Holding

A dying declaration is admissible without magistrate recording if voluntary, and the husband’s conviction under 302 r.w. 34 and both accused’s conviction under 498A are upheld, while the mother‑in‑law’s conviction under 302 r.w. 34 is set aside due to inconsistencies.

Summary

The deceased Amarjit Kaur died from severe burns after allegedly being set alight by her husband Balbir Singh and mother‑in‑law Nachattar Kaur. Two dying declarations were recorded – one by a doctor in the hospital and another by a police sub‑inspector – both implicating the husband, while the second also named the mother‑in‑law. The trial court convicted both accused under IPC sections 302 r.w. 34 and 498A r.w. 34; the High Court affirmed. On appeal, the Supreme Court held that a dying declaration need not be recorded before a magistrate and is admissible if voluntary, but noted inconsistencies between the two statements and gave the benefit of doubt to the mother‑in‑law, setting aside her conviction under 302 r.w. 34. The convictions of the husband under 302 r.w. 34 and both accused under 498A were upheld, and the appeal was partly allowed.

Issues considered

The admissibility of a dying declaration not recorded before a magistrate
The impact of inconsistencies between multiple dying declarations on conviction
Whether framing of alternative charges (302 vs 304B) was permissible
The validity of convictions under IPC sections 302, 304B and 498A in the facts
Whether the death could be construed as suicide

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 302, s. 304B, s. 307, s. 34, s. 498A

Subjects

Dying declarationAdmissibility of evidenceIPC 302IPC 498ADowry harassmentCommon intentionAlternative chargeCriminal law

Judgment

A BALBIR SINGH AND ANR.
v.
STATE OF PUNJAB

SEPTEMBER 26, 2006

B (S.B. SINHA AND DAL VEER BHANDARI, JJ.]

Penal Code, 1860-Sections 34, 302, 304B, 307 and 498A -Evidence
Act, 1872--Section 32-Woman died of burn injuries-Two dying declarations
C made before Doctor and Police respectively-Charges framed against husband
and mother-in-law for offences under sections 498A and 302 rlw 34 !PC or
in the alternative under 304B r!w 34 /PC-Trial court convicted both the
accused under sections 302 rlw 34 /PC and 498A !PC -High Court confirmed
their convictions and sentences-Correctness of-Contention of the accused
that dying declarations are invalid as they were not made before a
D Magistrate-Held, law does not provide that a dying declaration should be
made before a Magistrate-On facts, dying declarations are made voluntarily-
Hence, convictions and sentences of the husband under both the sections
upheld -Conviction of mother-in-law under section 302 rlw 34 !PC is set
aside giving benefit of doubt due to inconsistencies between the two dying
declarations.
E
Deceased, who is the wife of appellant no. I, sustained burn injuries
and was admitted in a hospital. The doctors attending on her recorded a dying
declaration wherein she had stated that when she went to bathroom, her
husband came from behind, poured kerosene oil on her, ignited her and locked
F the door of the bathroom from outside. She further stated in the dying
declaration that when she raised an alarm, her neighbours rescued her and
brought her to the hospital. A First Information Report was lodged with the
police. Sub-Inspector of police came to the hospital and recorded a second
dying declaration wherein she had stated that her husband and her mother-
in-law (appellant no. 2) had set her on fire. On the death of the deceased,
G. prosecution framed charges against the appellants under section 302 read
with section 34 IPC or in the alternative under section 3048 read with section
34 IPC. The appellants were also charged under section 498A read with
section 34 IPC. The trial court convicted the appellants under sections 302 ~
and 498A IPC and sentenced them to life imprisonment and 3 years

H 636
BALBlR SINGH v. STATE OF PUNJAB 637
l
respectively. The High Court, in appeal, confirmed the conviction and sentence A
awarded by the trial court.

In appeal to this Court, the appellants contended that the dying
declarations made by the deceased are invalid as they have not been made before
... a Magistrate and hence their conviction and sentence should be set aside•
B
Partly allowing the appeal, the Court

HELD:t.1. The law does not provide that a dying declaration should be
made in any prescribed manner or in the form of questions and answers. Only
because a dying declaration was not recorded by a Magistrate, the same by
itself may not be a ground to disbelieve the entire prosecution case. When a C
statement of an injured is recorded, in the event of her death, the same may
also be treated to be a First Information Report. Dying declaration must be
voluntary. It should not be tutored. The effect of the statement being not
recorded before a Magistrate would depend upon the facts and circumstances
of each case and no hard and fast .rule can be laid down therefor.
D
(643-G-H; 644-A-BJ

State of Karnataka v. Shariff. (2003( 2 SCC 473; Ram Bihari Yadav v.
State of Bihar & Ors., (199814 SCC 517 and Laxman v. State of Maharashtra,
(2002( 6 sec 710, relied on.
E
Kam/a (Smt.) v. State of Punjab, ( 19931 I SCC I, distinguished.

1.2. In the first dying declaration, appellant No. 2 - mother-in-law - was
not named. Appellant no. I - husband's -culpabilit) has categorically been
stated by the deceased in both the dying declarations. She had categorically
stated that her husband had poured kerosene oil upon her and upon igniting, F
locked the door of the bathroom from outside. She was rescued by the
neighbours. He was forced to bring her to the.hospital by the neighbours. A
case of suicide, therefore, must necessarily be ruled out. In view of the manner
in which she made her statement before the doctors, it is difficult to hold that
her first statement was not voluntary or was tutored. For arriving at the said
finding, the time factor is also significant. (645-B-EI G
Jai Karan v. State of Delhi (NCT), (19991 8 SCC 161; State of
Maharashtra v. Sanjay S/o Digambarrao Rajhans, (2004) 13 SCC 314 and
Muthu Kutty & Anr. v. State by Inspector of Police, T.N., (20051 9 SCC 113,
referred to.
.w
638 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A 1.3. The dispute between the deceased and the family of the Appellant is
borne out from documentary evidence and is also substantiated by the
testimonies of PW-6, PW-7, PW-8 and PW-9, relatives of the deceased, who
had categorically deposed stating how the deceased received maltreatment at
the hands of the appellants on account of non-fulfilment of their demand of
B dowry. The deliberations which had taken place in the Panchayat had also
been proved by PW-8 and PW-9. Nothing has been pointed out to discard their
testimonies. The findings of the trial court and the High Court in regard to
guilt of appellant No. I must be accepted. But keeping in view the
inconsistencies between the two dying declarations, benefit of doubt should
be given to appellant No.2. The conviction and sentence of appellant no. 2 under
C section 302 read with section 34 IPC is set aside. The conviction and sentence
of both the appellants under Section 498-A IPC is however upheld.
(646-H; 647-A-F(

1.4. As the appellants had the requisite knowledge of the charges against
them, it may or may not be justifiable for the trial court to frame an alternative
D charge. The question as to whether framing of charge was permissible in law
was not taken before the trial court or the High Court. The appellants have
not raised this question even in the special leave petition before this Court.
Appellants have not shown any prejudice even in their statements under Section
313 Cr.P.C. (648-H; 649-A; 647-E-F(
E Soni Devrajbhai Babubhai v. State of Gujarat & Ors., (1991( 4 SCC
298 and Shamnasaheb M Multtani v. State ofKarnataka, (2001 ( 2 SCC 577,
referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 957/
F 2005.
From the Judgment and Order dated 29.7.2004 of the High Court of
Punjab and Haryana at Chandigarh, in Criminal Appeal No. 30-DB/2002.

Rishi Malhotra and Prem Malhotra for the Appellants.

G Avneet Toor and Sanjay Jain (for Arun K. Sinha) for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. Appellant No. 1 was married to Amarjit Kaur (deceased).
She had been complaining of ill-treatment at the hands of her in-laws. The
H dispute between the deceased on the one hand and Appellants on the other
BALBIR SINGH v. STATE OF PUNJAB [SINHA,J.) 639

was resolved by Panchayat. As despite the same, ill-treatment continued, an A
application was filed before the Senior Superintendent of Police by the
deceased. Appellant No. I was working as Sepoy in the Indian Army. He took
leave for two months. A settlement was effected whereby Appellants were
made responsible for any untoward incident that might happen to the deceased ..
She in view of the said settlement came to her matrimonial home. On 12.10.1995, B
she received 90% bum injuries. She was taken to a hospital. Although she
was in her senses, having regard to the extent of bum injuries suffered by
her, the doctors attending on her opined that her dying declaration should
be taken. Her dying declaration was taken down by one Dr. Anoop
Kumar in presence of other doctors including Dr. R.S. Kadiyan, Professor
of Skin and VD Department, Christian Medical College, Ludhiana. The said C
dying declaration; marked as Ex. P-1, which was recorded at about 08.30
A.M. on 12.10.1995, reads as under:

"Pt. Amarjit Kaur w/o Balbir Singh, unit No.C-180136 aged 24
years, married for three years as stated by patient herself in presence
of Dr. R.S. Kadyan (Addi. Deputy Medical Superintendent), Dr. Tejinder D
Singh (DCMO, CMCH Ludhiana. Pt. was brought to Casualty Deptt.
OfCMCH Ludhiana at 830 a.m. on 12.10.95 by neighbours along with
husband who was forced by the neighbours to accompany them as
stated by the Pt. According to patient she was conflict with her
husband and mother-in-law for whole night yesterday at 4.00 a.m. in E
the morning when she went for urination, her husband approached
from behind and threw kerosene oil and ignited her and locked the
door from outside. She cried and was rescued by neighbours and
brought to the hospital. Patient was referred from Civil Hospital,
Malerkotla."
F
Her parents in the meanwhile were also informed. They came to the
hospital. The First Information Report was lodged at about 09.30 a.m. on the
same day; whereupon a case under Sections 307/498-A of the Indian Penal
Code was registered. The Investigating Officer came to the hospital and
recorded a second dying declaration which was marked Ex.P-J. In the said
dying declaration she not only named her husband but also her mother- in- G
law, inter alia, stating :

" ... But dispute continued as usual. Today at about 5 A.M., when I
got up for urinating (sic for urination) and went inside the bathroom
constructed in the house. Then with an intention to kill me and as
H
640 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A a part of their conspiracy, my husband Fauji Balbir Singh and mother-
in-law Nachattar Kaur set me on fire after pouring kerosene, due to
which I was badly burnt. I raised an alarm saying 'Bachao Bachao'
(Save-Save) and both of them ran away. My father-in-law Joga Singh
with an intention to save me, first took me to Malerkotla Hospital in
a Taxi from where I was referred to Patiala by the doctor due to
B extensive bums, but my father-in-law took me to CMC Ludhiana.
Where I am lying on death bed. Action may be taken."

The said dying declaration bore her signature. She died on 16.10.1995
at about 01.15 a.m., whereupon a case under Section 302 !PC was registered.
C During trial the learned Sessions Judge framed charges under Section 302 !PC
read with Section 34 thereof or in the alternative under Section 304-B read
with Section 304-B read with Section 34 IPC. Appellants were also charged
under Section 498-A read with Section 34 !PC. The charges framed by the
learned Sessions Judge read as under :

D "That on 12.10.1995 at about 5.00 A.M. within the revenue limits
of village Bhurthala Mander, in furtherance of the common intention
of both of you, you Balbir Singh and Nachhatar Singh intentionally
caused the death of Amarjit Kaur daughter of Ram Kishan Singh and
that by you both committed an offence punishable under Section 302
read with Section 34 IPC or in the alternative under Section 304-B read
E with Section 34 IPC and within the cognizance of this Court.

Secondly during the period from 1993 to 1995 in furtherance of the
common intention of you both, you Balbir Singh and Nachhatar Kaur
committed cruelty on aforesaid Amarjit Kaur d/o Ram Kishan Singh
with a view coercing her to meet the unlawful demand of dowry and
F thereby you both committed an offence punishable under Section 498-
A r.w. 34 of Indian Penal code and within the cognizance of this Court.

And I hereby direct that you both be tried by this Court for the
aforesaid offences."

G No plea was taken in regard to the alleged defect in framing of the
charges by Appellants at any stage. No prejudice was ever pleaded by the
accused. The learned Sessions Judge convicted the Appellants both under
Section 302 IPC as also under Section 498-A thereof and sentenced them to
undergo rigorous imprisonment for life under Section 302 read with Section
H 34 IPC and to pay a fine of Rs.2,000/- each and in default of fine to undergo
BALBIR SINGH v. STA TE OF PUNJAB [SINHA, J.] 641

. ,. rigorous imprisonment for six months. They were also sentenced to undergo A
rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each and
in default of fine to undergo rigorous imprisonment for three months under
Section 498-A IPC.

The appeal preferred by Appellants before the High Court has been
dismissed by the impugned judgment. B
Mr. Prem Malhotra, the learned counsel appearing on behalf of
Appellants, in support of the appeal raised the following contentions :

(i) That the charges framed against the Appellants being illegal, the
impugned judgment of conviction and sentence cannot be sustained; C
(ii) As there are inconsistencies and contradictions between the two
purported dying declarations, Ex.P-1 and P-J, no reliance should be placed
_thereupon;

(iii) The deceased having suffered extensive burn injurie;, she could D
not have been in a fit condition to give the si:id dying declarations;

(iv) In any event, there is nothing to show that she was in a position
to put her signature on the second dying declaration;

(v) There was no reason as to why the Magistrate had not been sent E
for to record her dying declaration as the deceased expired after four days
of sufferance of the bum injuries.

The learned counsel appearing on behalf of the State, on the other
hand, urged that :
F
(i) The prosecution case must be considered keeping in view the
disputes of the parties.

(ii) As the occurrence having taken place in the bathroom, it was urged,
it is wholly unlikely that the deceased committed suicide.
G
(iii) Although in the first dying declaration, the name of Appellant No.2
was not disclosed, the same may be ignored in view of the fact that she was
named specifically in the second dying declaration.

(iv) There is nothing on record to show that the deceased was not in H
642 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A a position to put her signature on the dying declaration.
Where a death takes place within the four walls of a room, the prosecution
ordinarily would not be able to examine any eye-witness. A case of this
nature, thus, must be judged having regard to the entirety of the circumstances
which have been brought on record by the prosecution.
B
Dr. S.S. Kokhar, (PW-3), Senior Medical Officer, Civil Hospital Malerkotla,
stated that the deceased was brought at the Emergency Ward with 70% bum
over the body. Dr. K.C. Goyal sent the information about the incident to the
police. He further stated that the patient was referred to a "higher institution".

C Dr. R.S. Kadiyan (PW-12) witnessed recording of the statement of Amarjit
Kaur by Dr. Anoop Kumar. He found her to be in her senses. He proved
the dying declaration. He also stated that Dr. Tejinder Singh and Dr. Ashish
Gupta were also present. The witness stated that although they thought of
calling for some Magistrate for recording her statement but having regard to
D serious condition of the patient and as the time therefor .was short, it was
decided not to wait therefor.

PW-13 is D~. Anoop Kumar, who had recorded the dying declaration.
In his deposition, he categorically stated :

"Amarjit Kaur was admitted in the hospital at about 8.30 a.m. on
E
12.10.95. I suspected that Amarjit Kaur can succumb to the bum
injuries when I first saw her. I did not send the information to police
about my suspicion that she may die of bum injuries. I did not send
for any Magistrate to come and record her statement. I gave the
information to my superiors on telephone. The Additional Deputy
F Superintendent reached in the emergency within about five minutes.
It was not suggested to me by Medical Superintendent who came that
I should send the request to the police or to the Magistrate for
recording statement of Amarjit Kaur.."

As regards the reason for not taking either thumb impression or
G signature of the deceased on the dying declaration, he stated :
"Statement of Ex. PP is not thumb marked or signed by the lady but
she was having bums on all over the body including palms of the
hand. There is no bum injury on the toes of the feet of the deceased.
I did not obtain the impressions of toes of the patient because I was
H
BALBIRSINGH v. STATE OF PUNJAB [SINHA, J.] 643
not aware that this can be done. I do not remember if the thumb of A
the finger toes were partly or totally burnt. When patient was brought
in the hospital she was given in tera benus fluids. I did not do that
the bandage of the wounds. I do not remember if the hands of the
lady were having the bandage when I recorded her statement. It took
about ten or fifteen in recording the statement of Amarjit Kaur."
B
We would consider the effect of the said statement a little later.

It may be true, as was contended, that Dr. Ashish Gupta was not
examined but it is borne out from the records that he at the material time, had
gone abroad.
c
Keeping in view the statements of Dr. R.S. Kadiyan and Dr. Anoop
Kumar, in our opinion, it was also not necessary to examine Dr. Ashish Gupta.
The second dying declaration was recorded by Sub Inspector Tejinder Singh
(PW-10). When the second dying declaration was being recorded, he had
:., obtained the opinion of the doctor that the deceased was fit to make her D
statement.

Contention of Mr. Malhotra that the Magistrate was not called to record
such statement may have any substance but the samr. by itself cannot be
a ground to reject the whole prosecution case.
E
It is not in dispute that the deceased suffered extensive burn injuries.
She had burn injuries almost on her whole body. This is evident from the
post mortem report as was proved by Dr. U.S. Sood.

We have seen the signature of the deceased in the original of Ex.P-Z
which shows that the same was put with great difficulties. It is also not the F
case of the Appellants that she could not write her name in English. No
suggestion was also put to the Investigating Officer that the signature appearing
on the second dying declaration was not of the deceased.

The law does not provide that a dying declaration should be made in
any prescribed manner or in the form of questions and answers. Only G
because a dying declaration was not recorded by a Magistrate, the same by
itself, in our view, may not be a ground to disbelieve the entire prosecution
case. When a statement of an injured is recorded, in the event of her death,
the same may also be treated to be a First Information Report.

H
644 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A Dying declaration, however, must be voluntary. It should not be tutored.
It is admissible in evidence in special circumstances. But it must be borne in
mind that its admissibility is statutorily recognized in terms of Section 32 of
the Indian Evidence Act.

The effect of the statement being not recorded before a Magistrate
B would depend upon the facts and circumstances of each case and no hard
and fast rule can be laid down therefor.

If, however, wholly inconsistent or contradictory statements are made
or if it appears from the records that the dying declaration is not reliable, a
C question may arise as to why the Magistrate was not called for, but ordinarily
the same may not be insisted upon.

Kam/a (Smt.) v. State of Punjab, [1993] I SCC 1, relied upon by Mr.
, Malhotra, falls in the above category. In that case four dying declarations
were made, and one could not be reconciled with the other. In the aforesaid
D fact situation, it was held :
"If we examine all these dying declarations one by one we notice
glaring inconsistencies as to who exactly poured kerosene and set fire
or whether she caught fire accidentally. Suicide however is ruled out.
In Ex. PB/2 recorded by PW 2 the deceased stated that her mother-
E in-law sprinkled kerosene from behind and burnt her. In the next
statement Ex. DA recorded by Dr Jaison Chopra, CW 1, she is alleged
to have stated that her clothes got burnt catching fire from the stove,
thereby indicating that it was an accident. In the third statement Ex.
PJ recorded by CW 2 she was rather vague as to who exactly poured
kerosene and set fire on her and she only stated that it could be
F possible that her mother-in-law and father-in-law might have set the
fire after pouring kerosene. On September 30, 1979 Ex. PD was recorded
in the presence of three doctors, PW 7, PW 3 and CW I wherein she
stated that she turned to the store and she heard her mother-in-law
and father-in-law talking behind her and suddenly they poured
G kerosene and they set her on fire ... "

However, in State of Karnataka v. Shariff. [2003] 2 SCC 473, this Court
categorically held that there was no requirement of law that a dying declaration
must necessarily be made before a Magistrate. This Court therein noted its
earlier decision in Ram Bihari Yadav v. State of Biha and Ors.. [1998] 4 SCC
H 517, wherein it was also held that the dying declaration need not be in the
BALBIR SINGH v. STATE OF PUNJAB [SINHA, J.] 645
form of questions and answers. (See also laxman V. State of Maharashtra, A
[2002] 6sec1101

There is, however, no escape from the fact that in the first dying
declaration, Appellant No. 2 was not named. The fact that she was brought
in a burnt condition is not in dispute. She had exonerated her father-in-law.
A-cct:irding to her, she was brought in the hospital by her father-in-law. The B
records, however, suggested that she was admitted oy her husband.
Presumably both were present.

We have earlier noticed that her husband was forced to bring her to the
hospital by the neighbours. His culpability has categorically been stated by
the deceased in both the dying declarations. C
She had categorically stated that her husband had put kerosene oil
upon her and upon igniting, locked the door of the bathroom from outside.
She was rescued by the neigbours. A case of suicide, therefore, must
necessarily be ruled out. She was first taken to the Civil Hospital and then D
to the Christian Medical College, Ludhiana.

We may place on record our appreciation as to the role played by the
doctors and the concern shown by them. In view of the manner in which she
made her statement before the doctor, in our opinion, it is difficult to hold that
her first statement was not voluntary or was tutored. For arriving at the said E
finding, the time factor is also significant.

In Jai Karan v. State of Delhi (NCT), [ 1999] 8 SCC 161, it was held:

"A dying declaration is admissible in evidence on the principle of
necessity and can form the basis for conviction if it is found to be F
reliable. While it.is in the nature of an exception to the general rule
forbidding hearsay evidence, it is admitted on the premiss that
ordinarily a dying person will not falsely implicate an innocent person
in the commission of a serious crime. It is this premiss which is
considered strong enough to set off the need that the maker of the
statement should state so on oath and be cross-examined by the G
person who is sought to be implicated. In order that a dying declaration
may form the sole basis for conviction without the need for independent
corroboration it must be shown that the person making it had the
opportunity of identifying the person implicated arid is thoroughly
reliable and free from blemish. If, in the facts and circumstances of the
H
646 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A case, it is found that the maker of the statement was in a fit state of
mind and had voluntarily made the statement on the basis of personal
knowledge without being influenced by others and the court on a
strict scrutiny finds it to be reliable. there is no rule of law or even
of prudence that such a reliable piece of evidence cannot be acted
upon unless it is corroborated. A dying declaration is an independent
B piece of evidence like any other piece of evidence-neither extra strong
nor weak-and can be acted upon without corroboration if it is found
to be otherwise true and reliable ..."

In State of Maharashtra v. Sanjay S/o Digambarrao Rajhans, (2004] 13
c sec 314, it was observed :
" .... .It is not the plurality of the dying declarations that adds weight
to the prosecution case, but their qualitative worth is what matters.
It has been repeatedly pointed out that the dying declaration should
be of such nature as to inspire full confidence of the court in its
truthfulness and correctness (vide the observations of a five-Judge
D
Bench in laxman v. State of Maharashtra). Inasmuch as the
correctness of dying declaration cannot be tested by cross-examination
of its maker, "greater caution must be exercised in considering the
weight to be given to this dying declaration genuinely recorded, they
must be tested on the touchstone of consistency and probabilities.
E They must also be tested in the light of other evidence on record.
Adopting such approach, we are unable to place implicit reliance on
the dying declarations, especially when the High Court felt it unsafe
to act on them ...."

Yet again in Muthu Kutty and Anr. v. State by Inspector of Police, T.N.,
F (2005] 9 sec 113, while summarizing the law, this Court, inter alia, stated :
"(xi) Where there are more than one statement in the nature of
dying declaration, one first in point of time must be preferred. Of
course, if the plurality of dying declaration could be held to be
trustworthy and reliable, it has to be accepted. (See Mohan/al
G Gangaram Gehani v. State of Maharashtra)"

The backdrop of the events is not much in dispute. The dispute
between the deceased and the family of the Appellant is borne out from a
DOR (Ex.PO) recorded on 21.08.1995, wherein it was recorded that because of
a dispute she had gone to her parents' house and that as a result of the
H
BALB!R SINGH v. STA TE OF PUNJAB [SINHA, J.] 647
compromise, 'the grievances had been removed and the accused Balbir Singh A
and his family would be responsible for any loss to the lady'. It is also
substantiated by the testimonies of Ram Kishan (PW-6), father of the
deceased, Gurdev Kaur (PW-7), mother of the deceased, Ajaib Singh (PW-
8), and Sarup Singh (PW-9) relatives of the deceased, who had categorically
deposed stating how the deceased received maltreatment at the hands of
Appellants on account of non-fulfillment of their demand of dowry. The B
deliberations which had taken place in the Panchayat had also been proved
by Ajaib Singh <rW-8) and Sarup Singh (PW-9).

Although \Ve have been taken through the depositions of the said
witnesses, nothing has been pointed out to discard their testimonies.
c
We, in view of the order proposed to be passed by us, do not intend
to delve into the testimony of Sub Inspector, Tejinder Singh (PW-IO) as
regards recording of the second dying declaration.

We are of the opinion that whereas the findings of the learned Sessions D
Judge as also the High Court in regard to guilt of Appellant No. I must be
accepted, keeping in view the inconsistencies between the two dying
declarations, benefit of doubt should be given to Appellant No.2. We,
however, uphold the conviction and sentence of both the Appellants under
Section 498-A IPC.
E
This leaves us the alternative question as to whether framing of charge
was permissible in law. The said question has not been raised even in the
special leave petition: No such point was also taken before the learned Trial
Judge or the High Court. Appellants have not shown any prejudice even in
their statements under Section 313 of the Code of Criminal Procedure.
F
Strong reliance, in this connection, has been placed by Mr. Malhotra on
Soni Devrajbhai Babubhai v. State of Gujarat and Ors.• [1991) 4 SCC 298.
The question which arose therein was the applicability of Section 304-B IPC,
where the· death had occurred prior to insertion of the said provision in the
statute book. The question, therefore, which arose for consideration therein, G
was as to whether conviction under Section 304-B of the Indian Penal Code
would be violative of clause (I) of Article 20 of the Constitution of India. It
was in the aforementioned fact situation, the contention of Respondent
therein that Appellant should be punished under Section 304-B !PC was
rejected.
H
648 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R~

A ·1n Shamnsaheb M. Multtani v. State of Karna1aka, [2001) 2 SCC 577,
the question which arose for consideration of this Court was as to whether
in a case where the only charge framed against the accused was under
Section 302 IPC, he ccould be convicted under Section 304-B thereof. In
holding that the same would be impermissible, it was stated : .

B "Now take the case of an accu~ed who was called upon to defend
. only a charge under Section 302 IPC. The burden of proof never shifts
on to him. It ·ever remains on the prosecution which has to prove the .
' . charge beyond all reasonable doubt~ The said traditional legal concept
remains unchanged even now. In such a case the accused can wait
till the. prosecution evidence is. over and then to show that thP.
c prosecution has failed to make out the said offence against him. No
compulsory presumption would go to the assistance of the prosecution
in such a situation. If that be so, when an accused has no notice of
the offence under Section 304-B IPC, as he was defending a charge
under Section 302 IPC alone, would it not lead to a grave miscarriage
D. of justice when he is alternatively _convicted under Section 304-B IPC
· and sentenced to the serious punishment prescribed thereunder, which
mandates a minimum sentence of imprisonment for seven years.
/
Th~ serious consequence which may ensue to the accused in
such a situation can be limned throug~ an illustration: If a bride was
E murdered within seven years of her marriage and there was evidence
to show that either on the previous day or a couple of days earlier
she was subjected to harassment by her husband with demand for
dowry, such husband would be guilty of the offence on the language
of Section 304-B IPC read with Section 113-B of the Evidence Act But
ifthe murder of his wife was actually committed either by a dacoit or
.F; by a militant in a terrorist act the husband can lead evidence to show
that he had no hand in her death at all. If he succeeds in discharging
the burden_ of proof he is not liable to be convicted under Section 304-
B IPC. But if the husband is charged only under Section 302 IPC he
has no burden to prove that his wife was murdered like that as he can
G ·· have ·his. traditional defence that the prosecution has failed to prove
the charge of murder against him and claim an_ order of acquittal."
. .

The said decision has also no application in the instant ease. ·As the ·
Appellants had the requisite knowledge of the charges against them, it may
llr
may not be justifiable for the learned Trial Judge to frame an alternative
H

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BALBIR SINGH v. STATE OF PUNJAB [SINHA, J.] 649
charge, but from what we have noticed hereinbefore evidently they were not A
prejudiced in any manner whatsoever.

Effect of framing of alternative charges vary from case to case. In the
peculiar facts of present case, we are of the opinion that Appellants having
not raised any grievance at any stage in that behalf, they cannot be allowed
to do so at this stage. B
For the aforementioned reasons, we are of the opinion that there is no
merit in the appeal of Appellant No. I which is dismissed. The conviction and
sentence of Appellant No.2 under Section 302 read with Section 34 IPC,
however, is set aside. However, conviction and sentence of the Appellants
under Section 498-A is upheld. Appellant No.2 is said to be in custody for C
four years. She would, therefore, be released forthwith. The appeal is allowed
in part and to the extent mentioned hereinbefore.

B.S. Appeal partly Allowed.