* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 191 OF 1997
% Decided on: February 10, 2010
Mohan Parsad . . . Appellant
through : Mr. Bhupesh Narula, Advocate
(Amicus Curiae)
VERSUS
State . . . Respondent
through : Mr. Manoj Ohri
Addl. Public Prosecutor
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J. (ORAL)
1. Ms. Babita, daughter of Mr. Ram Vichar Parsad, married one Mr. Jag Lal Parsad in May 1994. Within six months, i.e. on 24.10.1994, in the dead of night, she was found burnt. Ms. Babita (hereinafter referred to as the „deceased‟) was brought to Safdarjung Hospital, New Delhi. She, however, could not survive and succumbed to the burn injuries. The appellant Mr. Mohan Parsad, who is the brother of the deceased‟s husband Mr. Jag Lal Parsad, his father Mr. Paras Nath and mother Mrs. Dhanweshwari Devi, were accused of murdering the deceased. Their defence was that she immolated Crl.A. No. 191/1997 nsk Page 1 of 14 herself and, thus, committed suicide. The trial court, vide its impugned judgment dated 29.1.1997, has accepted the prosecution version partially, thereby convicting only Mr. Mohan Parsad under Section 498-A and Section 302 of the Indian Penal Code, 1860 (for short, „IPC‟). Mrs. Dhanweshari Devi and Mr. Paras Nath have been let off giving them the benefit of doubt. The appellant is sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months for the offence under Section 302 IPC. For commission of offence under Section 498-A IPC, rigorous imprisonment of two years and a fine of Rs.500/- and in default of payment of fine, to further undergo rigorous imprisonment for three months is imposed. The Additional Sessions Judge (ASJ) has also made it clear that both the sentences shall run concurrently. This appeal is directed against the aforesaid judgment and sentence.
2. Before proceeding to take note of the submissions, on the basis of which findings of the learned trial court are assailed, we deem it appropriate to take note of the facts in brief, as disclosed by the prosecution as well as the findings of the trial court.
3. The deceased‟s husband Mr. Jag Lal Parsad was in service and posted out of Delhi. Therefore, after marriage, he generally remained outside to attend to his job. The deceased, however, was staying in the matrimonial home in Delhi along with her husband‟s brother (the appellant herein), her mother-in-law and father-in-law. As per the Crl.A. No. 191/1997 nsk Page 2 of 14 prosecution, these three persons started harassing the deceased and demanded Rs.50,000/- from her and that once the appellant also went to the house of the father of the deceased and demanded Rs.50,000/-. He also told her father that if the amount was not paid, then the deceased‟s life would be in danger. But the father of the deceased could not pay the said amount. On 24.10.1994, the father of the deceased went to the house of the accused persons and on demand of Rs.50,000/-, he told them that he is not in a position to pay them this amount, on which the accused persons threatened that if the amount was not paid, the life of his daughter will be in danger. On that night, i.e. one day before the fateful night, the father of the deceased stayed at the house of his friend Mr. Ramji Lal. On the next date, i.e. on 25.10.1994, the appellant came to the house of Ramji Lal and informed the father that his daughter was burnt. Further, on hearing this new, the father of the deceased went to the house of accused persons, where it was learnt that the injured was removed to the hospital and after reaching the hospital, the deceased told her father, in the presence of Ramji Lal, that since he could not pay Rs.50,000/-, after he went away, the accused persons poured kerosene on her and set her ablaze.
4. As per the MLC (Ex.PW-8/A), the deceased got burn injuries at 3.00 a.m. and was brought/admitted to the hospital at 5.30 a.m. on 25.10.1994. MLC also records that the deceased herself informed about the "alleged history of burn injury when her brother-in-law, father-in-law and mother-in-law poured kerosene oil over her and set Crl.A. No. 191/1997 nsk Page 3 of 14 fire". She is stated to be conscious and well oriented at that time. Local examination revealed that there were fresh deep thermal burns over face, neck, both upper limbs, anterior chest and abdominal wall, part of back, both thighs except lateral aspect of right thigh, both legs (upper half) except lateral aspect of right leg. She was diagnosed with 75% deep burns. MLC was signed by one Dr. Pradeep Tandon, who appeared as PW-8 and proved the MLC. He further stated that IO moved an application for recording her statement and he was of the same opinion that the deceased was conscious and well oriented and fit to give statement. This permission was given at 5.50 a.m. on 25.10.1994 and his opinion is exhibited as Ex.PW-8/B. The application, pursuant to which he gave his opinion, is Ex.PW-8/C. At about 7.40 a.m., the patient was declared as conscious oriented and fit for statement by Dr. Prakash. PW-8 identified his handwriting and signature and the endorsement of Dr. Prakash is Ex.PW-8/D. Thereafter, her statement was recorded by Mr. Rakesh Nagpal, Sub-Divisional Magistrate, Patiala House at 8.00 a.m. This is in question and answer form, which is proved as Ex. PW-2/A and reads as under :-
"Bed No. 24, Burn Ward, Safdarjung Hospital Name : Babita Husband Name : Jag Lal Parsad Address : RZ-258/9, Indira Park, Delhi When was the marriage : A period of about 6 months has Solemnized passed since the marriage.
What sort of relations : I was having good relations with my were you having with husband. He does the job. He Crl.A. No. 191/1997 nsk Page 4 of 14 your husband? remains out of Delhi. He was not in Delhi at the time of setting ablaze.
Relations with your : My mother-in-law and father-in-law
in-laws? would demand a sum of Rs.50,000/-
from me, Mohan who is my
husband‟s elder brother too
demanded a sum of Rs.50,000/-
from me.
How did you catch the : My husband does job out of station.
fire? I was sleeping alone in the upper
room. The door of the room was
ajar. It was night time. I don‟t
know the (exact) time when Mohan
came to my room. He poured
kerosene oil on me and set me
ablaze. He was asking me as to why
I did not bring a sum of Rs.50,000/-
from my parents. I raised the alarm.
Thereafter, I don‟t know as to who
brought me to the hospital. My
father too had come to see me after
sustaining burn injury. My in-laws
reside in this very house.
Impressions R. Toe : Boils and burns on thumb as such
impressions of right toe taken.
Recorded by me
Rakesh Nagpal
Sd/- Sub Divisional Magistrate
Room No. 18, Patiala House
New Delhi
25.10.94 at 8.00 A.M.
5. On receiving information, which was recorded as DD No. 6-B, at around 4.30 a.m., the SHO along with the other police staff reached the spot where the incident had taken place. On reaching the spot, he was informed that the deceased had been removed to Safdarjung Hospital. The SHO along with SI Ajay Pal Singh went to the hospital.
The SDM was informed and the statement of the deceased was recorded which is exhibited as Ex.PW-2/A. On this, the SHO made the endorsement, which is marked as Ex.PW-7/A, and sent the rukka Crl.A. No. 191/1997 nsk Page 5 of 14 at around 8.40 a.m. for registration of the FIR. Constable Sarvan Kumar recorded the FIR under Sections 498-A/307/34 IPC, which is marked as Ex.PW-6/B.
6. On 26.10.1994, the deceased died in the hospital. The inquest proceedings were completed by the SHO and Inquest Report is Ex.PW-7/B. An application for conducting the post-mortem was made (Ex.PW-7/D). Investigation into the case was handed over to SI Ajay Pal (PW-10) by the SHO Hans Raj(PW-7). FIR was converted into Section 302 IPC in place of Section 307 IPC. Site plan was prepared, which is Ex.PW-10/A. Ajay Pal Singh seized match box (Ex.P-1), chappal (Ex.P-2), burnt pieces of cloth (Ex.P-3) and plastic container (Ex.P-4) from the spot vide memo Ex.PW-1/A. The articles were then sealed and the seal was handed over to Ramji Lal. The accused Dhanweshwari Devi was arrested and her search was conducted and she was then brought to the police station vide DD No. 20-A and copy of which is Ex.PW-10/B. Statements of Ramji Lal (Ex.PW-10/E) and Ram Vichar (Ex.PW-10/D) were recorded. Then the other two accused were also arrested. The deceased‟s body was identified by her father. The investigations were then completed and the challan was handed over in the court.
7. The charges against the three accused persons were framed under Section 302 IPC as well as Section 498-A IPC. The prosecution examined as many as 10 witnesses. Relevant witnesses are PW-1 Ramji Lal, in whose house the father of the deceased stayed on Crl.A. No. 191/1997 nsk Page 6 of 14 24.10.1994 and who is his brother-in-law; PW-2 Mr. Rakesh Nagpal (Sub-Divisional Magistrate); PW-5 Ram Vicchar Parsad, father of the deceased; PW-6 Head Constable Surinder Singh; PW-7 Inspector Hans Raj and PW-10 S.I. Ajay Pal Singh. We may also mention that Dr. Chandrakant, who conducted the post morten, has appeared as PW-3. In his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, the appellant denied that there was demand of Rs.50,000/- from the deceased or her father and further that any threat was given that if amount is not paid, there was danger to the life of the deceased. He also denied that he had gone to the house of Ramji Lal to inform that the deceased was burnt. He stated that he was falsely implicated and, in fact, the deceased lit herself up and died. Two defence witnesses, namely, Mahinder (DW-1) and Jagmati (DW-2) were also examined. Mr. Mahinder is the neighbour of the appellant, who stated that accused persons never harassed the deceased and further that the deceased had set herself on fire. Statement of Ms. Jagmati is to the same effect. After hearing the arguments, the learned trial court acquitted both mother- in-law and father-in-law giving them benefit of doubt, but convicted the appellant both under Section 498-A and Section 302 IPC.
8. As per the testimony of the above witnesses, the main evidence which surfaced on the record was in the form of two dying declarations given by the deceased just before her death. First having given in the presence of PW-2 Dr. Pradeep Tandon, when she was brought to the hospital and was examined by him, and the other is Crl.A. No. 191/1997 nsk Page 7 of 14 recorded by the Sub-Divisional Magistrate. The learned trial court has mainly relied upon the dying declarations treating the same as admissible evidence under Section 32 of the Indian Evidence Act, 1872. Further, since in the dying declaration recorded by the Sub- Divisional Magistrate, the deceased did not name her mother-in-law and father-in-law, benefit of doubt is given to these two persons.
9. It is trite law that the conviction can be based solely on the dying declaration. Rationale behind this, which is time tested, is simple and obvious. It is firmly believed that a person who is going to die and would meet Almighty would not tell lie at that time.
10. In Khushal Rao v. State of Bombay, AIR 1958 SC 22, the Supreme Court summarized the principles with regard to dying declaration as under :-
"16.....(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case much be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities on human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond Crl.A. No. 191/1997 nsk Page 8 of 14 his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested people."
11. In the matter of Paniben v. State of Gujarat, (1992) 2 SCC 474, the Supreme Court has summed up the principles governing dying declaration as under :-
"18. (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(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.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks 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.
(x) Where the prosecution version differs from the versions as given in the dying declaration, the said declaration cannot be acted upon." The same position has been reiterated in subsequent decisions of the Supreme Court including that of Vikas v. State of Maharashtra: I (2008) DMC 692 (SC) = II Crl.A. No. 191/1997 nsk Page 9 of 14 (2008) CCR 280 (SC) = IV (2008) SLT 95 = (2008) 2 SCC
516."
12. In the matter of Geeta & Anr. v. State, 163 (2009) DLT 268, a coordinate Bench of this Court has, inter alia, observed thus :- "24. The law with regard to dying declarations is quite well settled. It is an established principle that a conviction can be based solely upon a dying declaration. But, before this can be done, the dying declaration must be established to be authentic and correct as well as truthful. Insofar as the authenticity and correctness of the dying declaration is concerned, the prosecution has to establish that the dying declaration in question was, in fact, made by the person who lost his life. Even where it can be established that the statement, which purports to be the dying declaration of the deceased, was in fact made by the deceased, the prosecution has also to establish that the statement was truthful. Of course, it is normally presumed that a dying person in his last moments does not utter any falsehood. But that does not rule out the possibility that in some cases this may not be the position. There may be instances where out of hate or spite a person may falsely implicate his enemy, even in his dying moments. It is also quite possible that the person making the dying declaration is under the influence or control of someone else and out of fear or other reasons, he may make a false statement prior to his death. There is also a possibility that a person, in order to save his honour and the honour of his family, who would survive him, may make statements which are not entirely correct or truthful. There is also a possibility that the person making the dying declaration is under some medication or because of his precarious condition is suffering from hallucinations and, therefore, the statements he makes at that point of time may be far removed from the truth. It is only when all these circumstances are ruled out and the court is of the belief and opinion that what the dying declaration states is truthful, can a conviction be based upon it without seeking corroboration. A dying declaration must always pass the scrutiny by the Court because, after all, it is merely hearsay evidence and it is admissible and relevant only because the person who made the declaration is no longer alive and cannot be produced before Court for testifying. At the same time, the courts need to exercise caution in relying upon dying declarations because the maker of the statement is not before it and nor does the defence have an opportunity to cross-examine him. Thus, while there is no rule of law which suggests that a conviction cannot be based solely upon a dying declaration, the courts, as a rule of prudence, look for other corroborative material. If the dying declaration is of such a stellar and unimpeachable quality that it fully inspires confidence of the Court, there is nothing to prevent the Court from relying solely on such a dying declaration and on basing a conviction thereupon. But, the emphasis must be on the quality of the dying declaration. If the dying declaration is suspicious or suffers from some infirmity, then it should not be acted upon without any corroborative evidence."
Crl.A. No. 191/1997 nsk Page 10 of 14
13. Mr. Bhupesh Narula, learned counsel appearing for the appellant, did not question the aforesaid proposition. He, however, submitted that the Court was supposed to exercise due caution before accepting the dying declaration, which obligation was not fulfilled by the learned trial court. This submission is predicated on the plea that it had come on the record that when the deceased had made the statement before the PW-2 (doctor who examined her), her relatives had reached there, which according to him would include deceased‟s father as well. This fact was categorically admitted by PW-2 in his cross-examination stating that when he had reached the hospital, the relatives of the deceased were present by her side, though he did not know their names or their relations with the deceased. Capitalising on this statement of PW-2, the endeavor of the learned counsel was to impress upon us that there was every likelihood of the deceased being tutored by her father, who must have prompted her to implicate the accused persons. He submitted that this was clear from her statement recorded under Section 161 of the Cr.P.C. wherein she had mentioned that after the incident when father of the deceased reached the spot, he had made his intentions clear by uttering that he will implicate the entire family of the deceased in-laws. He also submitted that it was highly improbable that when the husband of the deceased was living away from the house in another town, there would be harassment by brother-in-law, father-in-law and mother-in- law on account of alleged demand of dowry, in the absence of any such imputation on the husband.
Crl.A. No. 191/1997 nsk Page 11 of 14
14. We are hardly convinced with the aforesaid submissions of learned counsel for the appellant. From the narration of sequence taken note of above, it becomes abundantly clear that the first statement given by the deceased is incorporated in the MLC, which was given by her when she was brought/admitted to the hospital at 5.30 a.m. on 25.10.1994 and which turned out to be the dying declaration. She was brought to the hospital by Sayyed Ahmed Khan, Head Constable, Police Station, Dabri. She is herself the informant. Concededly, neither the father nor any other relative of the deceased had come to hospital and was with her at that time. Thus, on the very first occasion, immediately after the occurrence, she gave the statement implicating her brother-in-law, father-in-law and mother- in-law. There was no question of tutoring her at that point of time and any external pressure is also ruled out. Another statement is recorded by the SDM and before recording this statement, all necessary precautions, procedural or otherwise, are taken. In this statement, she again categorically mentioned that her brother-in-law Mohan had poured kerosene oil on her and set her ablaze. Insofar as her mother-in-law and father-in-law are concerned, she had mentioned that there was a demand of Rs.50,000/- by them, including her brother-in-law Mohan. Statement of the father of the deceased recorded under Section 161 Cr.P.C., wherein he stated that he would implicate the entire family of the in-laws of deceased, is an outburst after coming to know that his daughter is set ablaze by in- laws. This submission would be of no help to the appellant as the Crl.A. No. 191/1997 nsk Page 12 of 14 father of the deceased had uttered these words after reaching the spot/place of occurrence and by that time the deceased had already made her statement before the Doctor, which was recorded in the MLC.
15. It is equally unconvincing argument that there would not be any dowry demand from the deceased or harassment by the brother-in- law etc. on account of the said purported demand when the husband of the deceased was staying away in another town. This argument proceeds on the presumption that husband is a necessary party to make such demand and in the absence of husband other family members, namely, brother-in-law or parents-in-law, cannot make dowry demand. Such a presumption is wholly misconceived.
16. In view of the two dying declarations of the deceased, which are consistent, the same are rightly relied upon by the learned trial court for recording the conviction of the appellant. While accepting these dying declarations, the learned trial court has observed as under :-
"As far as the accused Mohan Parsad is concerned, the said accused had been named before the SDM in the dying declaration Ex.PW2/A and according to PW5 Ram Vichar Parsad the deceased has also stated before him that the accused Mohan Parsad, Paras Nath and Dhanweshwari Devi and the other brother of accused Mohan Parsad namely Sawalia and his wife poured kerosene oil on her and set her ablaze. The deceased has also stated before the doctor that her brother-in- law had burnt her. Although the deceased in the dying declaration recorded by the doctor has not named the accused Mohan Parsad but from the dying declaration as made by the deceased before her father and the SDM, I am of the view that by saying that her brother-in-law had burnt her, she also meant that accused Mohan Parsad had burnt her. In this case the dying declaration of the deceased has been recorded by PW-2 Sh. Rakesh Nagpal, the then SDM and by PW8 Dr. Pardeep Tandon and the deceased has also made the dying declaration before her father, as discussed above. PW2 Sh. Rakesh Nagpal, Crl.A. No. 191/1997 nsk Page 13 of 14 the then SDM and PW8 Dr. Pardeep Tandon are independent and respectable persons and were disinterested in any manner. They were having no animosity of any nature against any of the accused for falsely implicating them in this case. Both the said witnesses must have recorded whatever the deceased has stated before them. I do not find any reason to hold that PW2 or PW8 would have written the said dying declaration of their own or at the instance of some other persons."
17. We are in agreement with the aforesaid findings of the learned trial court as we do not find any infirmity in the approach adopted by it. We, thus, do not find any merit in this appeal and dismiss the same.
18. The sentence of the appellant was suspended by the Supreme Court during the pendency of this appeal. However, when this case came up for final hearing, the appellant did not appear and, therefore, initially bailable warrants and thereafter non-bailable warrants were issued, which could not be executed. The appellant is absconding. The Police Authorities are, thus, directed to apprehend the appellant so that he could be lodged in Tihar Jail for undergoing the remaining sentence.
(A.K. SIKRI) JUDGE (AJIT BHARIHOKE) JUDGE February 10, 2010 nsk Crl.A. No. 191/1997 nsk Page 14 of 14