JUDGMENT Malik Sharief Ud Din, J.
1. Mr. V. B. Bansal, Addl. Sessions Judge, Delhi tried the appellant for an offence under S. 302 IPC and sentenced her to undergo imprisonment for life on 29th July, 1981. Aggrieved by this order the convict has come in appeal.
2. In fact, the appellant and her son, one Narinder Kumar both were tried together. The case against Narinder Kumar was under S. 201 IPC and he was acquitted by the trial Court on giving him benefit of doubt.
3. In this case the incident had taken place on 15-11-79 at 2.30 p.m. in the house of the appellant WZ-656 Saad Nagar, Palam Colony, New Delhi. F.I.R. in the case is based on the statement of Vijay Laxmi deceased who was the daughter-in-law of the appellant and wife of Narinder Kumar. This statement was recorded by ASI Sher Singh and is marked as Ext. PW 7/A. The age of the deceased Vijay Laxmi was 18 years on the date of incident and she had been married to Narinder Kumar about 1 1/2 years prior to the incident. Appellant Leela Devi was mother-in-law of the deceased.
4. Facts leading to the incident were disclosed by the deceased herself in her statement before Sher Singh ASI on 17th Nov, 1979 and also on 18th November, 1979 before Shri G. P. Mittal, Metropolitan Magistrate, before whom also she made a dying declaration. In her statement made to Sher Singh ASI, the deceased disclosed that her husband and the appellant were jointly complaining to her about having brought very little dowry on her marriage; that 2/3 days prior to the date of incident the appellant was quarrelling with her on this issue. On 15th Nov, 1979 the appellant again raised this issue with her and told her that she would not keep her for the reason that she had brought very little dowry; that time her husband and her sister-in-law eldest of them being Santosh were not in the house, that when the retorted the appellant heat her by slaps, fists and also kicks as a result of which she fell down on one side of the room. She further went on to state that after she fell down the appellant poured kerosene on her body and clothes and set her on fire. She also stated that the appellant then closed the door and went out and when she tried to extinguish the fire it fanned out, that then she raised an alarm and came out to the verandah inside the room and put a bucket of water which was available there on herself and extinguished the fire. She also went on to state that on hearing her noise the appellant raised an alarm in the Gali stating that the deceased has set herself ablaze which attracted men and women folks of Mohalla. She, however, could not name anyone of them. According to her, her husband also used to complain about her having brought less dowry and for this reason she was beaten two or three times but to prevent any embarrassment she did not complain to her parents or sister.
5. The prosecution case further is that after the incident she was taken to E.S.I. Hospital by her husband at 3.50 p.m. where her husband told that she received burns by cooking stove accident about one hour before. She was examined by Dr. Mohinder Kumar Goel and she was found having sustained 80 per cent burns.
6. At about 5.15 p.m. Duty Constable Ram Prakash conveyed information about her arrival in the hospital on telephone to police station Delhi Cantt. where D.D. No. 16A was recovered and its copy was given to ASI Bakshi Ram who along with a constable left police station for enquiry at the hospital but since the doctor opined that deceased Vijay Laxmi was unfit to make a statement ASI Bakshi Ram recorded the statement of Narinder Kumar and handed over papers to S.H.O. On 17th Nov, 1979 this D.D. No. 16A was given to ASI Sher Singh who procured fitness certificate from the doctor and recorded statement of the deceased resulting in the registration of F.I.R. No. 603, Police Station Delhi Cantt. on 17-11-79 at 11.15 p.m. (Ext. PW 10/A).
7. After taking into consideration the arguments advanced by the learned counsel for the appellant, Mr. D. C. Mathur and the learned counsel for the State Mr. D. R. Sethi and after giving our anxious consideration to the evidence and the circumstances with which this case is surrounded we may at once state that the whole case of the prosecution, in fact, is based on the dying declaration of deceased Vijay Laxmi as also on the testimony of PW 1 Smt. Bimla, mother of the deceased, PW 2 Chander Kumar brother of the deceased and PW 4 Raj Kumari, sister of the deceased as also PW 16 Sh. G. P. Mittal, M.M. who recorded dying declaration of the deceased on 18th Nov, 1979. This in fact is the only material evidence and the fate of the case will rest on the fact as to whether this evidence is reliable or not.
8. The learned Addl. Sessions Judge has discussed the evidence both material and formal at length and it is not necessary for us to over-burden this judgment by making reference to the formal evidence which in fact is not material for the determination of this appeal. We are avoiding to make reference also to the testimony of PW 3 Dr. B. L. Meel as it is not in controversy that the deceased had received burn injuries. The cause of death is also not in dispute. The appellant's stand, however, is that false case was made out against her because her son Narinder Kumar and the husband of his wife's sister were having enmity and it was he who got her involved falsely. She, however does not spell out as to how the deceased got burn injuries. The only controversy that remains to be resolved is as to whether the death of Vijay Laxmi was homicidal or accidental, as was suggested by Narinder Kumar, husband of the deceased.
9. It would be noticed that the case of the prosecution mainly rests on the dying declaration of the deceased first recorded by ASI Sher Singh on 17-11-79 followed by another dying declaration Ex. PW 16/B recorded by Shri G. P. Mittal, M.M. on 18-11-79. Mr. Mathur has assailed the last dying declaration dt. 18th Nov, 1979 on the ground that when this statement was recorded she in fact was not examined by the doctor to find out if she was fit to make a statement and as per Ext. PW 20/A the doctor simply has said :-
"Allowed as the patient is declared fit for statement in MLC Sheet on 17-11-79."
10. We, however, do not agree with the contention of Mr. Mathur for the reason that Mr. G. P. Mittal, M.M., who is respectable and responsible man in his own right has recorded the statement of the deceased not only because the doctor said that she was fit to make statement but after fully satisfying himself that the deceased was fit to make a declaration. On perusal of the dying declaration Ext. PW 7/A and Ext. PW 16/B we find that both of them in content and substance are similar. Mr. Mathur has further tried to assail these two declarations by referring to the fact deceased many people of the locality had gathered at the time of incident, she does not seem to have made any such declaration before them and that this declaration made by her is an afterthought and not trust-worthy. Here again we do not agree with Mr. Mathur's contention. It would be noticed that she had suffered 80% burns. Apart from the sense of shock it is impossible to believe that at that point of time she was in a position to speak. She was found unfit to make a statement even by the doctor when she arrived at the hospital and was only declared fit to make a statement on 17-11-79. Vijay Laxmi finally died of these burns on 28-11-79 at 11.40 p.m.
11. The next contention of Mr. Mathur is that the demand of dowry is doubtful inasmuch as earlier to the date of dying declaration she herself goes on record to state that she never complained about it to any one, including her parents and that in that view of the matter PW 1 the mother, PW 2 the brother and PW 4 sister are not speaking the truth when they say that she had complained to them about the demand of dowry. Mr. Mathur, therefore, wants us to believe that in a view of the matter of dying declaration made by the deceased is inspired one as she was at that time surrounded by her mother, brother and sister. Mr. Mathur further urged that if the facts mentioned in dying declaration are found to be incorrect then conviction cannot be based on such a declaration without further corroboration. We, however, find no reason to subscribe to the view of Mr. Mathur. It is evident that she may not have made a serious complaint about it to her mother, brother or sister but they are bound to know it. It only shows that she herself at no stage had taken this demand of dowry seriously. Apart from that the deceased herself has explained that she did not make it by an issue as she was all the time thinking that the time will help in setting things right. It is not fair to say that because she was surrounded by her mother, brother and sister she was prompted to make this declaration. It is quite natural for such near relations to be present with her once they come to know about the incident. It is not a proposition of law much less of justice that because her mother, brother and sister are there so it must be assumed that the declaration is made on prompting. They are bound to be there. It would be noticed that in both the declarations she made before ASI Sher Singh and Mr. G. P. Mittal, M.M. on two consecutive dates the deceased has only involved mother-in-law. If it were a statement made at the prompting she would have involved her husband and sister-in-law also. She is careful in not naming any innocent person. Under these circumstances we are fully satisfied that the dying declaration made by her is truthful and from our point of view this dying declaration by itself is sufficient evidence regarding the involvement of the appellant in the commission of this crime.
12. That apart, we have the testimony of PW 1 mother, PW 2 brother and PW 4 sister of the deceased that when they went to the hospital the deceased told them same story which she has made mention of in her dying declaration.
13. The contention of Mr. Mathur, is that there is medical evidence that she was not fit to make statement before 17-11-79 and these PWs. 1, 2 and 4 in that view of the matter were telling lie. He further contends that if the deceased had told them this story they were bound to disclose it to the police and the registration of FIR in that case could not have been delayed till 17th Nov, 1979. After carefully considering the circumstances with which the case is surrounded, we find ourselves in complete disagreement with Mr. Mathur. The reason is that the police soon after receiving information at 5.15 p.m. on 15-11-79 go to the hospital and the doctor says that she is not fit to make a statement, the husband of the deceased informs parental house at 11 p.m. even though the incident has taken place at 2.30 p.m. and when the mother, brother and the sister PWs. 1, 2 and 4 respectively arrived at the hospital they are bound to ask her as to how the incident took place. It is possible that after the doctor issued certificate that she is unfit to make statement nearabout 6 p.m. she may have regained consciousness at times and talked to her mother, brother and sister though medically speaking she was not fit to make a statement when the police asked for the certificate of the doctor. The objection that police could have registered FIR on the information of mother, brother or sister cannot be sustained for the simple reason that once the doctor has medically declared her unfit to make a statement it would have been incorrect for the police to register a case on their statements. It would come in direct conflict with the medical evidence and in that case objection would again be that they are not truthful and the FIR is falsely registered as she was not fit to make a statement. We think in this case the investigation in that view of the matter has been more cautious and honest and there has been no attempt by the investigation to involve appellant till victim herself pointed out to the culprit. It would be seen that the appellant has not been touched till 19-11-79 when she was finally arrested at 2.30 p.m. The goes to show that it was only after full assurance about the involvement of the appellant that she was arrested. The defense suggestion is that she got burnt by stove. The incident has taken place at 2.30 p.m. This is not the normal cooking time.
14. Mr. Mathur further contends that prosecution did not examine any one from the neighborhood whereas defense has examined DWs. 3, 4 and 5 who say that the deceased told them that she got burnt. We surprised at the argument. The argument seems to assume that neighbours had been the incident or that they were told by the deceased as to how the incident occurred. The deceased has only said that some neighbour arrived on the scene. She has nowhere said that she told them anything. In view of the testimony of the victim which we have every reason to treat as reliable, we cannot believe the defense witness on this point. It would be noticed that a near relation DW 1 Bhullan also was supposed to have reached the scene of incident along with Narinder Kumar, husband of the deceased. He has categorically said that he did not enquire as to how the incident occurred. If DWs. 3, 4 and 5 were speaking the truth then Bhullan DW 1 would also have known that from them. That goes to strengthen the suggestion of Mr. D. R. Sethi that nobody stands with the dead and everyone would like to go with the living being. That goes to show that these DWs are not truthful. One of the most surprising feature of this case is that when the daughter-in-law is burnt the mother-in-law i.e. the appellant is seen nowhere with her. She feels so much unconcerned. There is thus no reason for us to disbelieve PWs 1, 2 and 4 mother, brother and sister of the deceased. We fail to understand as to why they would unnecessarily involve the appellant. If they were to proceed on suspicion they would have involved everyone of the appellant's household to avenge their grievance. It would be noticed that the clothes of the deceased were found to carry kerosene oil by C.F.S.L. which goes to corroborate the dying declaration. If it were a stove business, as suggested, the clothes would not have contained kerosene oil.
15. To repeat, whether the deceased had complained or not about the demand for dowry being made by the appellant and her husband is immaterial. Ought we to know as to why and for what reasons she is burnt and once she is found to be burnt in the circumstances stated by her, there is nothing to prevent us to accept her version. The defense set up by the appellant is strange. Instead of improving it has worsened the case of defense. The defense is that the brother-in-law of the deceased was having enmity with Narinder son of the appellant and that is why she has been falsely implicated. This is very vague type of statement. Even the name of the brother-in-law of the deceased is not spelt out and the type of enmity and the reason for enmity are suppressed. This would go to show that the appellant has been practically unable to tender any explanation as to why she has been implicated. Strangely, at no stage that gentleman, alleged to be a brother-in-law of the deceased, is seen in the picture and one does not know who he is. If the appellant has been implicated by the deceased she does not tender any explanation as to why the deceased has done so.
16. From all that goes before us we are of the view that the dying declarations made by the deceased first on 17th Nov, 1979 before ASI Sher Singh and the other on 18-11-79 before Shri G. P. Mittal, M.M. are similar both in substance and contents and are reliable. These dying declaration by themselves are sufficient to draw a conclusion that the appellant alone is involved in the commission of this crime. Apart from that, PW 1, PW 2 and PW 4 i.e. mother, brother and sister of the deceased also corroborate the same.
17. In this manner we find sufficient evidence regarding involvement of the appellant in the commission of this crime. We, therefore, find no merit in the appeal and it is dismissed. We confirm the conviction and sentence of life imprisonment passed against the appellant by the learned Addl. Sessions Judge. We are told that the appellant is on bail. She is directed to surrender before the learned trial Court forthwith and the learned trial Judge shall commit her to Jail custody for undergoing the sentence.
18. Appeal Dismissed.