Hans Raj And Anr. vs State
2006 Latest Caselaw 599 Del

JUDGMENT

Manju Goel, J.

1. The appeal is directed against the judgment of the Additional Sessions Judge (in short `ASJ') dated 24.11.1992 whereby he convicted the appellant No.1, Hans Raj, under Section 302 of Indian Penal Code (in short `IPC') and appellant No.2,Manbhari (since deceased), under Section 506 part-I of IPC. Vide sentence dated 25.11.1992, the appellant No.1, the only surviving appellant, was sentenced to imprisonment for life and fine of Rs. 2,000/- and in default to undergo further R.I. for a period of two years. The incident over which the FIR in question, namely, FIR No.12/91 P.S. Hauz Qazi was registered took place at 1873, Gali Behram Beg, Delhi at around 11.30 p.m. on 10.1.1991, i.e., in the intervening night of 10.1.1991 & 11.1.1991. In the incident in question Madhu wife of the appellant No.1, Hans Raj, received burn injuries. She was first taken to St. Stephens Hospital and from there to Tirath Ram Hospital and then to JPN Hospital. She expired four days later on 15.1.1991 but not before she made two dying declarations; one before a police officer and the other before the SDM. Madhu (hereinafter referred to as `the deceased') died of septicaemia caused by the burn injuries. How she got the burn injuries is the sole question for determination in the case.

2. The trial court accepted the dying declaration given to the SDM which implicated appellant Nos.1 & 2 as well as two other accused, Rajesh Kumar and Ramesh Kumar, who were acquitted by the impugned judgment. The other dying declaration which was earlier in point of time described the incident as an accident caused while heating food, exonerates all the accused. This dying declaration was found by the trial court to have been given under threat extended by appellant No.2 as well as two persons named Bengali and Pehalwan. The trial court found the second dying declaration given to the SDM, in which she described the incident as a deliberate act on the part of appellant No.1 to burn her after pouring kerosene oil on her, to be a reliable dying declaration. Apart from this the trial court found other evidence in support of the prosecution case. The trial court eventually acquitted Rajesh Kumar and Ramesh Kumar who were accused of extending threat to the deceased on account of the doubt of their identity. Appellant No.2, Manbhari, was convicted for having extended threat to the deceased while in the hospital which prevented the deceased from speaking the truth when she made the first dying declaration. Appellant No.1 who was charged not only under Section 302 IPC but also under Section 498A IPC was convicted for murder as the trial court opined that offence of Section 498A, i.e., cruelty, was included in the offence under Section 302 IPC.

3. The main ground for challenging the trial court verdict is the plea that the second dying declaration implicating the appellants is unreliable. In the first place this dying declaration does not carry the signature or thumb mark of the deceased. In the second place the mother and other relatives of the deceased were at the hospital from the early morning of 11.1.1991 till her death and they had ample opportunity to tutor the deceased.

4. Before proceeding further it will be necessary to have a close look at the two dying declarations. Before the statement was recorded Dr. Raj Narayan of J.P.N. Hospital declared her fit for a statement. The first dying declaration recorded by Inspector Dutta Ram at 2.15 p.m. on 11.1.1991 is Exh.PW-18/A, translated into English the same reads as under:

Statement of Madhu wife of Hans Raj resident of 1873, Gali Behram Beg, Lal Kuan, Delhi aged 28 years.

I live at the aforementioned address. I was married 9 years back. I have three sons and one daughter. The eldest son is 7 years old. My parents live at Azad Market. I was heating food on a stove. My clothes got fire. I was wearing a suit. My husband was sleeping. I screamed when my clothes caught fire. It was about 12 mid-night. I have not been burnt by my family member. The fire was caused by the stove. My husband never harassed me. My mother-in-law and father-in-law live in a separate house. Myself, my husband and children live in a separate house. On hearing my screams my husband, Hans Raj, came to rescue me. His hands have been burnt in rescuing me. The fire was caused by the flames of the stove.

5. The statement is thumb marked and the same is attested by Shri Dutta Ram, SHO of P.S. Hauz Qazi. Dr. Raj Narayan has made an endorsement on the statement, Recorded in my presence.

6. The second dying declaration was recorded by the SDM at 11.45 a.m. on 12.1.1991. The dying declaration incorporates in it the reason for deviating from the previous dying declaration. As per evidence on record, she expressed a desire to give her statement to a Magistrate. SDM, Kotwali, Shri Dharmender Sharma, was requested to record the statement. Dr. Ruchira Khosla, then attending on her, declared her fit for making a statement and her endorsement in this regard is also proved as Exh.PW-4/A. The statement of the deceased proved as Exh.PW-7/A, translated into English reads as under:

Statement of Madhu wife of Hans Raj resident of 1873, Lal Quan, Haus Qazi.

Question What is your name?

Answer Madhu.

Question How did you catch fire?

Answer There was a quarrel between my husband, Hans Raj, and I at around 11-11.30 p.m. in the night before yesterday. The children had fallen asleep. My husband said he would kill my brother. He asked me to eat food. I refused. He knocked me and I fell down and I was hurt at the back of my head which is still causing me pain. I said I was feeling giddy and so I will not heat food. He then bolted the door of the courtyard - lifted the kerosene and poured the same over me. All this happened in the courtyard. I attempted to go out but he caught me and set me on fire with a matchstick. I was wearing silk (reshmi kapre). I screamed I have been burnt, I have been burnt (Jala Diya). My brother-in-law and sister-in-law live upstairs. They came and poured water on me. On seeing others my husband also starting extinguishing fire. My brother-in-law slapped my husband twice and said that my husband would now go to jail for having done this to me.

Question Why did you not say this earlier? Did you tell a lie?

Answer My brother-in-law and his friend have said that if I told the truth they would kill both of my brothers - I have only two brothers. My mother-in-law said a little while thereafter that she would send my children to some orphanage if I told the truth.

Question What is the name of your brother-in-law and his friend?

Answer My devar is called Bengali and his friend is perhaps Pehalwan.

Question Was your earlier statement given to police wrong?

Answer Yes. I was scared.

Question When were you married?

Answer About 9 years back.

At this point starting saying I will not live. The children should not be sent to orphanage.

Question Did your husband ever tried to do any such thing after your marriage?

Answer He used to beat me up. He used to say that he did not like me any more. On many occasions I ran out of the house to save myself.

Question Madhu, I am reading out to you all that you have told me. Is this what you want to say?

Answer Yes.

7. Below the record of dying declaration the SDM has given an endorsement as under, Statement recorded by me between 11.45 a.m. and 12.30 a.m. on 12.1.1991 in the presence and after certificate of patient being fit for statement by the doctor on duty, Dr. Ruchira Khosla. Dr. Ruchira Khosla has appended an endorsement as under, Recorded in my presence

8. This dying declaration is not signed or thumb marked by the deceased. No reason was given why the signature or thumb mark is not appended on the dying declaration. The SDM who proved this dying declaration, namely, PW-7, Dharmender Sharma, in cross-examination stated that he did not ask the deceased to sign the statement or thumb mark after he had read over the said statement. He denied the suggestions that the deceased did not want to sign or thumb mark the statement, Exh.PW-7/A, because she was not willing to do so or because she was not in a proper state of mind to sign or thumb mark.

9. The trial court has preferred the dying declaration recorded by the SDM over the dying declaration recorded by the police officer for several reasons. In the first place, the trial court observed that when the first dying declaration was given to the police officer, the deceased was not under fear of death and, therefore, did not sufficiently answer the description of a dying declaration whereas the second dying declaration was made when the condition of the deceased had deteriorated and she was almost certain that she would die. The trial court secondly observed that the deceased was under threat when the first dying declaration was recorded while by the time second dying declaration was recorded she had overcome such fears that were caused by threats given by the persons named in the second dying declaration. Thirdly the trial court observed that elements of tutoring were present in the first dying declaration whereas the second dying declaration was totally voluntary and truthful. Apart from these three factors, the trial court also observed that other evidence on record also indicated that the second dying declaration, rather than the first dying declaration, contained the truth.

10. The learned senior counsel for the appellant, Mr. K.B. Andley, has laid much emphasis on the absence of signature and thumb impression of the deceased on the second dying declaration. He refers to Chapter 13A of Volume III of Delhi High Court Rules and Orders dealing with instructions to criminal courts in Delhi to substantiate his argument that a dying declaration is required to be signed and thumb marked. The Rules in this respect say that a dying declaration should be got recorded by a judicial magistrate, if so possible. The judicial magistrate should satisfy himself that the declarant is in a fit condition to make a statement and the certificate of medical officer present or in attendance about the fitness should be obtained although if the circumstances do not permit waiting, the judicial magistrate may proceed to record the dying declaration without the doctor's attendance. The statement of the declarant should be in the form of a simple narrative and the actual words of the declarant should be taken down. Rule 4 of Chapter 13A advises:

4. The Statement of the declarant should be in the form of a simple narrative- The statement, whether made on oath or otherwise, shall be taken down by the Judicial Magistrate in the form of a simple narrative. This, however, will not prevent the Judicial Magistrate from clearing up any ambiguity, or asking the declarant to disclose the cause of his apprehended death or the circumstances of the transaction in which he sustained the injuries. If any occasion arises for putting questions to the dying man, the Judicial Magistrate should record the question also the answers which he receives. The actual words of the declarant should be taken down and not merely their substance. As far as possible the statement should be recorded in the language of the declarant or the Court language.

11. It appears that the SDM has complied with all the instructions in this regard except taking down the thumb impression or the signature of the declarant. He does not say that it was not possible to take down the thumb impression of the deceased. The SDM is candid that he did not ask the declarant to thumb mark the statement. He is categorical in his denial that the declarant was not in a proper frame of mind to make a statement or that she did not want to thumb mark or sign the same.

12. The question is whether the dying declaration can be discarded for that reason alone. A dying declaration is not an instrument. A dying declaration can be oral or can be written. In the present case the dying declaration is oral. The oral dying declaration is recorded by the SDM. This record is not a testament like a will or sale deed which can only be executed by putting a signature. The court merely has to see whether dying declaration is actually made. On this aspect there is no quarrel. It is not the case of the defense/appellants that the deceased did not ever make a dying declaration Exh.PW-7/A. The defense suggested to the SDM is that the deceased was either not willing to sign the statement or was not in a proper state of mind to sign or thumb mark. It is not the case of the appellants that the prosecution has concocted the dying declaration Exh.PW-7/A. Nor is it the case of the prosecution that the dying declaration recorded by the SDM was not the true version of the declaration made by the deceased. No mala fides against the SDM and/or Dr. Ruchira Khosla is either alleged or proved. Therefore, the dying declaration Exh.PW-7/A cannot be discarded because the same is not signed or thumb marked by the deceased.

13. When the two dying declarations are carefully read it does appear to us that the second dying declaration is spontaneous and natural while the first is a laboured one. It is easy to notice that the first dying declaration is more keen to exonerate the accused rather than to give out the true circumstances. The spontaneous statement would have sufficed in giving the cause of the fire. The deceased, however, continues to state that her husband never harassed her. She further stated that her parents-in-law did not live with her. She stated categorically that her husband did not burn her. She went on to say that her husband saved her and that in his effort to save her his hands were also burnt. The trial court has rightly observed that the second dying declaration was more natural and truthful. She could have implicated other members of the family in the dying declaration. Although she stated that the first dying declaration given by her was not true, she did not implicate others in the process of causing burns " either in pouring kerosene or in preventing her from running away or in lighting matchstick. She has duly acknowledged the role of the brother-in-law and sister-in-law (jeth & jethani) in extinguishing the fire. She has also explained how her husband got the burn injuries, namely, in his attempt to save her when he saw his elder brother and his sister-in-law trying to extinguish the fire.

14. The learned Counsel for the appellants further challenged the second dying declaration saying that the trial court itself did not rely upon the second dying declaration to the extent it implicated the other two accused and, therefore, the entire dying declaration should have been discarded. In our opinion, this argument of the learned Counsel for the appellants is misconceived. The reason why the accused Rajesh Kumar and Ramesh Kumar were acquitted on benefit of doubt are available in paragraph 34 of the impugned judgment. The names of the persons who threatened her, apart from her mother-in-law, Manbhari, have been given in the dying declaration as Bengali and Pehalwan. The trial court observed that it was for the prosecution to establish the identity of the accused Rajesh Kumar as Bengali and that of Ramesh Kumar as Pehalwan. The husband of the deceased had four younger brothers, therefore, Rajesh Kumar was not the only brother-in-law (devar) who allegedly gave her the threats. The prosecution failed to establish that Rajesh Kumar was known as Bengali and Ramesh Kumar as Pehalwan. The trial court, therefore, acquitted them on benefit of doubt. Their acquittal is not caused by any doubt about the reliability of the second dying declaration. It cannot be said that the trial court did not rely upon the dying declaration and, therefore, acquitted the two accused Rajesh Kumar and Ramesh Kumar.

15. It is to be noticed further that the deceased was really concerned about the welfare of her three children, all of whom were of tender age. Even while making the second dying declaration she was crying in pain & imploring that the children should not be sent to orphanage. Obviously, it had been put in her mind that if truth was spoken her children would go to the orphanage. This also shows that the first dying declaration could have been extracted out of her by giving such threats.

16. We can now proceed to see to what extent the other evidence on record corroborates any of the two dying declarations.

17. The trial court has found several circumstantial evidence to corroborate the dying declaration. However, we find two of the circumstances to be important. In the first place, the kerosene stove available in the house, from which the deceased could have caught fire was a sophisticated one with kerosene tank attached to a cylindrical burner and the chance of the kerosene leaking from the tank or container was almost nil. No leak in the kerosene tank was noticed. It is not the case of the defense that the tank had burst. The kerosene tank was intact when seized by the police. The second important circumstantial evidence is the detection of kerosene on the scalp hair of the deceased. The post mortem doctor had preserved the scalp hair and had handed over the same to the investigation which got it examined by the CFSL. The CFSL report, Exh.PA, shows the presence of kerosene residue in the hair. True, the same report does not find residue of kerosene in the partly burnt clothes with skin sticking to them. This, however, has been explained by the fact that the hair and the clothes were packed separately. The CFSL report, Exh.PA, bears the date 28.1.1991. It was a slip of pen. The report is actually of 28.1.1992 as is explained by PW-20, Dr. N.K. Parsad, Sr. Scientific Officer, CFSL. In fact the report itself was filed before the court in July, 1992. The same was not filed along with the challan. The slip of pen about the date has not been disputed. Thus, a year had passed between the collection of the sample and its testing. In the time period that elapsed between the incident and the examination, the kerosene could have evaporated on account of the loose packing of the clothes. This could also be explained by the factor that the part of the burnt clothes sent to the CFSL were not exactly the parts which may have received the kerosene. Dr. N.K. Prasad was specifically questioned about the absence of kerosene on the clothes. He explained that the testing was done taking representative samples from different portions of the clothes and that presence of kerosene residue would not be detected by the physio Chemical analysis if the part subjected to analysis did not contain kerosene residue. Same was his answer in case exhibit in question was not properly preserved in air tight container. He also informed the court in his cross-examination that CFSL does not have the facility for taking extra precaution for preserving the exhibits received and they are kept in the open racks in the same form in which they are received. About the test done by him, namely, gas-liquid chromatography, he said that the same could detect a fraction of milliliter of kerosene. In any case the CFSL report cannot be discarded on the ground that the clothes did not produce positive result in respect of presence of kerosene whereas scalp hair did. Therefore, we have to accept the CFSL report which says that in the scalp hair of the deceased, there was presence of kerosene. If this is so, the theory that the deceased caught fire accidentally while heating food on the kerosene stove has to be discarded. The presence of kerosene on the head is possible only when by a deliberate act kerosene is poured on the hair. Kerosene cannot reach the scalp hair by accidental burns caused by a stove.

18. The defense initially say that Madhu did not sign the dying declaration because either she did not want to sign the dying declaration or because she was not in a proper frame of mind to sign the dying declaration. Both the suggestions have been denied by the SDM. In fact, the dying declaration carries a record that the statement as recorded was read out to the deceased and the deceased had accepted the same to be correct. Further argument against the dying declaration raised by the defense/appellants is that the second dying declaration is tutored by the parents of the deceased who were with her all through the period during which she was receiving treatment in the hospital. It was nobody's case that the family of the accused was also not there. Since the accused and their family as well as natal family of the deceased were present at the hospital it cannot be said that the natal family had the upper hand in tutoring the deceased. It can nevertheless be said that the deceased certainly gained confidence in speaking the truth as she approached death and in this the presence of her parents may also have been of some help. But most importantly the second dying declaration has to be accepted as it is corroborated by the circumstantial evidence as discussed above.

19. The Additional Sessions Judge in this case has taken the pains to visit the spot. He observed that nothing in the kitchen indicated that an incident of fire had taken place there. The kitchen, he found, was so small that in case any fire had taken place the same could certainly have left marks on the walls and the door of the kitchen. This factor has been taken into account by him in holding that the incident of fire did not actually take place in the kitchen but had taken place in the courtyard and that the same could be possible only if she was burnt by appellant No.1, Hans Raj, as indicated in her dying declaration.

20. The appellant No.1 has taken the plea that the prosecution has failed to produce the brother and sister-in-law of the appellant, who are eye-witnesses, and that it is a weakness in the prosecution case. We cannot accept this plea. The prosecution case has been sufficiently proved with the dying declaration and other circumstantial evidence.

21. The above analysis of the evidence on record leads to the inevitable conclusion that the appellant No.1, Hans Raj, had poured kerosene on the deceased and had set her on fire. Further, her second dying declaration also proves that appellant No.2-Manbhari, mother-in-law, had intimidated the deceased preventing her from speaking the truth in her first dying declaration.

22. We find that the Additional Sessions Judge was perfectly justified in reaching the conclusions that he did. The appeal has no merit and the same is accordingly dismissed. Appellant No.1, Hans Raj, now on bail, be taken in custody and be sent to the prison to undergo the remaining part of imprisonment imposed by the impugned sentence.