K.J. John vs State
2010 Latest Caselaw 4109 Del

           THE HIGH COURT OF DELHI AT NEW DELHI



%                                Judgment Reserved on: 30.08.2010
                                Judgment Pronounced on: 07.09.2010


+            CRL.A. 295/1997


K.J. JOHN                                            ..... Appellant


                                - versus -

STATE                                                ..... Respondent

Advocates who appeared in this case:

For the Appellant :Mr Vinay Kumar Garg with Mr Brij Bhushan and Mr Fazal Ahmad.

For the Respondent : Ms Richa Kapur, APP

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not? YES

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

V.K. JAIN, J

1. This appeal is directed against the judgment dated 6th

May, 1997 and Order on Sentence dated 13th May, 1997,

whereby the appellant was convicted under Section 302 of the

Indian Penal Code, for committing murder of his wife Smt.

Krishna and was sentenced to imprisonment for life and to

pay a fine of `2,000/- or to undergo rigorous imprisonment for

six months in default.

2. On 18th December, 1994, deceased Smt. Krishna was

brought to J.P.N. Hospital in a PCR van. She had burn

injuries on her face, neck, both upper limbs, abdomen, trunk,

back and both thighs. ASI Bhim Singh, who reached the

hospital on coming to know of the deceased having been taken

there, visited her in the ward. It was opined by the doctor that

she was fit for statement at that time. He, therefore, recorded

her statement in the hospital, in the presence of the doctor.

She told him that she had four daughters and since she had

no son, her husband used to quarrel with her on this issue.

She further stated that in the morning she got ready to go the

church. Her husband K.J. John, however, asked her not to go

to the church. When she insisted, he poured kerosene on her

from the stove, and lit the fire, using a matchstick for the

purpose. Raising alarm, she came out of the room and fell on

the ground. Her husband poured water on her. A number of

persons from the locality gathered there and someone

informed the police. She then was brought to the hospital by

PCR van. Initially, the FIR was registered under Section 307

of the Indian Penal Code. Since the deceased succumbed to

the burn injuries sustained by her, the FIR was converted

under section 302 of the Indian Penal Code on 19th December

1994.

3. During the course of trial, the prosecution examined

18 witnesses in support of his case. No witness was examined

in defence. The main evidence against the appellant is the

testimony of his own daughter Josy, who had witnessed the

incident, and the dying declaration made by the deceased to

ASI Bhim Singh.

4. PW 10 Josy, who was aged 9 years at the time she

deposed in the court, stated that about two years ago, at about

4 O'clock in the morning, when they were in the bedroom, her

father, poured kerosene oil on her mother and put her on fire

in the kitchen. According to the witness, she could see from

the bedroom that her mother was in flames and under shock.

For some time her parents remained in the kitchen. Then her

mother went to courtyard and fell down. Her father also ran

after her mother and poured some water on her. Some

residents of the nearby houses reached there on hearing the

shirks of her mother and both her parents were made to sit on

the stairs. Her father also received some burn injuries. She

also confirmed having narrated the incident earlier in the

court, though she did not know the person to whom she had

narrated the incident.

5. PW 18 ASI Bhim Singh stated that on 18th December,

1994, while posted at PS Mangol Puri, he went to the spot on

receipt of a copy of the DD No. 6. He came to know that the

injured had already left for J.P.N. Hospital. He then reached

the hospital, collected her MLC and visited her in the ward.

The doctor opined that she was fit for making a statement. In

the presence of Dr H.S. Dass, he recorded her statement

Exhibit PW 18/A, in his own hand. The deceased put her

right thumb impression on the statement, at point 'C', which

he attested at point 'D'. Dr H.S. Dass made endorsement

made at point 'A' in token of correctness of the statement and

signed it at point 'B' in his presence.

6. PW 17 Dr Arun Goel identified the endorsement made

by Dr H.S. Dass at portion 'A' and his signature at point 'B' on

the dying declaration of the deceased. He also identified the

endorsement and signature of Dr H.S. Dass on the MLC of the

deceased Exhibit PW 15/B.

7. PW 15 Dr G.S. Martolia stated that on 18th

December, 1995 the appellant K.J. John was brought to J.P.N.

Hospital with history of burns due to fire. He had 10-15 per

cent burns on his face and left upper arm. He prepared his

MLC and referred him to the Burn Plastic Surgery

Department. He further stated that he had also examined

deceased Krishna on the same day and prepared her MLC

Exhibit PW 15/B. The patient was treated, referred and

admitted in the Burn Plastic Surgery Ward.

8. PW 2 Dr Yoginder Singh Bansal conducted the post

mortem examination on the dead body of the deceased. On

external examination he found that dermo epidermal burn

injuries were present over whole of the body except left breast,

front and back of left upper limb, back of right upper limb,

back of chest, back of abdomen, front and back of both legs.

Both her palms were burnt and soles were unburnt. He also

stated that the approximate area of burns was 50% of the total

body surface area.

9. PW 6 Shri Praveen Kumar, Metropolitan Magistrate

stated that on 20th December, 1994 the girl Josy who was

about 8 years old, was produced before him and was identified

by ASI Virender Singh. After putting questions to her and

satisfying himself that she could understand the questions put

to her and could give rational answers to them, he recorded

her statement Exhibit PW 6/B. The statement was read over

and explained to her and was signed by her in token of its

correctness.

10. In his statement under section 313 of the Code of

Criminal Procedure, the appellant admitted that he had

poured water on the deceased and had himself sustained 10-

15% burns on his face and left upper arm. He, however,

claimed that the deceased got accidentally burnt and he also

received burn injuries in the process of pouring water on her.

He also stated that those days he was not feeling well due to a

mental problem.

Ocular Evidence

11. The testimony of PW 10 Josy, daughter of the

appellant and the deceased, has been challenged by the

learned counsel for the appellant on the ground that, as stated

by the witness herself, she knew only Malayalam, whereas her

statement under Section 164 of the Code of Criminal

Procedure was recorded in Hindi. He also drew our attention

to the letter dated 8th October, 1996, sent by the learned

Additional Sessions Judge to the District and Sessions Judge,

Delhi, stating therein that two witnesses, who knew only

Malayalam, were in attendance and the services of an

interpreter were required to record their evidence. He

accordingly requested the learned District & Sessions Judge to

allow one official, working in Tis Hazari Court, to act as

interpreter for recording their evidence. Ms Nalini Dineshan,

an official working in Tis Hazari Courts, was accordingly

deputed to act as an interpreter for those two witnesses on 8th

October, 1996. We, however, find that during cross-

examination of PW 6 Shri Praveen Kumar, Metropolitan

Magistrate, who recorded the statement of Josy under Section

164 of the Cr.PC, no suggestion was given to him that the

witness did not know Hindi or that she knew only Malayalam

or that the statement Ex. PW 6/B was not made by her. We

also note that in her deposition in the Court Josy stated that

she had narrated the incident earlier also in the same building

and the statement Exhibit PW 6/B bears her signature at

point 'A'. When the witness stated that she had narrated the

incident earlier also in that very building, she obviously was

referring to her statement recorded under Section 164 of

Cr.PC, since she was not examined during trial, at any time

prior to 8th October, 1996. In these circumstances, if we

believe the learned Metropolitan Magistrate considering the

fact that the witness herself has admitted having made a

previous statement narrating this very incident in the same

Court building and has also admitted her signature on the

statement Exhibit PW 6/B, coupled with the fact that during

cross-examination of PW 6 it was not disputed that the

witness knew Hindi, it would mean that the witness knew

Hindi and was influenced to make an incorrect statement in

this regard. On the other hand, if we go by the deposition of

the witness in the court, the necessary implication is that the

statement Exhibit PW 6/B was not given by her, which would

mean that the document was fabricated by the learned

Metropolitan Magistrate. Taking the view favourable to the

appellant, we proceed on the assumption that the statement

Exhibit PW 6/B was not made by this witness to the learned

Metropolitan Magistrate. Since there is no legal obligation to

get the statement of a witness recorded under Section 164 of

Cr.P.C., her deposition in the Court, if otherwise believed by

the Court, cannot be rejected on the ground that she did not

make any statement, before a Magistrate, during the course of

investigation.

12. It was also pointed out by the learned counsel for the

appellant that according to Josy the incident took place at

about 4.00 A.M. and since normally the children are expected

to be sleeping at that time, there was no possibility of the

incident having been witnessed by her. It has come in the

dying declaration made by the deceased that the appellant had

asked her not to go to the church but she had insisted on

going there. Obviously, an altercation must have ensued

between the appellant and the deceased, when he asked her

not to go to the church and the deceased insisted on doing so.

A perusal of the site plan would show that only one room and

a kitchen cum room were in possession of the appellant in the

premises of Faith Mission Public School, E-219 Vijay Vihar,

where they were residing. The site plan and the photographs

show that those rooms were interconnected. The door

connecting the rooms was also found open, as is evident from

the photographs. The children, therefore, must have woken

up on hearing the altercation between their parents, and that

explains why they were not sleeping at the time when the

incident of pouring kerosene on the deceased took place. In

fact, the witness specifically denied the suggestion that she

was sleeping at the time of the incident and had not witnessed

the same. She also stated that her other sisters were also

awake at that time. The incident, according to PW-11 Koshy

Abrahim, had taken place at about 6.30 A.M. probably being a

child PW 10 Josy, when examined in the court after about two

years of the incident, was not able to recollect the precise time

when this incident took place. Considering the fact that the

deceased was ready for going to the church when this incident

took place, it is quite likely that she would have already woken

up the children, before she came to the kitchen after getting

ready to go to the church. The apparent contradiction in the

testimony of PW 10 Josy and PW 11 Koshy Abrahim as

regards the time of the incident is not significant and can be

safely attributed to fading memory and imperfect recollection

on account of lapse of time between the date when the

incident took place and the day when the witnesses were

examined in the court.

13. It is true that PW 10 Josy was a child she being

about 7-8 years old when this incident took place. Section

118 of Evidence Act provides that all persons shall be

competent to testify, unless the Court considers that they are

prevented from understanding the question put to them or

from giving rational answers to those questions because of

tender age etc. Even a child who is aged about 7-8 years is a

competent witness and there is no legal bar on acting upon

his/her testimony if he/she is capable of understanding the

nature of the question put to him/her and giving rational

answers to them. The decision on the question of whether the

witness has sufficient intelligence primarily rests with the Trial

Judge who notices his manners, his apparent disposition or

lack of intelligence if any, though, his decision may be

disturbed by a higher court if it is found to be erroneous.

14. In the case before us, the learned Trial Judge after

preliminary questioning of Josy was satisfied that she was

competent to depose. The witness gave correct particulars as

regards her name, her father's name and place of her

residence and name of her school. She was found to be

studying in class 3 and she stated that she knew that one

should always speak the truth. We, therefore, see no reason

to take a contrary view with respect to the ability of this

witness to understand the nature of the questions put to her

and of giving rational answers to them. She, therefore, had

rightly been held to be competent to testify as a witness.

15. However, as a rule of prudence the court is required

to closely scrutinize the testimony of a child witness and

should base the conviction on it only if it is satisfied about the

quality and reliability of the deposition made by the child

witness. If the court after scrutinizing the testimony of a child

witness comes to the conclusion that he/she has stood the

test of cross-examination and no serious infirmity is found in

her testimony, the conviction, in the facts and circumstances

of a given case, can be based upon his/her testimony alone.

The corroboration of the testimony of a child witness is sought

more as a matter of caution and prudence, than as a rule.

The testimony of the child witness cannot be discarded on

account of some discrepancy here and there, in his/her

deposition, provided the discrepancy does not relate to

material particulars and does not go to the root of the case. In

fact, minor discrepancies in the testimony of a child witness

may lend credence to it. Also, the court needs to carefully

scrutinize the testimony of a child witness to rule out the

possibility of the child having been tutored or having become

an instrument in the hands of someone, with some ulterior

motive.

16. As noted earlier, Josy was about 7-8 years old when

this incident took place. Her presence in the house, at the

time of the incident was natural, and has not been disputed.

Since the room, where she was present and the room/kitchen,

where the incident took place, were interconnected and the

door between them was not closed, she was in a position to

witness the incident.

17. In Suryanarayana vs. State of Karnataka AIR 2001

SC 482, the Supreme Court believed the testimony of a

witness who was aged about 4 years at the time of the

occurrence despite she being the solitary eye witness of the

case. In Desh Deepak Kapoor vs. The State 2006(92) DRJ

440, a Division Bench of this Court accepted and relied upon

the testimony of a child aged about 7 years at the time of the

incident, considering that the incident had taken place in the

house, the presence of the child witness at that time was only

natural.

18. It was also contended by the learned counsel for the

appellant that since PW 10 Josy was living with her

grandparents when she deposed during trial, there was a

possibility of her having been tutored by them. In the case of

Desh Deepak Kapoor (supra) also the child who was believed

by this court was living with his maternal grant parents. In

the case before us, Josy specifically stated during her cross-

examination, that she had come to the court from Kerala with

Bade Papa (elder brother of her father) and one friend of his.

Since the child was accompanied by the elder brother of the

appellant and his friend when she came from Kerala to Delhi

to depose during trial, there was no reasonable possibility of

her having been tutored by her maternal grant parents to

depose against the appellant. In fact, the possibility could

have been the other way round.

19. In Baby Kandayanathil vs State of Kerala AIR

1992 SC 2275, two children of the deceased and A-No.4, aged

about 8-7 years were the eye witnesses of the incident which

took place on 8th December, 1979. They were examined by the

police on 12th December, 1979. The Trial Judge after

preliminary questioning was satisfied that they were

answering questions intelligently and without any fear. The

witnesses stood the test of cross-examination. Their testimony

was accepted by the court noticing that they were the natural

witnesses of the incident which took place in their house.

20. In a very recent judgment of the Supreme Court

State of U.P. vs Krishna Master and Ors JT 2010(8) SC 240,

a witness Madan Lal was six years old at the time of

occurrence and he was examined in chief, during trial, when

he was about 16 years old. The High Court rejected his

testimony on the ground that a child of six years would not

have been in a position to recapitulate the facts in his memory

when he is examined after such a gap. Overturning the

reasoning given by the High Court, it was observed by the

Supreme Court that when a child of tender age witnesses

gruesome murder of his mother, father, brothers etc., he is not

likely to forget the incident for his whole life and would

certainly recapitulate the facts in his memory, when asked

about the same at any point of time, notwithstanding the gap

of about 10 years between the incident and recording of his

evidence. In the case before us, Josy, who was aged about 7

years when this incident took place, was examined in the Trial

Court after about two years of the incident in which kerosene

oil was poured on her mother by her own father and she was

set ablaze. The heinous nature of the incident itself would

ensure that the child would never forget it throughout her life

and would certainly be in a position to recollect the incident,

when questioned about it at a later date.

21. In State of Karnataka vs Shariff 2003 Crl.L.J.

1254, the prosecution witness of the occurrence was a child

whose mother had been murdered by his father. He supported

the prosecution but during cross-examination he stated that

he was in the house of his grandmother when his mother

caught fire. The Supreme Court, however, did not attach any

importance to this answer in the cross-examination and relied

upon his evidence observing that his otherwise reliable

testimony could not be impeached in his cross-examination,

and the witness could not be attributed any motive for falsely

deposing against his own father.

22. In Mangoo & Anr vs State of Madhya Pradesh 1995

Crl.L.J. 1461, the evidence of a child witness was sought to be

disregarded on the ground that he was in police headquarters

for about 12 days before adducing evidence in court.

Rejecting the challenge to the testimony of the child witness,

the Supreme Court observed that the mere fact that the

witness was brought to the court by the police was not a

ground to conclude that he must have been tutored. In the

case before us the child came to the court accompanied by

none other than the elder brother of the appellant. Therefore,

we find no reasonable possibility of her having been tutored by

the police or by her maternal grant parents.

23. It was pointed out by the learned counsel for the

appellant that according to Josy, her father had poured

kerosene oil on her mother from an oil container made of

plastic whereas as per the dying declaration of the deceased

kerosene oil was poured on her from a stove. It was further

pointed out that according to this witness, her father had used

a lamp kept in front of the God, to set her mother to fire

whereas as per dying declaration a matchstick was used for

the purpose.

24. It would be pertinent to note here that not only a

stove but also a plastic container was seized by the police from

the spot. Considering the tender age of the witness and

horrifying nature of the incident witnessed by her, we do not

consider these contradictions to be so serious as would

persuade us to altogether reject the testimony of this witness

who being the daughter of the appellant could have absolutely

no reason to depose falsely against him.

Dying Declaration

25. The dying declaration recorded by ASI Bhim Singh

was challenged by the learned counsel for the appellant on the

ground that there was no evidence that the deceased was fit

for making a statement, at the time this dying declaration is

alleged to have been recorded by him and no attempt was

made by the Investigating Officer to get the dying declaration

recorded by a Magistrate. It was also pointed out that there is

a cutting on the endorsement of fitness made on the MLC of

the deceased.

26. We have perused the MLC of the deceased Exhibit PW

15/B. There is an endorsement on the MLC made by Dr H.S.

Dass at 9-10 A.M. on 18th December, 1994. It is quite

apparent from a perusal of the document that initially the

doctor wrote unfit but later he struck off the words 'un' in the

endorsement made by him. However, what is important in this

regard is that the scoring off of 'un' was signed by the doctor,

which means that it was by mistake that he wrote unfit

though he wanted to write fit and that is why he scored off the

words 'un' and put his signature in token of having made the

correction. The dying declaration made by the deceased to ASI

Bhim Singh also bears the signature of Dr H.S. Dass along

with the date under his signature. ASI Bhim Singh who came

in the witness box as PW 18 stated that he had recorded the

statement of Smt. Krishna Exhibit PW 18/A in the presence of

Dr H.S. Dass who had made endorsement at point 'A' and

signed it at point 'B' in his presence. Vide endorsement at

point 'A' Dr H.S. Dass certified that the thumb impression at

point 'C' was of Smt. Krishna. The endorsement made by Dr

H.S. Dass along with his signature when read with the

deposition of PW 18 ASI Bhim Singh shows that Dr H.S. Dass

was present when the dying declaration of the deceased was

recorded by ASI Bhim Singh. The endorsement made by him

vide dying declaration when read along with the deposition of

ASI Bhim Singh clearly shows that the deceased was fit for

making statement at about 9-10 A.M. on 18th December, 1994

and that her dying declaration was recorded by ASI Bhim

Singh in the presence of Dr H.S. Dass. The thumb impression

at point 'C' on the dying declaration was also obtained in the

presence of Dr H.S. Dass. It is true that Dr H.S. Dass has not

come in the witness box, but his signature and handwriting

have been proved by PW 17 Dr Arun goel who was conversant

with his handwriting and was in a position to identify the

same. He also stated that Dr H.S. Dass had left the services of

the hospital and his present whereabouts were not known.

27. Section 47 of the Evidence Act provides that when

the court has to form an opinion as to the person by whom

any document was written or signed, the opinion of any

person acquainted with the handwriting of the person by

whom it is supposed to be written or signed that it was or was

not written or signed by that person, is a relevant fact.

28. During cross-examination of Dr Arun Goel no

suggestion was given to him that he was not conversant with

the handwriting of Dr H.S. Dass. According to the witness, he

was working in JPN Hospital in 1994 and during his stay he

had worked with Dr H.S. Dass, who was a junior Resident.

The witness, therefore, was in a position to identify the

handwriting and signature of Dr H.S. Dass, but no suggestion

was given to him in his cross-examination that Dr H.S. Dass

had not worked with him or that he was not conversant with

his handwriting and signature. No suggestion was given to

him that Dr H.S. Dass had not left the services of JPN Hospital

or that his present address was available in the record of the

Hospital. In fact, he was not cross-examined at all, despite

opportunity. It is true that the best evidence to prove a

particular handwriting and/or signature would be of its

author. But, when it is shown that the present whereabouts

of the author of the signature/handwriting are not known,

there can be no valid objection to the court accepting the

opinion of a person who is acquainted with the handwriting

and signature of the concerned person.

29. As regards the failure of the Investigating Officer to

call a Magistrate to record the statement of the deceased, we

notice that during cross-examination of ASI Bhim Singh, he

was not asked as to why he did not call a Magistrate to record

the statement of the deceased. If an adverse inference is

sought to be drawn on account of a particular conduct of the

witness, he should first be given an opportunity to explain the

impugned conduct. It is not permissible in law to use a

particular conduct to draw an adverse inference against a

witness without first giving him an opportunity to explain that

conduct. There could have been reasons such as non-

availability of the Magistrate, or the deceased having become

unfit, soon after her statement recorded by PW-18, and may

be the witness would have been able to share those reasons

with the court had he been questioned in this regard.

30. There is no legal bar to a police officer recording a

dying declaration and the dying declaration recorded by him is

not inadmissible in evidence. It is only by way of a caution

and as a matter of prudence that the courts normally insist

upon the dying declaration being recorded by a Magistrate. In

Paras Yadav vs. State of Bihar 1999 I AD SC 28, dying

declaration was made in the presence of a number of

witnesses and was also recorded by a police sub-inspector.

Even the doctor was not examined to establish that the

deceased was conscious and in a fit condition to make the

statement. Noticing that the evidence of the prosecution

witnesses established beyond reasonable doubt that the

deceased was conscious, it was held that the dying declaration

could not be said to be doubtful or unworthy of evidence and

the lapse on the part of the Investigating Officer could not be

taken in favour of the accused since such lapse might have

been committed designedly or because of negligence. In State

of Rajasthan vs Parthu (2007) 12 SCC 754, the dying

declaration was recorded by a police officer in the presence of

a doctor who had also attested the thumb impression of the

deceased on his statement. There was no certificate of the

doctor, clarifying fitness of the deceased to make a statement.

The allegation against the respondent was that he had poured

kerosene oil on the deceased and had set her on fire pursuant

to a quarrel between them. The High Court acquitted the

respondent opining that since the doctor had not certified that

the deceased was in a fit state of mind to make a statement

before the Investigating Officer and had not treated her, no

reliance could be placed thereon. Setting aside the acquittal of

the respondent, the Supreme Court noted that the dying

declaration was recorded in the presence of the doctor and

though technically there could have been no attestation of the

statement of the deceased by him, by issuing such a

certificate, what the doctor meant was that the statement of

the deceased was made by her, before the Investigating Officer,

in his presence, and the same had been recorded by the latter.

In the case before us not only the endorsement of the doctor

appears on the statement of the deceased, but the testimony of

PW 18 ASI Bhim Singh shows that Dr. H.S. Dass was very

much present when the statement was recorded. Moreover,

there is also an endorsement of the fitness of the deceased on

her MLC. In Mohd. Islam vs. State (NCT of Delhi) 2001

Crl.L.J. 4317, the statement of the deceased was recorded by

the Investigating Officer in the presence of a doctor and the

FIR was registered on that statement. Even though Dr. Neeraj

Goel, in whose presence the statement was recorded, was not

examined because of his non-availability, a Division Bench of

this Court held that it would not render the dying declaration

in question unreliable or illegal. It was noted that the

statement of the deceased was got foot marked by the

Investigating Officer in the presence of the doctor as was

apparent from the endorsement made by him. It showed that

the dying declaration was recorded by the Investigating Officer

in the presence of the doctor and, therefore, the contention

that the dying declaration was not recorded by a doctor did

not materially affect the case of the prosecution. It was

observed, during the course of the judgment, that the dying

declaration, recorded by the police officer and attested by the

doctor, is admissible in evidence. As regards the failure of the

Investigating Officer to call the SDM for recording the dying

declaration of the deceased, this Court accepted the

explanation given by the State counsel that had the

Investigating Officer not recorded the statement of the

deceased perhaps the prosecution would have been deprived

even of that statement, since possibility of the deceased

thereafter losing consciousness could not be ruled out,

particularly when she had 95 to 97% burns and the time was

too short with the Investigating Officer. In the case before us

also, the deceased had 90% burns. Though in the absence of

questioning of ASI Bhim Singh in this regard, we do not know

why he could not call a SDM to record the statement of the

deceased, we cannot lose sight of the fact that the deceased

died early next morning and, therefore, ASI Bhim Singh could

not have afforded to waste time in calling the Magistrate for

recording her statement. In the absence of questioning of the

Investigating Officer, we also do not know whether the

deceased continued to remain conscious after her statement

was recorded by ASI Bhim Singh or not. In these

circumstances, it would not be appropriate to exclude the

dying declaration recorded by ASI Bhim Singh from

consideration.

31. No doubt, a dying declaration, before it is accepted

by the court, needs to be scrutinized carefully, but, if after

such a scrutiny, the court is satisfied that the dying

declaration was made voluntarily and the deceased was not

prompted to make such a statement, there is no legal

impediment in relying upon such a dying declaration. In

Betal Singh vs State of M.P. (1996) 4 SCC 203, the case of

the prosecution was that the appellant had doused the

deceased with kerosene oil and set her ablaze by lighting a

matchstick. Before her death, the deceased was taken to a

nearby hospital, where FIR was registered on the basis of a

statement made by the deceased to a neighbour. A police

officer also went to the hospital and recorded the statement of

the deceased. Observing that there was no reason for the

police officer to concoct the statement of the deceased and

noticing that PW 1 had also heard the deceased telling those

facts to the police officer it was held that the High Court was

fully justified in convicting the appellant. In Vidhya Devi &

Anr vs State of Haryana (2004) 9 SC 476, the doctor had

opined that the deceased was in a fit state of mind and he was

present when her statement was recorded. The dying

declaration was accepted by the Supreme court for

maintaining the conviction of the appellant.

32. On a scrutiny of the dying declaration recorded by

ASI Bhim Singh, we notice that the deceased told him that she

had four daughters and had no male child. This factual

aspect is not disputed by the appellant. No other person

present in the hospital on that day could have given these

facts to ASI Bhim Singh. Admittedly, the family of the

deceased was not residing in Delhi when this incident took

place. They came to Delhi on 21st December and identified the

dead body of the decease on 22nd December. There is no

allegation of the deceased having been tutored by anyone

before her statement was recorded by the police officer. In

these circumstances, we find no good reason to disbelieve the

dying declaration recorded by ASI Bhim Singh.

33. If we look for corroboration of the testimony of PW 10

Josy, it is available in the form of the dying declaration made

by the deceased. If we look for corroboration of the dying

declaration on the ground that it was recorded by a police

officer, it is available in the form of deposition of none other

than the daughter of the appellant. In other words, the dying

declaration and the deposition of PW 10 Josy corroborate each

other in all material particulars. Taken together, the

deposition of the daughter of the appellant and the dying

declaration made by the deceased are sufficient to warrant the

conviction of the appellant.

34. It was lastly contended by the learned counsel for the

appellant that since there was an altercation between the

appellant and the deceased, the case is covered by exception 4

to section 300 of IPC.

35. An accused is entitled to the benefit of exception 4 to

Section 300 of the Indian Penal Code only if the act committed

by him satisfies the following conditions:

(i) It is committed without premeditation;

(ii) it is committed in a sudden fight; and

(iii) the act is committed in the heat of passion upon

a sudden quarrel, provided the offender does not take

any undue advantage and does not act in a cruel and

unusual manner.

'Undue advantage' would mean an unfair advantage.

The nature of the weapon used by the accused and the

manner of attack made by him have a material bearing while

deciding whether the accused had taken an undue advantage

or not.

36. The deceased was killed by pouring kerosene oil on

her and setting her ablaze. If the husband of a woman kills

her in this manner it cannot be said that he did not act in a

cruel manner and did not take undue advantage of the

deceased being a woman and not being in a position to defend

herself. The deceased would not be expecting that her

husband would pour kerosene oil on her and then immediately

set her ablaze. Since the incident took place all of a sudden

and the deceased has no inkling of what was in store for her,

she was hardly in a position to save her life from the hands of

the appellant. Death by burning is one of the most cruel

methods of killing a person and it would be extremely difficult

for us to say that such an act was not a cruel act within the

meaning of exception 4 to section 300 of the IPC. In Rawel

Singh vs The State 1997 Crl. L.J. 1195, the appellant before

this court had set his wife ablaze, after she had poured

kerosene oil on herself. Rejecting the contention that the case

was covered by exception 4 to section 300 of the IPC, a

Division Bench of this Court held that it will not be too much

to say that the accused had acted in a cruel manner inasmuch

as he had set ablaze a helpless lady who was living with him

as his wife, inspite of being beaten by him regularly. Following

the judgment in the case of Ravel Singh (supra), another

Division Bench of this Court in Harihar vs Govt. of NCT of

Delhi (State) 126 (2006) DLT 566, held that since the deceased

was unarmed and was of weaker sex, she being a woman, the

accused who poured kerosene oil on her and set her ablaze

had taken advantage of his superior physical position and

availability of kerosene in the jhuggi, his act was also cruel.

We, therefore, are unable to give benefit of exception 4 to

section 300 of the IPC to the appellant. We would also like to

note here that though in his statement under section 313 of

the Cr. P.C., the appellant did not dispute that his wife died of

burn injuries, the plea taken by him was that the deceased got

accidentally burnt and he also received burn injuries in the

process of pouring water on her. He, however, did not try to

tell the court as to how the alleged incident had taken place.

The dying declaration made by the deceased shows that she

was ready to go to the church when this incident took place.

There is no evidence of the deceased cooking something on the

stove. No such claim was made even by the appellant who

stated that the incident in question was an accident. During

cross-examination of PW 10 Josy, daughter of the appellant

and the deceased, no suggestion was given to her that the

deceased was cooking something on the stove and had

accidentally caught fire. The stove seized by the police from

the spot, did not have a lid on it. At the time of cooking the lid

would be fixed on the stove. This indicates that the deceased

was not engaged in any cooking, which, in turn, falsifies the

plea of accidental fire. There is no evidence of the appellant

having raised any alarm when the deceased was in flames. It

is true that the appellant himself got some burn injuries, but

the burn injuries sustained by him were superficial as is

evident from his MLC and no burn mark was found on his

palm and hands which indicates that no attempt was made by

the appellant to douse the fire using his hands for the

purpose. In ordinary course of events, if the husband all of a

sudden finds his wife in flames, his first reaction would be to

make an attempt to douse the fire, using whatever he can lay

his hands on and if he cannot find any other thing, he will not

hesitate to use even his hands for the purpose. The appellant

had come back to his house on the same day as stated by PW

18 ASI Bhim Singh, which, in turn shows that the burn

injuries sustained by him were quite minor and that is why he

was immediately discharged from the hospital. Pouring of

water on the deceased after she had come out of the

room/kitchen by itself does not make out a case of accidental

fire in the facts and circumstances of the case before us.

37. The learned counsel for the appellant, while claiming

benefit of exception 4 to Section 300 of the IPC, relied upon

the decision of Kalu Ram vs. State of Rajasthan (2000) 10

SCC 324. The appellant therein asked Vimla, one of his two

wives to spare her ornaments, presumably for raising some

more money for buying liquor. He was then also drunk.

Vimla, however, refused to part with her ornaments, which

infuriated the appellant. He then doused Vimla with kerosene,

wanted her to die and supplied a box of matchsticks to her.

Since she failed to ignite the matchsticks, the appellant took

the matchstick from her and lit one of the matchstick setting

her ablaze. When the flames were up, he suddenly and

frantically poured water to save her from death. While altering

the conviction of the appellant from section 302 to section

304 (II) of the IPC, the Supreme Court felt that the conduct of

the appellant, in frantically pouring water to save the deceased

from the tongues of flames, could not be seen divorced from

the totality of the circumstances. Observing that very

probably he would not have anticipated that the act done by

him would have escalated to such a proportion that she might

die and if he had ever intended her to die he would not have

alerted his senses to bring water in an effort to rescue her, the

Court was of the view that all that the accused thought of was

to inflict burns to her and to frighten her but unfortunately

the situation slipped out of his control and it went to the fatal

extent. The Court was of the view that the appellant would

not have intended to inflict the injuries which she sustained

on account of his act. The facts of the case before us are,

however, different. There is no evidence of the appellant

having even consumed liquor what to speak of being under the

influence of liquor. There is no evidence of the appellant

having tried to douse the fire while the deceased was still in

the kitchen/room where she was set ablaze. The appellant

poured water on her only when she raised an alarm and came

out in the courtyard. Probably he had no option left but to

pour water on her since the neighbors were bound to reach

the spot on hearing the shrikes of the deceased. As noted

earlier by us, no attempt was made by the deceased to douse

the fire using any object lying in the room or his hands for the

purpose. The burn injuries sustained by the appellant were

very minor, he having sustained them only on his face and

right upper arm. No alarm was raised by the appellant in

order to call the neighbors for help. In his statement under

section 313 of the Cr.PC the appellant does not claim any

provocation from the deceased, his plea being that it was an

accidental fire. In the facts and circumstances of this case, it

is difficult for us to convert the conviction of the appellant

from section 302 to section 304 of the IPC.

38. For the reasons given in the preceding paragraphs,

we are of the view that the appellant has rightly been

convicted under section 302 of the IPC, we find no merit in the

appeal and the same is, therefore, dismissed.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE

SEPTEMBER 07, 2010 RS