Nirmal Singh vs State Of Delhi
2002 Latest Caselaw 327 Del

JUDGMENT

V.S. Aggarwal, J.

1. Nirmal Singh (for short "the Appellant/accused") has preferred the present appeal, directed against the judgment and order of sentence passed by the learned Additional Sessions Judge, Shahdara, dated 23.10.1999. The learned trial Court held the appellant guilty of the offences punishable under Sections 302 and 498-A Indian Penal Code. The appellant was sentenced to under go rigorous imprisonment for life and a fine of Rs. 20,000/- for the offence punishable under Section 302 Indian Penal Code. In default of payment of fine, he was to under go further rigorous imprisonment for two years. For the offence punishable under Section 498A IPC, the appellant was sentenced to under go rigorous imprisonment for two years and a fine of Rs. 5,000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for six months. Both the substantive sentences were directed to run concurrently.

2. Shobha, wife of the appellant is the deceased. They were married in the year 1985. The learned trial court had acquitted Pritam Kaur, mother of the appellant while Rane, the sister of the appellant died during the pendency of the matter. The State has not preferred any appeal against the judgment of the learned trial Court, acquitting Pritam Kaur.

3. The relevant facts of the prosecution case, cajoled from the record are that on 15.11.1985, deceased Shobha was admitted in Jai Prakash Narain Hospital with burn injuries. An information in this regard was conveyed to Police Station Gandhi Nagar and on basis of that, Daily Diary entry No. 57B was recorded. It was marked to Sub Inspector S.K. Rathi. The said Sub Inspector, along with Constable Jai Prakash proceeded to Jai Prakash Narain Hospital. He obtained the medico legal report of the deceased, who at that time was declared fit to make the statement. SI S.K. Rathi had sent for the Sub Divisional Magistrate Lalman Sawma. The Sub Divisional Magistrate recorded the statement of the deceased in the hospital in presence of the doctor. In the said statement, Smt. Shobha had told the Sub Divisional Magistrate that she had been married to the appellant about six months back. On the said day at about 6.45 p.m., her mother-in-law Pritam Kaur had taunted her for not bringing sufficient dowry. Thereupon, kerosene was poured on her and she was set on fire by her mother-in-law, sister-in-law and Nirmal Singh, the appellant.

4. On the said statement of Smt. Shobha, SI S.K. Rathi made his endorsement and it was sent to the police station. First Information Report was registered at P.S. Gandhi Nagar with respect to the offence punishable under Section 307/34 Indian Penal Code. The law had been set into motion. Sub Inspector Rathi went to the spot and prepared the site plan. The site was photographed. Two half burnt chunnis, one tin containing kerosene oil had been taken into possession vide a recovery memo.

5. Smt. Shobha succumbed to the injuries in the hospital on 19.11.1985. On receipt of this information from the hospital, Shri Rathi conducted the inquest proceedings. On the mortal remains of the deceased, post-mortem was conducted by Dr. Bishnu Kumar, who found that there was 75% burn on the person of the deceased, but there was no smell of kerosene present. He found the following injuries on the person of the deceased:

"Infected dermo-epidermal burns all over the body except small areas over top scalp both breast regions lower half of front of abdomen, upper surface and sole feet and small area just to the right of nose of face. In rest of the areas, where burns was present, skin outicle peeled off at most of the places where blisters were still present. Scalp hair were signed only on sides slightly and also on the left, arm pit, hair partially. Eye brows and eye lashes were also signed. Infection in burnt area was present. Total burnt area was approximately 75%. No smell of kerosene oil was present anywhere including on scalp."

On the death of Smt. Shobha, the case had been converted with respect to offences punishable under Sections 302/498A, 34 of the Indian Penal Code.

6. On basis of these broad facts, the appellant had been challenged and report under Section 173 of the Code of Criminal Procedure had been submitted.

7. As already pointed out above, the mother of the appellant was granted the benefit of doubt because the prosecution witness Pappu (PW-2) had deposed that she was not present at the relevant time. The learned trial Court held that the prosecution had successfully proved that the deceased was burnt by the appellant with the help of his sister Rane (since deceased). With these basic findings, the above-said judgment and order of sentence came into being.

8. During the pendency of the appeal, the appellant had prayed for suspension of sentence. However, both the parties agreed and made submissions on the merits of the appeal.

9. During the course of submissions, it was conceded at either end that the prosecution case rests on purported three dying declarations made by Smt. Shobha. It was not in controversy that so far as the oral dying declaring made immediately on burning is concerned, the same has not been proved. The controversy between the parties, therefore, was with respect to the two other dying declarations; one alleged to have been made by the deceased to the doctor attending upon her (Dr. D.K. Dewan, P.W. 18) when she was removed to the hospital and the other alleged to have been recorded by the Sub Divisional Magistrate Mr. Lalman Sawma (P.W. 16).

10. Learned counsel for the appellant had argued vehemently and with ability that the dying declaration, purported to be recorded by the Sub Divisional Magistrate necessarily has to be ignored because he has totally ignored the basic principles for recording the dying declaration. There is no endorsement by the doctor that she is fit to make the statement and that it is not sure as to who has recorded the said dying declaration. According to the learned counsel, the Sub Divisional Magistrate was not even aware of Devnagari script and hence was not competent to record the said dying declaration. As regards the statement made by the deceased to the doctor, again it was urged that there was no endorsement that she was fully conscious and was in a fit state to make the statement and it was further urged that when the co-accused had been acquitted with respect to the same incident, the dying declaration qua the appellant also should be ignored. The learned State counsel, on the contrary, supported both the dying declarations urging that it clearly show that the deceased was in a fit state of mind to make the statement and she has clearly indicated the appellant, her sister-in-law and mother-in-law.

11. It is a matter of record that the appellant and his mother both were facing trial with respect to the offences punishable under Section 302 and under Section 498-A Indian Penal Code and that keeping in view the testimony of servant of the appellant and Pappu (PW-2) Pritam Kaur mother of the appellant was granted benefit of doubt. As mentioned above and rementioned at the risk of repetition learned counsel for the appellant wanted to put his figure into the pie to make a ground that since the co-accused on similar evidence had been acquitted the appellant is also entitled to the benefit of doubt.

12. Though at the first blush what looked to be a valid and a good argument does not stand scrutiny on close examination. The reasons are not far to fetch. Pappu (PW-2) was a domestic servant in the house of the appellant where the deceased and the mother of the appellant were also residing, therefore, normally his presence from the spot would not be doubted. He had made a categorical statement that at the relevant time Pritam Kaur was not present. Consequently to contend that there was similar evidence against the appellant and the co-accused Pritam Kaur would not be factually correct. When a co-accused is given a benefit of doubt it is not necessarily an inference that the entire prosecution case must fail. It would even not be permissible to interfere with the dying declaration necessarily on that account.

13. The golden threat which runs through our juris prudence is that it is for the prosecution to establish its case beyond all doubts. More often then once, therefore, a co-accused gets a benefit of doubt on appreciation of evidence. It necessarily does not mean that the entire prosecution case has to fall like a house of cards. The appreciation of the evidence has to be effected and if it is established against one of the accused then necessarily it does not infer that the same benefit of doubt is mandatory for the other co-accused unless there are other cogent circumstances to come to that conclusion. This is for the added reason that the learned trial court had not concluded that Smt. Pritam Kaur mother of the appellant was falsely implicated. As a consequence thereto this particular argument so much though of by the learned counsel must fail.

14. Yet another argument advanced in this regard was that as per the dying declarations which are being relied upon kerosene oil was poured on the deceased and she was set ablaze. It was contended that when Dr. Bishnu Kumar effected the post-mortem on the person of the deceased he has not noticed any smell of kerosene oil on her person including her scalp. According to the learned counsel this shows that the dying declaration is incorrect and no kerosene oil was used.

15. Once again the said argument has to be stated to be rejected. It is true that Dr. Bishnu Kumar had effected the post-mortem and had recorded that he did not find smell of kerosene from the scalp of the deceased or from her person. However, it has to be remembered that post-mortem was conduced on 19th November, 1985 this is after four days of the incident. She had been under treatment before she has succumbed to the injuries. It is, therefore, nothing unusual that at that relevant time doctor conducting the post-mortem on the person of the deceased did not find traces of kerosene oil. A fact which cannot be ignored that kerosene residue were noticed on the half burnt cloth of the deceased which was seized from the spot. The same had been sent to the Central Forensic Science Laboratory and the report is Exhibit PW 20/H. The investigating officer had visited the spot on the same day and seized the same. This clearly negatives the argument of the learned counsel that kerosene could not have been used and that the prosecution version in this regard is false.

16. As pointed above the prosecution case set up was that there were three dying declarations. So far as the first oral dying declaration purported to have been made by the deceased to the servant and the other neighbour it is not established. Consequently one has to travel to the other alleged dying declarations.

17. A dying declaration which is purported to have been made by the deceased is made admissible in evidence and is one of the exceptions to the general rule applicable in India that the evidence has to be direct and the person so stating must be subjected to cross-examination. But the said principle has been made applicable because making the statement of the deceased relevant is based on doctrine of necessity. As mentioned above to general rule is that of oral evidence must be direct if it refers to a fact which could be seen then it must be the evidence of the witness who says he saw it. 8 Clauses of Section 32 of the Evidence Act are exception to this rule and one of them is dying declaration made by the deceased just before his death.

18. Supreme Court in the case of Tarachand Damu Sutar v. The State of Maharashtra had categorically held that a conviction based on dying declaration against the correctness of which no possible reason have been given is sustainable in law. A few years later in the case of Munnu Raja and Anr. v. The State of Madhya Pradesh once again the Supreme Court reiterated the same view and held that the Court has to approach due care and caution while appreciating the evidence of a dying declaration. This is for the reason that maker of the statement was not subjected to cross examination, but it was held that it is neither a rule of law nor of prudence that dying declaration cannot be acted upon unless it is corroborated. Corroboration would only be asked unless it comes to the conclusion that dying declaration is suffering from any infirmity. More recently in the case of Arvind Singh v. State of Bihar same view had been mentioned.

19. In this back drop one has to converge back into the purported alleged dying declaration which is alleged to have been recorded by the Sub-Division Magistrate. Shri Sawma (PW-16). The dying declaration is PW16/A. The said dying declaration purported to be recorded by the Sub-Divisional Magistrate indicates that on the top of it he recites that on receipt of information from Sub-Inspector Rathi that a woman had sustained burn injuries the Sub-Divisional Magistrate went to Jai Prakash Narayan Hospital. She was identified as Sobha wife of Nirmal Singh by Smt. Kanchan wife of Mukesh. The Sub-Divisional Magistrate disclosed his identity and discussed the purpose of recording her statement thereafter. The statement of the deceased had been recorded in Hindi Devnagari script. Therein the deceased purported to have been deposed that she is Sobha and she married to the appellant about 6 months back. At about 6.45 am her mother-in-law told her that she had not brought sufficient dowry. She was set on fire by her mother-in-law and sister-in-law. The appellant had said 'Jala do' - 'jala do' (burn her-burn her) because she had not brought sufficient articles. Excessive oil were poured on her and she set on fire. The servant Pappu had brought a blanket to save her. It is the servant who informs/Mukesh and have brought her to hospital.

20. The dying declaration so recorded had been subjected to various criticisms. Before noting the same it would be in the fitness of things to appreciate the statement of Lalman Sawma PW-16 the then Sub-Divisional Magistrate. Examination-Chief was recorded on 11th March, 1997. The relevant portion of the same in his own words reads:-

"Then I went to the hospital at nigh itself and recorded the statement of the lady who was identified as Shobha. Statement of Shobha is Ex. PW 16/A. I had put questions to Shobha and her answers were written by intern doctor who was on duty at that time. Thumb impression of Shobha was also taken below her statement which is at point-A in Ex. PW 16/A. I also countersigned the statt. as the statement was taken in my presence, at point-B. Dr. Sanjiv Lal was present at the time of recording of the statement i.e. he scribed/wrote statement of Shobha."

(emphasis added)

21. The witness was cross examined on 15th July, 1998. At that time he took a somersault and deposed that he recorded the statement of the deceased in her own hand an the relevant portion of the same reads:-

"Most probably there was one doctor present at that time but I do not remember his name. I do not remember the exact time when I had started questioning the injured Shobha but it was after 11.00 p.m. I wrote the statement of the injured in my hand. I did not record the statement in question and answer form as on my questions, she was reply my question and I did not think it necessary to record the question. It must have taken about half an hour in recording her statement. Thumb impression of Shobha was taken on her statt. with the help of a nurse, who was attending to her. There was no police official present inside when I recorded the statement of Shobha, the injured. Sister of the injured was present inside, who had identified the injured."

22. He was recalled because of inconsistency of the statement on 22nd September, 1999. The court had put a question to the witness about the inconsistency in the statement referred to above. Now the officer was totally different. The witness added that the dying declaration had been recorded by the investigating officer. Statement in this regard reads:-

My statement was to the best of my recollection. In that case the above portion of the statement, which are written in my own hand, which is encircled with red pencil, was physically recorded by me. Since I had difficulty in writing Devnagari Script, I used to take help of my own Reader, if such a situation arose in my office. However, very often such situation arose, beyond office hour. In such cases normally I used take help of the doctor on duty, if patient is admitted in hospital. If there were no help around I used to take the help of the IO/police official accompanied me, by dictating to him. I have done many such cases numbering around 50/56 during my tenure. Therefore, it is not possible to me to remember the specifics of each case. In this particular case, the Hindi portion Ex. PW 16/A encircled Mark-Z is in the handwriting of, most probably, the IO since the doctor only stated that statement was taken in his presence. The doctor only witnessed recording of statement by making his endorsement "Recorded in my presence" under his signature at Point-C."

23. Perusal of the statement of Lalman Sawma clearly shows that it is a statement of disappointment. It is a statement with irresponsibility and lack of knowledge. No due care and caution required to be taken has in fact been taken. The witness fumbled and faltered at every stage. He did not know as to what exactly was being done. At times he wants the court to believe that the statement had been recorded by him and at times he states that it is by the concerned doctor. When recalled, he adds another dimension to it by stating that it had been recorded by the Investigation Officer. Obviously, it leaves much to be desired and, therefore, it is difficult to act upon what the witness has done.

24. The explanation by this witness that he was not conversant with Hindi and Devnagari script, in the peculiar facts, is not at all convincing. Even if the witness not quite familiar with Hindi and Devnagari script, there was no reason for him to have made such a statement. It is nothing unusual that a witness who may understand Hindi but can not record it, can take the help of a third person, but as has already been referred to above, that seemingly is not the question here. It is difficult to believe as to what exactly he is trying to tell the court as to who had recorded the statement. Once it is so, it is difficult to pin faith on him as to what was told to him by the deceased. Keeping in view the aforesaid, the statement indeed, so recorded and which is the dying declaration, does not fall within the parameters laid by the Supreme Court in the case of Khusal Rao v. State of Bombay, . The Supreme Court provided the following guidelines:

"On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (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 must 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 pieces 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 the 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 footings than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of 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 his control; that the statement had 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 parties."

25. It clearly provides that a dying declaration, if recorded by the concerned Magistrate in a proper manner, can be acted upon but when the dying declaration itself has not been recorded in proper manner, the same necessarily is difficult to act upon.

26. There is another way of looking on the same. A doctor is stated to be present at the relevant time. The certification regarding evidence of state of mind of the injured has not been so recorded. Mere stating that she was conscious, will not meet the requirement of justice. The Supreme Court in the case of Panchdeo Singh v. State of Bihar, 2002 SCC (CRI) 211, while dealing with the said question, categorically held that mere certification by even a doctor that patient is conscious, is not enough. Therefore, for the present, we find that it would be appropriate not to act upon the said dying declaration recorded by the Sub Divisional Magistrate.

27. However, learned Trial Court has acted not simply on the said dying declaration, but also the one made to the doctor when the deceased was admitted to the hospital. The same is Ex. PW-12/A, made on the medico legal report of the deceased. The doctor recorded:

"Alleged h/o having been burnt by mother in law, sister in law, husband by holding her and then pouring (raw) kerosene oil & then burning by force."

28. Dr. D.K. Dewan, Chief Medical Officer, Deen Dayal Upadhaya Hospital was the person to whom the deceased had given the said history as to how she was burnt. The witness appeared in Court and stated that the deceased herself had told him that she had been set on fire by her mother-in-law, sister-in-law and husband. he added that when he examined the patient, she was conscious, alert in pain and in agony. She had about 80% burns on her person. He was subjected to a lengthy cross-examination. A specific question was put to the witness as to whether when she was brought in the casualty department she was fit to make the statement and as to whether he recorded this fact or not. The answer forth-coming was that when he attended the patient in the casualty, he found her to be conscious. She was talking coherently. History was given by the patient herself and she was fit to make the statement at that time. he did not specifically record that she was fit to make the statement because it implied that she was fit to make the statement because of the narration given by the witness and the answers given by the deceased.

29. Statement of this witness was subjected to criticism on behalf of the appellant, asserting that it cannot firstly be taken that it was a dying declaration; secondly the doctor did not record specifically that she was fit to make the statement and in any case, it is not proper to rely upon such a statement giving the history of the case of the doctor, which is not corroborated.

30. Taking all the arguments of the learned counsel for the appellant, it is patent firstly that it is well known that dying declaration is a statement made by the person as to the cause of death or to any of the circumstances of the transaction which resulted in his death. It becomes relevant under Section 31(2) of the Evidence Act in a case in which cause of that person comes into question. Since it was a statement made to the doctor when the patient was admitted, it must follow that it falls within the exceptions contemplated and must be taken to be a dying declaration indeed. Though unnecessary, reference can well be made to the decision of the Supreme Court in the case of Ganpat Mahadeo Mane v. State of Maharashtra, where a statement had been set on fire by pouring kerosene on her and it was believed as a dying declaration. Paragraph 4 in this regard reads:-

"4. P.W. 6, the Doctor who proved Ex.P.30 deposed that the deceased was conscious and stated that her husband poured kerosene oil on her and set fire. There is absolutely no reason to doubt his evidence. ....."

31. As regards the corroboration indeed the corroboration can come forward in many ways. In the present case it was patent that she was set on fire in her matrimonial home. Strangely enough, the appellant or his mother or his sister did not take her to hospital. It was the servant in the house and neighbour who had removed her to the hospital and this provides the corroboration that she was set ablaze by the appellant as has been held by the learned trial Court. It is true that concerned doctor has not recorded that she was fit to make the statement, but it was not so necessary. The ratio of the case of Panchdeo Singh (supra) will not apply in the present case for the reason that the patient had immediately been removed to the hospital, only the history had been recorded and thereafter the duty of the doctor was to attend to the patient rather than to undergo all those legal formalities. Therefore, the ratio decidendi of the above said case has little application. We find no reason to ignore the said dying declaration.

32. So far as the offence punishable under Section 498A IPC is concerned, there was little controversy raised at the bar and accordingly, the findings to that effect are set aside.

33. For these reasons recorded above rest of the appeal being without merit, must fail and is hereby dismissed.