Case: Jumni &amp; Others Vs. State of Haryana

3. Six relatives (by marriage) of deceased Asha Devi were accused of having murdered her and thereby having committed an offence punishable under Section 302 of the Indian Penal Code. The accused persons were Rati Ram (father-in-law, now died), Jumni (mother-in-law and appellant in Criminal Appeal No. 1159 of 2005), Sham Lal (brother-in-law and appellant in Criminal Appeal No. 1159 of 2005), Balbir Prasad (brother-in-law and appellant in Criminal Appeal No.1159 of 2005, who, we were told has since died), Prem Nath (brother-in-law and appellant in Criminal Appeal No. 603 of 2005) and Raj Bala (wife of Prem Nath and appellant in Criminal Appeal No. 603 of 2005).4. Asha Devi was married at the age of 16 to Jagdish who was employed in the army. According to her father, Asha Devi lived with Jagdish for about one year and thereafter she lived in village Bhojpur in district Jagadhari, Haryana, in a one room tenement along with her two children aged 5 years and 1½ years. Her in- laws were staying in an adjacent tenement. There is no allegation or evidence of any matrimonial disharmony between Jagdish and Asha Devi who had been married for about nine years nor is there any allegation of any demand or harassment for dowry from Asha Devi.5. The case of the prosecution is entirely dependent on the dying declaration of Asha Devi. In her statement, Asha Devi stated that at about 12.00 noon on 4th April 1996 she was given a severe beating by all her in-laws. Thereafter, at about 3.00 p.m. she wanted to lodge a complaint with the police but all her in- laws prevented her from doing so. Rather, they suggested that she should be set ablaze.6. On the morning of 5th April 1996, Asha Devi seems to have had a quarrel and in a fit of anger she broke her bangles. Upon this, Jumni said that she should be finished. Consequently, all her in-laws tied her up and poured kerosene on her and set her on fire. This was at about 7.30 a.m.7. At about 10.30 a.m. Asha Devi was taken to the Civil Hospital at Jagadhari. Seeing her condition with 100% burns, the doctor on duty, Dr. M.R. Passi (PW-1) immediately informed the police who took urgent steps for having her statement recorded. Ms. Sarita Gupta, Judicial Magistrate, 1st Class (PW-9) was deputed for this purpose. According to Ms. Sarita Gupta, she recorded the statement of Asha Devi in the Civil Hospital between 11.22 a.m. and 12.05 p.m. on 5th April 1996. The statement/dying declaration reads asthat I was married at the age of 16 years. I am 25 years old. I have two sons, one is 5 years old while the second is 1½ old. My husband is serving in military. Sometimes he visits us after a week and sometimes after 15 days. In my house, my father-in-law Rati Ram, mother-in-law Jumni, Jeth Prem Chand, Jethani Bala Rani, two Devars Sham Lal and Balbir Parshad are staying. My father-in-law, mother-in-law, Jeth Jethani and both the Devers had been harassing me from the very beginning. My mother-in-law, father-in-law, Jeth Jethani and both the Devers had been making plans to eliminate me. Last week my mother-in-law, father-in-law, Jeth, Jethani and Devers said,us get her bitten from a dog and in this way she would beYesterday, during noon time, my mother-in-law, father-in-law, Devers, Jeth and Jethani had given me severe beatings. Thereafter yesterday at about 3.00 PM when I was about to go to police station to lodge a report, all of them prevented me and said,she is bent upon to do so, she should be eliminated by setting herAfter getting up today morning, I went to my mother-in-law and in a fit of anger, I broke my bangles (a sign of indignation against the married status). My mother-in-law, said that fault lies with her (Asha) and she should be finished. Mother-in-law, father-in-law, Jeth, Jethani and both the devers after conniving with one another tied me with my Chuni (head gear) and poured kerosene oil upon me. The kerosene oil also entered in my eyes. Mother-in-law, father-in-law, Jeth Jethani and both the devers set me on fire together. I made a lot of noise. The incident occurred at 7.30 AM. My mother-in-law Jumni, father-in-law Rati Ram, Jeth Prem Chand, Jethani Bala Rani and both the Devars Sham Lal and Balbir Parshad are responsible for setting me on fire. After my death, both of my children be handed over to my parents. Otherwise my in-laws would kill them also.Soon after the statement was recorded Ashafather Devi Dayal (PW-6) arrived in the Civil Hospital (although he says that he reached the hospital at about 11.45 a.m. but after the Magistrate left) and he made arrangements to take her to Chandigarh but she died on the way.9. On these broad facts, investigations were carried out and a charge sheet was filed against the six accused persons for having murdered Asha Devi.Proceedings in the Trial Court:10. Before the Additional Sessions Judge, in Case No. 35 of 1996, the principal argument of the prosecution was that in view of the dying declaration there was no doubt at all that the accused persons were guilty of having murdered Asha Devi.11. Prem Nath and Raj Bala produced alibi witnesses before the Trial Judge to show that Prem Nath was an employee in the HMT factory in Pinjore and that on 4th April 1996 as well as on 5th April 1996 he was in Pinjore and there was no question of his or hisinvolvement in the incident. The accused also produced Chandan Singh, Sub-Inspector, Food Supply, Yamunanagar as DW-7 to prove, on the basis of the ration card issued to Jagdish and Rati Ram, that they lived in the same neighbourhood but not together as stated by Asha Devi. Similarly, Puran Chand a neighbour of Jagdish was produced as DW-8 and his testimony was to the effect that he saw smoke coming out ofhouse and he heard some children making a noise. Thereupon he went tohouse and found that the door of the tenement was bolted from inside. He, along with one Gurbachan broke open the door and found Asha Devi lying burnt in the tenement. They put out the fire and called Rati Ram who was working in the nearby fields. Thereafter, Rati Ram took Asha Devi to the Civil Hospital. Puran Chand also stated that Prem Nath and Raj Bala were not present at the spot.12. One of the questions considered by the Trial Judge was whether Asha Devi was in a fit condition to make a statement, particularly since, according to Dr. M.R. Passi, she had 100% superficial as well as deep burns. The Trial Judge noted that Dr. Passi testified that Asha Devi was fit to make a dying declaration and that he was present when Ms. Sarita Gupta was recording her dying declaration. He stated that Asha Devi was responding to the questions put to her by the Magistrate.13. The Trial Judge also considered the statement of Ms. Sarita Gupta who had confirmed from Dr. Passi regarding the fitness of Asha Devi to make a statement. Ms. Sarita Gupta stated that only after Asha Devi was declared fit to make a statement that her statement was recorded and read over to her. According to Ms. Sarita Gupta, during the recording of her statement, Asha Devi was conscious and responding to verbal commands. She also stated that Dr. Passi was present throughout when Ashadying declaration was being recorded.14. On these facts, the Trial Judge concluded that Asha Devi was fit to make a dying declaration.15. The next question addressed by the Trial Judge was whether the dying declaration contained any falsehood. In this regard, the Trial Judge came to the conclusion that there was nothing to suggest that the dying declaration was incorrect in any manner or that Asha Devi made allegations out of some vengeance.16. Finally, the Trial Judge examined the plea of alibi raised by Prem Nath and Raj Bala and in this regard he concluded that there was every possibility of both of them being present in village Bhojpur both on 4th April 1996 when Asha Devi was given a beating as well as in the early morning of 5th April 1996 when Asha Devi was set on fire.17. On the above conclusions, the Trial Judge held, in his judgment and order dated 28th October 1998, that all the accused were guilty of having murdered Asha Devi.18. Feeling aggrieved, the accused persons filed Criminal Appeal No. 524-DB of 1998 in the High Court of Punjab & Haryana. By its judgment and order dated 25th October 2004, the High Court dismissed their appeal.Proceedings in the High Court:19. The High Court considered the evidence of Dr. Passi as well as the evidence of Ms. Sarita Gupta and upheld the conclusion of the Trial Judge that Asha Devi was in a fit state of mind to make a statement before the Magistrate.20. The High Court also upheld the conclusion that Asha Devi was in a condition to speak coherently and was capable of making a statement. Consequently, the High Court accepted the validity of the dying declaration.21. The High Court then considered the question whether it could be held, despite the dying declaration, that Prem Nath and Raj Bala were not involved in the incident concerning Asha Devi. Relying upon a few decisions of this Court, the High Court was of the view that there was no error in law in accepting a part of the dying declaration and rejecting another part of the dying declaration. The High Court then examined the evidence of the alibi witnesses in an attempt tothe dying declaration. However, the High Court rejected their testimony and concluded that there was every possibility of Prem Nath and Raj Bala being present both on 4th April 1996 when Asha Devi was subjected to a beating as well as on 5th April 1996 when she was allegedly set on fire.22. The High Court affirmed the conviction of the accused as well as the sentence imposed upon them.

Reasoning:
36. Apart from the conclusions of the Trial Court and the High Court appearing far-fetched, the testimony of Jagan Nath Mishra (DW-2) the tenant of Prem Nath has not been correctly appreciated because of a typing error in transcribing it from the original record. As mentioned above, Jagan Nath Mishra had seen Prem Nath and Raj Bala at 7.45 a.m. on 5th April 1996 (and not at 5.45 a.m. as wrongly transcribed in the impugned judgment). Consequently, Prem Nath and Raj Bala could not have been in village Bhojpur at 7.30 a.m. on 5th April 1996. This evidence has gone unchallenged.37. It seems to us that although the High Court has given due weightage to the dying declaration of Asha Devi but having accepted it, it has tried to pick holes in the defence evidence to justify the contents of the dying declaration. Given the law laid down by this Court, this was not the correct manner of approaching the evidence brought forth by Prem Nath and Raj Bala. In our opinion, the alibi witnesses have made out a strong case of demonstrating the improbability of Prem Nath and Raj Bala being involved in the incident of beating up Asha Devi at about 12.00 noon on 4th April 1996, of stopping her at about 3.00 p.m. from going to the police to lodge a complaint and setting her on fire at about 7.30 a.m. on 5th April 1996.Although at law there is no difficulty in segregating the role of two sets of accused persons if the dying declaration is severable, the present case indicates that the role of the accused persons cannot be segregated. This is because Ashadying declaration mentions all the accused persons as being involved in all the events that had taken place on 4th April 1996 and 5th April 1996. There is no distinction made in the role of any of the accused persons and they have all been clubbed together with regard to the harassment of Asha Devi; making plans to eliminate her; Asha Devi being beaten up on 4th April 1996; all the accused persons preventing her from lodging a complaint with the police; all the accused persons tying up Asha Devi with her chunni and pouring kerosene oil on her and then setting her on fire. Asha Devi has referred to each one of them as being involved in every incident on 4th April 1996 and 5th April 1996. If somewhat different roles were assigned to at least some of the accused persons, segregation or severance could have been possible. But with everybody being roped in for every event, it is not possible in this case to segregate or sever the actions of one from another.41. Notwithstanding this, as we have seen, it is not possible to accept the involvement of Prem Nath and Raj Bala in the events that took place on the two fateful days. Nevertheless, it is quite possible that the other four accused were involved in beating up Asha Devi on 4th April 1996 and setting her on fire on 5th April 1996. But, what is of equal importance is that neither the Trial Court nor the High Court adverted to the crucial evidence of Puran Chand (DW-8) who stated that he saw smoke coming out oftenement and children were making a noise. When he reached there, he saw flames and smoke coming out from the ventilator oftenement and along with Gurbachan, he had to break down the door of the tenement which was locked from inside and they found Asha Devi on fire. If this statement of Puran Chand is correct, and there does not seem any reason to doubt it since nothing was put to him in this regard in cross examination, a case of suicide by Asha Devi is a possibility. At this stage, it may be noted that the investigating officer Gurdial Singh (PW-10) could not say if the bolt of the tenement was broken or not.42. On a reading of the dying declaration it is quite clear that Asha Devi was very disturbed on the morning of 5th April 1996 and that is why she broke her bangles in the presence of Jumni. This may be because of the events of the previous day or her being a victim of continuous harassment. This, coupled with a lack of response from Jumni on the morning of 5th April 1996 may have completely frustrated Asha Devi leading her to commit suicide. Whatever be the cause of Asha Devi being upset, the evidence of Puran Chand has not been challenged and so it cannot be glossed over. In the face of this, it is not possible to discount the theory suggested by learned counsel that the case was possibly one of the suicide out of extreme frustration and not of murder.43. It is true that when a person is on his or her death bed, there is no reason to state a falsehood but it is equally true that it is not possible to delve into the mind of a person who is facing death. In the present case the death of Asha Devi and the circumstances in which she died are extremely unfortunate but at the same time it does appear that for some inexplicable reason she put the blame for her death on all her in-laws without exception. Perhaps a more effective investigation or a more effective cross-examination of the witnesses would have brought out the truth but unfortunately on the record as it stands, there is no option but to give the benefit of doubt to Jumni (and Sham Lal) and to hold that they were not proved guilty of the offence of having murdered Asha Devi.44. Insofar as Prem Nath and Raj Bala are concerned there is sufficient material to accept their alibi and they must be acquitted of the charges made against them.45. As mentioned above Rati Ram and Balbir Prasad are already dead and nothing need be said about their involvement in the incident. Were they alive, they too would have been entitled to the benefit of doubt since the facts pertaining to them were similar to those of Jumni and Sham Lal.