BANARSI DASS & ORS. Vs. STATE OF HARYANA

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 534-535 of 2012, Judgment Date: Dec 18, 2014

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO(S). 534-535 OF 2012

Banarsi Dass and others                                ... Appellant (s)

                                   Versus

State of Haryana                                      ... Respondent (s)

                               J U D G M E N T

KURIAN, J.:

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.

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.

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."

On the basis of the above discussion, the High Court entered  the  following

finding at paragraph-12, which reads as follows:

"12.  I find that the dying declaration given by Chander Kalan to  PW16  ASI

Jagdeep Singh in the presence  of  PW6  Lalman  Tehsildar  is  found  to  be

truthful and the same has been given without  any  external  influence.  The

dying declaration gave a graphic account of the earlier  occurrence  wherein

she received an attack from these  accused  and  the  persistent  demand  of

dowry made by  the  accused  which  culminated  in  the  present  occurrence

wherein she was put to death by sprinkling kerosene  upon  her  and  setting

fire by the accused. I do not entertain any doubt as to the veracity of  the

dying declaration given by Chander Kalan. The trial court has  rejected  the

dying declaration not only on the flimsy ground but also on pure surmise."

Heard learned Counsel appearing for both the parties.

According  to  learned  Counsel  appearing  for  the  appellants,  there  is

absolutely no justification in convicting the appellants under Section  304B

of IPC and Section 498A of IPC. However, learned counsel appearing  for  the

respondent-State contends that in view of the  overwhelming  evidence  which

has been minutely discussed by the High Court,  the  conviction  under  both

Section 304B of IPC and Section 498A of IPC are to be sustained.

In the nature of the view we propose to  take  in  this  case,  particularly

since the conviction by the High Court is only on the basis  of  Exhibit-PM-

dying declaration, we do not think it necessary to go elaborately  into  the

evidence. It will be sufficient  to  refer  to  the  evidence  of  PW-16-ASI

Jagdeep Singh, who recorded the dying declaration and the medical  evidence.

It is seen that the request for  recording  the  statement  was  first  made

before the First Divisional Magistrate, Hisar,  who  in  turn  directed  the

Executive Magistrate, Hisar to record the same.  The  Executive  Magistrate,

viz., Tehsildar, Hisar took along with him PW-16-ASI  Jagdeep  Singh.  PW-16

states thus in his evidence:

"... On reaching the ward Chander Kalan made statement to  Tehsildar  in  my

presence and on the asking of Tehsildar I recorded  that  statement  on  the

dictation  of  Tehsildar.  The  statement  made  by  Chander  Kalan  to  the

Tehsildar in my presence and dictated to me by  Tehsildar  Sh.  Lal  man  is

Ex.PM.  Chander Bhan and Satpal  brother  of  Chander  Kalan  were  standing

inside the gate of the ward.  They were called and  in  their  presence  the

statement was read over by me to  Chander  Kalan  and  after  admitting  her

statement as  correct  Chander  Kalan  thumb  marked  the  statement  Ex.PM.

Chander Bhan and Satpal also put their signatures under the statement  which

was attested by the Tehsildar. This statement was forwarded  by  me  to  the

police station with my endst. Ex.PM/1 got registration of case."

                                                         (Emphasis supplied)

PW-1 is Dr. S.D. Goyal who examined the deceased when she was first  brought

to the Community Health Centre, Uklana Mandi. He stated as follows:

"The entire face was having burns. The skin had collected at the edges.  The

front and back of neck was burnt. The  entire  front  of  chest  was  having

burns. Both sides of chest extending a bit to back burnt. Front  of  abdomen

and sides were having burns above umbilicus. There was a  small  burn  patch

in lower part of back. Both the arms were having burns  in  front  and  back

except some part of right fore-arm on back. The  hands  in  front  and  back

were having burns. B.P.  was  110/70,  pulse  90  per  minute,  patient  was

conscious. The duration of injury being within 6 hours.  The  percentage  of

burns was 45% approximately."

                                                         (Emphasis supplied)

In cross-examination, it is stated by  him  that  she  was  brought  to  the

clinic by her husband-Ramesh Kumar along with  3/4  more  persons  whom  the

doctor could not identify. It has also clearly  come  out  in  the  evidence

that "except burn injuries, no other  injury  caused  by  any  other  weapon

blunt or incised was found on  the  person  of  Chander  Kalan".  And  still

further, it was noted that  there  was  no  sign  of  any  burn  mark  below

umbilicus and on the back of the deceased except one small  patch  on  lower

part of the back. The long hair was not  affected  at  all  which  indicates

that the fire was extinguished soon after it caught the clothes  of  Chander

Kalan. According to him, a patient with 45% burns can survive  if  good  and

proper medical aid is given to him or her.

On the request of PW-1, the patient was shifted to the General  Hospital  at

Hisar for further treatment. PW-9 is Dr. S.K. Soni  of  Soni  Nursing  Home,

Hisar where the deceased was treated from 19.06.1998 to 17.07.1998. Being  a

very crucial piece of evidence, we shall extract the same as such:

"When Chander Kalan was discharged from my hospital she was not  having  any

symptom of septicemia due to infection of burn. Slight infection  was  there

in the burn injuries. This infection could have been cured by skin  grafting

but the relation  of  the  patient  were  not  prepared  for  skin  grafting

operation and for keeping the  patient  in  my  hospital.  If  kerosene  had

fallen of any part of the body are on the cloth that part of  the  body  and

even  it  surrounding  and  the  cloth  if  set  ablaze  shall  catch   fire

immediately. The burns on the body  of  Chander  Kalan  were  in  the  front

portion of the body from face to umbilicus. I had advised Chander Kalan  and

her attendant that Chander Kalan should remain admitted  in  my  clinic  for

some more days for her complete cure but her relation did not agree and  she

was discharged. There was no bed sore on the body of Chander Kalan till  she

remained admitted in my clinic.  There  were  chances  of  survival  of  the

patient where the burns were 40% if continuous medical care has  been  given

to the patient."

                                                         (Emphasis supplied)
 

PW-2 is Dr. V.K.Kawatra,  Medical  Officer,  General  Hospital,  Hisar,  who

conducted postmortem. The descriptions of the burns, as noted by him,  reads

as follows:

"There was a dressed wound on the anterior surface of the both upper  limbs,

anterior surface of the chest and part of the abdomen above  the  umbilicus,

the anterior surface of the neck and lower part of the face, both  shoulders

and a little part on the posterior  surface  of  the  chest  and  neck.  The

dressing was opened. The granulation tissue was present on the front of  the

chest, arms and neck. There was pus-discharge seen at various places.  There

were bed sores on the back and at the sacral region. Pus was also  seen  it.

The approximate percentage of burn was 45%."
 

According to Dr. V.K. Kawatra, "the cause of death in the instant  case  was

septicemia    due     to     infected     burns".     The     burns     were

ante-mortem in nature and sufficient to cause death in the  ordinary  course

of nature.

In cross-examination, PW-1-Dr. V.K. Kawatra has deposed as follows:-

"It is correct to suggest that if proper care should have  been  taken  then

the bedsore should not have occurred. There was  a  great  possibility  that

infection of burn causing septicemia could have been avoided if proper  care

and treatment had been given to Chander Kalan. I agree in good  institution,

if there is a proper treatment 45% burns on the parts of the body  as  found

in this case could not have been fatal."

                                                         (Emphasis supplied)
 

From the evidence which we have extensively extracted  above,  the  emerging

factual position is that the dying declaration does not come  under  Section

32(1) of the Indian Evidence Act, 1872  (hereinafter  referred  to  as  "the

Evidence Act") and, hence, it is not relevant for the following reasons:

a.    The alleged incident of pouring of kerosene on  the  deceased  was  on

18.06.1998 at around 02.00 p.m. and the  statement  is  said  to  have  been

recorded on the same day.

b.    PW-16-ASI Jagdeep Singh, who is also the  investigating  officer,  had

not recorded the statement given by the deceased. What he recorded  was  the

statement made by the deceased to  the  Tehsildar  and  what  the  Tehsildar

dictated to him. It has come in evidence that the  Tehsildar  did  not  have

any problem or difficulty in recording the statement  himself.  It  is  also

not a case of any translation.

c.    The statement does not pertain to the cause of death or  circumstances

of the transaction which resulted in  death.  The  death  in  this  case  on

04.08.1998, after seven weeks of the incident, is not caused  by  the  burns

but on account of a serious infection, septicemia  caused  due  to  improper

management of the wounds.

d.    It is to be noted that the patient  was  initially  at  the  Community

Health Centre.  Thereafter,  she  was  shifted  to  General  Hospital,  from

19.06.1998 to 17.07.1998, she was in Dr. Soni's  Hospital  and,  thereafter,

from 17.07.1998 till her death on 04.08.1998 at the Hospital of Dr.  Subhash

Verma. The available medical evidence clearly shows that the  death  is  not

due to the burns. It is due to septicemia and the infection could have  been

avoided by proper medical care.

Section 32(1) of the Evidence Act deals with cases  in  which  statement  of

the cause of death, by a person who is dead, becomes  a  relevant  fact.  To

quote:

"32. Cases in which statement of relevant fact by  person  who  is  dead  or

cannot be found,  etc.,  is  relevant.-Statements,  written  or  verbal,  of

relevant facts made by a person who is dead, or who cannot be found, or  who

has become incapable of giving  evidence,  or  whose  attendance  cannot  be

procured  without  an  amount  of  delay  or  expense   which,   under   the

circumstances  of  the  case,  appears  to  the  Court   unreasonable,   are

themselves relevant facts in the following cases:-

(1)   when it relates to cause of death.-When the statement  is  made  by  a

person as to the cause of his death, or as to any of  the  circumstances  of

the transaction which resulted in his death, in cases in which the cause  of

that person's death comes into question.

Such statements are relevant whether the person who made  them  was  or  was

not, at the time when they  were  made,  under  expectation  of  death,  and

whatever may be the nature of the proceeding  in  which  the  cause  of  his

death comes into question."
 

A bare analysis of the provision, for the  purpose  of  the  case  at  hand,

would show that a statement  by  a  person  made  before  his  death  to  be

relevant, the following ingredients are to be satisfied:

i)    The statement is made by a person who is  conscious  and  believes  or

apprehends that death is imminent.

ii)   The statement must pertain to what  the  person  believes  to  be  the

cause or circumstances of death.

iii)  What is recorded must be the statement made by the  person  concerned,

since it is an exception to the rule of hearsay evidence.

iv)   The statement must be confidence bearing,  truthful  and  credible  as

held by this Court in Laxman v. State  of  Maharashtra[1]  and  consistently

followed including the very recent one in Mallella Shyamsunder v.  State  of

Andhra Pradesh (in Criminal Appeal No. 1381 of 2011 decided on 29.10.2014).

v)    The statement should not be one made on tutoring or prompting.

vi)   The court may also scan the statement too  see  whether  the  same  is

prompted by any motive of vengeance.

In the case before us, the  incident  occurred  on  18.06.1998  whereas  the

death  is  on  04.08.1998.  Exhibit-PM-dying  declaration  was  recorded  on

18.06.1998 itself. At the time of recording of the statement, the  condition

of the patient no doubt was very stable and she was in a very good state  of

mind as recorded by the doctor. The burn injury was only 40-45% of the  body

and, according to doctor 40-45% burns is not fatal and such  a  patient  can

be saved if given proper treatment. It has also come out  in  evidence  that

the death is  not  caused  by  the  burns  but  because  of  septicemia,  an

infection on account of improper management of  the  wounds.  It  is  fairly

clear that the patient on 18.06.1998 was not apprehending death, not  merely

because she lived for more than seven weeks after the incident  but  because

of the nature of the burn injuries which  we  have  referred  to  above.  No

doubt, as laid down by this Court in Najjam  Faraghi  @  Nijjam  Faruqui  v.

State of West Bengal[2], merely because a person died long after making  the

dying declaration, the statement does not become irrelevant. It was  a  case

where the incident was on 29.06.1985 and death  was  on  31.07.1985  and  in

that case,  there  was  a  certificate  by  the  doctor  who  conducted  the

postmortem that death was due  to  ante-mortem  burns  and  the  burns  were

extending over the whole body. To quote:

"9. There is no merit in the contention that the appellant's wife died  long

after making the dying declarations and therefore those statements  have  no

value. The contention overlooks the express provision in Section 32  of  the

Evidence Act. The second paragraph of sub-section (1) reads as follows:

"Such statements are relevant whether the person who made them  was  or  was

not, at the time when they  were  made,  under  expectation  of  death,  and

whatever may be the nature of the proceeding  in  which  the  cause  of  his

death comes into question."

No doubt it has been pointed out that when a person is expecting  his  death

to take place shortly he would not be indulging in falsehood. But that  does

not mean that such a statement loses its value if the  person  lives  for  a

longer time than expected. The question has to be considered  in  each  case

on the facts and circumstances established therein. If there is  nothing  on

record to show that the statement could not have been true or if  the  other

evidence on [pic]record corroborates the contents  of  the  statements,  the

court can certainly accept the same and act upon it. ..."

                                                         (Emphasis supplied)

      In the instant case, however, Exhibit-PM-dying  declaration  does  not

either show the cause of death  or  the  circumstances  of  the  transaction

which resulted in the death of the declarant-Chander Kalan. The  burns  were

not fatal either.

In    the    facts    and    circumstances    of    the    present     case,

Exhibit-PM-declaration  does  not  meet  the   requirements   of   a   dying

declaration under Section 32(1) of the Evidence Act.  It  has  to  be  noted

that the very foundation of the reliability of the dying declaration is  the

principle of Nemo moriturus praesumitur mentire which literally  means  that

no one at the point of death is  presumed  to  lie  since  one  is  normally

afraid to meet his maker with a lie on his mouth at the time of death.

The other major issue is on applicability of Section 304B of IPC.  In  order

to attract Section 304B of IPC, one of the  essential  ingredients  is  that

death of the married woman should be caused by burns  or  bodily  injury  or

that she should have died otherwise than under normal circumstances. In  the

instant case, it has clearly come out in evidence  that  the  death  is  not

caused by the burns: it is caused  by  septicemia  on  account  of  improper

management of wounds. The parts of the body  affected  by  the  burns  would

clearly show that the burns are not caused on account  of  somebody  pouring

kerosene on her body and setting her on  fire.  As  can  be  seen  from  the

medical evidence and the postmortem report, the injuries are on  front  side

of the body from face up to the umbilicus. Her long hair was  not  burnt  at

all. The  approach  of  the  trial  court  seems  to  be  quite  proper  and

reasonable, and which, in our view, could not have  been  better  explained.

To quote from paragraph-17:

"According to the version of the accused persons  Rajesh  accused  had  come

from school and he asked Chander Kalan to  prepare  meal  for  him.  Chander

Kalan who wanted to live separately started grumbling. When Rajesh  insisted

upon Chander Kalan to prepare meal for him she started  lighting  the  stove

and kerosene got sprinkled on her blouse from the stove and it caught  fire.

Rajesh and his mother Urmila immediately  extinguished  the  fire  with  the

help of a bed  sheet  and  quilt  cover.  Absence  of  burn  injuries  below

umbilicus and on the long hair and back of Chander  Kalan  and  recovery  of

partially burnt bed sheet,  partially  burnt  quilt  cover  with  pieces  of

blouse of Chander Kalan sticking to  these  lends  support  to  the  defence

version that clothes of Chander Kalan caught fire when she was lighting  the

stove and the fire was immediately extinguished by her mother-in-law  Urmila

and her husband's brother Rajesh accused. If a stove containing kerosene  is

filled with air by pumping and a pin is used for opening the  choked  nozzle

of its burner, the kerosene will gush out of the nozzle with a force and  if

at that moment a burning stick of match box is used for lighting  the  stove

kerosene will burst into flames which may sometimes rise upto  more  than  a

feet. Since the kerosene in such circumstances is  partially  burnt  it  may

get sprinkled over the face and front portion of the upper garments  of  the

person who is lighting the stove and the garments may catch fire  by  coming

into contact with the rising flames. So, the defence  version  that  clothes

of Chander Kalan caught fire when she was lighting the stove appears  to  be

very natural. There is one more aspect of the defence story which  lends  it

credibility. The relation between Chander  Kalan  and  the  accused  persons

were highly strained. All the accused persons subjected her  to  cruelty  in

connection with their demand for dowry. Even her teeth were broken  by  them

on 1st January, 1997. The accused also  misappropriated  the  cash  and  the

articles of dowry given to Chander Kalan must have been insisting  upon  the

accused persons to allow her to live separate  from  them.  Because  of  her

strained relations Chander Kalan also must not have liked to cook  meal  for

her husband's brother Rajesh when he came from the school at 2.00 p.m.  When

she was forced to cook meal for Rajesh, Chander Kalan  unwillingly  went  to

the stove in a tense mood and because of tension she must  have  pumped  the

air in the stove vigorously and neglected to keep her face  and  body  at  a

safe distance from the nozzle of the burner  of  the  stove.  It  was  these

circumstances which resulted in sprinkling  of  kerosene  on  the  face  and

clothes of Chander Kalan and her suffering burn injuries."
 

We are in respectful agreement with the view taken by  the  trial  court  as

far as the possible version of the burn injuries. The  nature  of  the  burn

injuries, the extent of the same and the parts of  the  body  affected  from

face to umbilicus, and the same  only  on  the  front  of  the  body,  would

clearly show that it was  an  accident  caused  while  clearing  the  choked

nozzle of the stove.

The High Court even otherwise is not justified in  reversing  the  acquittal

under Section 304B of IPC on a mere possibility of another view, if  at  all

possible, on the evidence. Unless the judgment of acquittal is passed on  no

evidence  or  is  perverse  or  the  view  taken  by  the  court  is  wholly

unreasonable or is not a plausible view or  there  is  non-consideration  of

any evidence or there is a palpable misreading of evidence, the  High  Court

is not justified in interfering with the order of acquittal as held by  this

Court in Basappa v. State of Karnataka[3].

Thus, Exhibit-PM-statement in the instant case cannot be relied upon at  all

to convict the accused. The ingredients of Section 304B of IPC are also  not

made out.

The High Court  has  also  found  that  the  appellants  are  liable  to  be

convicted under Section 498 of IPC holding also that the conviction  by  the

trial court in that regard  is  to  be  maintained.  On  going  through  the

judgment of the trial court, it is fairly evident that the conviction  under

Section 498A of IPC is on account of the incident on  01.01.1997.  That  was

compromised among the parties and all proceedings were dropped.  Thereafter,

there is no clear evidence as to any  cruelty.  However,  as  found  by  the

trial court, there  is  evidence                        available  regarding

harassment of the deceased by the accused/appellant nos. 1,  2,  3,  and  5.

But in the case of accused/appellant no. 4-Rajesh, who was studying  in  the

school at the relevant time, there is no  evidence  as  to  any  harassment.

Therefore, while  maintaining  conviction  under  Section  498A  of  IPC  in

respect of appellant nos. 1, 2, 3 and 5, appellant no.  4-Rajesh  is  liable

to be acquitted under Section 498A of IPC as well.

Now, regarding the sentence, it is brought  to  our  notice  that  appellant

nos. 2 and 3 have served  imprisonment  for  around  two  years.  Since  the

appellants are acquitted under Section 304B of IPC  and  the  conviction  is

only under Section 498A of IPC and since accused/appellant nos. 1 and 5  are

no more, and having regard to the facts and circumstances of  the  case,  we

are of the view that the sentence of accused/appellant nos. 2 and  3  is  to

be limited to the period already undergone.

In the result, the conviction under Section 304B of IPC in  respect  of  all

the appellants is set aside. The conviction under Section  498A  of  IPC  in

respect of appellant  no.  4-Rajesh  is  set  aside.  The  conviction  under

Section 498A of IPC is maintained in respect of  accused/appellant  nos.  1,

2, 3 and 5. Accused/appellant nos. 1 and 5 are no more  and  the  appeal  as

against them is abated. The sentence of accused/appellant nos. 2  and  3  is

limited to the period already undergone.

It is seen that the deceased had been undergoing treatment  from  18.06.1998

till her death on 04.08.1998, initially  in  two  government  hospitals  and

thereafter, for a long period, in two private hospitals. Therefore,  we  are

of the view that  the  accused/appellants  should  be  made  liable  to  pay

compensation to the parents of the deceased. Accused/appellant nos. 2 and  3

are directed to pay total compensation of Rs.1,00,000/- to  the  parents  of

the deceased-Chander Kalan within a  month  from  today.  In  the  event  of

default, the District Magistrate,  Hisar  shall  take  appropriate  coercive

action to recover the amount from accused/appellant nos. 2  and  3  and  pay

the same to the parents of the deceased, within another six months.

  The appeals are allowed as above.

                                ..........................................J.

                                                    (KURIAN JOSEPH)
                                ..........................................J.

                                               (ABHAY MANOHAR SAPRE)

New Delhi;

December 18, 2014.

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[1]    (2002) 6 SCC 710

[2]    (1998) 2 SCC 45

[3]    (2014) 5 SCC 154

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                                                                  REPORTABLE

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