BETAL SINGH

STATE OF M.P.

APRIL 15, 1996

[M.M. PUNCHHI AND K.T. THOMAS, JJ.)

C1in1inal Lalv :

Evidence Act, 1872 : Section 32.

Blide bwning-Dying declaration-Recorded by Police Office,-Held: could be acted upon if same was trae,. coherent and consistent and free from any effort to prompt deceased to make such statement.

Penal Code, 1860: Section 302.

B1ide bwning-Accused-husband neither put out fire nor raised alann D seeking help of others-Held: such conduct was consistent with guilt of accused.

The appellant-accused was charged for murder of his wife. Though the Sessions Court acquitted the appellant the High Court in an appeal E filed by the State, reversed the acquittal and convicted him under Section 302 of the Indian Penal Code, 1860 and sentenced him to undergo imprisonment for life. Hence this appeal by the convicted appellant.

According to tbe prosecution, the appellant, his wife and their little child were living together with appellant's mother. The appellant's F wife was entertaining suspicion that her hnsband was carrying on illicit sexual connection with his elder sister-in-law, and she used to openly accuse him of it. This conduct of' the appellant's wife invited trouble to her from appellant as well as her mother-in-law and she was subjected to torture by them on account of it. A few days prior to her murder her G motherin-law left the house and went to a nearby village on some errand. On the date of occurrence, appellant doused the deceased with kerosene and set her ablaze by lighting a match-stick. Her little child also caught fire and both sustained severe burn injuries. Hearing her tantrums neople around, including some of the prosecution witnesses, rushed into the room and they witnessed a human inferno remaining H

A helpless. They made some efforts to extinguish the fire. But the burn injuries sustained by the deceased were so devastating that she could not survive beyond evening.

Before her death the deceased was taken to a nearby hospital. FIR was registered on the strength of statement given by a neighbour (PW-1).

B A police officer (PW-14), went to the hospital and record her dying declaration.

Dismissing the appeal, this court

C HELD : 1. Dying declaration under Section 32 of the Evidence Act, 1872 should be scrutinised very carefully and if the Court is satisfied after such scrutiny that the dying declaration was true and was free from any effort to prompt the deceased to make such a statement and is coherent and consistent, there is no legal impediment in fonnding the D conviction on it. The position does not change even if such a dying declaration is put forward in a bride burning case whether or not it has been recorded by the police officer during investigation, [313-A-B)

Munnu Raja v. State of M.P., AIR (1976) SC 2199; Dalip Singh & Ors.

v. State of Punjab, AIR (1979) SC 1173; Kusa v. State of Orissa, AIR (1980) E SC 559; State of Punjab v. Amarjit Singh, AIR (1988) SC 2.013; Smt. Paniben

v. State of Gujarat, AIR (1992) SC 1817 and Charipalli Sankararao v. Public Prosecutor, High Court of A.P., [1995) Suppl. 4 SCC 24, relied on.

2. The appellant did not move a little finger to pot out the fire when F his wife and child were struggling in fire, nor did he raise even an alann seeking the help of others to rescue bis wife and child. This conduct of the appellant is very much consistent with the conduct of a culprit who did the act attributed to him. (312-A-B; 313-D]

G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 124 of 1987.

From the Judgment and Order dated 31.7.86 of the Madhya Pradesh High Court in Cr!. A no. 122 of 1980.

H U .R. Lalit and S.K. Gambhir for the Appellants.

BETALSINGH v. STATE [THOMAS, J.] 309

K.N. Shukla, Prashant Kumar and Uma Nath Singh for the Respon- A dents.

The Judgment of the Court was delivered by

THOMAS, J. This is a case of uxoricide. Kamla, the teenaged wife of the appellant was burnt to death. Her suckling baby also sustained burns B but did not die then. Appellant was charged for murder of Kamla. Though Sessions Court acquitted the appellant the High Court of Madhya Pradesh in an appeal filed by the State, reversed the acquittal and convicted him under Section 302 !PC and sentenced him to imprisonment for life. Hence this appeal by the convicted appellant.

Fact,, set up by the prosecution, in brief, are these :

Kamla and her husband Beta! Singh (appellant) and their little child were living together with appellant's mother. Kamla was entertaining suspicion that her husband was carrying on illicit sexual connection with D his elder sister-in-law, and Kamla used to openly accuse him of it. This conduct of Kamla invited trouble to her from appellant as well as her mother-in-law and she was subjected to torture by them on account of it.

The murder took place on 7.6.1979. A few days prior to it her mother-inlaw left the house and went to a nearby village on some errand. Around 10 A.M. on the date of occurrence, appellant doused the deceased with E kerosene and set her ablaze by lighting a match-stick. Her little child also caught fire and both sustained severe burn injuries. Hearing her tantrums people around, including some of the prosecution witnesses, rushed into the room and they witnessed a human inferno remaining helpless. They made some efforts to extinguish the fire. But the burn injuries sustained by F kamla were so devastating that she could not survive beyond evening.

Before her death Kamla was taken to a nearby hospital. FIR was registered on the strength of a statement given by a neighbour (PW-1). A police officer (PW-14-ASI), went to the hospital and recorded a statement from Kamla (Ext. P-1) which later turned out to be the most important G item of evidence in this case as the same become admissible under Section 32 of the Evidence Act.

The version recorded in Ext. P-1 is the following :

Her husband had illicit connection with his sister-in-law and he H

A persisted in it despite her repeated protestations. She was subjected to physical assaults by her husband's father and mother and occasionally she was put to starvation. Once she saw her husband in liaison with the sister-in-law and when she protested she was beaten up by her husband as well as her mother-in-law. Food was denied to her for four days. About

B eight days before the occurrence, her mother-in-law had gone away but she suggested to her son to eliminate Kamla by burning her. On the occurrence day, while she was sleeping on a cotton carpet (Deri) in her room the appellant sprinkled kerosene on her and lighted a match-stick. He then bolted the room from outside. She was rescued by the neighbours.

C If the version in Ext. P-1 can be acted on it certainly would prove the guilt of the appellant. But the Sessions Judge did not believe it and hence the acquittal by him. The High Court has chosen to place reliance on the said statement. After reminding themselves of the legal principles to be observed while interfering with an order of acquittal, learned .Judges D of the High Court reached the conclusion that Kamla was murdered by the appellant and accordingly convicted him and sentenced him as aforesaid.

Appellant in his defence has examined two doctors (DW-1 and DW-3) who were attached to the hospital where Kamla was admitted with burn injuries. Those witnesses proved a statement recorded in Ext. D-1, E which is said to be part of the case sheet included in the "bed head ticket''.

DW-1 Dr. Kamal Misra said that he scribbled down the version given by the deceased Kamla soon after she was brought to the hospital. What is stated in Ext. D-1 is that when Kamla was cooking food, a stove abruptly burst and her clothes caught fire and her husband rushed to her rescue.

F Kamla also told the Doctor that she had no enemies, although she had some disputes with her mother-in-law. DW-1 said that the thumb Impression of Kamla was taken on Ext. D-1 statement. DW-3 is a junior doctor working under DW-1. He too had affixed .signature on Ext. D-1.

No doubt if Ext. D-1 is a genuine document it would cut at the root G of the prosecution case and nothing more need be considered by us in this case. But learned Judges of the High Court found Ext. D-1 as a concocted document. The High Court pointed out the incongruity that those doctors ventured to record the dying declaration of a patient who was struggling in pains instead of applying any ointment or medicine on her person. That H apart, the bed head ticket maintained for the patient which was seized by

BETALSINGH v. STATE [THOMAS, J.] 311

the police (marked as Ext. P-28) did not contain any sheet with a state- A ment like Ext. D-1. Ext. P-28 shows that two other doctors (Surgeons in charge) had attended on the patient first whereas the names of DW-1 and DW-3 were not mentioned in it. In cross-examination, DW-1 Dr. Kamal Misra said that he forwarded the sheet containing Ext. D-1 statement to the office and that he collected it from the office when he was summoned to appear in the court. The High Court castigated Ext. D-1 as a concocted document. Learned Judges pointed out that after Ext. P-28 was marked on the prosecution side defence did not even suggest during cross-examination that a paper containing Ext.D-1 statement was actually incorporated in it.

Nor did the defence even suggest to any prosecution witness that a stove was kept near the place of occurrence. Those features have been highlighted by the learned Judges of the High Court for sidelining Ext. D-1.

The following conclusion has been reached by the learned Judges regarc'- ing Ext D-1:

"All these facts indicated that Ext. D-1 the dying declaration D allegedly recorded by Dr. Misra (DW-1), did not exist at all till the trial came to its fagend. Defence filed an application on 13.11.79 for summoning the case sheet of Kamla containing Ext.

D-1 and to us it seems that this Ext. D-1 was prepared after the trial started. We have no doubt in our mind that Ext. D-1 is not only a false and spurious document, but it did not exist at all on E 7.6.1979. It appears that it was prepared later .on to show that the death of Kamla was caused due to bursting of stove, while she was cooking. 11

Those are very cogent reasons and the High Court has reached such F a conclusion on the strength of those reasons. We are not persuaded to take a different view on Ext. D-1.

Evidence of the defence witness (DW-2) that the door of the room was bolted from inside did not inspire confidence and the High. Court for good reasons rejected it. Apart 'from the statement recorded by the AS! in G Ext. P-1 certain other circumstances were also considered by the High Court. They are: (1) when the neighbours rushed to the room Kamla told PW-2 and PW-3 that she was being murdered by her enemy. PW-3 said further that while saying so the dee.eased had pointed her finger to the appellant who was standing nearby, (2) PW-1 overheard that statement H

A which deceased gave to the AS! and the testimony of PW-1 is in substantial concord with what is recorded in Ext. D-1, appellant did not move a little finger to put out the fire when his wife and child was struggling in fire, ( 4) nor did he raise even an alarm seeking the help of others to rescue his wife and child. (5) the motive i.e. the conduct of the deceased constantly

B attributing incostuous adultery to the appellant would have made up his mind to do something drastic to end this menace even if there was no truth in such accusation.

Learned counsel for the appellant referred to a discrepancy which he noticed as between the testimony of PW-2 and that of PW-3, as the C latter alone said that Kamla pointed her finger to the appellant. The High Court did not take the said discrepancy seriously. Perhaps PW-3 alone would have noticed that gesticulation of the deceased.

Learned counsel attacked PW-l"s evidence as he told the police that D he did not know how the incident happened. We don't think that the said evidence needs rejection on that ground because when PW-1 met the police first the deceased had not made any statement to the police and so PW-1 would have had no reason to come to the conclusion about what happened. As the High Court has placed reliance on the evidence of PW-1 we do not see any reason to take a different view regarding that.

It is true that in Munnu Raja v. State of M.P., AIR (1976) SC 2199, this Court has struck a note of caution that investigating officers, who are naturally interested in the success of the investigation, ought to be discouraged in recording dying declarations, during the course of investigation. However, in Dalip Singh & Ors. v. State of Punjab, AIR (1979) SC 1173, this Court noticed the above observation and pointed out that it is not meant to suggest that such dying declarations are always untrustworthy.

Their Lordships observed :

"We do not mean to suggest that such dying declarations are always untru, tworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method."

BETAL SINGH v. STATE [THOMAS, J.) 313

Legal position remains unaltered that dying declaration should be A scrutinised very carefully and if the Court is satisfied after such scrutiny that the dying declaration was true and was free from any effort to prompt the deceased to make such a statement and is coherent and consistent, there is no legal impediment in founding the conviction on it. Kusa v. State of 01issa, AIR (1980) SC 559. The position does not change even if such a dying declaration is put forward in a bride burning case whether or not it has been recorded by the police officer during investigation. (State of Punjab v. Amarjit Singh, AIR (1988) SC 2013, Smt. Paniben v. State of Gujarat, AIR (1992) SC 1817, Chaiipalli Sankararao v. Public Prosecutor, High Court of A.P., (1995) Suppl. (4) SCC 24).

c There is no reason for PW-14 AS! to concoct such a statement at fa't. D-1. As PW-1 also heard Kamla telling those facts to the AS!, the High Court is fully justified in acting on the testimony of PW-1. The conduct of the appellant as observed by the witnesses who reached the scene while Kamla was in flames is very much consistent with the conduct of a culprit who did the act attributed to him.

In the result. We agree with the conclusion arrived at by the High Court in reversal of the finding reached by the Sessions Court. Accordingly, we dismiss the appeal.

V.S.S.

Appeal dismissed .