* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: August 13, 2009 Judgment delivered on: August 26, 2009 + CRIMINAL APPEAL NO. 82/1995 PARBATI ..... Appellant Through: Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Advocate. Versus STATE OF DELHI ..... Respondent Through: Mr. Sunil Sharma, Advocate CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J.
1. Appellant Parbati has been convicted vide impugned judgment for an offence punishable under Section 302 IPC for having committed the murder of her daughter-in-law Kamlesh by setting her on fire after pouring kerosene oil on her, and sentenced to undergo imprisonment for life as also to pay fine of Rs.1000/-, in default of payment of fine to undergo simple imprisonment for the period of three months.
2. Briefly stated, case of the prosecution is that on 04.04.1988 at about 12 Noon at House No.10554, Bageechi Alauddin, Motia Khan, Nabi Karim the appellant poured kerosene on her daughter-in-law Kamlesh and set her on fire. As a result, Kamlesh suffered serious burn injuries and was admitted in JPN Hospital. She herself gave history of having been burnt by her mother-in-law after pouring kerosene on her. The information was conveyed to the Police Station and was recorded as DD No.17A at Police Station Nabi Karim. On the receipt of copy of DD report, SI Bishan Swarup went to JPN Hospital and collected the MLC of the injured Kamlesh. SHO, Police Station Nabi Karim also reached at the hospital and entrusted further investigation of the case to SI Daryao Singh.
3. SI Daryao Singh contacted the concerned doctor who declared injured Kamlesh fit for statement. He requested SDM, Punjabi Bagh to come and record the statement of injured Kamlesh. He thereafter recorded the statement of the injured Kamlesh and sent it to the Police Station for registration of case. Initially, formal FIR was registered under Section 498A/307 IPC, but later on when injured Kamlesh died, it was converted into a case under Section 302 IPC. Shri Arun Goel, SDM visited the hospital pursuant to the request and recorded the dying declaration of the deceased Ex.PW18/A at about 3.30 PM wherein she stated that she was set on fire by her mother-in-law after pouring kerosene on her.
4. Appellant was charged under Section 302 IPC. She pleaded not guilty and claimed to be tried. On conclusion of trial, the learned Additional Sessions Judge relying upon the dying declaration of the deceased Kamlesh, convicted the appellant under Section 302 IPC and sentenced her accordingly.
5. The learned Senior Counsel for the appellant, at the outset, has drawn out attention to the fact that there is no eye witness in this case and the impugned judgment of conviction is based solely upon the dying declaration Ex.PW18/A made by the deceased to PW18 Shri Arun Goel the concerned SDM, the dying declaration Ex.PW6/A in the form of complaint statement of the deceased recorded by the Investigating Officer and also the dying declaration on the MLC Ex.PW4/A recorded by PW4 Dr. Harish Mansukhani as the alleged history pertaining to injuries given by the patient Kamlesh (deceased) herself. He has submitted that the learned Trial Court has fallen in grave error in relying upon the aforesaid dying declarations ignoring the fact that there are two other contradictory sets of dying declarations purported to have been made by the deceased. He has drawn our attention to the testimonies of PW1 Shri Mahender, the brother of the deceased, PW3 Smt. Kesar Devi, the aunt of the deceased, PW11 Smt. Shanti, the aunt of the deceased and PW13 Smt. Shirdi, the mother of the deceased wherein all of them have stated that when they enquired about the cause of injuries suffered by the deceased, she told them that she had been set on fire by the appellant Parbati and her devars (brothers-in-law) after tying her hands at the back and pouring kerosene on her. Besides, he has drawn our attention to the death summary of the deceased No.441760 dated 04.04.1988 Mark “A”/Ex.PW20/B which records the short history as “patient stated that she got burnt while cooking on pressure stove”. He has submitted that in view of three sets of contradictory dying declarations, the learned Trial Court ought not have relied upon the dying declarations purportedly made to the SDM and the Investigating Officer. He has further submitted that the dying declaration Ex.PW18/A is a suspect because it neither bears the signatures nor the thumb impression of the deceased. Expanding on the argument, he has submitted that if the deceased Kamlesh was in a position to append her thumb mark on her statement Ex.PW6/A recorded by the Investigating Officer, there is no reason or explanation as to why her thumb impression was not obtained by the SDM on the dying declaration. He has also submitted that the dying declaration Ex.PW18/A ought to have been rejected because PW18 Shri Arun Goel, the then SDM, before proceeding to record the dying declaration did not seek confirmation from the treating doctor that she was fit for making statement, particularly when as per the post mortem report Ex.PW16/A, the deceased had suffered burns covering almost 95 per cent of her body and she died within four hours of being brought to the hospital. It is submitted, therefore, considering that condition, the learned Trial Court ought to have concluded that having suffered 95 per cent burn injury, she could not have been in a fit state of mind to make the statement. He has also submitted that dying declarations relied upon by the learned trial Judge are suspect because prosecution has failed to examine Dr. Arvind J. Bali author of the death summary Ex.PW20/B, wherein he has recorded in the column „short history‟ “that patient stated that she got burnt while cooking on pressure stove”, to explain as to under what circumstances this short history came to be recorded on the death summary. He has submitted that non-production of Dr. Arvind J. Bali has resulted in serious prejudice to the defence of the accused.
6. The learned Senior Counsel for the appellant has further submitted that apart from the dying declaration being suspect, the version given by the deceased in the dying declarations Ex.PW18/A and Ex.PW6/A is highly improbable. He has submitted that in response to question “9” in the dying declaration Ex.PW18/A, the deceased is stated to have told the SDM “(Main khana bana rahee thee, meri sas ne kaha ki tu hat ja lekin main nahi hati. Usne kaha ki main tel dalkar aag laga dugee tu yaha se hat ja to meri sas ne tel dalkar aag laga dee)”. He has submitted that if this version is to be believed, then obviously the deceased was forewarned by the appellant that if she failed to get away, she would set her (deceased) on fire after pouring the oil. He has submitted that as per the post mortem report Ex.PW16/A, the deceased was a young lady aged about twenty years having medium built, whereas as per the case of the prosecution the appellant was a middle aged lady in her early sixty‟s at that time. Therefore, it is highly improbable that after having been warned, the deceased would have allowed the appellant to pour kerosene on her and ignite her, therefore, also the learned Trial Court ought not have relied upon the dying declaration and extended the benefit of doubt to the appellant. In support of his contention, learned Senior Counsel for the appellant has relied upon the judgment in the case of Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P. 2007 V AD(Cr.) (S.C.) 45.
7. The learned counsel for the State, on the other hand, has submitted that the learned Trial Court has rightly relied upon the dying declarations. He has submitted that the contradictions pointed out by the learned Senior Counsel for the appellant are inconsequential because even as per the dying declarations made by the deceased to her relatives, namely, PW1 Mahender, PW3 Kesar Devi, PW11 Shanti and PW13 Shirdi, the mother of the deceased, she had implicated appellant Parbati. Only difference is that she has named her brothers- in-law (devars) also. The learned counsel for the State has submitted that it has come in evidence that the appellant as well as the brother- in-law of the deceased used to harass her on account of dowry and this fact was known to her relatives, therefore, they must have been nursing some resentment against the brother-in-law of the deceased and, that is why, they have tried to rope him in. He has also submitted that it would be seen from MLC Ex.PW4/A that the deceased was taken to the hospital by the appellant herself and no one else was along with her and as per the testimony of PW4 Dr. Harish Mansukhani and the endorsement on the MLC, the deceased herself had given history of having been burnt by her mother-in-law in absence of her husband after pouring kerosene on her. The learned counsel for the State has submitted that any possibility of tutoring or prompting of the deceased by her relations or the Police is, therefore, ruled out. He has submitted that the dying declaration made to the Investigating Officer Ex.PW6/A and the dying declaration Ex.PW18/A made to the SDM are only the extension of the aforesaid alleged history recorded in MLC giving the details of the manner in which she was set on fire. Thus, it is submitted that the appellant has been rightly convicted.
8. In the case of Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P. 2007 V AD(Cr.) (S.C.) 45, the Hon‟ble Supreme Court while discussing the issue of evidentiary value of dying declaration, inter alia, observed thus:
“18. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration in asmuch as there could be any number of circumstances which may affect the truth. This court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.
19. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is a thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be last to give untruth as he stands before his creator. There is a legal maxim “Nemo Moriturous Praesumitur Mentire” meaning, that a man will not meet his maker with lie in his mouth. Woodroffe and Amir Ali, in their treatise on Evidence Act state : “when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross- examination are dispensed with.
20. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition – mentally and physically – to make such statement.”
9. In the case of Smt. Paniben vs. State of Gujarat AIR 1992 S.C. 1817, Hon‟ble Supreme Court has summed up the principles governing dying declaration as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja v. State of M.P.) (1976) 3 SCC 104; 1976 SCC (Cri.)376; (1976) 2 SCR 764.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav) (1985) 1 SCC 552: 1985 SCC (Cri) 127: AIR 1985 SC 416; Ramavati Devi v. State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri) 169: AIR 1983 SC 164.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra Reddy v. Public Prosecutor) (1976) 3 SCC 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) 426.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.) 1981 Supp. SCC 25 : 1981 SCC (Cri.) 645 : AIR 1982 SC 1021.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.) (1981) 2 SCC 654 : 1981 SCC (Cri) 581.
(vii Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617.
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505.
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519.”
10. The legal position which emerges from the aforesaid pronouncements is that there is no rule of law or prudence that a dying declaration cannot be acted upon without corroboration. Since accused had no opportunity to test the veracity of the dying declaration by way of cross-examination, the Court must scrutinise the dying declaration carefully and must ensure that it is not the result of tutoring, prompting or imagination and that the deceased was in fit state of mind to make the declaration. It is also essential that the dying declaration before it is acted upon, must inspire confidence of the Court and it would be beyond suspicion.
11. We notice that the conviction of the appellant is based solely upon the dying declaration of the deceased Ex.PW18/A made to the SDM as also the dying declaration Ex.PW6/A made to the Investigating Officer in the form of complaint statement, which are also corroborated by the alleged history recorded in the MLC wherein PW4 Dr. Harish Mansukhani has mentioned “alleged H/o having been burnt by her mother-in-law in absence of her husband after pouring kerosene on her as told by the patient.” However, there is a contradictory dying declaration pointing to the theory of accident, i.e., the death summary of the deceased Ex.PW20/B/Mark A, where in the short history alleged to have been recorded by Dr. Arvind J. Bali is “patient stated that she got burnt while cooking on pressure stove”. Ex.PW18/B is the inquest report into the death of Smt. Kamlesh wife of Hans Raj prepared by PW18 Shri Arun Goel, SDM. As per this inquest report, during inquest proceedings, the SDM had come to know about the fact that in the death summary No.441760 dated 04.04.1988 of the deceased, the Doctor concerned has mentioned the short history as “patient stated that she got burnt while cooking on pressure stove”. This implies that even at the time of inquest, the SDM concerned was aware of the purported contradictory dying declarations of the deceased. Despite of that, it appears from the inquest report that the SDM Shri Arun Goel did not deem it appropriate to examine Dr. Arvind J. Bali who had recorded such short history to seek clarification as to under what circumstances aforesaid history came to be recorded in the death summary and instead he justified the dying declaration recorded by him and opined that there was a prima facie case for investigation. This circumstance, coupled with the fact Dr. Arvind J. Bali of Burns Ward, JPN Hospital has not been produced as a witness by the prosecution, obviously, has prejudiced the appellant in her defence.
12. It is the case of prosecution that at the time of occurrence, only the appellant and the deceased were present in the house and no other family member was present. It is so mentioned in the dying declarations Ex.PW18/A and Ex.PW6/A respectively. At the time of occurrence, appellant Parbati was aged around sixty years (now would be more than eighty five years), whereas the deceased Kamlesh was aged twenty years. PW17 Dr. Anil Aggarwal in the post mortem report Ex.PW16/A has opined that the deceased was a female of moderate built. In view of the comparison in the age of the deceased and the appellant, it is highly improbable that the appellant could have succeeded in sprinkling kerosene on the deceased and then set her on fire without any resistance on her part. Perusal of the dying declaration Ex.PW18/A which is more or less similar to the dying declaration Ex.PW6/A, would show that the deceased had stated to the SDM that “Main khana bana rahee thee, meri sas ne kaha ki tu hat ja lekin main nahi hati. Usne kaha ki main tel dalkar aag laga dugee tu yaha se hat ja to meri sas ne tel dalkar aag laga dee”, which version implies that before the kerosene was sprinkled on the deceased and she was set on fire, she was forewarned by the appellant. If the aforesaid version was true, then obviously the deceased had sufficient time to save herself because there had to be some time gap between the sprinkling of kerosene on the deceased and setting her on fire, and in that period the deceased, being a young lady, could easily have either over-powered the appellant or escaped from the spot. Thus, the story set up in the dying declaration appears to be improbable and makes the dying declarations suspect. The suspicion against the dying declarations Ex.PW18/A and Ex.PW6/A gets further compounded because there are other contradictory dying declarations in this case.
13. Exhibits PW22/B1 to PW22/B3 are the seizure memos pertaining to the seizure of certain burnt clothes and some half burnt and burnt cotton. On perusal of these seizure memos, it transpires that above said articles when recovered from the spot of occurrence on 04.04.1988 were smelling of kerosene and were wet with water. This suggests that someone had thrown water on the deceased to save her. There is nothing on the record to indicate who that person was and whether any effort was made to locate him, as he or she obviously could have thrown light upon the circumstance under which the deceased had suffered burn injuries. Non-production of aforesaid person who had tried to save the deceased by pouring water is also a circumstance which compounds the doubt against the reliability of the dying declaration.
14. It is apparent from the MLC Ex.PW4/A that it was the appellant who took the deceased to the hospital. This conduct also, to a certain extent, points towards her innocence. Further, PW5 Shri Darshan Kumar, though he is a hostile witness, has stated that on 04.04.1988 at around 11.30/12.00 Noon, on hearing the noise he rushed to the spot and saw that the deceased was lying in burnt condition on the last stair of the house and he noticed the appellant coming from outside the house. This version also raises a strong doubt against the theory of the appellant having set the deceased on fire.
15. In view of the circumstances discussed above, we find it difficult to sustain the impugned judgment convicting the appellant of offence under Section 302 IPC.
16. The consequence is that the appeal is allowed. Impugned judgment is set aside and the appellant is acquitted giving her the benefit of doubt. The personal bond and the surety bond, consequently, stand discharged.
AJIT BHARIHOKE, J.
AUGUST 26, 2009 SANJAY KISHAN KAUL, J. Ks/pst