Delhi High Court
Smt. Madhu Bala vs State (Delhi Administration) on 11 August, 1989
JUDGMENT Charanjit Talwar, J.
1. The dying declarations made by Vinod Bala are the basis of conviction of her sister-in-law Madhu Bala, the appellant herein for offence punishable under Section 302 of the Indian Penal Code.
2. By this appeal, the appellant is challenging her conviction for the offence of murder and also the sentence of life imprisonment imposed on her. The prosecution case was that on 26th April, 1983 at about 3.45 p.m., Vinod Bala was burnt by her sister-in-law Madhu Bala in their house No. C-813, Mangol Puri, Delhi. According to the prosecution, the appellant had poured kerosene oil on Vinod Bala and thereafter set her on fire. The incident happened in a corner of one of the rooms of the house, which corner was being used as a kitchen by the deceased and her husband, Subhash.
3. It is the admitted case of the prosecution that Subhash, i.e., the husband of the deceased has four sisters. The appellant Madhu Bala is one of them. The First Information Report about the incident was recorded on the basis of a statement made by Vinod Bala to Shri S. C. Gupta, who was at the relevant time, the Sub. Divisional Magistrate. This statement was made at about 4.15 p.m. on 28th April, 1983 in the Burns Ward of Lok Nayak Jai Prakash Narayan Hospital, Delhi. Vinod Bala had been removed to the hospital by her husband Subhash on the day of the incident itself. The M.L.C. recorded at the time of her admission by P.W. 14, Dr. Komal Singh is to the following effect :
"Alleged H/O (history of) burn due to burning of clothes during cooking meal."
4. It seems that it was on the initiative of A.S.I. Harish Chander of Police Station Mangol Puri that Shri S. C. Gupta had been requested to visit the hospital to record the statement of the injured. Apparently till then there was no suspicion regarding the involvement of the appellant or any other member of her family in this incident and, therefore, no arrest had been made. The record of the statement of Vinod Bala made by Shri S. C. Gupta is as follows :
"stated that in my husband's family all the things are done according to the directions of my sister-in-law (husband's sister). She has thrown oil on me and lit fire. My husband was not at home at that time"
5. The above statement was neither signed nor thumb marked by Vinod Bala. It appears that it was not even considered prudent to have the statement attested by any one of the Doctors attending on her or by nurses. The effect of the omission of not adhering to any safeguard, would be discussed by us a little later. But at this stage it is to be highlighted that in the said statement, Vinod Bala had not named the appellant as the sister-in-law, who set her on fire.
6. A copy of the above statement was sent to the Police Station, Mangol Puri and as noted above, was made the basis of the F.I.R. which was recorded at 6.45 p.m. on 28th April, 1983. A case under Section 307, Indian Penal Code was thus registered and investigation handed over to A.S.I. Harish Chander, P.W. 18. It appears that this Police Officer even prior to the recording of the F.I.R. had visited the spot on 26th April, 1983 itself, after receipt of the daily diary report about Vinod Bala having been admitted to the hospital. He had got the spot photographed. He had also interrogated some witnesses; one of them being a neighbour Smt. Basanti and another, sister-in-law of the deceased, Kumari Meenu. It is useful to notice that those two witnesses were not cited by the prosecution as prosecution witnesses as according to A.S.I. Harish Chander, he "was not satisfied with those statements" and hence did not place them on the record. The previous statements of those two witnesses have been brought on record but being inadmissible in evidence, we are not referring to those. The fact which stands established is that on 26th April, 1983, a few hours after the incident, the Police Officer to whom the investigation of the case registered under Section 307 of the Indian Penal code was handed over later on, had himself interrogated some witnesses but since their statements were not to his liking, those were not relied upon. The fact thus which can be taken note of is that the theory which was revolving in the mind of the Police official could not be supported by the statement made by a neighbour and, therefore, that person has been purposely withheld.
7. Another declaration which is being termed as a dying declaration, is a statement alleged to have been made by the deceased on 29th April, 1983 to S.I. Sukhbir Singh, P.W. 17. It is in that statement that Vinod Bala is said to have named the appellant herein as the sister-in-law, who poured oil on her and then set her on fire. That statement is also not signed or thumb marked by the deceased. The S.I. (P.W. 17) did not give any explanation for not obtaining the signatures or thumb mark. There is also no attesting witness to that statement. The allegations in the said statement about the pouring of oil and setting her on fire, are similar to the one made by Vinod Bala in her statement to the S.D.M. The statement made on 29th April, 1983 is Ex. P.W. 17/A.
8. From the record of the case, we are unable to find out as to why no effort or attempt had been made by the S.D.M. or the Investigating Officer to obtain the signatures or thumb mark. The learned counsel for the prosecution is also unable to help us. However, we find from the impugned judgment that the trial Judge was of the view that as both the hands of Vinod Bala had been burnt, it was not possible to obtain her signatures or thumb mark on those statements. This finding is based on the M.L.C. (Ex. P.W. 14/A), which finding according to the learned Judge is re-inforced by indication of the burnt portions of the body shown at the back of the M.L.C. (Ex. P.W. 14/A). The trial court found that :
"From a bare perusal of these two figures on the back of Ex. P.W. 14/A it is clear to the necked eye that the palm of both the hands of Vinod Bala were having burn injuries and as such it stands satisfactorily explained as to why Shri S. C. Gupta could not obtain either signatures or thumb impression of Vinod Bala on Ex. P.W. 15/A."
The reference is to the statement made by Vinod Bala to the Sub. Divisional Magistrate. It is that statement, as noticed, which is the basis of the First Information Report.
9. We have carefully scrutinised the two figures on the back of the M.L.C. The first figure shows a person's front and the second one, his back. The burnt portions have been indicated in blue lints. It is clear that the palm of the left hand had been burnt. The thumb of that hand as also its finger tips were not burnt. The palm of the right hand was not burnt. There is no marking whatsoever showing that the thumb of the right hand was affected. It is true that in his testimony, P.W. 14 Dr. Komal Singh had stated that there were superficial burns on the right hand of the patient (Vinod Bala) but he did not depose that the left hand had also received burn injuries. What he stated was :
"On examination, the patient was conscious, pulse rate was 80 per minute regular. Burns areas - scalp hair singed. Chin superficial burn. On the left arm and fore-arm superficial burn. Right hand superficial burn. Abdomen superficial burn. Both thigh superficial burn.
10. As we have noticed above, there is no explanation forthcoming from the witnesses nor there is anything on the record which justifies the non-obtaining of the signatures or thumb impression. The conclusion of the learned trial court that the omission has been satisfactorily explained, does not seem to be well founded. As noticed earlier, we have scrutinised the burnt area as shown in the two figures on the back of the M.L.C with reference to the injuries stated therein. We are clear in our mind that it was possible to obtain the thumb impression, if not the signatures of Vinod Bala on 28th April, 1983 as well as on 29th April, 1983.
11. The said two declarations are not even in question and answer form. The statement of 28th April, 1983 (Ex. P.W. 15/Al), the one recorded by the S.D.M., is not even in the language in which the dying declaration was made. It is admitted so by Shri S. C. Gupta in his testimony. He stated that the patient hold made her statement in Hindi and he on his own translated the same in English although he knew Hindi. The Supreme Court in a numbers of reported cases have cautioned the courts as well as the prosecuting agencies about the precautions which must be taken while recording dying declarations. In State v. Laxman Kumar, , that Court had an occasion to refer to the relevant Rules applicable in Delhi about the recording of the dying declarations. Mr. Mathur, learned counsel for the appellant has referred to Rules contained in Chapter 13-A of the Rules and Orders of the Punjab High Court Volumes III as applicable to Delhi. It is, however, not clear whether those Rules are Statutory. Even if those Rules are directory, to they have to be adhered to.
12. The Supreme Court after noticing these Rules in Laxman Kumar's case (1986 Cri LJ 155) (supra) observed as follows (Para 28) :
"We also find that under the relevant Rules applicable to Delhi area, the Investigating Officer is not to scribe the dying declaration. Again, unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the Court. Considered from these angles, the dying declaration in question is not acceptable. The High Court obviously lost sight of all these aspects when reversing the conclusion of the trial court with regard to the document and agreeing to act upon it."
13. One of the Rules namely Rule 3 requires that the Judicial Officer before proceeding to record the dying declaration should himself satisfy that the declarant is in a fit condition to make a statement and in case the Medical Officer is present, his attendance is not only to be secured but a certificate of the fitness of the declarant to make a declaration is also to be obtained. Rule 3 of the said Rules which requires the attendance of the Medical Officer and his certificate reads as follows :
"3. Fitness of the declarant to make the statement should be got examined.
Before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the declarant is in a fit condition to make a statement, and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. If, however, the circumstances do not permit waiting for the attendance of the Medical Officer, the Judicial Magistrate may in such cases proceed forthwith to record the dying declaration but he should note down why he considered in impracticable or inadvisable to wait for a doctor's attendance."
14. Another Rule viz., Rule 5 requires the Judicial Magistrate concerned to obtain the signatures or thumb impression of the declarant. That Rule is to the following effect :
"5. Signatures or thumb impression of the Declarant to be obtained in token of the correctness of the statement.
At the conclusion of the statement, the Judicial Magistrate shall read out the same to the declarant and obtain his signature or thumb-impression in token of its correctness unless it is not possible to do so. The dying declaration shall then be placed in a sealed cover and transmitted to the Judicial Magistrate having jurisdiction to deal with the case to which it relates."
15. As we have noticed above, Shri S. C. Gupta had recorded the "dying declaration" in the hospital, but presence of a Doctor is not noticed in the said declaration (Ex. P.W. 15/A). In his testimony, Shri Gupta says that he had obtained a certificate from the Doctor that Vinod Bala was fit for making a statement but he admits that he did not obtain the certificate in writing. He also admits that the statement was not recorded in question and answer form.
16. The other declaration (Ex. P.W. 17/A) stated to have been made to the Instigating Officer, also suffers the infirmities which have been noticed in the declaration made to the Magistrate. Apart from the lack of certificate from the medical officer concerned or of attestation by other witnesses, the prosecution has not been able to show as to why further declaration which was required to be recorded, was not got recorded in front of the Judicial Magistrate. It was open to the Investigating Officer on 29th April, 1983 to move the Chief Metropolitan Magistrate or any other senior most Judicial Officer for seeking deputation of a Magistrate to record further declaration of Vinod Bala. In fact Rule 2 of Chapter 13-A of the Rules referred to above makes it mandatory for the Investigating Officer to apply to the Chief Metropolitan Magistrate to depute some Magistrate for recording of the dying declaration. It is useful to quote that Rule also. It reads :
"2. Dying Declarations to be recorded by Judicial Magistrates. -
(1) Where a person whose evidence is essential to the prosecution of a criminal charge or to the proper investigation of an alleged crime, is in danger of dying before the enquiry proceedings or the trial of the case commences, his statement, if possible, be got recorded by a Judicial Magistrate. When the police officer concerned with the investigation of the case or the medical officer attending upon such person apprehends that such person is in the danger of dying before the case is put in Court, he may apply to the Chief Judicial Magistrate, and in his absence to the seniormost Judicial Magistrate present at the headquarters, for recording the dying declaration.
(2) On receiving such application, the Judicial Magistrate shall at once either himself proceed, or depute some other stipendiary Judicial Magistrate to record the dying declaration."
17. Ms. Wasu, learned counsel for the State has not been able to show us from the record the necessity which arose on 29th April, 1983 requiring the Investigating Officer to record the declaration on his own without even requesting the S.D.M. as was done on an earlier occasion in this very case. If by then the Investigating Officer had ascertained that the sister-in-law referred to in the first declaration (Ex. P.W. 15/A) was the appellant herein, he ought to have been prudent enough to get a Magistrate for recording the second dying declaration. It is not stated by the Investigating Officer that on that day he found Vinod Bala in an imminent danger of death and, therefore, recorded her declaration on his own initiative. At any rate, from the record it has not been shown to us that Vinod Bala was in a fit condition to make a statement on 29th April, 1983. P.W. 17 S.I. Sukhbir Singh, the Investigating Officer also admitted that he did not obtain any endorsement or permission on that day from the Doctor to record the statement.
18. According to the prosecution, oil was poured over the head of the deceased by her sister-in-law Madhu Bala and thereafter she was set on fire. This allegation, according to the learned counsel for the appellant has not been proved from the evidence produced. Learned counsel submits that the Doctor who performed the post-mortem on the body of the deceased, neither in his report nor in his testimony had stated that Vinod Bala was smelling of kerosene. Even in the M.L.C. there is no note to that effect. The burnt pieces of clothing which were sent to the C.F.S. Laboratory for analysis, did not contain kerosene oil. The report (Ex. P.W. 121/B) on this aspect is as follows :
"Result on Analysis/Examination The physic Chemical method of analysis shows that the contents of exhibit No. 1 does not contain kerosene oil."
Exhibit No. 1 was a sealed parcel containing the clothes of the deceased. This very argument urged before us regarding the absence of kerosene oil on the body and the clothes of the deceased was raised before the trial court also but it was negatived. The finding of the trial court is as follows :
"It cannot be concluded from the negative report of the CFSL that no kerosene oil was poured on the maxi of Vinod Bala at the time of incident. The report of the CFSL always depends on four factors :
(1) the nature of exhibits submitted for examination, (2) the degree of the burns suffered by the exhibits submitted for examination, (3) the amount of kerosene poured on the exhibits submitted for examination, and (4) the time gap between receipt of burns by the exhibits and the Chemical analysis thereof by the expert, If the entire cloth on which the kerosene oil was put is burnt completely, obviously no residue will be left. In the present case, the entire maxi the deceased had been burnt down. There is nothing in the M.L.C. (Ex. P.W. 14/A) to show that any piece of maxi were clamped into the person of Vinod Bala at the time of her admission. ASI Harish Chander found only seven separate pieces of the burnt maxi inside the room on 26-4-83. These pieces were converted into a sealed parcel and were deposited in the malkhana of the police station. It is clear from the testimony of Constable Ram Dass, P.W. 5 that he had taken the sealed parcels from the malkhana on 4-8-83 and had deposited the same in the office of CFSL without anybody having tempered therewith. These pieces of the maxi, along with the aforesaid saree and choli of the deceased were Chemically examined in the office of the CFSL on 27-8-83. In other words, these pieces of the maxi were Chemically examined after the lapse of four months from the date the exhibits received the burns. It is a matter of common knowledge that scaled parcel which is usually prepared by the police in respect of taking into possession of certain clothes by way of evidence is never air-tight and the parcel is always prepared in a piece of cloth. The smell of kerosene oil evaporates day to day and dies down completely by the passage of time. Therefore, there is every possibility that the smell of kerosene oil from these seven pieces of burnt maxi must have been evaporated during the course of those four months ......."
19. The learned Judge's finding that the deceased at the time of the incident was wearing a maxi and not a saree is most probably correct. Maxi, which we are informed is a long dress going right up to the ankle, was not completely burnt as is obvious from the fact that seven of its pieces were sent to the CFSL for Chemical examination. That they were not sent in time or that the examination was carried out after four months. cannot be read against the appellant. But what is important to our mind is that at the time of admission or at the time of post-mortem, the Doctor did not find any smell of kerosene oil on the person of Vinod Bala. In case the oil had been poured on her "from head to toe", as has been alleged, the hair, the back, the face as well as the abdomen would have received some burns. The burnt area represented in the said two figures on the back of the M.L.C. (Ex. P.W. 14/A) shows that Vinod Bala did not receive an burns injuries on any of those parts excepting for her neck. This aspect has not been assessed by the learned trial court.
20. Thus the facts and circumstances proved in the present case negative the declarations, Ex. P.W. 15/A and Ex. P.W. 17/A. In our view those two declarations ought not to be acted upon.
21. There is one other dying declaration which the deceased is stated to have made to her mother P.W. 9 Simla Devi. In her examination-in-chief, she stated :
"I made inquiry from my daughter Vinod Bala as to how she received burn injuries. She informed me that she was told by Subhash that they would take her to the hospital only if she informs that she sustained injuries herself. A Magistrate came and at that time I was sent out. Before the arrival of the Magistrate, my daughter told me that burn injuries were caused to her by her Nanad (husband's sister)."
22. It is on record that the parent of Vinod Bala had reached the hospital on 26th April, 1983 at about 10.00 p.m. Thus it is safe to presume that the talk which the mother is referring to, is of 26th April, 1983. It is the case of the prosecution that at that very time, Vinod Bala's father Shri Dayal Prasad, P.W. 8 was present. It is the assertion of Shri Dayal Prasad that he went to the Police Station on 27th April, 1983 as by then statement of his daughter had not been recorded. Both these witnesses, i.e. P.W. 9 Smt. Simla Devi and P.W. 8 Shri Dayal Prasad agreed that they had not made any statement to the Police till 29th April, 1983, i.e., the day on which the Investigating Officer recorded the supplementary declaration (Ex. P.W. 17/A). By then the prosecution theory as far as the Investigating Officer was concerned, had been worked out and that was that Vinod Bala had been set on fire by the appellant herein. This was irrespective of the fact that one of the neighbours Smt. Basanti and the other sister-in-law of the deceased Km. Meenu had not supported this theory.
23. After giving our careful consideration, we do not believe the assertion of P.W. 9 Smt. Simla Devi that any dying declaration was made to her by the deceased on 26th April, 1983 or later on.
24. The result of our above discussion is that the prosecution case against the appellant has not been made out. The appeal is allowed. The conviction of the appellant for the offence under Section 302, Indian Penal Code and the sentence of life imprisonment imposed on her, are hereby set aside. The appellant is on bail. Her bail bonds are discharged.
25. Appeal allowed.