Delhi High Court
Jaspal Singh And Ors. vs The State (Delhi Administration) on 1 November, 1993
Equivalent citations: 52(1993)DLT461, 1993(27)DRJ621
Author: Y.K. Sabharwal
Bench: Y.K. Sabharwal
JUDGMENT Y.K. Sabharwal, J.
(1) Jasbir Singh, his brother Jaspal Singh, their two sisters Surjit Kaur and Rajender Kaur, their mother Sumitra Devi and Jasbir Kaur, wife of Jaspal Singh have been tried for an offence under Section 302 read with Section 34 Indian Penal Code The charge against them is that on 19th July 1984 at about 8.45 pm at House No.E-345, Raghubir Nagar Delhi in furtherance of common intention, all of them committed the murder by intentionally causing the death of Harbans Kaur wife of Jasbir Singh by pouring kerosene oil over her and then setting her on fire.
(2) The learned Additional Sessions Judge found all the accused guilty of the offence charged and has sentenced Jasbir Singh to death. The other accused have been awarded life imprisonment. All the accused have come up in appeal. There is also a reference, for confirmation of the death sentence. This judgment shall dispose of both the appeals and the reference.
(3) The case of the prosecution in short is that Harbans Kaur was married to Jasbir Singh about three years before the date of the incident. On 19th July 1984 at about 8.45P.M. she was burnt by pouring kerosene oil and was got admitted by her husband Jasbir Singh in burnt condition in Ram Manohar Lohia Hospital at about 10 P.M. In her dying declaration (Ex.PW 14/C)madeat 11.05 Pm on 19th July 1984 Harbans Kaur states that:- "I reside at the aforesaid address. I was married with Jasbir Singh 3 years ago. Today at about 8.45 Pm I was present at my house and when I went inside the Kitchen to fetch a match box, my brother in law (Jyeth)Jaspal Singh poured Kerosene oil on me and my husband Jasbir Singh set my clothes on fire. My sister in law (nand) Guddi,my mother in law Sumitra, my elder sister in law (nand) Rajinder Kaur and my sister in law (Jyethani) Jasbir Kaur went on helping my husband and my brother in law (Jyeth) in setting me on fire. All of them having conspired with each other and With common intention have set me on fire in order to kill me. I have heard the statement and the same is correct. They used to demand dowry."
(4) The aforesaid dying declaration was recorded by Sub Inspector Teja Singh (PW 20) in presence of Dr.Rajiv Sood (Public Witness 14).
(5) The Sub Divisional Magistrate Mr.G.S.Chaturvedi (Public Witness -6) also came to the hospital and recorded dying declaration (Ex.PW-6/A) at-12.45 Am on 20th July 1984. Ex.PW6/A is to the following effect:- "ON19.7.1984 at about 8.45 Pm she was set on Tire after kerosene oil having being poured on her in the kitchen by her hisband, brother in law (Jyeth) and mother in law. When she had gone inside the kitchen to fetch a match box, she was meanwhile, caught hold of by these persons and her two sisters in law (nands) and a sister in law (Jyethani) closed the door. The name of my mother in law is Sumitra and that of brother in law (Jyeth) is Jaspal Singh. The names of my sisters in law (nands) are Rajender Kaur and that of the other one is Guddi. She does not know her full initial, (name). The name of her Jyethani (sister in law) is Jasbir Kaur. The aforesaid in laws of her used to demand dowry. On being burnt with fire Harbans Kaur made hue and cry and the persons of the locality and of the gali tried to save her. Her husband brought her to the hospital. The door of the kitchen where she was set on fire, was opened by the tenant."
(6) On Ex.PW 6/A an endorsement made by Dr.Ravinder Mohan, Senior Resident Surgeon, Burn Ward is to the following effect:- "THIS statement was recorded in my presence at the time the patient was conscious and well oriented. The patient spoke. This statement in response to questions and answers."
(7) Ajit Singh (Public Witness -7) brother of the deceased gave the burnt clothes of the deceased to the Investigating Officer on 20th July 1984. The Investigating Officer recorded the statement of Ajit Singh. He came to the spot; got the spot photographed and took into possession kerosene oil containers, oil stove, match box, burnt match stick and the empty bottle and other articles as per Seizure Memo (Ex.PW 7/B). The Investigating Officer recorded the statement of the witnesses at the spot and got prepared .the site plan Ex.PW 4/A. (8) Harbans Kaur diedon27thJuly 1984inthehospital. On 28thJuly 1984 the body was sent for post mortem examination. Dr.Bharat Singh(PW-16) conducted the post mortem. The post mortem report is Ex.PW 5/A. The articles were also sent for examination by Central Forensic Science Laboratory and the results were obtained. The report of the Laboratory is Ex.PW 20/C. (9) The prosecution examined 20 witnesses. Five witnesses were examined in defense. Public Witness -1 to Public Witness -5, Public Witness -8, Public Witness -9, Public Witness -II..PW-12, Public Witness -15, Public Witness -17 and Public Witness -19 are formal witnesses.
(10) The conviction is based mainly on the dying declarations Ex.PW 6/A and Ex.PW 14/C. The prosecution has also based its case on the oral declarations made by Harbans Kaur to her brother Ajit Singh (Public Witness -7), to her mother Amrit Kaur (Public Witness -I 3) and to a neighbour Surinder Kumar (Public Witness -IO). These three witnesses have also been examined to prove the acts of harassment, cruelty and demand of dowry made by in laws of the deceased.
(11) The question for determination is whether it is a case of homocide or accident. The theory of suicide is completely ruled out. It has not been propounded either by the prosecution or by the accused.
(12) Some undisputed facts of the case may first be noticed. When the incident of burning took place there was no electricity in the entire area as there was a general shut down of electricity power at that time. There was complete darkness. It is a low income group house. The incident took place in the kitchen. The kitchen is very small. The measurement of the kitchen is about 4 ft x 3 ft. The kitchen can hardly accommodate two persons at a time. The door of the kitchen opens inside the kitchen. There are shelves in the kitchen on two sides. There is no thumb mark on Ex.PW 6/A. According to endorsement on Ex.PW 6/A the left foot impression of the deceased had been obtained. In fact, there is no such impression on the document. The document only contains a toe impression.
(13) EX.PW 14/A, is the MLC. According to it husband took Harbans Kaur to hospital. The endorsement Ex.PW 14/D on the Mlc records that "alleged H/O burns with kero scene at 9.30pm". The endorsement is dated 19th July 1984. The endorsement Ex. 18/B dated 19th July 1984 states that "alleged H/O got burnt while cooking".
(14) The injuries suffered by the deceased, as per the testimony of Public Witness-16 Dr. Bharat Singh were these:- "SCALP hairs were partially burnt in the frontal area and on the sides. Eye brows and lashes were partially burnt. Nails of the fingers of the right hand had fallen due to burns and of left hand and feet were intact. Eyes were closed. Conwnotivae were pale. Mouth was closed. Tongue was in normal condition. There was no discharge from natural orifices. External Injuries:- 2nd to 3rd degree.(Dupytrains) fire burns on the forehead, face, neck with dried base. Infects bums of 2nd to third degree on the lower part of the neck all over. Front of chest and abdomen as well as on the sides up to the middle of both legs. There was no bums on the buttocks and also on the back of chest and abdomen. Both upper limbs showed infected bums of 2nd to 3rd degree. Bones of the right hand were exposed due to burns. There was no other mark of violation on the body except a surgical out open wound on each ankle for drip."
(15) It seems that the police reached the spot soon after the incident. The Pcr had received information on telephone at 9.20 pm that in Qr.No.E-345, Raghubir Nagar a woman had sustained burn injuries and reached the spot at 9.40 PM. The spot was guarded by the Police Constables. The case of the prosecution is not that the evidence was tampered with in any manner.
(16) According to both dying declarations, the first one recorded by a Police Officer which is Ex.PW 14/C and the second one recorded by Sdm which isEx.PW6/A,Harbans Kaur had gone inside the kitchen to fetch a match box It is not disputed that at a time hardly two persons could be accommodated in the kitchen because of its small size. Public Witness -7, Ajit Singh says that "the kitchen can hardly permit two persons at a time." One such person had to be Harbans Kaur. Who was the other person or persons? According to Ex.PW 14/C Jaspal Singh poured kerosene oil on the deceased and her husband Jasbir Singh set her clothes on fire and the two sisters-in-law (Nands), mother-in-law and the other sister-in-law (jyethani) helped Jasbir Singh and Jaspal Singh in setting Harbans Kaur on fire. It is a well settled proposition of law that as far as possible the language used by the maker of the declaration should be used while recording such declarations. In Ex.PW 14/C the words to the effect that "All of them having conspired with each other and with common intention have set me on fire in order to kill me", coming from a layman is something unusual and this fact would also have to be borne in mind while considering other aspects. Further, the words to the effect that "they used to demand dowry" have been written after the concluding portion of the declaration that "I have heard the statement and the same is correct."
(17) According to the second written dying declaration Ex.PW 6/A, Harbans Kaur was set on tire after kerosene oil having been poured on her in the kitchen by her husband, brother-in-law and mother-in-law. No separate role is attributed to them. This is unlike Ex.PW 14/C according to which the brother-in-law poured kerosene oil and husband had set clothes on fire. Such separate role is not attributed in this declaration. Ex.PW 6/A also records that Harbans Kaur was caught hold of by the aforesaid three persons. If it is correct than these persons were in the kitchen at the same time. Further Ex.PW6/A is partly recorded in the first form and partly in the third form and also states that two Nands and one Jyethani closed the door of the kitchen and on being burnt Harbans Kaur made hue and cry and persons of the locality and of the gali tried to save her and closed door of the kitchen was opened by the tenants. The prosecution has not examined any person of the locality or of the gali or any tenant. Keeping in view the factors noticed hereinbefore. Exhibits Public Witness 14/C and Ex.PW 6/A require utmost care and caution in their examination.
(18) On the question of weight to be attached to the dying declaration, learned counsel for the parties cited various judgments of Supreme Court and this Court, some of them are Smt. Kamla Vs. State of Punjab ,Ganeshlal Vs. State of Maharashtra1992 Cr.L.J. 1545, Khushal Rao Vs. State of Bombay , State Vs. Laxman Kumar 1986 Cr.L.J. 155(SC), Ganpat Mahadeo Mane Vs. State of Maharashtra , Harbans Lal and another Vs. State of Haryana 1993 Cr.L.J. 75 (SC), Kundula Bala Subrahmanyam & another Vs. State of Andhra Pradesh, , Smt. Madha Bala Vs. State(Delhi Administration), 1989(3) Delhi Lawyer 271, Surender Singh Vs. Slate, 1989(4) Delhi Lawyer 279, Kaushlaya & Others Vs.The State, 1987(Vol.33) D.L.T. 254 and Lalai alias Dindoo and another Vs. State of U.P., . It is not necessary to examine the cited judgments as ultimately the question of weight to be attached to the dying declarations is to be judged on the facts and circumstances of each case and no hard and fast rules can be laid down. The principles culled out are, however, these:- (1)A dying declaration can be the sole basis of conviction if it is recorded by a Magistrate in a proper form and once court comes to the conclusion that the dying declaration represents a truthful version no further corroboration is needed; 2) If there are more than one dying declarations there should be consistency particularly in material particulars in all the dying declarations. 3) To pass test of reliability a close scrutiny is necessary as the accused has no opportunity to cross examine the maker of the dying declaration. 4) Ordinarily, the dying declaration should not be recorded by a Police officer. It should be in question-answer form and recorded in the language of the maker and the signatures or thumb impression of the maker should be obtained. It should be ensured that the maker of the dying declaration is in a fit state of mind when the dying declaration is made. The dying declaration should not be a result of tutoring by interested parties. 5) Although it is desirable that the dying declaration should be in question-answer form and recorded in the language of the maker but the form and the language by itself is not conclusive and a dying declaration recorded by a Magistrate though not strictly in form but being otherwise clear and unambiguous and as a result of exercise of free will of the maker it can be the basis of the conviction particularly when there is corroboration by medical and other circumstantial evidence. 6) A great weight is liable to be attached to a proper dying declaration as it is unlikely that a person on verge of death would commit the sin of implicating somebody falsely. 7) It is permissible to reject part of the dying declaration if it is found to be untrue and that part can be separated from the rest of the dying declaration. If it is not possible to severe the two parts, court would be justified in rejecting the whole dying declaration.
(19) Bearing in mind the aforesaid principles, we are required to examine the dying declarations which are the basis of conviction of the accused in the present case. There are more than one dying declarations. The two written dying declarations Ex.PW6/A and Ex.PW 14/C have been extracted above. Apart from these the prosecution has setup three oral declarations, one, made by deceased in front of her brother Ajit Singh,PW-7, another before a neighbour Surinder Kumar Public Witness -10 and yet another before her mother Amrit Kaur Public Witness -13.
(20) PW-7 Ajit Singh has deposed that he had talked to his sister when he went to take her clothes from the doctor. He says that:- "I had talked to my sister once in the hospital when I went to take her clothes from the doctor. I asked her as to how she had been burnt. She told me that her in-laws had burnt her."
At another place he says that:-. "THE police met me at 11.30 PM. The clothes of my sister were lying near her bed on the ground. The doctor asked me to lift them and I took them into custody at about 10.30P.M."
From the testimony of Ajit Singh it appears that he met the deceased at 10.30 pm on 19th July 1984. The learned trial court is not right in concluding that Ajit Singh met his sister for the first time between 1.00 and 1.30 pm. Regarding the names of the persons who had burnt her Ajit Singh says:- "SHE told me that at 8.45 Pm she had gone in the kitchen to bring a match box when her Jeth Jaspal Singh poured kerosene oil on her and that her husband Jasbir Singh had taken match box from her hands and had set fire to her clothes by lighting a match stick and that her mother-in-law Sumitra Devi, Jasbir Kaur, Guddi and Inder Kaur had helped other accused. Guddi is also known as Surjit Kaur."
(21) On this aspect Public Witness -10 Surinder Kumar says:- "I had gone near the bed of Harbans Kaur with her brother Ajit Singh. She told us that the lights had gone out and she had gone to the kitchen to bring a match box. Her husband, and Jeth had come behind her. The elder brother of her husband poured kerosene oil on her and Jasbir Singh had lighted the match stick and set her on fire and that her mother- in-law, Jethani and two sisters of her husband (Nands) had helped in setting her on fire."
(22) PW-13 Amrit Kaur, mother of the deceased says:- "I met my daughter in the hospital. She told me that her Jeth Jaspal Singh had poured kerosene on her and that Jasbir Singh had set her on fire by lighting a match stick and that her sisters-in-law(Nanads) and Jethani had helped Jasbir Singh and Jaspal Singh in setting my daughter on fire. She did not tell the time at which she was set on fire by the accused persons."
(23) Amrit Kaur, mother of the deceased has not mentioned that Smt.Sumitra Devi, mother-in-law of the deceased had played any role. Amrit Kaur also says she did not make any statement to the police and was making statement for the first time in the court. Apart from the two written dying declarations and three oral declarations made to Public Witness -7, Public Witness -10 and Public Witness -13 which have been set up by the prosecution, an oral declaration has been set up by the defense which is alleged to have been made by deceased before DW-2 Gurbux Singh. Gurbux Singh was living in the same house on the first floor as a tenant of the accused persons. According to Gurbux Singh he and residents of Mohalla went to the place of the incident and deceased told them that she was lighting the stove and had caught fire. The police had recorded the statement of Gurbux Singh but he was not examined as a prosecution witness and was given up as unnecessary. Some other witnesses were also given up as unnecessary and not on the ground that the said witnesses had been won over by the defense. We may notice that the prosecution is not required to keep back witnesses only because they are likely to go against the prosecution. It is not the duty of the prosecution to secure the conviction by adopting all means, fair or foul. The duty of the prosecution is to act fairly so that truth may come out.
(24) For the time being, leaving aside the testimony of DW-2, and concentrating on the two written and three oral declarations made by the deceased we find that there are various inconsistencies in material particulars. In Ex.PW 14/C it is stated that Jaspal Singh poured kerosene oil and Jasbir Singh set her clothes on fire and the four ladies named therein helped Jaspal Singh and Jasbir Singh in setting her on fire. In Ex.PW 6/A, however, no such role is assigned to Jaspal Singh or Jasbir Singh and it is stated that the three, namely, Jaspal, Jasbir and Sumitra, mother-in-law had caught hold of her, had poured kerosene oil on her in the kitchen and set her on fire and other three ladies, namely, two nands and one jyethani had closed the door. There is thus a vital inconsistency in regard to the material particulars. Further the prosecution has not examined any evidence to indicate as to what help was rendered by four of the accused persons as per Ex.PW 14/C. Except this omnibus statement in dying declaration Ex.PW 14/C there is nothing else on record implicating the accused who are alleged to have helped in putting the deceased on fire. It is unsafe to rely upon omnibus statement implicating many accused without particularising individual roles (See: Pandurang and others Vs.State of Hyderabad, and Lala Ram & others Vs. State of U.P.). As noticed hereinbefore, Ajit Singh had met his sister on 19th July, 1984 at 10.30 pm before the recording of Ex.PW 14/C. Public Witness -IO Surinder Kumar, however, says that he met the deceased with Ajit Singh at 1.15 A.M. on 20th July, 1984 when she told him and Ajit Singh about having been burnt by her in-laws. Ajit Singh does not say that his sister told him all this in presence of Surinder Kumar or he met his sister along with Surinder Kumar. The police had recorded the statement of Surinder Kumar. He was confronted with the statement made before the police where the fact of Surinder Kumar having told the police that Harbans Kaur had told him in presence of Ajit Singh about the circumstances of occurrence, had not been recorded. Further, it has also to be kept in mind that none of the dying declarations are in question-answer form. It has further not been clarified as to what was the urgency for Sub Inspector Teja Singh to record the dying declaration when the Sub Divisional Magistrate was coming to record it. Yet another circumstance which has not been explained is that if the thumb impression of deceased was obtained on Ex.PW 14/C what happened in a span of about an hour or half that when Sdm recorded Ex.PW 6/A he did not obtain her thumb impression and instead obtained a toe impression which the document states to be left foot impression.
(25) The language used in Ex.PW-14/C also casts a serious doubt about its veracity. The words "all of them having conspired with each other and with common intention have set me on fire in order to kill me" in Ex.PW 14/C are unlikely to be used by the maker of the dying declaration who was a lay person and these words are likely to be used more by a person conversant with such matters. Further, it has not been explained how the words 'They used to demand dowry" have been written after the words "I have heard the statement and the same is correct."
(26) Regarding Ex.PW6/A it is partly in first form and partly in third form. The endorsement alleged to have been made on this document by the doctor also does not inspire the confidence. It is somewhat unusual for the doctor to make the endorsement that the statement was made in response to questions and answers. Such an.endorsement is usually made by the person recording the declaration. The doctor making the endorsement was not produced as a witness and the endorsement was proved by the Record Clerk, though it was explained by the learned State Counsel, that the doctor was not in the service of the Hospital and his present whereabouts were not known. The testimony of Sh.G.S.Chaturvedi,PW-6 does not inspire any confidence and a lot deserves to be said about it. For almost every question put to him he took shelter under the loss of memory. He did not recollect if the doctors were attending on her and declared her fit for making the statement. He did not remember what statement was made by her; could not say the names of the doctors who were present at that time; could not say who had called him to the hospital for recording the statement nor could he say if any application was moved by the police requiring him to go to the hospital for recording the statement of Harbans Kaur. He did not remember having recorded the condition of the patient before recording her dying declaration. Public Witness -6 admits that he did not ask the doctor before recording the statement that Harbans Kaur was in a fit state for that purpose. He also admits that the declaration was not in the form of questions and answers though according to the endorsement of doctors made on Ex.PW 6/A it was in the form of question and answers. PW-6 could not say if he obtained endorsement of any doctor on statement Ex.PW 6/A. He has not explained why the thumb impression or signatures of Harbans Kaur were not obtained. Likewise, the Investigating Officer also could not throw any light as to how Public Witness -6 reached the hospital. The investigating officer, Public Witness -20, says that "I do not know who had brought Sdm to the hospital, I did not go to call him, I did not get any report recorded at the Police Station that Sdm be called to record the statement of the injured. I did not send any Constable with a Rukka to the house of the SDM. I cannot say from where Sdm had come and at whose instance."
(27) In view of facts and circumstances noticed hereinbefore it would be very unsafe to base conviction on dying declarations Exs. Public Witness 14/C and/or Ex.PW 6/A or on the oral declarations made to Public Witness -7, Public Witness -10 and Public Witness -13 particularly in absence of any corroboration from medical and other evidence which rather casts a serious doubt about the case set up by the prosecution. According to the post mortem report and also the testimony of Dr.BharatSingh,PW-16 bones of the right hand of the deceased were exposed due to burns and that may explain the absence of the thumb mark on Ex.PW 6/A. But if that is so the obtaining of thumb mark of right hand of deceased on Ex.PW 14/C becomes doubtful. The testimony of Investigating Officer Teja Singh on this aspect also does not inspire confidence. In fact, the Investigating Officer had to admit that the hands of the deceased were bunt to a great extent. Smt Harbans Kaur died on 27th July, 1984. According to Rule 13A of Punjab High Court Rules Vol.lll, as applicable to Delhi, the Investigating Officer is required to apply to Chief Metropolitan Magistrate to depute some Magistrate for recording of the dying declaration. The said rule reads:- "2.DYINGDeclarations 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 stipendary judicial Magistrate to record the dying declaration."
(28) We fail to understand why no attempt was made to get the statement of Harbans kaur recorded in terms of the aforesaid rule when considerable time was available between the date of the burning incident and the date of death.
(29) Apart from the infirmities and inconsistencies in the dying declarations, the other features of the case which raise reasonable doubts about the prosecution case may now be noticed. The incident allegedly took place in a kitchen which is of small size and can hardly accommodate two persons at a time. As one such person was Harbans Kaur, only one more person at a time, would be accommodated in the kitchen. This circumstance which is of considerable importance has not been considered at all by the learned trial court. The prosecution has not explained as to who was the said person. As noticed earlier on these aspects there are material inconsistencies in the dying declarations. The photographs proved on record by the prosecution showing the placement of jerrican containing kerosene oil and the other articles on the shelf in the kitchen make it doubtful for a person to pour kerosene oil, keep the jerrican and bottle in which kerosene oil may have been extracted from the jerrican on the shelf and then lit the fire or to light the fire and then place those articles on the shelf, in view of the small size of the kitchen. It was suggested by learned State counsel that the accused persons may have kept those articles at the shelf later on. There is a distinction between "may have" and "must have". There is a long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond reasonable doubt. The prosecution has also not set up the case that the accused kept those articles on shelf later on. On the contrary the case of the prosecution is that almost soon after the incident police had reached there and the place was guarded and when the Police reached the site none of the accused were available at the house. The accused have also not been charged under section 201,IPC. It is thus not open to the prosecution to contend that those articles may have been placed by the accused on the shelf.
(30) The accused Surjit Kaur and Rajinder Kaur were married and were living separately with their husband, one at Delhi and the other at Madhya Pradesh though both were in Delhi on the date of occurrence. What particular motive they had in being party to the killing of Harbans Kaur has not been clarified and>s one of the circumstance to be kept in mind. The possibility of Harbans Kaur having gone to the kitchen for cooking purpose or for warming up the cooked food as it was about 8.45 pm cannot be ruled out. This is not the case of the prosecution that any one had dragged Harbans Kaur into kitchen. It has also to be kept in view that the smell of kerosene oil was not found from any of the seized articles. Further there was no soot on door or on any other article in the kitchen which also casts reasonable doubt on the theory of burning after pouring kerosene oil. In case the clothes caught fire accidently then the liklihood is that there would be no smell of kerosene oil in any article. The injuries on Harbans Kaur are not suggestive of any struggle. There is no external injury. In case six accused were involved as per the case set up by the prosecution it becomes reasonably doubtful that there would be no injuries. There were no injuries on back side of the deceased. Most of the injuries are on front and few on the side portion. The injuries are more commensurate with theory of accident while trying to light the stove.
(31) Regarding the testimony of Ajit Singh, brother of the deceased in court in regard to demand of dowry etc there are a number of improvements. His testimony does not inspire confidence. The same is the position of Public Witness 10 and Public Witness 13. In regard to alleged demands made by in-laws Public Witness -7 says that certain Panchayates had been held. Neither any such statement was made before Police nor any independent witness was examined.
(32) The finding of the trial court that accused persons used to maltreat Harbans Kaur and demand dowry and on account of non fulfillment of the demands the six accused persons joined hands and in furtherance of common intention of all of them intentionally caused the death of Harbans Kaur by setting her on fire after pouring kerosene oil is contrary to the weight of evidence on record. The sole testimony of Public Witness -7 on the demand for dowry and its non fulfillment does not inspire any confidence particularly in view of various improvements made by him. The learned Additional Sessions Judge rightly records that the witness had improved upon his statement made earlier with the Police but still goes on to record the finding of demand of dowry which is unsustainable for want of reliable and trustworthy evidence which was not produced by the prosecution.
(33) It was also contended by counsel for the prosecution that the accused did not try to save her and the conduct of the accused shows that they were guilty and that it was not a case of accident. The evidence on record does not justify such a contention. Husband had taken Harbans Kaur to hospital. There is no evidence to suggest any adverse conduct of the accused. It is also not a case where it can be held that that accused did not offer any explanation. Their explanation was that burning was result of an accident. In the Mlc it is recorded that alleged history of burning while cooking. It may be that the said fact may have been recorded,in Mlc on the husband having said so to the doctor but, in any case, that does not prove the guilt of the accused persons. We may also notice that at about 11.5 P.M. on 19th July 1984 Pat hedin injection had been administered to Harbans Kaur and thus it cannot be ruled out that Harbans Kaur may have been drowsy. Apart from the dying declaration the prosecution has not shown or proved anything which may have happened in the house on19thJuly 1984eitherbeforetheincidentorthereafter. We may also notice that in the statement of the accused recorded under Section 313, Criminal Procedure Code . the circumstance that they did not make an attempt to save the deceased was not put to the accused and as such it is not open to the prosecution to rely upon that circumstance. Under section 313 Cr.P.C. every incriminating circumstance is required to be put to the accused.
(34) We find it difficult to appreciate why the prosecution gave up Gurbux Singh as unnecessary: It is correct that what witnesses are to be examined is left to the discretion of the prosecution and where there are large number of witnesses the prosecution, in its discretion, may not examine all the witnesses but that is not the position in the case in hand. It is the duty of the prosecution to act fairly and not to keep back material witnesses only because the said witnesses are likely to go against the prosecution. Gurbux Singh was not given up on the ground that he was won over. He was given up as unnecessary. He was living in the same premises. He claims to have reached there immediately. Under these circumstances, it is difficult to appreciate the reason for giving up Gurbux Singh as unnecessary. He was examined by defense as DW-2. He says that he heard the cries "bachao Bachao aag lag gai" from ground floor of the house and came down stairs but could not go down the stairs as lot of smoke was coming through the window of the kitchen of the accused which opens towards the stairs of the witness. Gurbux Singh claims that he came to ground floor; when the smoke ended and saw Harbans Kaur lying burnt completely in the deori and Jasbir Kaur and Sumitra Devi were taking care of her and Jasbir Singh also came there with many other persons from the mohalla. Harbans Kaur told the witness and other residents of the Mohalla that she was lighting the stove and had caught fire and Jasbir and some persons of Mohalla took Harbans Kaur to the hospital. There is no cross examination of DW-2 on these aspects. If Harbans Kaur had been burnt in the kitchen how she came to deori and who brought her to deori has neither been explained nor there is any cross examination of the witness. There is also no cross examination on the aspect that Jasbir Kaur and Sumitra Devi were taking care of Harbans Kaur. It is not the case of the prosecution that when she was brought out she was still burning. The deori is also of a small size. Its size is about 7 ft x 3 ft. In face of this evidence and in absence of any evidence from prosecution it is not open to the prosecution to contend that the accused made no efforts to extinguish the fire. Further, according to one of the dying declarations, namely, Ex.PW 6/A, the doors had been closed and were opened by the tenant. Who was that tenant remains unexplained. The investigation of the case has been far from satisfactory. None of the neighbours or persons from the locality were examined and the prosecution rested its case by examining the only interested witnesses. We are not suggesting that as a rule the conviction cannot be based upon the testimony of the relations who may be interested in the conviction of the accused but at the same time we have to bear in mind that while weighing the evidence of the interested witnesses who are near relations, the court has to adopt a very careful and cautious approach.
(35) About giving up of Gurbux Singh, it was contended by counsel for the State that as he had not seen the occurrence he could not have deposed about it and that is why he was given up as unnecessary. The question is not of his having seen the occurrence but is of his having immediately reached at the spot after the occurrence and thus he may have been in a position to depose as to how the doors were opened and who was looking after Harbans Kaur but prosecution chose not to examine him.
(36) The finding of the trial court that DW-2 Gurbux Singh was under the influence of the accused person and was not willing to tell the truth when he stated that he heard noise "bachao bachao aag lag gai", and came down stairs but could not go down the stairs as lot of smoke was coming through the window of the kitchen of the accused which open in his staircase is self contradictory, as the learned Judge himself finds at a later part of the judgment,*that Harbans Kaur could be saved on the fateful night of the incident only on her shrieks and prompt arrival of the persons in the neighborhood. There is nothing on the record to infer that DW-2 was not willing to tell the truth. The dying declaration Ex.PW 6/A when it states that neighbours and tenants had come, needed conoboration. None of the neighbours were produced for reasons best known to the prosecution. There is nothing on the record to support the view that neighbours had avoided to be the witnesses.
(37) For the reasons stated above, in our opinion, the prosecution has failed to bring home the charge against the accused persons. The accused are entitled to benefit of doubt. We would,accordingly, allow both the appeals and acquit the accused. They are directed to be set free forthwith. In view of the aforesaid, we would decline the reference.