Vithan Devi @ Bizli vs State [Along With Crl. A. No. ...
2005 Latest Caselaw 182 Del

JUDGMENT

T.S. Thakur, J.

1. These two appeals arise out a common judgment and order on sentence passed by the Additional Sessions Judge, Delhi in Sessions Case No. 108/1992 whereby the appellants have been held guilty of an offence punishable under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each. In default of payment of fine, the appellants have been sentenced to undergo simple imprisonment for a further period of five months.

2. Briefly stated the prosecution version is as under :

3. A wireless message received in Police Station Parliament Street, New Delhi on 10th June, 1992 at 8:40 p.m. asked for police help in connection with an incident in which a woman was said to have set herself on fire at a place in Dhobi Ghat No. 5, Pant Marg, Talkatora road area of New Delhi. DD No. 32 was, on the basis of the said information, recorded in the said police station and SI Harpal Singh along with ASI Satish Chand and Constable Rajiv Kumar deputed to the spot. On arrival at Dhobi Ghat No. 4, Pant Marg, the police team were informed that the injured had already been removed to the Ram Manohar Lohia Hospital. SI Harpal Singh, therefore, proceeded to the Hospital where Smt. Ashok Kumari was found to be admitted and declared fit by the doctor concerned, for making a statement. The officer recorded her statement in which she disclosed that she had been married ten years ago and had raised three sons out of the wedlock. She ran a Paan shop at Pandit Pant Marg which was not liked by her Sister-in-law, Bizli, the appellant in one of these appeals. A day before the incident, a quarrel had taken place between Bizli and Ashok Kumari which was pacified by Police Post North Avenue. On the 10th June, 1992, however, at about 7:30 p.m., Bizli once gain quarreled with Ashok Kumari and threatened that she will not allow her to run the Paan shop and will spoil her life. Ashok Kumari left her husband Jagan Nath at the shop and came back to her Jhuggi where Bizli along with Kashi Kanth Misra, one of the appellant who reside at Dhobi Ghat No. 4, poured kerosene oil, set her on fire and left after bolting the jhuggi from outside. She raised an alarm whereupon the neighbours came to her rescue and extinguished the fire. In the meantime, her husband also reached there and removed her to the hospital with the help of police.

4. On the basis of the above statement, a case under Section 307/34 of the IPC was registered in the police station and investigation started. In the course of investigation, apart from preparing the site plan, the investigating officer got the spot photographed. On the following day, however, the injured Ashok Kumari passed away resulting in the conversion of the case from one under Section 307/34 to a case of murder punishable under Section 302/34 of the IPC. The post-mortem of the dead body was got conducted by the police and the dead body handed over to the relatives of the deceased for cremation. The Investigating Officer, in the course of investigation, seized the burnt clothes of the deceased, a match box, a yellow coloured plastic polythene, red coloured wire and a plastic basket from the spot and filed a challan against the appellants before the Metropolitan Magistrate from where they were committed to the sessions and eventually tried by the Additional Sessions Judge, New Delhi.

5. At the trial, the prosecution examined 24 witnesses in support of its case apart from the dying declaration made by the deceased before Dr. L.T. Ramani, CMO, in charge Civil Hospital and that made in the statement recorded by SI Harpal Singh. Appreciation of the evidence so adduced led the court to the conclusion that the deceased had died on account of burn injuries sustained by her when the appellants had poured kerosene and set her on fire. The court accordingly pronounced both the appellants guilty of an offence punishable under Section 302 readwith Section 34 of the IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/- as already noticed earlier. The present two appeals assail the correctness of the said judgment and order.

6. We have heard Mr. Ravindra Narayan, amices Curiae for the appellants and Mr. Ravinder Chadha, Addl. PP for the respondent State. We have also been taken through the record.

7. Out of 24 witnesses examined by the prosecution, PW-1 Sh. Sone Lal, PW-2 Sh. Ram Jiavan, PW-6 Dr. J.K. Bajaj, PW-16 Sh. Jagan Nath, PW-20 Dr. L.T. Ramani and PW-23 Dr. Preeti Deshpande are the only non-police official witnesses. The rest of the witnesses including PW-24 SI Harpal Singh have all been associated with the conduct of investigation at different stages. The large number of witnesses examined by the prosecution notwithstanding, the prosecution does not have an eye-witness to the occurrence. It, therefore, relied upon circumstantial evidence and the dying declaration allegedly made by the deceased implicating the appellants in the commission of the offence. Before we deal with the dying declarations, it is necessary to briefly refer to the evidence of PWs Sone Lal, Ram Jiavan and Jagan Nath to see whether the said witnesses are anyone of them lends support to the prosecution case that the appellants have poured kerosene over the deceased and set her on fire.

8. PW-1 Sone Lal has, in his deposition before the trial court, stated that the jhuggi of the deceased Smt. Ashok Kumari was situated nearby his jhuggi. On 10th June, 1992, he along with 3-4 other persons was standing at Pandit Pant Marg near the Paan shop of the accused Vithan Devi @ Bizli, present in the court. The accused was present at her shop at that time when the witness and others saw smoke coming out of the jhuggi of Sh. Jagan Nath, the husband of the deceased. The witness and all others went to the jhuggi of Jagan Nath and tried to push the door from outside. The door was open but nothing was found inside the jhuggi. Thereafter they went to the jhuggi of Smt. Ashok Kumari which was adjacent to the jhuggi of Jagan Nath and tried to push the door from outside but the same was shut from inside. The witness said that they were unable to break open the door as such they pulled out the door along with its frame and saw Ashok Kumari, the deceased, sitting against the wall in a completely burnt condition. Her husband Jagan Nath also arrived there in the meantime and went to bring the doctor to give her an injection. The witness was, at this stage, allowed to be cross-examined by the APP in the course whereof he denied the suggestion that the our of the jhuggi of the deceased was found locked from outside. The witness further states that after his return from the hospital, the police prepared a site plan and took into possession a plastic can, a burnt electric wire and burnt clothes of the deceased and a match box. The door of the jhuggi which so removed was also taken into possession in terms of a memo which bears the signature of the witness. The suggestion that the latch of the door had a lock hanging on its front side was denied as incorrect.

9. PW-2 Ram Jiavan has, in his deposition before the trial court, stated that on 10th June, 1992, at about 8:00 p.m., he along with 3-4 other persons was standing at a distance of about one furlong from the jhuggi of the deceased Ashok Kumari. They heard somebody saying ''Aag lag gayee''. They turned in the direction from where the voice was heard and reached the spot where they saw smoke coming out from the jhuggi of the deceased as well as of the accused Vithan Devi. The jhuggi of the accused was foud locked from outside. They pushed open the same but found no fire inside the jhuggi. Thereafter, they tried to push the door of the jhuggi of the deceased Ashok Kumari as the same was bolted from inside. Therefore, they were unable to open the door b pushing the same. They, therefore, pulled the door out and saw the deceased Ashok Kumari in a burnt condition. The deceased was removed to the hospital by some persons of the public. The police has, in his presence, taken into possession a plastic ca, burnt clothes of the deceased and a match box in terms of a memo which bears his signature. Police has also taken into possession the door of the jhuggi owned by the deceased which they had broken along with the lock in terms of a memo that bears his signature.

10. In cross-examination, the witness states that Jagan Nath, the husband of the deceased, was also present there but he cannot say whether he had brought a doctor to the spot. He had, however, seen a doctor on the spot. About 300 persons had, according to the witness, gathered on the spot.

11.The only other witness who, according to the prosecution, had any knowledge about the incident is PW-16 Sh. Jagan Nath, the husband of the deceased. He has, in his deposition, stated that at the time of the occurrence, he was working in the Campa Cola factory in Connaught Place, New Delhi. The accused Vithan Devi is his Sister-in-law. The Paan shop of the accused Vithan Devi and the tea shop of the witness were opposite each other at Pandit Pant Marg, Talkatora Road, New Delhi. Three or four days prior to the occurrence, a quarrel had taken place between the deceased and the appellant Vithan Devi over a fight between the children but the matter had been settled. He expressed ignorance about how the occurrence had taken place.

12. Since the witness was reviling from his earlier statement, he was allowed to be cross-examined in the course whereof he stated that the police had interrogated him in the police station on the day following the occurrence. He admits having told the police that Kashi Kanth Misra who lived at Dhobi Ghat No. 4 and was driving a three-wheeler scooter used to come to his jhuggi in the absence of the witness and that the witness had asked him not to come and that, on that account, there was a quarrel between him and the appellant Kashi Kanth Misra. He denied having made any statement to the police that there was any quarrel between the appellant Vithan Devi and the deceased on 10th June, 1992 or that Kashi Kanth Misra was drunk on the date of the occurrence and that he had come and told his wife that because of her, he had been defamed, either he or she will live. He was confronted by different portions of the statement recorded under Section 161 of Cr.P.C. which he denied having made to the police. He also denied the suggestion that the appellants had burnt the deceased and that he was not supporting the prosecution case as he had developed cordial relations with them. He denied having put his thumb impression on the statement allegedly made by his wife. He also denied the suggestion that the appellant Vithan Devi was looking after his children after the death of his wife.

13. In cross-examination by the defense counsel, the witness states that the appellant Vithan Devi was sitting at her Paan shop at the time of incident while he was sitting in his own shop. He further states that Dr. Kashyap was called by the neighbours who had given an injection to his wife to reduce the pain and told the witness to take her to the hospital. He further states that neighbours were telling his wife to name Vithan Devi and another accused as there used to be frequent quarrels between the deceased and Vithan Devi. The witness denies the suggestion that the police had taken his thumb impression on a blank paper and states that no quarrel had taken place between his wife and the accused Vithan Devi on the date of occurrence nor any threat as given by her to the deceased. It is also alleged that no statement was made by the deceased in the hospital.

14. It is evident from the above depositions that none of the witnesses who were present at the spot or who reached the spot immediately after the occurrence have supported the version that the door of the jhuggi of the deceased was closed from outside.

According to the prosecution story, the appellants had poured kerosene over the deceased, set her on fire and gone away after locking the door from outside. The witnesses examined to support that case, however, give a contrary version. According to the, when they noticed smoke coming out of the jhuggi of the deceased, they rushed to see the cause and found that the door could not be opened as the same was latched from inside. This left no option for them but to pull the door along with its frame out room the place where it was fixed to gain access into the jhuggi. The fact that the door was actually pulled out and seized by the Investigating Officer in the course of investigation is not in dispute. If the door was locked from outside, there would have been no need for anyone to pull the same out along with the frame. The effort then would have been to break the lock or the latch to open the door. Both Sone Ram and Ram Jiavan, however, have stated that the door was closed from inside. If that be, the entire prosecution version falls to the ground. There is no way the accused could pour kerosene and set the deceased on fire and yet come out of the jhuggi by locking the door from inside. It is nobody's case that there was any access to the jhugi except the door from the front. That being so, the prosecution case would fall for want of any evidence and indeed for the reason that the evidence led went totally against the version set-up by it.

15. The prosecution has apart from the evidence discussed above, placed reliance upon two dying declarations of the deceased. One such declarations was made before the doctor when she was taken to the hospital for treatment. The other dying declaration is made before SI Harpal Singh. It was argued on behalf of the prosecution that in both the dying declarations, the deceased had named the accused for pouring kerosene over her and then setting her on fire. These declarations were, according to Mr. Rav under Chadha, learned Addl. PP made while the accused was conscious and oriented hence fit to make a statement. The dying declarations were, therefore, free from any infirmities or suspicion about tutoring or embellishments.

16. Learned counsel for the appellants on the contrary argued that the dying declarations were not properly recorded, the deceased was not fit to make any such declaration and that the prosecution evidence itself showed that the deceased had been tutored to falsely implicate the accused. The circumstances that had come on record were also according to the learned counsel sufficient to make the entire story in the dying declaration suspect especially when , the prosecution evidence itself proved that the door of the jhuggi of the deceased was bolted from inside and had to be pulled out by the witnesses and other residents of the area in order to rescue the deceased.

17. The law relating to use of dying declarations as valuable piece of evidence is fairly well-settled by a catena of the decisions of the Supreme Court. It is unnecessary in our opinion to refer to all such decisions as the principles governing proof and use of dying declarations are firmly established. We may, in this connection, refer to the decision of the Apex Court in Khushal Rao v. State of Bombay whereupon a review of the Evidence Act and the case law on the subject, the court stated the law in the following words:-

''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; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light o surrounding circumstances and with reference to the principles governing the weighing of evidence; 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 are 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 of human memory and human character, and 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, 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 has been consistent throughout it 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.''

18. The above summarisation has been approved by their lordships in numerous subsequent decisions including that rendered in Harbans Singh and Anr. v. The State of Punjab .

19. The legal position that emerges from these decisions is that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny bearing in mind the fact that the statement in question has been made in the absence of the accused who had no opportunity to test the veracity of the statement by cross-examination. The law also permits placing dying declarations recorded by a competent magistrate in the form of questions and answers at a higher pedestal than one that is not recorded by the magistrate or is in the form of a narrative. The law does not require any corroboration for the dying declaration once the court comes to the conclusion that declaration is a truthful version of the deceased about the circumstancs of his/her death and the assailants responsible for the same. See State of Uttar Pradesh v. Mohammed Sayeed and Harbans Singh and Anr. v. The State of Punjab (supra).

20. Coming then to the facts of the case before us, there are a few circumstances which make reliance upon the dying declaration unsafe. The first and foremost of these circumstances is that the oral evidence led by the prosecution runs contrary to the version of the deceased. As noticed earlier, the prosecution witnesses have totally denied the correctness of the version that the door of the jhuggi of the deceased was locked or bolted from outside. They have, on the contrary, emphatically stated that when they noticed smoke coming out of the jhuggi and tried to verify the cause by opening the door of the jhuggi, they found the same to be bolted from inside. This version gets substantial support from the fact that the door of the jhuggi along with it frame was pulled out by those who rushed to the spot on seeing the smoke because there was no other way by which they could gain access to the jhuggi. The photographs of the door as the same was lying outside the jhuggi immediately after the occurrence as also the seizure of the door lends credence to that version. The version of the deceased in her dying declaration is, however, totally contrary to the version of the prosecution witnesses and the condition of the door as mentioned above. The conflict between the ocular evidence adduced by the prosecution and the version given by the deceased in her dying declaration on a vital aspect makes it all the more necessary to closely examine the dying declarations.

21. The second and an equally significant circumstance that has emerged from the prosecution evidence is that all the neighbours who had gathered on the spot were trying to tutor the deceased to implicate the accused in the case. The statement of PW-16 Jagannath, the husband of the deceased, is in this regard material. This witness has admitted that the deceased was outside her jhuggi where Dr. Kashyap was called by the neighbours to give the deceased an injection to reduce her pain and that the neighburs were tutoring the deceased to implicate the accused. The possibility of deceased making a tutored statement implicating the accused persons is, therefore, visible from the prosecution evidence itself. It is noteworthy that Sh. Jagannath has clearly exculpated the appellant Vithan Devi who according to this witness was sitting at her pan shop at the time when the incident took place. It is difficult to see why Jagannath should be telling a lie if the appellants were indeed responsible for killing has wife.

22. The third circumstance which also needs to be kept in mind is that the dying declaration was not recorded by the Magistrate nor is the same recorded in question-answer form. The decision of the Supreme Court in Khushal Rao v. State of Bombay 1958 SC 22 (supra) places a dying declaration recorded by a Magistrate in a question-answer form at a higher pedestal than that made to any other person or recorded in any other fashion. The deceased had received extensive burn injuries and so/was understandaby in a critical condition. Making a statement in a narrative form before a police officer, giving details was, therefore, in itself a difficult task for her, no matter the doctor had certified her to be fit to make such a statement. The possibility of introducing embellishments and padding of the version given by the deceased could not, therefore, be ruled out. It is also surprising to note that although the deceased was removed from the jhuggi and given some kind of medical aid on the spot by Dr. Kasyap, the prosecution did not produce any evidence in regard to her first version about the genesis of incident. It is but natural that immediately after the deceased was rescued from the jhuggi, the neighbours including her husband who reached the spot, would have enquired from her about the cause of her sustaining burns. No evidence whatsoever is available in that regard. The prosecution obviously expects the court to believe that no dying declaration was made by the deceased immediately after she was taken out of the jhuggi although it is natural that those who had gathered around her and who were known to her would have enquired from her the cause of her condition. It is only when the deceased reaches the hospital and is admitted for treatment that she, for the first time, named the appellants as the culprits for pouring kerosene and setting her afire.

23. In the totality of these circumstances, it is difficult to sustain the judgment of conviction recorded by the trial court and to hold that the charges framed against the appellants were proved beyond reasonable doubt. The version given by the prosecution based not only on the oral evidence adduced in the case, but also on the strength of the dying declaration is, in our opinion, too shaky and doubtful to provide a sound basis for holding the appellants guilty. We are, therefore, inclined to give benefit of doubt to the appellants and acquit them of the charge framed against them. The appeal is accordingly allowed. The judgment and order of conviction passed by the court below are set aside and appellants given benefit of doubt and acquitted of the charges framed against them.