1st LEGALFOXES NATIONAL LEVEL

JUDGEMENT WRITING
COMPETITION 2019

INSTITUTION NAME: UNIVERSITY LAW

COLLEGE, UTKAL UNIVERSITY, BHUBANESWAR

PARTICIPANTS NAME:
1. DINESH KUMAR SAMANTA (3rd YEAR BA.LLB)
2. SOUMYA RANJAN SAHU (3rd YEAR BA.LLB)

TEAM CODE: LF03

Delhvi High Court
Tanveer Singh vs State of Haryana on 20 August, 2019

IN THE HIGH COURT OF DELHVI

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. - 9 OF 2014
TANVEER SINGH …. APPELLANT
Versus.
STATE OF HARYANA & ORS. .... RESPONDENT (S)

CRIMINAL APPEAL UNDER SEC.374 (2) OF CODE OF CRIMINAL PROCEDURE, 1973

DATE OF JUDGEMENT: 20 August 2019

JUDGEMENT:
D. K. Samanta, J.,
1. This is a case of suicide where a young lady namely Rani was succumbed to death due to
heavy burn injuries. The accused- appellant Tanveer Singh (husband), had challenged the
conviction and sentence passed by Additional Sessions Judge Court vide order whereby
and where under the appellant was found guilty under sections 498-A, 304-B of IPC read
with Section 4 of Dowry Prohibition Act, 1961 and Section 302 of IPC and sentenced him
for life imprisonment and to pay a fine of Rs. 40,000/- in default thereof to undergo
additional rigorous imprisonment for two years.
2. The prosecution story as unfolded in the complaint/First Information Report is that Rani
daughter of Indrapal Singh was married to Tanveer Singh on 25.04.2012 with all
ceremonies of Hindu Traditions. On 27.04.2013 the deceased suffered from burn injury in
her matrimonial house, after which she was immediately taken to the hospital where she
was medically examined vide Ex. Ka 2 and 70% burn injuries have been noticed by the
doctor examining her. On that day itself, dying declaration of the deceased was recorded
by PW-2 Ompal Singh, the Executive Magistrate. Considering her critical condition, she
was referred to Medical College, Rewari that day itself. On 28.04.2013, she was taken to
Gurgaon, and hospitalized in a private hospital where she remained till 04.05.2013. At
Gurgaon yet another dying declaration of the deceased was recorded by PW-3 Umesh
Chandra, the Executive Magistrate vide Ex. Ka-12. On 11.5.2013, PW-1 Indrapal Singh,
 father of deceased vide a written report Ex. Ka-1 alleged that since date of marriage, there
was demand of dowry on the part of the accused person and that she was subjected to
cruelty. He further alleged that the deceased was burnt by the accused persons as said by
the deceased in her first dying declaration. Based on this report, FIR was registered against
as many as five accused persons, namely Tanveer Singh (husband) of the deceased,
Pushpendra (dewar) of the deceased, Brijendra Shivpal (uncle-in-law) of the deceased,
Ramrati (mother-in-law) of the deceased and Sangeeta (married nanad) of the deceased
under sections 498-A/304-B of IPC read with Sections 3/4 of Dowry Prohibition Act, 1961.
On 15.05.2013, inquest on the dead body of the deceased was conducted vide Ex.Ka-13
and dead body was sent for postmortem, which was conducted by Dr. Nikhil Agrawal. The
autopsy surgeon noticed 80% burn injuries and according to him, the cause of death is
cardiac respiratory failure. The accused-appellants were summoned before the trial court
and charges were levelled against them for which they pleaded not guilty and claimed for
a trial.
3. In order to prove prosecution case, PW-1 Indrapal Singh, PW-2 Ompal Singh, Executive
Magistrate, PW-3 Tahasildar Umesh Chandra Kaurav, PW-4 Dr. R.B. Arya were examined
along with 9 other witnesses.
4. In the statement recorded under Section 313 Cr.P.C., all the accused have stated that the
deceased was alone in the kitchen. DW-2 Sirawan Deen was examined as defence witness
who saw the entire occurrence and also was the witness of recovery and in his spot map
also his presence has been shown wherein he has categorically deposed that he saw the
deceased in the terrace running in a burning condition. The said terrace has been attached
to the kitchen and possibility of the deceased being accidentally burnt or committing
suicide, cannot be ruled out meticulously.
5. After assessment of evidence on record and hearing learned counsel for the parties, learned
trial court acquitted the other accused persons of all the offences. The accused husband has
also been convicted under Section 498-A, 304-B of IPC read with Section 4 of Dowry
Prohibition Act and Section 302 of IPC.
6. Aggrieved by the order, the appellant has filed the instant appeal on the following grounds:-
i. There was no demand of dowry at the time of marriage.
ii. There is no documentary evidence to support the prosecution story about the demand
of dowry and there is no evidence that the deceased was treated with any cruelty or was ill
treated at any point of time as said by PW-1.
 iii. The accused/ appellant has been falsely implicated in this case due to ulterior motive
as in case of multiple dying declaration, the dying declaration is required to be discarded
considering the inconsistency in the dying declaration.
iv. As the first dying declaration has been disbelieved by the trial court and based on
the same, the other co-accused persons have been acquitted and, therefore, the subsequent
dying declaration automatically loses its significance.
v. That as per the two dying declarations and as per oral dying declaration made before
PW-1, the accused persons had first poured kerosene oil and then set her ablaze. In such
eventuality there was every possibility of finding the smell of kerosene oil on the body of the
deceased or on her clothes was there but no such evidence was collected by the prosecution.
Likewise, the nature of the burn injury has been opined by the doctor as thermal burn and there
is no opinion by the doctor that the injury sustained by the deceased was because of kerosene
oil.
vi. That at the time of occurrence, the appellant was outside the house in and around
‘bayare’ and as soon as he came to know of the incident, he rushed to the house. It is the
appellant only who hospitalized the deceased and made all possible best efforts to save her.

7. Learned Counsel for the State has submitted that the first dying declaration by the deceased
has been disbelieved by the trial court as there is some discrepancy in the same in respect of
the timing, but however there is no bar in law to record the second dying declaration by the
Executive Magistrate.
8. Learned counsel for the appellants has examined doctor vide Ex.Ka-2, who told although
70% burn injuries has been noticed but no smell of kerosene oil was found either on body of
the deceased or on her clothes. Likewise when deceased was taken to Rewari, no such kerosene
oil or its smell was noticed by treating doctor.
In the opinion of doctor the burn injuries is of thermal nature and there is no opinion by the
doctor that the injury sustained by the deceased was because of kerosene oil.
9. Learned counsel for the appellant has contended that from scrutiny of the evidence of the
prosecution witnesses, it appears that no case under sec 498-A IPC is made out against the
appellant as there is nothing in the evidence of the prosecution witnesses that what amount was
demanded by the accused/appellant. In absence of specific evidence with regard to demand of
dowry, mere harassment and negligence to the victim itself would not constitute cruelty and if
the case under Section 498-A IPC fails then the case under other sections will automatically
fail because there is absolutely no evidence of the fact to prove other charges. It has further
been contended that even though there was no independent corroboration as required for
establishing a case under Section 498-A IPC i.e. demand of dowry, learned trial court convicted
the accused/appellant under Section 498-A IPC, which is liable to be set-aside.
10. Learned counsel for the State, vehemently supported the judgment of the Lower Court and
he replied the arguments of appellant on all counts. He supported that there is sufficient
material and the Trial Judge has taken note of all the facts and on detail examination the
appellant has been convicted.
11. There is no dispute about the fact that death has taken place well within seven year of
marriage in an unnatural way. Section 304-B I.P.C. deals with the dowry death. It will be useful
to quote it at this place:
"304-B. Dowry Death1- (1) Where the death of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal circumstances within seven years of her marriage
and it is shown that soon before her death she was subjected to cruelty or harrassment by her
husband or any relative of her husband for, or in connection with any demand for dowry, such
death shall be called "dowry death" and such husband or relative shall be deemed to have
caused her death. Explanation for the purpose of this sub-section 'dowry' shall have same
meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall
not be less than seven years but which may extend to imprisonment for life."
12. To press and apply the aforesaid Section, the prosecution has to establish that death of a
woman is caused by burns, bodily injury or strangulation occurs not under normal
circumstances within seven years of the marriage and the lady was subjected to cruelty or
harassment by the husband and relatives of the husband in connection with the demand of
dowry. Section 113-B of the Evidence Act was also inserted with a view to draw a presumption
as to the dowry death.
"113-B: Presumption as to dowry death 2 - When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such woman
has been subjected by such person to cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such person had caused the dowry death."
13. As per the definition of "dowry death" in Section 304-B I.P.C. and the wording in the
presumptive Section 113-B of the Evidence Act, one of the essential ingredients amongst

1
Indian penal Code, 1860.
2
Indian Evidence Act, 1872.
others, in both the provisions is that the woman concerned must have been "soon before her
death" subjected to cruelty or harassment "for or in connection with the demand for dowry".
While considering these two provisions, Hon'ble Apex Court in M. Srinivasulu v. State of
A.P.3 has observed thus:
The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death
of a woman, (This means that the presumption can be raised only if the accused is being tried
for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by her husband for dowry.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death."

14. Learned counsel for the appellant has contended that there is nothing available in the
evidence of prosecution witnesses to show that since when the inmates of the in-law's house of
the victim started torturing her either for bringing money from her parents or for any other
reason. Mere omnibus statement regarding demand of money does not ipso facto make out a
case under Section 498A IPC, prosecution is required to prove the overt acts attributed by the
accused appellant beyond reasonable doubt. In support of his aforesaid contention, he placed
reliance on the decision of the Apex Court in Sakharam and Anr. v. State of Maharashtra4
15. He also contended that mere harassment of wife by her husband due to dispute or difference
without anything more pursuant to which if the wife commits suicide that will not attract
Section 304 B IPC.
16. He contended that from scrutiny of the evidences of the prosecution witnesses, it appears
that no case under Section 498A IPC has been made out against the accused appellant as there
is nothing in the evidence of P.Ws. that what amount was demanded by the accused appellant.
In absence of specific evidence regarding demand for dowry mere harassment and negligence
to the victim itself would not constitute cruelty and if a case under Section 498A IPC fails then
the case under Section 304 B IPC will automatically fail because there is absolutely no evidence
of abetment of suicide or dowry death. In support of the aforesaid submission, the case of
Girdhar Shankar Tawade v. State of Maharashtra5 was relied on.

3
(2007) 12 SCC 443.
4
(2003) 12 SCC 368.
5
Appeal (Criminal) 463 of 1996.
17. The learned counsel for the appellant argued that the deceased gave two dying declaration
i.e., one at the hospital in Tauru and second at the private hospital at Gurgaon. In the first dying
declaration recorded by PW-2 Ompal Singh, Executive Magistrate in front of PW-1 Indrapal
Singh, the father of the deceased that Tanveer Singh, Pushpendra, brother-in-law of the
deceased, Brijendra, uncle in law, Ramrati, mother in-law, Sangeeta, married nanad of the
deceased; all these persons poured kerosene oil on her and set her ablaze. In the second dying
declaration recorded by PW-3 Umesh Chandra, executive Magistrate vide Ex. Ka-12, the
deceased said that the accused named Tanveer Singh poured kerosene oil and set her ablaze.
During the occurrence of the incident, the accused was not present at the house and in the
‘bayare’ as said by the DW-2 Sirawan Deem.
18. In the medical report, it was written that 80% burn injury; the nature of burn injury is
thermal burn and the death was due to cardiac respiratory failure. There was no smell of
kerosene oil when the deceased was hospitalised. While examining the witness DW-3 Pushpa,
the aunt of the deceased said when the deceased was inquired by the family members, the
deceased said that she got burned while cooking.
19. This shows that as the deceased was 80% burnt and inconsistency shows the mental
condition of the deceased is requisite so as to make acceptable dying declaration. The dying
declaration cannot be the sole basis for the conviction of the accused in case of multiple dying
declarations. It is necessary that the deceased must be in a fit condition to make a dying
declaration. Also, when there is multiple dying declarations, the dying declaration must be
corroborated with some evidences. The weight to be attached to a dying declaration must
largely depend on whether or not the deceased was in a fit state of mind to make it. In support
of above submission aforesaid relied upon the case of Rajoo Yadav v. state of Uttar Pradesh
(2017) read with Padmaben Shamalbhai Patel v. State of Gujarat6.
20. It is also argued by the learned counsel for the appellant that the oral dying declaration gave
to the neighbor’s and other witnesses differ from the two written dying declaration gave in
hospitals. This shows the mental condition and inconsistency of the deceased. The Apex Court
held in Sudhakar v. State of Maharashtra7 that in case of variable dying declaration, the
court must look for the evidences which can corroborate with the dying declaration so the
conviction should not be based on the dying declaration. There is no proximity relation between
the circumstances stated by the witnesses DW-2 and DW-3 and dying declaration so the

6
SCC 2017; SCC 1991.
7
SCC 2009.
admissibility of the dying declaration is not possible. It is supported by the case of Pakala
Narayan Swami v. King Emperor8.
21. In case of Ranjit Singh and Ors. v. State of Punjab9, The Apex Court has clearly laid
down that the conviction can be recorded on the basis of the dying declaration, if the same is
wholly reliable. In the event, there are suspicious regarding the dying declaration, the court
should look for corroborating evidences. In the case, there are inconsistent dying declarations,
the Court must rely upon any other evidence, as it is not safe to act only on inconsistent dying
declarations and convict the accused. In support of the submitted aforesaid argument, it can be
relied upon the case of Lella Srinibas Rao v. State of Andhra Pradesh10 . It has been argued
by the learned appellant counsel that in the case of Kushal Rao v. State of Bombay11, the ratio
laid down by the Supreme Court that the statement must be consistent throughout, when the
deceased gets several chances. The inconsistency of statement cannot make dying declaration
as the sole basis for the conviction.
22. The Learned State counsel argued that the court had disbelieved the first dying declaration
made by the deceased as there is some discrepancy in the same in respect of the timing. It was
also argued by the learned State counsel that there is no bar in law to record two dying
declaration. The trial court was justified in placing its reliance on the second dying declaration.
It is also argued by the learned State Counsel that the trial court must scrutinize each dying
declaration made by the deceased. There is no rule of Law that dying declaration cannot be
acted upon without the corroboration. In support of the aforesaid argument, it can be relied
upon the case of Sant Goyal v. State of U.P.12
23. It has been argued by the learned State Counsel that last dying declaration of the deceased
is the truth said by the deceased. There is a maxim ‘Nemo moriturus praesumuntur mentiri’
which means a man will not meet his Maker with a lie in his mouth. So the declaration made
in extremity, when the party is at the point of death, when every hope of this world is gone,
when every motive is falsehood is silenced, and the mind induced by the most powerful
consideration to speak the truth; so solemn and so awful is considered by the law as creating
an obligation equal to that which imposed by the positive oath administered in a court of
Justice.[Eyre C.V v. R.V. Woodrock13]. The learned State Counsel argued that the Supreme

8
SCC 1904.
9
2006(13) SCC 130.
10
2004 9 SCC 713.
11
1958 Cri. L.J. 106.
12
1995 Cr.L.J. AIR.
13
(1789) 1-Leach 500.
Court laid down in Rabi Chandra Pradhan v. State Of Odisha14 and Somnath v. State of
Haryana15 that if basically there is credibility minor discrepancies would not make a dying
declaration unreliable. The learned State Counsel rests on the dying declaration which is an
important piece of evidence against the appellant. The dying declaration is entitled to grant
weight and it can form the sole basis for conviction.
24. It has been argued that there is no direct eye witness account to the incident and appellant
has been convicted solely on the basis of the second dying declaration. However the
circumstantial evidence is not complete. The witness DW-2 Sirawan Deen saw the entire
occurrence from the spot map Ex Ka-14. He was also witness of recovery and in his spot map
also his presence has been shown wherein he has categorically disposed that he saw the
deceased in the terrace roaming from one place to another in burning condition. It has been that
there is a kitchen attached to the terrace and possibility of the deceased being either burnt
accidentally or committing suicide, cannot be ruled out. It has been argued by the learned
Appellant council that according to the report given by the doctor at Rewari no such kerosene
oil or its smell is found on her body or her clothes. The Supreme Court has observed in the
case of Om Prakash v. State of Punjab16 reported in:-
"It is the duty of the Court, in a case of death because of torture and demand of dowry, to
examine the circumstances of each case and evidence adduced on behalf of the parties, for
recording a finding on the question as to how the death has taken place. While judging the
evidence and the circumstances of the case, the court has to be conscious of the fact that a death
connected with dowry takes place inside the house, where outsiders who can be said to be
independent witnesses in the traditional sense, are not expected to be present. The finding of
guilt on the charge of murder has to be recorded on the basis of circumstances of each case and
the evidence adduced before the court.’’
25. The learned appellant counsel argued that during the occurrence of the whole incident, the
accused person was not present with the deceased, in fact, the accused and the deceased were
not last seen together. In the case of Gajanan Dashrath Kharate v. State of Maharashtra17,
their Lordships of Hon. Supreme Court have held that the initial burden to establish the case
would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there
will be a corresponding burden on the inmates of the house to give cogent explanation as to

14
AIR 1980 SC 1738.
15
AIR 1980 SC 1226.
16
(1992) 4 JT (SC) 524.
17
2016 (4) SCC Page 604.
how the crime was committed. The inmates of the house cannot get away by simply keeping
quiet and offering no explanation on the supposed premise that the burden to establish its case
lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation.
In the present case, according to the witnesses DW-2 and DW-3, the accused was not present
in the house. In Sharad Birdhichand Sarda v. State of Maharashtra18, while dealing with
circumstantial evidence, it has been held that the onus was on the prosecution to prove that the
chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence
or plea. The conditions precedent before conviction could be based on circumstantial evidence,
must be fully established. They are:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned `must or should' and not `may be' established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that the
accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
26. The learned State Counsel argued that the accused was convicted on the basis of
circumstantial evidence in particular with the second dying declaration and there is no eye
witnesses. In the case of Trimukh Morati Kirkan v. State of Maharashtra19, the Apex Court
laid down that based on circumstantial evidence where no eye- witness account is available,
there is another principle of law which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said accused either offers no
explanation or offers an explanation which is found to be untrue, then the same becomes an
additional link in the chain of circumstances to make it complete. This view has been taken in
a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran20]
27. It has been also argued by the learned State Counsel that in case of State of Rajasthan v.
Kashi Ram21, the Apex Court held that: ‘If he fails to offer an explanation on the basis of facts

18
AIR 1984 SC 1622.
19
2004 10 SCC 681.
20
(1999) 8 SCC 679.
21
2006 AIR SCW 5768.
within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of
the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a
reasonable explanation in discharge of the burden placed on him, that itself provides an
additional link in the chain of circumstances proved against him’’.
28. On the contentions raised and urged before this court at the hearing, the questions that fall
for consideration are the following-
I. Whether the appeal is maintainable in the Hon’ble High Court of Delhvi?
II. Whether the second dying declaration of the deceased is admissible in the court?
III. Whether the circumstantial evidence is sufficient enough to uphold the conviction of
the appellant?
Maintainability of the Instant Appeal in the Judicature of Delhvi
29. An appeal is indisputably a statutory right and an offender who has been convicted is
entitled to avail the right of appeal which is provided for under S.374(2) of the code.
Right of appeal from a judgment of conviction affecting the liberty of a person keeping
in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal,
thus, can neither be interfered with nor impaired, nor it can be subjected to any condition.
30. In the present appeal against conviction, the appellate Court has power to re-
appreciate/review evidence. The Court must come to the conclusion that the view taken by a
trial Judge while convicting the accused cannot be the view of a reasonable man as the materials
on record. In an appeal against conviction, the High Court is entitled to re- appreciate the
evidence if it is found that the view taken by the convicting Court was not a possible
view or that it has a perverse or infirm or palpably erroneous view, or the trial Court taken into
consideration inconsequential circumstances or has acted with material irregularity, or has
rejected the evidence of eye-witnesses on wrong assumptions.
31. In the case of State of Uttar Pradesh v. Babu22, the Supreme Court noted that there is no
embargo on the appellate Court in reviewing the evidence upon which an order of conviction
is based. In a case where admissible evidence is ignored and lower Court has acted on
surmises and conjectures, a duty is cast upon the Appellate Court to re-appreciate the
evidence when the accused has been convicted.
32. In the present case, it has been submitted by P.W-4 who medically examined the deceased,
that the deceased was hospitalized by husband himself but the trial court took no notice of the
same and convicted the appellant on the false submission of the deceased’s father who falsely

22
AIR 2003 SC 3608.
stated the deceased was admitted by him. Taking into consideration the submission of PW-4
the court is of the view that the appellant take every necessary steps to save the deceased.
33. The paramount consideration of the Court should be to avoid miscarriage of justice. A
miscarriage of justice may arise from the conviction of an innocent. While hearing appeal
against conviction the High Court should not only scrutinize the judgment of the trial Court
but should also re-appreciate the entire evidence independently and after an independent
examination of evidence, came to its own finding. Thus, the Hon’ble High Court would be
justified in setting aside the conviction when it is based upon surmises, conjectures and
assumed contradictions.
34. When the trial Court has overlooked the important aspects of the case and has handled the
evidence in a most unreasonable manner and reached the conclusion as it did on unsustainable
grounds, the view of evidence taken by the trial Court is manifestly erroneous and reasons
assigned are utterly unsustainable. In the present case, the trial court did not take notice of the
sole eye witness Sirawan Deen, DW-2, who states that from his roof, he saw the deceased in a
burning condition, and also confirmed that at that time the accused was not in the house and
was working in his ‘bayare’. Relying on the submission of DW-2 it is found that the trial
Court’s judgment being perverse is liable to be set aside.
35. Moreover, Court affirmed that there has been no ocular witness of the crime .The police
had arrested the accused solely on ground of deceased’s father FIR, which cannot be taken into
reliable consideration due to inconsistency in his statement regarding hospitalization of the
deceased. The DW-2 have also testified the deceased informed that she sustained burn injuries
while cooking food.
36. The Court on looking into the facts and circumstances of the case considers the present
appeal is maintainable before this Hon’ble court because the trial court ignored the loopholes
in the prosecution evidence and weighed them inappropriately to convict the accused which is
untenable and bad in the eyes of Law.
Admissibility of Second Dying Declaration
37. The appellant would urge that the deceased was having 80% burn injuries. Except her head,
neck and face, on all other parts of the body she had lost the whole skin. The question as to
whether a dying declaration which otherwise inspires confidence of the court should meet with
disapproval for the reason that all that is certified is that the patient was conscious and that it
is further not certified that she was physically and mentally fit is no longer res integra. A
constitution Bench of this Court in Laxman v. State of Maharashtra23 had this to say:

Bearing in mind the aforesaid principle, let us now examine the decisions of the Court which
persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka
Rosamma v. State of A.P.24 ,the dying declaration in question had been recorded by a Judicial
Magistrate and the Magistrate had made a note that on the basis of answers elicited from the
declarant to the questions put he was satisfied that the deceased is in a fit disposing state of
mind to make a declaration. The doctor had appended a certificate to the effect that the patient
was conscious while recording the statement, yet the Court came to the conclusion that it would
not be safe to accept the dying declaration as true and genuine and was made when the injured
was in a fit state of mind since the certificate of the doctor was only to the effect that the patient
is conscious while recording the statement. Apart from the aforesaid conclusion in law the
Court had also found serious lacunae and ultimately did not accept the dying declaration
recorded by the Magistrate.

38. In this particular case, the two dying declarations made by the deceased at two different
point of time to two different persons, does not corroborate each other and there is
inconsistency in those two declarations made in many aspects. In this view of the matter, this
court has no hesitation to come to the conclusion that the two dying declarations made are
inconsistent and cannot be relied upon by the prosecution in bringing home the charge against
the accused persons and the prosecution case is held not to be proved beyond reasonable doubt.

Circumstantial Evidence Sufficient for Conviction

39. The appellant has approached this honorable High Court after being aggrieved, against the
order passed by trial court relying on fabricated evidences and superseding credible facts .The
impugned order passed by the trial court is a clear violation of justice. In the light of the
established facts and adduced evidences on record, the hypothesis unerringly convergent to the
guilt of the accused is not cogently established by the prosecution during the trial stage and
henceforth, the order of conviction passed by the learned Trial Court under the charges levelled

23
2002 (6) SCC 710.
24
(1999) 7 SCC 695: 1999 SCC (Cri) 1361.
against the accused- appellant suffers from patent legal infirmities leading to the miscarriage
of justice.

40. It is fundamental principle of criminal jurisprudence that an accused is presumed to be

innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused
beyond reasonable doubt. Suspicion is not the substitute for proof. In an appeal from a
conviction, it is for the appellate court to be satisfied affirmatively that the prosecution case is
substantially true and that the guilt of the appellant has been established beyond all the
reasonable doubt. In the present case, there are several loopholes in the prosecution theory and
the theory presented by the prosecution in the present case is not reliable. The prosecution
failed to prove beyond all reasonable doubt and proper evidence was not produced by the
prosecution. In the case of 'Gajanan Dashrath Kharate v. State of Maharashtra'25, their
Lordships of Hon. Supreme Court have held that the initial burden to establish the case would
undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will
be a corresponding burden on the inmates of the house to give cogent explanation as to how
the crime was committed. The burden to establish its case lies entirely upon the prosecution
and there is no duty at all on the accused to offer explanation.

41. In the present case, the witnesses DW-2 and DW-3 testified that the accused was not present
during the occurrence of the event and was working at the ‘bayare’ and the medical report
produced by PW-2 states that there was no smell of kerosene oil on the body or clothes of the
deceased. It has been held in the case of Om Prakash v. State of Punjab26, the finding of guilt
on the charge of murder has to be recorded on the basis of circumstances of each case and the
evidence adduced before the court.

42. In Krishnan v. State represented by Inspector of Police27, this Court after considering
large number of its earlier judgments observed as follows:

"This Court in a series of decisions has consistently held that when a case rests upon
circumstantial evidence, such evidence must satisfy the following tests:

25
2016 (4) SCC Page 604.
26
(1992) 4 JT (SC) 524.
27
(2008) 15 SCC 430.
(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;

(ii) Those circumstances should be of definite tendency unerringly pointing towards guilt of
the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that with all human probability the crime was committed by the
accused and none else; and

(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable
of explanation of any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be inconsistent with his
innocence. (See Gambhir v. State of Maharashtra28)

43. After perusing all the material evidence for both the sides, the Court is convinced that the
prosecution has utterly failed to prove its case beyond reasonable doubt against the accused,
consequently the aspirations of the prosecution to bring home the above charges against the
accused cannot be lawfully sustained. Ergo, the benefit of doubt must be given to the accused.
The Court acquits the accused of the above charges and the case is disposed off on the above
terms.

ORDER:

44. In the facts and circumstances of the present case, this court is satisfied that on the face of
complaint itself no offence is made out against appellant under Section 304-B IPC to sustain
the order of cognizance. Resultantly, the order of cognizance by the Learned Trial Court Judge
are set aside with regard to the appellant.

45. Criminal Appeal No. 9 is allowed and with above modification.

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

28
AIR 1982 SC 1157.