – Dowry Death

• 34 – Acts done by several persons in furtherance of common Intention

• S.K. Kumar, Judicial Magistrate 1st Class committed the case to the Court of Sessions
Since the offence u/s.302 I.P.C. is exclusively triable by this court. As the accused has
capacity to engage advocate, Sri Ravinder Gupta, advocate has been appointed by the
accused as the Defence Counsel to defend the accused. Upon hearing the learned
counsels for the party’s charges u/s.498-A/302/304-B/34 of I.P.C. were framed. When the
charges so framed were read over and explained to all the accused, it was denied
committing any offence and claimed to stand trial.

• 8 witnesses were examined by the procecution. The accused were examined u/s.313
CrPC on conclusion of the evidence for the prosecution. All the evidence – direct and
circumstantial available on the record were put to them for explanation and were totally
denied involvement in any such act causing burns to the deceased and pleaded alibi and
stated that the deceased got burnt while cooking.

• The issues before the Court in this case are:

• Whether the accused committed cruelty and are liable for dowry death and
murder of Varsha Singh?

• Whether the accused committed the offence jointly or severally?

• The first issue contended that, soon after the marriage the deceased was persistently
exposed to the cruelty both physical and mental and was being harassed by the in laws
stating that she is ugly and hasn’t brought sufficient in dowry and due to non-fulfilment
of the demand of the Rs.50,000 cash & a motorcycle as additional dowry as confirmed by
the parents of the deceased by The Learned Counsel for the Prosecution dealing with.
The Prosecution believes that the deceased cannot set herself on fire and there can be no
such incident while cooking that the kerosene can be spilled all over the body. The
prosecution therefore contends that, the kerosene was sprinkled on the deceased by the
mother-in-law of the deceased and was set on fire that evening throwing a matchstick. As
there has been incidents previously also where the mother-in-law of the deceased has
tried to tackle the deceased physically which was told by the deceased to her parents.

• Prosecution also contends that, ASI Praveen Sharma proved the FIR and the dying
declaration which was taken by him from the Victim when she was admitted in the
hospital and which was also corroborated by the Executive magistrate Mr. T.S. Yadav
that in her dying declaration Varsha has disclosed that her mother-in-law Smt. Kamini
Sharma has set her on fire pouring kerosene on her body. Corroborating to the dying
declaration of the deceased the Investigating officer has also found burnt skin, hair &
clothes of the accused from the house along with a container of the kerosene.

• The contentions of the Prosecution draw more support from the Inquest done by D.S.P
Dinkar Bhaskar, Autopsy Surgeon Sitaram Gothwal and the investigating officer Sakshi
Modi respectively and the panch witness W proved the contents of map and seizure
memo prepared at the spot. According to the learned Prosecutor, the prosecution has
been able to prove the charges against the accused beyond all reasonable doubt. The
occurrence took place within the house of the deceased. The accused are the In-laws of
the deceased.
• The Defence Counsel strenuously contended that the evidence of so-called eye witnesses
and the arguments made by the prosecution are full exaggeration and are all being denied
countering the submission made by the learned Public Prosecutor. The accused have 2
Witnesses to prove their Alibi at the time of the incident. And Firstly, the statement by
the neighbour Mrs. Surbhi Sharma cannot be taken into consideration as she didn’t saw
any of the accused present in the house when she heard the hue & cry coming from the
deceased’s house. Secondly, the argument by the prosecution that the mother-in-law of
the deceased sprinkled the kerosene on the deceased the set her on fire is baseless as the
prosecution hasn’t presented any evidences to corroborate the same. Coming to the
findings of the Investigating officer that he found a container of the kerosene in the house
is irrelevant as it is an item of daily household and is used of several purposes. And
Hence, all the evidences and arguments made by the prosecution are denied by the
defence.

• Dealing with the issue of the dying declaration, the learned counsel for defence contends
that – Mere dying declaration of the deceased should not be considered as the sole
evidence to prosecute the accused as the deceased wasn’t in full capacity and
consciousness to make such a statement. As she was already in shock and the dying
declaration is not admissible before the court.

• Rebutting to this statement of the defence counsel, learned counsel for the prosecution
cited the following authorities :-

In Kushal Rao v. State of Bombay (AIR 1958 SC 56), It was held by the Supreme Court
that:

• There is no absolute rule of law that a dying declaration cannot be the sole basis
of conviction unless corroborated. A true & voluntary declaration needs no
corroboration.
 • A dying declaration is not a weaker kind of evidence than any other piece of
evidence;

• Each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made.

• A dying declaration stands on the same footing as other piece of evidence & has
to be judged in the light of surrounding circumstances & with reference to the
principle governing the weight of evidence.

• 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, &, 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 & human character.

In K. Ramachandra Reddy v. Public Prosecutor (1976 3 SCC 618), It was held by the
Hon’ble Apex Court that:

“The dying declaration is undoubtably admissible under section 32 & not being
statement on oath so that its truth could be tested by cross-examination, the court
has to apply the scrutiny & the closest circumspection of 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
connect a case 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 & identify his assailants & that he was making the
statement without any influence or rancour. Once the court is satisfied that the
 dying declaration is true & voluntary, it can be sufficient to found the conviction
even without further corroboration”.

In State of U.P. v. Madan Mohan (1989 3 SCC 390) the Apex Court held that:

• It is for the court to see that dying declaration inspires full confidence as the
maker of the dying declaration is not available for cross-examination.

• Court should satisfy that there was no possibility of tutoring or prompting.

• Certificate of doctor should mention that victim was in a fit state of mind.
Magistrate recording his own satisfaction about the fit mental condition of the
declarant was not acceptable especially if the doctor was available.

• Dying declaration should be recorded by the executive magistrate & police

officer to record the dying declaration only if condition of the deceased was so
precarious that no other alternative was left.

• Dying declaration may be in the form of questions & answers & answers being
written in the words of the person making the dying declaration. But court cannot
be too technical.

• Referring to Kushal Rao (supra) prosecution contends that – The apex court has clearly
stated that the Dying declaration can be a sole evidence and it further doesn’t need any
corroboration, but keeping in view the circumstances in which it was made. In the present
case the dying declaration is not only the sole evidence which the prosecution has, it is
moreover supported by various evidences and statement of witnesses which are
admissible in the Hon’ble court and are sufficient to corroborate the declaration made by
the deceased. The Court is well aware with the circumstances in which the statement was
made as there was no influential person with the deceased who could have tampered or
coerced the deceased to make such declaration. It was solely made by the deceased
without any influence, firstly to the ASI Mr. Praveen Sharma & Secondly to the
 Executive Magistrate Mr. T.S. Yadav which makes both the declaration valid and
admissible in the Hon’ble Court.

• As held in K. Ramachandra Reddy (supra) that - 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 & identify his assailants, Therefore, the prosecution draws the
attention of the court towards the fact that the both dying declaration was recorded by the
ASI & Executive Magistrate at the time when the deceased was admitted to the hospital
and was capable of understanding everything. She expired the next day which
extinguishes the doubt that she wasn’t is a fit state of mind as there was a reasonable time
when the declaration was recorded and the time of her death. Court finds no substance in
the argument of the defence that, while making the dying declaration, the deceased was
not in a fit state of mind to make such dying declaration. From the evidence available on
record, it reveals that before recording the dying declaration of the deceased, the
Executive Magistrate has obtained a fitness certificate from the Doctor and only after the
said certificate was given, the Executive Magistrate proceeds to record the dying
declaration. Further, in the dying declaration recorded by Executive Magistrate, it has
been categorically stated by the deceased that she was burnt by the appellant.

• Dealing with the first issue after hearing the arguments by both the parties, this court
agrees with the arguments made by the Counsel for the Prosecution side and the
precedents cited by the prosecution of the Apex Court is strictly binding on this court.
This Court finds the dying declaration valid as there were no possible circumstances
under which its validity can be questioned – It was solely made by the victim without any
influence of anyone and within her fit state of mind. The declaration was made to the ASI
& the Executive magistrate which makes it a valid dying declaration on part of the
deceased and the court further corroborated it with the other evidences and the statements
of Prosecution witnesses and found that the accused are liable for doing cruelty to the
deceased both mental and physical under Sec.498-A of IPC, causing Dowry death of the
deceased under Sec.304-B of the IPC & Murder under Sec.302 of IPC.
 • Dealing with the second issue, the court is of the opinion that all the accused i.e., husband
of the deceased Mahesh Singh, father-in-law of the deceased Shalendra Singh & mother-
in-law of the deceased Kamini Sharma are jointly guilty for cruelty & dowry death to the
deceased under Sec.498-A & 304-B of IPC and the mother-in-law of the deceased is
found guilty under Sec.302 for murder of Varsha by sprinkling kerosene on the her and
setting her on fire as the fingerprints of Mrs. Kamini Sharma is found on the container of
the kerosene and she is also contradicting her statements at times which nullifies her alibi
and makes the statements of alibi witnesses DW1 & DW2 voidable.

• All the three accused are found guilty for Cruelty under sec.498-A and Dowry death
under sec.304-B and are awarded 7 Years of imprisonment and fine of 5,00,000 Rs. (Five
Lakh Rupees) to the parents of the deceased. The mother-in-law of the deceased who is
also found to be guilty under sec.302 for murder of the deceased is given additional
sentence of 7 years on completion of the joint sentence with the other accused.

Sd/-

S.K. Kumar, J
(Session Judge)

Judgment is signed and pronounced in open court on 15-08-1995.

Seal of the Court