Himachal Pradesh High Court
Thakur Dass vs State Of H.P. on 6 June, 1991
Equivalent citations: 1992CRILJ2415
JUDGMENT V.P. Bhatnagar, J.
1. This appeal is directed against the judgment dated Sept. 14, 1990 of the learned Sessions Judge, Shimla, whereby he convicted accused Thakur Dass for an offence Under Section 302, IPC for having poured Kerosene oil on the body of his wife Kamla Devi and set her on fire causing 40 to 45% burn injuries in the evening of March 31, 1988. Kamla died in the hospital on May 11, 1988 as the result of the burn injuries. Thakur Dass was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of three years.
2. Briefly stated, the prosecution story is that Kamla was residing with her husband Thakur Dass, accused in a house situate in Elbert Lodge, Lower Bazar. She had been married to Thakur Dass for the last about 11 years, but no child had been born from the wedlock. On the day of occurrence viz. March 31, 1988, Mangla Devi, stated to be the God sister of her husband, had come to stay with the couple. Thakur Dass returned to the house in the evening at about 5-30/6-00 p.m. Kamla asked him to get some flour of rice from the market as there was none in the house. Thakur Dass replied that he had no money for flour and rice and would like to consume liquor instead. Kamla pleaded with him for money which infuriated her husband who started beating her and said that he would finish her since she was not letting him go to have liquor. He also threatened to contract a second marriage as Kamla had not conceived and given a birth to any child. He stated that he would set her on fire. Thereafter, he went in the kitchen, brought a gallon tin containing kerosene oil, poured it on her and set her on fire with a match-box. Mangla Devi, who was having her small child in her lap, tried her best to prevent him from doing so, but in vain. Mangla Devi then ran out crying for help. Some persons then came and rescued Kamla and brought her to the hospital for the treatment.
3. Those persons were Ashok Sood (P.W.2), Sufal Kumar (PW-3) and Bhiku Ram (PW-4), who reached the place of occurrence immediately after hearing noise.
4. It was at 8-05 p.m. on March 31, 1988 i.e. the date of occurrence, that Sub Inspector Madan Lal of Police Station, Sadar, Shimla received a message on the telephone from one Krishan Kumar, owner Deepak Hotel, Shimla that a woman has caught fire and that police should reach the spot and take action. PW-14 Madan Lal, Sub Inspector immediately proceeded to the place of occurrence, but found that Kamla had by that time been taken to the Showdon Hospital for treatment. He proceeded to the Hospital and it was at 9-00 p.m. on that very day that he recorded the statement Ex. PD of Kamla Devi. This statement was recorded in presence of P. W. 7 Dr. R. N. Shashni, who made an endorsement Ex. PD/1 in the margin of the statement that Kamla was in a fit state of mind to give a statement and that the statement had been correctly recorded by the Sub Inspector in his presence. The contents of the statement have already been narrated above while giving the prosecution story. It is this statement Ex. PD, which formed the basis of FIR Ex. PF which was recorded on the same day at 10-15 p.m.
5. Kamla remained under treatment of PW-10 Dr. Suresh Sharma of Snowdon Hospital and she died on May 11, 1988 whereafter the offence was converted into Under Section 302, IPC.
6. In a statement recorded under the provision of Section 313, Cr. P.C., the accused admitted that Kamla was his wife and that both of them were living in Elbert Lodge near lower Bazar, Shimla and that no child was born out of the wedlock. He admitted his presence at the time of occurrence, but maintained that his relations with his wife were cordial and that Kamla had burnt herself. He tried to extinguish the fire and save her. The accused examined four witnesses in defence.
7. Kamla's statement Ex. PD recorded within hours of the incident has been heavily banked upon by the prosecution as Dying Declaration. Law is very clear in the matter. When a statement is made by a person as to the cause of his death, such statement becomes relevant notwithstanding the fact whether the person who made it was or was not, at the time when he made it, under expectation of death, in cases in which the cause of that person's death comes into question. The above provision stands made in Section 32(1) of the Indian Evidence Act.
8. As stated above, the statement Ex. PD was recorded by PW-14 Madan Lal, Sub Inspector, who was the Investigating Officer of this case. While in the witness box, he has repeated the prosecution story with respect to his reaching the Snowdon Hospital, as outlined above. With respect to recording of the Dying Declaration, his testimony is that he made an application Ex. PN to Doctor to find out whether Kamla was in a fit condition to make a statement. The Doctor's report in the affirmative is at Ex. PN/1, after which he recorded her statement. There is no need to reproduce that statement once again since it stands already noticed above. PW-14 Madan Lal has, however, further deposed that he recorded the statement Ex. PD in presence of the Doctor, who signed it. This obviously has reference to the endorsement Ex.PD/1 and has been proved by PW-7 Dr. R. N. Shashni. Now, this witness has fully supported the correct recording of the Dying Declaration. There was no reason whatsoever for the abovementioned two witnesses to cook up a false Dying Declaration. Both of them have withstood the test of cross-examination and have emerged out of it totally unscathed on this point. The learned Sessions Judge, therefore, validly placed reliance on the Dying Declaration as a firm basis for convicting the accused.
9. This is not all. The statements of PW-2 Ashok Sood, PW-3 Sufal Kumar and PW-4 Bhiku Ram lend full corroboration to the contents of the Dying Declaration. PW-2 Ashok Sood has stated that his house is adjacent to Elbert Lodge and that he was closing his shop on the date of occurrence at about 7-00 p.m. when a woman came shouting that her sister-in-law had been burnt by her brother. That woman was Mangla Devi He along with other persons went to the spot and saw Kamla burning. He put a blanket on her and then sent for public Ambulance and removed her to the Snowdon hospital. The accused was Kamla's husband and he was dragged by the crowd. In cross-examination, he repeated that Mangla Devi had disclosed about some dispute between Kamla and Thakur Dass pertaining to wheat flour having taken place, after which Thakur Dass set Kamla on fire by pouring kerosene oil on her. In an effort to establish enmity between the accused and this witness, three incongruous suggestions were put to this witness towards the close of his cross-examination. All the suggestions were denied by the witness in unequivocal terms, The testimony, on this point, reads:--
It is incorrect to suggest that about two months prior to the occurrence, I had some quarrel with Thakur Dass accused. It is incorrect to suggest that I have made the statement today at the instance of the Police because of my enmity with the accused. It is incorrect to suggest that I have made a statement today under the false belief that the accused had burnt his wife.
The disjoined and aimless suggestions of roving type themselves are indicative of the fact that the accused as also his counsel were bereft of any good and effective reason to confront the witness with. Be that as it may. Mere suggestion cannot serve the purpose of creating a reasonable suspicion of existence of inimical relations between the witness and the accused.
10. Statement of PW-3 Sufal Kumar is, more or less, to the same effect. He heard Mangla Devi shouting in the Bazar that her brother Thakur Dass had set his wife on fire by pouring kerosene oil. She was crying for help so that Kamla could be saved. When he along with other persons reached the spot, he, saw a lady standing in the room, who had been burnt. She was not then in a position to talk. He went inside the kitchen and picked a bucked full of water and poured on that lady. He saw the clothes of the accused at that time also having been burnt. The accused was hurling abuses on his wife. He was saying "Haramzadi Ab Tera Se Piccha Chutega" Kamla was then sent to the hospital in Ambulance. In the cross-examination, Sufal Kumar denied the suggestion that he had some false belief and on that account, he had made the statement against the accused. He asserted that he had no enmity with him.
11. PW-4 Shri Bhiku Ram is Kamla's cousin. He was present in Anaj Mandi, Shimla at about 7-30 in the evening on the day of occurrence, when he saw Mangla Devi running and shouting that her brother Thakur Dass had set on fire his wife Kamla by pouring kerosene oil. He rushed to the spot and found Kamla standing in a room wrapped with some cloth. She demanded some water which he gave her. She was then removed to the Snowdon hospital. He spoke to Kamla in the hospital and she disclosed that Thakur Dass had poured kerosene oil on her and set her on fire, but gave no reason for it. She was in a serious condition. In cross-examination, he deposed that Kamla was of good health and he had reached the spot within 7-8 minutes. He denied the suggestion that accused had disclosed to him that he had tried to put off fire. In answer to another question in the cross-examination, he made it known that Thakur Dass had stayed back in the house when he took Kamla to the hospital.
12. I have given above the pith and substance of what has been stated in the witness box by the abovementioned three most important witnesses. Their statements are not only relevant and most believable as showing subsequent conduct Under Section 8 of the Indian Evidence Act, but also as part of res gestae.
13. Section 6 of the Evidence Act pertains to the doctrine of res gestae. This doctrine is an exception to the hearsay rule. Facts which may be proved, as part of res gestae, must be facts other than those in issue. Furthermore, these facts must form part of that very transaction and be thus connected with the facts in issue. Evidence regarding facts in issue disclosed by a transaction can be given Under Section 5 whereas evidence regarding said facts which must be connected with the facts in issue in a manner so as to form part of the same transaction can be given under Section 6.
14. It is well settled by now that a statement, in order to be a part of res gestae must have been made substantially contemporaneously with the act or immediately after it so that there is no opportunity for reflection or fabrication. It is in this background that the interval between the act and the statement assumes significance. In no case, the statement should be in the nature of a mere declaration or narration of a past event.
15. The word transaction has not been defined in the Evidence Act, but it can be equated to a crime so far as a criminal case is concerned. Each essential ingredient of that crime will be a fact in issue and those facts which are connected with the fact in forming part of the same transaction should be relevant as res gestae.
16. In the instant case, Mangla Devi was indisputably present when the incident took place. She Watched helplessly Kamla burning. According to the above-named three witnesses, she was found immediately thereafter running in the Bazar crying for help and informing those persons that Thakur Dass had set Kamla on fire by pouring Kerosene oil on her. Manifestly, the time gap between the act of burning and her running into Bazar and crying for help is not only insignificant, but her coming to the Bazar and crying for help for the reasons given by her can be safely classified as a fact so connected with the fact in issue (viz. Thakur Dass having poured kerosene oil on Kamla and set her on fire), as to form part of the same transaction. The statement of these witnesses are, therefore, clearly relevant Under Section 6 of the Evidence Act and carry much evidentiary value. My above conclusion is in spite of the fact that Mangla Devi, when she stepped into the witness box as PW-5, turned hostile and gave a statement so as to favour Thakur Dass. She denied that she was in any way related to Thakur Dass or that he was her God brother. On the other hand, she adverted to her relationship with Kamla being her sister-in-law on the ground that earlier she had been married to her cousin Kundan. As stated above, she admits her presence at the place of occurrence, but has traced the genesis of the quarrel to Kamla's nagging and asking the accused to divorce her as she wanted to marry somebody else. The accused refused. Kamla then made a statement that she would implicate the accused and then proceeded to pour kerosene oil on her and set herself on fire. Mangla Devi's further statement is that she came out of the house and raised shouts for help because the accused, who had taken liquor at that time, was sleeping on a cot. After being declared hostile, she was confronted with different portions of her statement recorded Under Section 161, Cr. P.C. but she stuck to her story. We are in full agreement with the learned Sessions Judge in disbelieving Mangla's version as it is writ large on her testimony that she has changed sides in her endeavour to help the accused. In any case, her testimony is too weak and insipid so as to inspire confidence and to constitute effective rebuttal or to tilt the balance in favour of the accused notwithstanding the completely believable Dying Declaration corroborated by as many as three independent witnesses in addition to PW-14 Madan Lal, Sub Inspector and PW-7 Dr. R. N. Shashni, in whose presence it was recorded.
17. It may also be noted here that divorce story put up by Mangla Devi and made use during the cross-examination of the prosecution witnesses has been denied by none else than the accused himself in a statement Under Section 313, Cr. P.C. Answering the last question put to him, he stated his relations with Kamla to be cordial. He has not pointed out any talk about the divorce between them. The defence version that he tried to extinguish the fire and thus got his clothes burnt and also sustained four superficial burns found on his medical examination conducted by PW-9 Dr. J. K. Sharma and recorded in his medical legal report Ex. PE, stands completely demolished by PW-2 Ashok Sood, PW-3 Sufal Kumar and PW-4 Bhiku Ram with what they found on reaching the spot of occurrence. It was Ashok Sood, who along with some other persons reached the spot first and saw Kamla burning and tried to extinguish the fire by putting a blanket around her. That the crowd indulged in dragging the accused also reflects what it thought the accused of having done. Leaving aside Mangla Devi, not a single person has supported the defence version. In fact, as discussed above, three impartial witnesses have clearly implicated the accused in the crime of which he has been charged. We have, therefore, no hesitation whatsoever in rejecting the defence version.
18. The testimony of a 4 witnesses examined in defence does not in any manner, strengthen this version. It is not difficult to procure such evidence and is of no value.
19. The medical evidence adduced on behalf of the prosecution may now be briefly discussed. PW-1 Dr. Dinesh Rana and PW-10 Dr. Sudesh Sharma have been examined to prove that Kamla died in Snowdon Hospital on May 11, 1988. PW-13 Dr. D. K. Ghosh performed the post-mortem examination after he received application Ex. PJ containing request for conducting such examination. This application was accompanied by inquest report Ex. PK also. He has proved his post-mortem report Ex. PL and has stated in the witness box that the death of Kamla occurred as a result of septicaemic shock due to 50% ante mortem burns.
20. Shri J. K. Verma has ably pleaded for quashing the impugned judgment, and acquittal of the accused. His contentions may now be noticed.
21. He has challenged the veracity of the Dying Declaration Ex. PD by contending that the occurrence took place on March 31, 1988 and Kamla died on May 11, 1988. The police had, therefore, ample opportunity but took no steps in this entire period to have her statement recorded from some Magistrate. Then Ex. PD was recorded in the hospital and admittedly 4-5 persons were present there, but none of them was associated as witness. His next objection is that Dying Declaration is not in question and answer form as required in Rules 3, 5 and 7 of Chapter 13-A of the High Court Rules and Orders Volume III. On this point, he has sought reliance from the law laid down by a Division Bench of the Delhi High Court in 1990 Cri LJ 790 (Smt. Madhu Bala v. State (Delhi Administration) based on (State (Delhi Administration) v. Laxman Kumar).
22. The above arguments have to be repelled because there is no law stipulating that a Police Officer is barred from recording a Dying Declaration. Such a declaration, if supported by another such statement recorded by a Magistrate would have constituted evidence of a high order. It, however, does not mean that if the Investigating Officer merely relies upon a Dying Declaration recorded by him in the presence of a completely independent witness, who is a Doctor in this case, it has to be ignored by the Court simply on the ground that a Magistrate was not associated with the taking such statement when the time factor permitted him to be so associated. The Court is required to evaluate the evidence as has been adduced by the prosecution and to form an opinion on the basis of that evidence whether the case is proved beyond reasonable doubt or not. That better evidence could have been marshalled by the prosecution constitutes no ground in itself to reject the evidence that has been collected and placed before the Court. As regards the second objection, the Dying Declaration was recorded in the hospital and it is obvious that there could have been no dearth of other witnesses. The Investigating Officer, however, had the declaration witnessed by only one Doctor. This Dying Declaration, as established during the evidence, is worthy of credence. The failure of the Investigating Officer to have it witnessed from more persons is not a valid ground for disbelieving the statement Ex. PD. And the last though not the least, rules 3, 5 and 7 of Chapter 13-A of the High Court Rules and Orders, Vol. III pertaining to the recording of Dying Declaration noticed in 1990 Cri LJ 790 (Smt. Madhu Bala v. State (Delhi Administration)) are applicable to the recording of such a declaration by a Magistrate and not to a Police Officer. We are also of the view that non-adherence to the provisions of these rules and the procedure laid down therein cannot ipso facto be fatal to the admissibility of the Dying Declaration in question. This would, verily, depend upon the totality of the facts and circumstances of a case. The question to be determined is whether the Dying Declaration placed before the Court is convincing and believable or not. Once the Court accepts it, the law is that conviction can follow on this sole ground. It is another matter that there is corroborative evidence of reliable nature also in this case. The law laid down in (Tehal Singh v. State of Punjab) and (Ramawati Devi v. State of Bihar) may be referred to in this behalf.
23. The learned counsel for the appellant also wanted to make much out of the statement in cross-examination of PW-9 Dr. J. K. Sharma that the superficial burns found on the body of Thakur Dass could have been caused during extinguishing the fire. This cannot be of any help to the accused because there can be no dispute with this type of opinion. What we have to look into is whether these burns were caused in process of saving his wife or whether the wife resisted being put to fire and thereby caused these burns on the body and clothes of the accused. To us, it is the latter version, which appears to be the case on the facts and circumstances placed before us.
24. Some half-hearted submissions of Shri J. K. Verma are that the Investigating Officer failed to record the statements under Section 161, Cr. P.C. of PW-2 Ashok Sood and PW-3 Sufal Kumar on March 31, 1988 itself and that there was no reason for recording these statements on the following day. His other submission is that it has come in evidence that the door of the room in which Kamla is alleged to be on fire remained open throughout. If so, Kamla could have easily made her escape good which improbabilises the prosecution case. Lastly, Kamla had no child even after having been married to Thakur Dass for about 11 years. Therefore, so the argument runs, she was a frustrated woman and there was every likelihood of her committing suicide. These submissions, in our opinion, require only to be stated in order to be rejected. The facts of this case do not warrant attachment of any weight to them.
25. Accumulately, therefore, we are of the firm view that the prosecution has proved its case beyond any reasonable doubt and that the learned Sessions Judge was fully justified in concluding that the guilt had been brought home to the accused. The order of conviction and sentence is unassailable. Consequently, we affirm the judgment of the learned Sessions Judge and dismiss this appeal.