- (1.)The appellants faced trial under Section 498A read with Section 304B read with Section 34 of the Indian Penal Code (45 of 1860) (hereinafter referred to as 'IPC'). The trial court acquitted them under Section 304B of IPC but convicted them under Section 498A of IPC. The State took up the matter in appeal before the High Court against the non-conviction under Section 304B of IPC. The High Court allowed the appeal and convicted them under Section 304B of IPC also. During the pendency of the appeal, appellant no.1-father- in-law of the deceased and appellant no.2-mother-in-law of the deceased expired. Therefore, the appeals survive only in respect of appellant no. 2- husband of the deceased, appellant no.3-elder brother of the deceased and appellant no.4-younger brother of the deceased.
(2.)The deceased Chander Kalan was the sister of PW-12-Mahabir and PW-13-Satpal and the wife of accused-Ramesh Kumar. The marriage was on 14.04.1995. The allegation is that on account of non-payment of the dowry as demanded by the husband and in-laws, she was being ill-treated. One such incident was on 01.01.1997 and she lost a couple of teeth. There was a Panchayat and the matter was compromised and therefore, the case then registered under Section 498A read with Section 323 of IPC was not pursued. It is alleged that even thereafter the attitude of the in-laws did not change. On 18.06.1998, it is alleged that she was beaten and pushed out of the house and at around 02.00 p.m., the accused sprinkled kerosene on her and set her on fire. She was admitted in the hospital by 05.00 p.m. and examined by PW- 1-Dr. S.D. Goyal, who found that Chander Kalan suffered burn injuries which were approximately 45%. On his request, PW-16-ASI Jagdeep Singh recorded Exhibit-PM-dying declaration. Thereafter, she was admitted in the hospital of PW-9-Dr. Soni on 19.06.1998 and, on 17.07.1998, she was further shifted to the hospital of PW-5-Dr. SubhashVerma, where she died on 04.08.1998. PW-2- Dr. V.K. Kawatra conducted the postmortem along with Dr. Arun Gupta.
(3.)The trial court chose not to believe Exhibit-PM-dying declaration, but relied on the evidence of PW-5-Dr. Subhash Verma and PW-6-Lalman, Tehsildar and ruled out the possibility of burning by the accused. However, having found that there is evidence to establish cruelty, all the accused were convicted under Section 498A of IPC. The High Court, in the appeal by the State, entered the following conclusion at paragraphs- 8 to 10:
"8. Ex.PM the dying declaration of Chander Kalan recorded by PW16 ASI Jagdeep Singh and PW6 Lalman Tehsildar is found to be an important document which ultimately determines the crime committed by the accused. PW1 Dr. S.D. Goyal who examined Chander Kalan on 18.6.1998 at about 5.00 pm has deposed that Chander Kalan was in a fit state of mind. PW6 Lalman Tehsildar and PW16 ASI Jagdeep Singh also would depose that the dying declaration of Chander Kalan was recorded by PW16 ASI Jagdeep Singh only after the opinion was expressed by the doctor that Chander Kalan was in a fit state of mind. It is relevant to note at this state that the occurrence took place as early as on 18.6.1998 at about 2:00 pm. Unfortunately Chander Kalan passed away only on 4.8.1998 in the hospital of Dr. Subhash Verma who was examined as PW5. Chander Kalan had survived for about one and a half month with 40 to 45% burn injuries on her person. The above materials would go to establish that Chander Kalan was infact in a fit state of mind to give declaration as to the cause of her death.

9. PW16 ASI Jagdeep Singh should have in all fairness approached the Judicial Magistrate for recording the dying declaration. Anyway the position of the law is very clear that the dying declaration may not be in writing. The dying declaration of a dying person can be given to any person for that matter, as otherwise the person who is in the death bed would pass away before the respectable person comes to the hospital for recording the dying declaration. In this case the deceased survived for about one and a half month. She sustained only 40 to 45% burn injuries. She was also in a fit state of mind at the time when PW16 inquired about her health from the doctor who gave treatment to her. As already pointed out by me PW16 had associated PW6 Lalman Tehsildar for recording the dying declaration of Chander Kalan. Just because PW16 failed to associate the learned Judicial Magistrate, the Court cannot throw away the dying declaration given by Chander Kalan, if the dying declaration is found to be truthful and is found to have been given without any influence from outside.

10. Of course, PW6 Lalman Tehsildar would depose that PW13 Satpal was very much present and he was found chatting with Chander Kalan at the time when they descended on the ward to record the dying declaration of Chander Kalan. The relatives of the injured person fighting for life would naturally inquire about the health of the injured person. The relatives cannot be kept away from their natural inquiry about the health of the injured just because dying declaration was to be recorded from the dying person. PW13 Satpal was very much present when the dying declaration was recorded. In fact PW13 Satpal had subscribed his signature to dying declaration Ex.PM as a witness to the same document. The presence of the relative does not ipso facto cast a doubt on the veracity of the dying declaration."