Hari Pal & Anr. vs State (Delhi Admn.)
2009 Latest Caselaw 1278 Del

*       HIGH COURT OF DELHI : NEW DELHI

    Crl.App.No.207 of 1993 & Crl.App.No.7 of 1994

%              Judgment delivered on: 9th April, 2009

1.Crl.App.No.207 of 1993

1. Hari Pal S/o Shri Ram Mehar
R/o Village-Farmana,
Distt.-Sonepat,
Haryana.

2. Hari Kesh S/o Shri Ram Mehar
R/o Village-Nizampur Majra,
P.S.Farma,
Distt.- Sonepat,
Haryana.                         ....Appellants
               Through: Mr.K.B.Andley, Sr.Adv. with
                        Mr.M.L.Yadav, Adv.

                                   Versus

State (Delhi Admn.)                         ...Respondent.

                       Through: Mr. Sunil Sharma, Adv.

2. Crl.App.No.7 of 1994

Kamla W/o Brahm Parkash
R/o Village-Nizampur Majra,
P.S.-Farmana,
Distt.-Sonepat,
Haryana.                                    ...Appellant

                       Through: Mr.K.B.Andley, Sr.Adv. with
                                Mr.M.L.Yadav, Adv.

                                   Versus

State (Delhi Admn.)


Crl.A.No.7 of 1994 & 207 of 1993                  Page 1 of 21
 Delhi.                                   ...Respondent.

                       Through: Mr.Sunil Sharma, Adv.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
HON'BLE MR.JUSTICE BADAR DURREZ AHMED

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Yes

2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported
   in the Digest?                                          Yes

V.B.Gupta, J.

Above named appellants being aggrieved by the

common judgment dated 24/25th November, 1993 of

the Additional Sessions Judge, Delhi have filed these

two appeals.

2. Vide impugned judgment, the appellants were

convicted under Section 302/34 of Indian Penal Code

and were sentenced to undergo imprisonment for life

and fined for Rs.500/- each. In default of payment of

fine they were ordered to undergo R.I. for seven days.

3. Initially in this case F.I.R. under Section 307 IPC

was registered at P.S. Narela on 23rd October, 1986 on

the statement of injured Brahm Prakash, S/o Sh.Chotu

Ram. Later on this injured died on the same day at

about 4:00 p.m. in the hospital and the F.I.R. was

converted under Section 302/34 IPC.

4. On 23rd October, 1996 at about 2:50 a.m. injured

Brahm Prakash went to the police station Narela and

gave his statement (Ex.PW-12/A) to head constable

Karan Singh (PW-18). In his statement he stated that

he was sleeping in the night on his cot. At about 2:00

a.m., he got awakened on getting fire on his cot and

then ran. He further stated that he had every doubt

that he had been burnt by his wife Kamla as he had an

altercation/quarrel with his wife who threatened him to

poison or to burn and kill him. He further reported

that his two brother-in-laws (sala) Hari Pal and Hari

Kesh had also come on the said night.

5. On the basis of this statement, F.I.R. was

registered. Since the deceased died on the same day,

this statement of injured became a dying declaration

after his death as per Section 32(1) of the Indian

Evidence Act. Besides this dying declaration,

prosecution in support of its case examined in all 22

witnesses.

6. Appellant Kamla in her statement under Section

313 Cr.P.C. denied the prosecution story. She stated

that she was married with deceased for more than

seven months ago and at the time of occurrence she

was pregnant for 6½ months. Deceased was in the

habit of drinking very heavily. Somehow, pallies under

his nylon cot caught fire and while he was intoxicated

got entrapped in the fire. She has been falsely

implicated at the instance of Smt. Channo Devi (PW-1),

her mother-in-law who wanted to divest her and her off

shoot from inheriting the property from the deceased

and wanted to turn her out from the house.

7. To similar effect are the statements of the other

two appellants, namely, Hari Pal and Hari Kesh.

8. In their defence, the appellants examined six

witnesses.

9. It has been contended by learned counsel for the

appellants that perusal of alleged dying declaration

Ex.PW12/A shows that deceased therein, did not

attribute any act as such to any of the appellants. In

fact in the said dying declaration, deceased has

categorically stated that he was awakened from asleep

at about 2:00 a.m. on account of burning and he

suspected that his wife might have burnt him because

she was having dispute with him and his two brothers-

in-law (salas) were also there in the house. Deceased

nowhere stated that any of the appellants burnt him.

Moreover deceased had not mentioned name of any

eye witness in his dying declaration.

10. The version given by Smt. Channo Devi (PW-1),

the mother of deceased with regards to the incident

runs counter to the version of the occurrence as

mentioned in Ex.PW-12/A. The conduct of PW1 shows

that in fact she was not present at the scene of

occurrence, as she neither tried to save her son nor

tried to secure any one of the assailants of her son nor

even sought any help for her son.

11. It is further contended that as per statement of

PW-1 she was sleeping in the house and deceased and

his wife Kamla were sleeping in the adjoining room.

She heard the noise of her son uttering "Dab liya Dab

liya" which does not find mentioned in Ex.PW-12/A. It

is further contended that PW-1 has stated that after

hearing the noise, she ran towards the room where her

son was sleeping and there she saw that appellant Hari

Kesh had caught hold of deceased while appellant Hari

Pal had a plastic can in his hand containing kerosene

oil who sprinkled kerosene oil on deceased. Appellant

Kamla was also standing there and she set fire to her

son with a match stick.

12. All these facts do not find mention in the dying

declaration of the deceased. Deceased has no where

stated in his dying declaration that appellant Hari Kesh

caught hold of him while appellant Hari Pal sprinkled

kerosene oil over him and he was put on fire by his

wife Kamla.

13. It is further contended that Surender (PW-4),

Nanhe (PW-5), Jai Prakash (PW-6) and Satbir (PW-8)

are the other so called eye witnesses. However, none

of these witnesses have seen the occurrence with their

own eyes and whatever they have stated, is all hearsay

and no reliance can be put on their statements.

14. Another contention is that the injured (Brahm

Parkash) himself had gone to the police station and

was thus fully conscious. As per statement of

Rameshwar Dutt (PW-21) the I.O, he got injured

admitted in the hospital, where injured was declared

fit for statement by the doctor but injured (Brahm

Prakash) did not give any statement to him. He again

approached the doctor at about 11:35 a.m. on 23rd

October, 1986 whereupon doctor opined vide his

report (Ex.PW15/C) that the injured was unfit for

statement. PW-21 has further stated that prior to this,

Brahm Prakash had been declared fit for statement by

Dr.G.S.Aggarwal at 5:00 a.m. on 23rd October, 1986.

So it is contended that when deceased was fit in the

hospital why he did not give any statement either to

the police or to the doctor. This goes on to show that

deceased did not suspect, either his wife or any of his

brothers-in-law for incident.

15. Lastly, it is contended that as per statement of

PW-1 her son was burnt by pouring kerosene oil.

However, there is no evidence to this effect, as the

post mortem report says that there was no smell of

kerosene oil.

16. Since the deceased has nowhere implicated any of

the appellants in his dying declaration, there is no

evidence to connect any of the appellants with the

commission of the offence and as such all the

appellants are liable to be acquitted.

17. On the other hand, it has been contended by

learned prosecutor that Smt. Channo Devi (PW-1) who

is the mother of the deceased, is the eye witness to the

incident and she has narrated complete details of the

incident, though there are certain minor contradictions

in her statement. However, these minor contradictions

are immaterial since PW-1 had herself seen appellant

Hari Kesh holding deceased while appellant Hari Pal

had poured kerosene oil and appellant Kamla had set

fire to the deceased.

18. In the dying declaration (Ex.PW12/A), deceased

has clearly stated that he had every doubt that he had

been burnt by his wife Kamla as he had an altercation

with her and his wife had threatened to poison or to

burn and kill him. Moreover, deceased in his dying

declaration has also named his two brothers-in-law,

namely Hari Pal and Hari Kesh and had stated that

they were also present in the house on the said night.

19. As far as smell of kerosene oil is concerned, it is

contended by learned prosecutor that residue of

kerosene oil was found on the clothes and pillows and

moreover kerosene can was also found in the room,

which corroborates the statement of PW-1 that the

appellants have poured kerosene oil over the deceased

and had burnt him. Under these circumstances, there

is no ambiguity in the judgment of the trial court.

20. Prosecution case is based on dying declaration of

deceased which is Ex.PW-12/A as well as on the

statement of alleged eye witnesses, namely,

Smt.Channo Devi (PW-1), Surender (PW-4), Nanhe

(PW-5), Jai Prakash (PW-6) and Satbir (PW-8).

21. As per dying declaration Ex/PW12A, deceased

nowhere implicated any of the appellants in this case

nor has he mentioned as to what specific role was

played by each of the appellants in burning him, as

deceased did not state in his dying declaration that any

of the appellants had actually burnt him. He has also

not stated as to which appellant had poured kerosene

oil over him and which appellant lit the match stick.

22. In his dying declaration, deceased stated that he

was sleeping in the night on his cot and on getting fire

on his cot he got awakened and then ran. He merely

stated that he had every doubt that he had been burnt

by his wife Kamla as he had an altercation with his

wife who threatened him to poison or to burn him.

Regarding appellants Hari Pal and Hari Kesh,

deceased in his dying declaration had only stated that

his two brothers-in-law, namely, Hari Pal and Hari

Kesh were also present in the said night. So, reading

of this dying declaration goes on to show that nowhere

it states that deceased had seen any of the appellants

pouring kerosene oil over him or burning him.

23. On the other hand, PW-1, the eye witness who is

the mother of the deceased has given altogether

different story which is not the case as per dying

declaration. She, in her statement, has stated that she

was sleeping in the house while deceased and his wife

Kamla were sleeping in the adjoining room. She heard

her son uttering "Daab liya Daab liya" and on hearing

the noise, she ran towards the room of her son and

there she found that Hari Kesh had caught hold of the

deceased while appellant Hari Pal who was having a

plastic can of kerosene oil had sprinkled kerosene oil

on deceased. The appellant Kamla was also standing

there and she had set fire to the deceased with a

match stick. She has further stated that Surinder (PW-

4), Satbir (PW-8) and Om Prakash had collected at the

spot and they also tried to extinguish the fire.

However, PW-4 and PW-8 did not state about these

facts in their statements.

24. All these material facts also do not find mention in

the dying declaration of the deceased.

25. The other so-called eye witnesses examined by

the prosecution in this case are not witnesses to the

incident and whatever they have stated is all hearsay.

26. Surinder (PW-4) in his statement has stated that

on 23rd October, 1986 at about 2:00 am he had

returned from his field and was on his way to his

house. He saw a crowd having collected outside the

house of the deceased and people were saying "Aag

laga di Aag laga di". He went towards that side and at

that time deceased was standing in the gali outside his

house and who stated that he had been set ablaze by

his wife.

27. In his examination-in-chief he has nowhere

mentioned about the presence of appellants Hari Kesh

and Hari Pal and role attributed to them, if any. This

witness was declared hostile.

28. In cross-examination, he stated that he had

enquired from Brahm Prakash (deceased) as to how he

caught fire. Brahm Prakash had told in the police

station that he had been set ablaze by his wife Kamla

and brothers-in-law Hari Kesh and Hari Pal by

sprinkling kerosene oil upon him. So, whatever this

witness has stated is all hearsay.

29. Nanhe (PW-5) another eye witness has stated that

on 23rd October, 1986 at about 2:00 a.m. he was

sleeping in his house and Surinder (PW-4) had called

him. He came out of his house and saw deceased

standing in burnt condition. They then went to the

house of Pradhan, Jai Parkash who was awakened. In

his cross-examination, he stated that deceased was

naming his wife only and has stated that he was burnt

while he was sleeping. This witness excludes the

presence of other appellants, namely, Hari Kesh and

Hari Pal.

30. Jai Prakash (PW-6) on the other hand stated that

on 23rd October, 1986 at about 2:30 a.m. he was

sleeping in his house and on being called when he

opened the door, he found four persons, namely,

Surinder, Satbir, Nanhe and Brahm Prakash standing

outside his house. He saw that Brahm Prakash was

burnt and so he enquired from him as to what has

happened. Brahm Prakash replied that his wife had

set him on fire.

31. This witness also nowhere states about the

presence of other two appellants. This witness is also

not a witness to the occurrence of the incident and

whatever he has stated was hearsay, because the

deceased allegedly told him that he had been burnt by

his wife.

32. Lastly, we come to the statement of Satbir Singh

(PW8) another alleged eye witness. He has stated that

on 22nd October, 1986 he was going towards his house

from his Ghair and the house of deceased is adjoining

his house. At that time, he heard the noise of "Mar

gaya Mar gaya, Jal gaya Jal gaya" and then he went

towards the house of the deceased. He enquired from

the deceased as to what happened, who allegedly told

him that his wife and his brothers-in-law had set him

ablaze. In cross-examination, this witness has stated

that Brahm Prakash (deceased) had not named the

brothers-in law, but had only said that his wife and

brothers-in-law (salas) had set him ablaze. He did not

know how many brothers-in-law Braham Prakash had

nor he knew their names. So, whatever this witness

has stated about the incident is all hearsay, as told to

him by deceased Brahm Prakash.

33. Now, the question which arises for consideration

is as to whether the present appellants have caused

the death of the deceased by pouring kerosene upon

him and by burning him or not or whether deceased

sustained burn injury accidently which is the defence

of these appellants.

34. Before relying upon dying declaration, it has to be

seen that it is truthful, voluntary and inspires

confidence. If these conditions are fulfilled, then in

view of Section 32 of the Indian Evidence Act, dying

declaration can be acted upon.

35. Section 32(1) of the Indian Evidence Act which

deals with dying declaration reads as under;

"32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of the person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made,

under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question.

(2 to 8) xxx xxx xxx xxx xxx"

36. Section 32(1) of the Indian Evidence Act is an

exception to the rule of hearsay and makes admissible

the statement of a person who dies, whether the death

is a result of homicide or of suicide, provided the

statement relates to the cause of death, or exhibits

circumstances leading to the death.

37. In cases of homicide, statements made by a

person, since deceased, are admissible to prove the

cause and circumstances of the man's death. Such

statements are called dying declarations'.

38. The dying declaration is entitled to great weight.

But, the Court has to satisfy itself that the dying

declaration is of such a nature as to inspire full

confidence of the court with regard to its correctness.

The court has to be on guard that the statement of the

deceased was not as a result of either tutoring,

prompting or a product of imagination. The Court has

to be further satisfied that the deceased was in that

state of mind and had a clear opportunity to observe

and identify the assailants. Once the Court is satisfied

that the declaration was true and voluntary,

undoubtedly, it can base its conviction without any

further corroboration as has been held by the Supreme

Court in a catena of cases.

39. It is well settled that there is neither a rule of law

nor a rule of prudence which has hardened into a rule

of law that dying declaration cannot be acted upon

unless it is corroborated. Dying declaration can be

accepted even if it is not corroborated by other

evidence. The court must not look for corroboration

unless it suffers from any infirmity. Once the Court

comes to the conclusion that the dying declaration is a

truthful version, there is no question of further

corroboration.

40. Now, coming to the facts of the present case, as

per dying declaration (Ex.PW12/A), it excludes the

presence of brothers-in-law of the deceased, namely,

appellant Hari Kesh and appellant Hari Pal and also

about the involvement of his wife appellant Kamla.

41. On the other hand, PW-1 mother of the deceased

stated that she has seen appellants pouring kerosene

oil on deceased and burning him.

42. When in the dying declaration itself the, deceased

has not attributed any role to any of the appellants, the

statement given by PW-1 under these circumstances

does not inspires confidence. The so called

corroboration given by PW-1 to the dying declaration

give a new twist to the dying declaration made by the

deceased, which is not the purpose of corroboration.

Corroboration is required to strengthen a fact which is

already there. Here, when deceased himself in his

dying declaration nowhere attributed any role to his

two brothers-in-law and specifically to his wife with

regard to the burning incident, the statement given by

PW-1 implicating all the three appellants in the

burning incident can have no meaning or value.

43. The other independent witnesses, namely, PW-4,

PW-5, PW-6 & PW-8 were not present in the room of

the deceased when he was burnt and whatever they

have stated in their statement is all hearsay.

44. If the deceased had any grievance against the

present appellants or had the present appellants been

involved in burning the deceased, the deceased would

have definitely named the appellants in his dying

declaration. Moreover, later on in the hospital, in spite

of being fit for statement, deceased did not give any

statement implicating the present appellants, either to

police or to a doctor.

45. Dr. George Paul (PW-11) who has conducted the

post mortem, has stated that no smell of kerosene oil

was evident on the body or in the scalp region at the

time of the post mortem. Had deceased been burnt by

pouring of kerosene oil on his body, there must have

been smell of kerosene oil on the body, which is not

there in this case and it supports the defence version

that deceased who was in the habit of drinking heavily,

caught fire while he was intoxicated and was

entrapped in the fire.

46. So, from the entire evidence on record, we come

to the conclusion that prosecution has failed to prove

its case against the present appellants. Under these

circumstances, conviction and sentence awarded by

the trial court is set aside. The appeals of the

appellants are allowed and all the three appellants

stand acquitted. Their bail bonds stand cancelled and

sureties stand discharged.

V.B.GUPTA, J.

BADAR DURREZ AHMED, J April 09, 2009 Bisht