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