* IN THE HIGH COURT OF DELHI AT NEW DELHI % CRL. APPEAL NO. 631 OF 2002 + Date of Decision: 16th January, 2009 # Mange Lal ...Appellant ! Through: Mr. Sudhanshu Palo, Advocate Versus $ State (NCT of Delhi) ...Respondent ^ Through: Mr. M.N. Dudeja, APP WITH % CRL. APPEAL NO. 639 OF 2002 # Missar & Anr. ...Appellants ! Through: Ms. Ritu Gauba, Advocate Versus $ State (NCT of Delhi) ...Respondent ^ Through: Mr. M.N. Dudeja, APP Crl. App. Nos. 631 & 639/02 2 CORAM: * HON'BLE MR. JUSTICE B.N.CHATURVEDI HON‟BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment?(No) 2. To be referred to the Reporter or not?(Yes) 3. Whether the judgment should be reported in the digest?(Yes) JUDGMENT P.K.BHASIN, J: The appellants have filed these appeals assailing the judgment dated 22.7.2002 and order dated 24.7.2002 passed by the Additional Sessions Judge whereby the appellant Mange Lal has been convicted for the offence under Section 498-A of Indian Penal Code („IPC‟ for short) and sentenced to three years rigorous imprisonment and fine of Rs. 500/-, while the other two appellants have been convicted for the offences punishable under Sections 302/498-A/34 IPC and sentenced to undergo imprisonment for life under Section 302/34 IPC and also to pay Crl. App. Nos. 631 & 639/02 3 fine of Rs. 500/-, and to undergo three years imprisonment under Section 498-A/34 IPC and to pay fine of Rs. 500/-. Since both the appeals had arisen out of the same judgment of the trial Court they were heard together and are now being disposed of by a common judgment. 2. At the outset the facts of the case which led to the prosecution of the three appellants-accused need to be noticed. Sushila (the deceased) was married to PW-8 Ram Singh more than ten years before the tragic incident of burning of the deceased which took place on 29/01/01. They were staying together on the first floor of house no. A-369, Transit Camp, Govindpuri. Appellant-accused Missar is the mother-in-law of the deceased, appellant-accused Mange Lal is her brother-in-law(jeth) and appellant-accused Teeja is her jethani(wife of accused Mange Lal). They were also living in house no.A-369. As per the case of the prosecution, these three accused persons used to harass the deceased for her not satisfying their demands of dowry. On 29.01.2001 at about 11.40 a.m. accused Missar and Teeja Crl. App. Nos. 631 & 639/02 4 allegedly set the deceased Sushila on fire due to which she sustained 85% burn injuries and although she was taken to Safdarjung hospital by the officials of Police Control Room which had been informed of the incident by someone but she could not survive for long and succumbed to the burn injuries sustained by her on the same day in the night at about 9 p.m. 3. The body of the deceased was subjected to post-mortem examination on 01.02.2001. The autopsy surgeon, Dr. Alexander (PW-16), gave his report Ex. PW-16/A wherein he made a mention of the following injuries noticed by him on the dead body: a) External Injuries: On external examination epidermal to dermoepidermal burn injuries were present on all over the body except on both the legs and feet. Line of redness blackening and charring were present on all over the involved areas. Approximate percentage of burn injuries was 85. No other injuries were present on the body externally. b) Internal Injuries: In the internal examination brain was congested. Nasolaryngopnx showed mucosal congestion. Both lungs were congested trachea and bronchi Crl. App. Nos. 631 & 639/02 5 showed mucosal congestion. Stomach was empty. Uterus was non-pregnant. Rest of the structures inside the body were normal and intact. In the post-mortem report the autopsy surgeon also mentioned that the smell of kerosene was present all over the body of the deceased and the cause of death was opined to be shock caused by ante-mortem thermal injuries. The three accused persons were arrested on the date of the incident itself since the deceased had implicated them in her statements made before different persons which subsequently were being relied upon as her dying declarations. After completion of usual investigation formalities the police charge-sheeted them for the commission of offences under Sections 302/498-A/34 IPC. The trial Court framed charges under Sections 302/498-A/34 IPC against accused Missar and Teeja while accused Mange Lal was charged only under Section 498-A IPC. 4. The prosecution had sought the conviction of the three accused persons on the basis of four dying declarations of the Crl. App. Nos. 631 & 639/02 6 deceased as also the testimonies of some of the family members of the deceased including her husband. The husband of the deceased, however, had turned hostile. The accused persons had abjured their guilt and taken the plea of alibi. They had claimed that on the day of the incident they had gone to Ravidas temple on the occasion of Ravidas Jayanti. Accused Mange Lal stated at the time of recording of his statement under Section 313 Cr.P.C. that in the temple they had got the information that the deceased had got burnt accidentally and then he had gone to hospital and had found the deceased talking to her buas(PWs 2 and 11) . Other two accused had also claimed that they had gone to hospital from the temple on getting the information and in the hospital they had found the two buas of the deceased present with the deceased. Two witnesses were also examined by the accused to prove their plea of alibi. It was also claimed by the accused persons that they were living separately on the ground floor of house no.A-369 while the deceased was staying on the first floor with her husband. The husband of the deceased while turning hostile had supported the plea of alibi taken by the three accused persons and also claimed Crl. App. Nos. 631 & 639/02 7 that he himself was also with them in the temple while his wife was at home. 5. The learned trial Judge did not accept the plea of alibi taken by the accused persons and the evidence adduced by them in defence to establish this plea and convicted all the three accused relying upon the dying declarations made by the deceased as also the evidence of the father of the deceased(PW-1) and the two buas of the deceased(her father‟s sisters), who were examined as PWs 2 and 11, regarding the harassment of the deceased by the three accused persons. The three convicted accused felt aggrieved and two of them who were convicted under Sections 302/498-A/34 IPC filed one joint appeal while the third one convicted only under Section 498-A IPC filed his separate appeal but since both the appeals were heard together we are deciding the same by this common judgment. 6. Learned counsel for the appellants did not dispute the fact that the deceased Sushila had got burnt in the morning of 29th Crl. App. Nos. 631 & 639/02 8 January,2001. In fact, to that effect is even the evidence of one of the two defence witnesses examined by the accused. She is DW-1 Noorie, who was the next door neighbour of the deceased in Govindpuri. She claimed that she had seen the deceased burning in her house at about 11.30 a.m. on 29/01/01 and also that she had informed the police on phone. Learned counsel also did not dispute the fact that the deceased had died due to burn injuries. That fact is also, in any case, proved from the evidence of the autopsy surgeon(PW-16) who had conducted post-mortem over the dead body of the deceased and in respect of his evidence no arguments were advanced by the learned counsel for the appellants. Learned counsel also did not dispute the proposition that conviction of an accused can be recorded by the Court solely relying upon a dying declaration of the deceased and that too without any corroboration if it is established that the dying declaration was made voluntarily by the deceased while in a fit state of mind. In our view, learned counsel for the appellants rightly did not dispute the proposition regarding the value of a dying declaration in view of the various pronouncements of the Crl. App. Nos. 631 & 639/02 9 Apex Court one of which was cited on behalf of the appellants by their counsel. That judgment is reported as AIR 1962 SC 439, “Harbans Singh vs State of Punjab” in which it was observed as under: “17. The learned Judge appears to have relied also on what was said by this Court in Ram Nath v. State of Madhya Pradesh AIR 1953 SC 42 on the need of corroboration for a dying declaration. Speaking for the Court Mahajan J. (as he then was) observed in that case :- "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross- examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration." The question was however considered again by this Court in Khushal Rao v. State of Bombay [[1958] S.C.R. 552, 568]. After pointing out that in Ram Nath's Case (Supra) the Court after a careful examination of the facts of that case distinctly came to the conclusion that the dying declaration was not true and could not be relied upon this Court stated in the later case that the observations of the Court in Ram Nath's case were in the nature of obiter dicta. The Court then proceeded to review the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court and stated the law in these words :- Crl. App. Nos. 631 & 639/02 10 "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 must 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 position that a dying declaration is a weaker kind of evidence than other pieces 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 of 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 parties. "Hence, in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the Crl. App. Nos. 631 & 639/02 11 veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from other infirmities as may be disclosed in evidence in that case." 7. We may also make a useful reference to a Constitution Bench decision of the Supreme Court in “Laxman vs State of Maharashtra”, AIR 2002 SC 2973, wherein while dealing with the value of a dying declaration in a criminal trial it was observed by the Apex Court as under: “The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be Crl. App. Nos. 631 & 639/02 12 exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is Crl. App. Nos. 631 & 639/02 13 recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind…………...” 8. It was, however, seriously disputed by the learned counsel for the appellants that accused Missar and Teeja had set the deceased on fire as had been found by the trial Court relying upon the dying declarations of the deceased. Regarding the dying declarations of the deceased, learned counsel argued that it has not been established beyond doubt that the deceased had actually made any dying declaration and in fact she could not have made any considering the fact that she had sustained 85% burn injuries. It was also submitted that, in any event, all the dying declarations being not consistent with each other could not be relied upon. It was contended that in the first two dying declarations Mange Ram was not named and in the third only he was named and assigned the role of beating the deceased but not with a danda as was allegedly told by the deceased to her bua PW-11. Learned Crl. App. Nos. 631 & 639/02 14 counsel further pointed out that PW-11 had claimed that the deceased had told her that kerosene oil was poured on her by her sister-in-law Teeja while in the dying declarations made before the SDM and the investigating officer she had claimed that kerosene oil was poured on her by her mother-in-law and so, learned counsel submitted, none of the dying declarations could be relied upon. It was also contended that as far as the evidence of the father and two buas of the deceased regarding the allegations of cruelty to the deceased by the accused is concerned the trial Judge himself has not wholly relied upon the same and has observed that their statements that the deceased used to be harassed for dowry were not reliable at all and so based on their evidence conviction under Section 498-A IPC was also not justified. Learned Additional Public Prosecutor, on the other hand, fully supported the decision of the trial Court and submitted that all the dying declarations relied upon by the prosecution have been proved beyond any shadow of doubt to be of the deceased made while she was in a fit state of mind and there are no circumstances throwing any doubt about their genuineness and Crl. App. Nos. 631 & 639/02 15 truthfulness and that the inconsistency therein as to which accused had poured kerosene oil on the deceased highlighted by the counsel for the appellants was not material enough so as to attract rejection of all the dying declarations. It was also submitted that the fact that the deceased had made as many as four dying declarations within a short time after the incident about the incident and involvement of the accused persons is also factor which lends assurance to the genuineness of the dying declarations. Regarding the offence under Section 498-A it was contended that the father and the two buas of the deceased had clearly deposed about the acts of cruelty committed by the three accused towards the deceased and so all the three accused have been rightly convicted for this offence also. 9. We shall first take up the case of accused Missar and Teeja who have been convicted for the offence of murder by the learned trial Judge relying upon the dying declarations of the deceased. In this case there are four dying declarations of the deceased being relied upon by the prosecution. Of course, just because four dying Crl. App. Nos. 631 & 639/02 16 declarations were allegedly made by the deceased that number would not by itself be a factor of any special significance, as was the submission made by the learned prosecutor. It is not the plurality of the dying declarations but their qualitative worth and inter-se consistency which matters. And even if some inconsistencies are found in the dying declarations the Court has to examine the nature of inconsistencies to find out if the same are material or not and prosecution case cannot be thrown out on the basis of some minor discrepancy in the dying declarations. In the present case first dying declaration of the deceased was in the form of history of the burning incident given by her to Dr. Atul Wadhwa (PW- 12) who had initially examined her when she was brought to the Safdarjung Hospital. She had informed this doctor that her mother-in-law Missar and her sister-in-law Teeja (who are the two appellants in Crl. Appeal no. 639/02) had set her on fire. The doctor recorded this narration of the deceased in the MLC Ex. PW-12/A at about 12.40 p.m. The second dying declaration is Ex. PW-15/B which was recorded by PW-15 Sub-Inspector Akhilesh Yadav in the hospital where he had gone on getting the Crl. App. Nos. 631 & 639/02 17 information that she had been admitted there. The doctor had certified the deceased to be fit for making statement on the investigating officer‟s application Ex.PW-15/A before he(PW-15) recorded her dying declaration in question-answer form. That was at about 1.45 p.m. In that statement the deceased had claimed that there used to be quarrels on the question of keeping of her daughter. When asked as to how she had got burnt the deceased had claimed that her mother-in-law Missar had poured kerosene oil on her when her jethani Teeja had caught hold of her and when her jethani Teeja had set her on fire by igniting match stick her mother-in-law had caught hold of her. She also told the police officer that at the time of the incident her husband was not at home as he had gone out to his work. PW-15 had informed Sub- Divisional Magistrate also and by the time he reached the hospital PW-15 had already recorded the aforesaid statement of the deceased. However, the SDM(PW-18 Sh. A.K. Singh) himself also recorded the statement(Ex. PW-18/A) of the deceased after the doctor again certified her to be fit for making statement on Ex.PW- 15/A. That was at about 2.30 p.m. In the statement made to the Crl. App. Nos. 631 & 639/02 18 SDM also the deceased had claimed that her jethani had caught hold of her while her mother-in-law had poured oil on her and her jethani had then ignited the match-stick and set her on fire. She also claimed that before that her jeth(accused Mange Lal) had given her severe beating. She further claimed that everyday her in- laws used to beat her. On being asked about her relations with her husband the deceased had stated that her husband used to love her and further that at the time of the incident he was not at home. The SDM had also obtained thumb impression of the deceased on her statement. Fourth dying declaration allegedly made by the deceased was before her bua PW-11 Leela Bai when she had gone to the hospital to see her. The deceased had told her that she was given beatings and her jeth Mange Lal gave a danda blow on her head and her mother-in-law Missar Devi caught hold of her and Teeja poured kerosene oil on her and then had lit the matchstick. 10. We shall now proceed to examine the evidence regarding the dying declarations in the present case and the attack on their Crl. App. Nos. 631 & 639/02 19 genuineness launched by the learned counsel for the appellants to find out if the same could be relied upon and made the basis of conviction of the accused persons. The first dying declaration was sought to be proved through the