Delhi High Court
K.J. John vs State on 7 September, 2010
Author: V.K. Jain
Bench: Badar Durrez Ahmed, V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 30.08.2010
Judgment Pronounced on: 07.09.2010
+ CRL.A. 295/1997
K.J. JOHN ..... Appellant
- versus -
STATE ..... Respondent
Advocates who appeared in this case:
For the Appellant :Mr Vinay Kumar Garg with Mr Brij Bhushan and Mr Fazal Ahmad.
For the Respondent : Ms Richa Kapur, APP CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES V.K. JAIN, J
1. This appeal is directed against the judgment dated 6th May, 1997 and Order on Sentence dated 13th May, 1997, whereby the appellant was convicted under Section 302 of the Indian Penal Code, for committing murder of his wife Smt. CRL. A. No.295/1997 Page 1 of 32 Krishna and was sentenced to imprisonment for life and to pay a fine of `2,000/- or to undergo rigorous imprisonment for six months in default.
2. On 18th December, 1994, deceased Smt. Krishna was brought to J.P.N. Hospital in a PCR van. She had burn injuries on her face, neck, both upper limbs, abdomen, trunk, back and both thighs. ASI Bhim Singh, who reached the hospital on coming to know of the deceased having been taken there, visited her in the ward. It was opined by the doctor that she was fit for statement at that time. He, therefore, recorded her statement in the hospital, in the presence of the doctor.
She told him that she had four daughters and since she had no son, her husband used to quarrel with her on this issue. She further stated that in the morning she got ready to go the church. Her husband K.J. John, however, asked her not to go to the church. When she insisted, he poured kerosene on her from the stove, and lit the fire, using a matchstick for the purpose. Raising alarm, she came out of the room and fell on the ground. Her husband poured water on her. A number of persons from the locality gathered there and someone informed the police. She then was brought to the hospital by PCR van. Initially, the FIR was registered under Section 307 of the Indian Penal Code. Since the deceased succumbed to CRL. A. No.295/1997 Page 2 of 32 the burn injuries sustained by her, the FIR was converted under section 302 of the Indian Penal Code on 19th December 1994.
3. During the course of trial, the prosecution examined 18 witnesses in support of his case. No witness was examined in defence. The main evidence against the appellant is the testimony of his own daughter Josy, who had witnessed the incident, and the dying declaration made by the deceased to ASI Bhim Singh.
4. PW 10 Josy, who was aged 9 years at the time she deposed in the court, stated that about two years ago, at about 4 O'clock in the morning, when they were in the bedroom, her father, poured kerosene oil on her mother and put her on fire in the kitchen. According to the witness, she could see from the bedroom that her mother was in flames and under shock. For some time her parents remained in the kitchen. Then her mother went to courtyard and fell down. Her father also ran after her mother and poured some water on her. Some residents of the nearby houses reached there on hearing the shirks of her mother and both her parents were made to sit on the stairs. Her father also received some burn injuries. She also confirmed having narrated the incident earlier in the court, though she did not know the person to whom she had CRL. A. No.295/1997 Page 3 of 32 narrated the incident.
5. PW 18 ASI Bhim Singh stated that on 18th December, 1994, while posted at PS Mangol Puri, he went to the spot on receipt of a copy of the DD No. 6. He came to know that the injured had already left for J.P.N. Hospital. He then reached the hospital, collected her MLC and visited her in the ward. The doctor opined that she was fit for making a statement. In the presence of Dr H.S. Dass, he recorded her statement Exhibit PW 18/A, in his own hand. The deceased put her right thumb impression on the statement, at point 'C', which he attested at point 'D'. Dr H.S. Dass made endorsement made at point 'A' in token of correctness of the statement and signed it at point 'B' in his presence.
6. PW 17 Dr Arun Goel identified the endorsement made by Dr H.S. Dass at portion 'A' and his signature at point 'B' on the dying declaration of the deceased. He also identified the endorsement and signature of Dr H.S. Dass on the MLC of the deceased Exhibit PW 15/B.
7. PW 15 Dr G.S. Martolia stated that on 18th December, 1995 the appellant K.J. John was brought to J.P.N. Hospital with history of burns due to fire. He had 10-15 per cent burns on his face and left upper arm. He prepared his MLC and referred him to the Burn Plastic Surgery CRL. A. No.295/1997 Page 4 of 32 Department. He further stated that he had also examined deceased Krishna on the same day and prepared her MLC Exhibit PW 15/B. The patient was treated, referred and admitted in the Burn Plastic Surgery Ward.
8. PW 2 Dr Yoginder Singh Bansal conducted the post mortem examination on the dead body of the deceased. On external examination he found that dermo epidermal burn injuries were present over whole of the body except left breast, front and back of left upper limb, back of right upper limb, back of chest, back of abdomen, front and back of both legs. Both her palms were burnt and soles were unburnt. He also stated that the approximate area of burns was 50% of the total body surface area.
9. PW 6 Shri Praveen Kumar, Metropolitan Magistrate stated that on 20th December, 1994 the girl Josy who was about 8 years old, was produced before him and was identified by ASI Virender Singh. After putting questions to her and satisfying himself that she could understand the questions put to her and could give rational answers to them, he recorded her statement Exhibit PW 6/B. The statement was read over and explained to her and was signed by her in token of its correctness.
10. In his statement under section 313 of the Code of CRL. A. No.295/1997 Page 5 of 32 Criminal Procedure, the appellant admitted that he had poured water on the deceased and had himself sustained 10- 15% burns on his face and left upper arm. He, however, claimed that the deceased got accidentally burnt and he also received burn injuries in the process of pouring water on her. He also stated that those days he was not feeling well due to a mental problem.
Ocular Evidence
11. The testimony of PW 10 Josy, daughter of the appellant and the deceased, has been challenged by the learned counsel for the appellant on the ground that, as stated by the witness herself, she knew only Malayalam, whereas her statement under Section 164 of the Code of Criminal Procedure was recorded in Hindi. He also drew our attention to the letter dated 8th October, 1996, sent by the learned Additional Sessions Judge to the District and Sessions Judge, Delhi, stating therein that two witnesses, who knew only Malayalam, were in attendance and the services of an interpreter were required to record their evidence. He accordingly requested the learned District & Sessions Judge to allow one official, working in Tis Hazari Court, to act as interpreter for recording their evidence. Ms Nalini Dineshan, an official working in Tis Hazari Courts, was accordingly CRL. A. No.295/1997 Page 6 of 32 deputed to act as an interpreter for those two witnesses on 8th October, 1996. We, however, find that during cross- examination of PW 6 Shri Praveen Kumar, Metropolitan Magistrate, who recorded the statement of Josy under Section 164 of the Cr.PC, no suggestion was given to him that the witness did not know Hindi or that she knew only Malayalam or that the statement Ex. PW 6/B was not made by her. We also note that in her deposition in the Court Josy stated that she had narrated the incident earlier also in the same building and the statement Exhibit PW 6/B bears her signature at point 'A'. When the witness stated that she had narrated the incident earlier also in that very building, she obviously was referring to her statement recorded under Section 164 of Cr.PC, since she was not examined during trial, at any time prior to 8th October, 1996. In these circumstances, if we believe the learned Metropolitan Magistrate considering the fact that the witness herself has admitted having made a previous statement narrating this very incident in the same Court building and has also admitted her signature on the statement Exhibit PW 6/B, coupled with the fact that during cross-examination of PW 6 it was not disputed that the witness knew Hindi, it would mean that the witness knew Hindi and was influenced to make an incorrect statement in CRL. A. No.295/1997 Page 7 of 32 this regard. On the other hand, if we go by the deposition of the witness in the court, the necessary implication is that the statement Exhibit PW 6/B was not given by her, which would mean that the document was fabricated by the learned Metropolitan Magistrate. Taking the view favourable to the appellant, we proceed on the assumption that the statement Exhibit PW 6/B was not made by this witness to the learned Metropolitan Magistrate. Since there is no legal obligation to get the statement of a witness recorded under Section 164 of Cr.P.C., her deposition in the Court, if otherwise believed by the Court, cannot be rejected on the ground that she did not make any statement, before a Magistrate, during the course of investigation.
12. It was also pointed out by the learned counsel for the appellant that according to Josy the incident took place at about 4.00 A.M. and since normally the children are expected to be sleeping at that time, there was no possibility of the incident having been witnessed by her. It has come in the dying declaration made by the deceased that the appellant had asked her not to go to the church but she had insisted on going there. Obviously, an altercation must have ensued between the appellant and the deceased, when he asked her not to go to the church and the deceased insisted on doing so. CRL. A. No.295/1997 Page 8 of 32 A perusal of the site plan would show that only one room and a kitchen cum room were in possession of the appellant in the premises of Faith Mission Public School, E-219 Vijay Vihar, where they were residing. The site plan and the photographs show that those rooms were interconnected. The door connecting the rooms was also found open, as is evident from the photographs. The children, therefore, must have woken up on hearing the altercation between their parents, and that explains why they were not sleeping at the time when the incident of pouring kerosene on the deceased took place. In fact, the witness specifically denied the suggestion that she was sleeping at the time of the incident and had not witnessed the same. She also stated that her other sisters were also awake at that time. The incident, according to PW-11 Koshy Abrahim, had taken place at about 6.30 A.M. probably being a child PW 10 Josy, when examined in the court after about two years of the incident, was not able to recollect the precise time when this incident took place. Considering the fact that the deceased was ready for going to the church when this incident took place, it is quite likely that she would have already woken up the children, before she came to the kitchen after getting ready to go to the church. The apparent contradiction in the testimony of PW 10 Josy and PW 11 Koshy Abrahim as CRL. A. No.295/1997 Page 9 of 32 regards the time of the incident is not significant and can be safely attributed to fading memory and imperfect recollection on account of lapse of time between the date when the incident took place and the day when the witnesses were examined in the court.
13. It is true that PW 10 Josy was a child she being about 7-8 years old when this incident took place. Section 118 of Evidence Act provides that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions because of tender age etc. Even a child who is aged about 7-8 years is a competent witness and there is no legal bar on acting upon his/her testimony if he/she is capable of understanding the nature of the question put to him/her and giving rational answers to them. The decision on the question of whether the witness has sufficient intelligence primarily rests with the Trial Judge who notices his manners, his apparent disposition or lack of intelligence if any, though, his decision may be disturbed by a higher court if it is found to be erroneous.
14. In the case before us, the learned Trial Judge after preliminary questioning of Josy was satisfied that she was competent to depose. The witness gave correct particulars as CRL. A. No.295/1997 Page 10 of 32 regards her name, her father's name and place of her residence and name of her school. She was found to be studying in class 3 and she stated that she knew that one should always speak the truth. We, therefore, see no reason to take a contrary view with respect to the ability of this witness to understand the nature of the questions put to her and of giving rational answers to them. She, therefore, had rightly been held to be competent to testify as a witness.
15. However, as a rule of prudence the court is required to closely scrutinize the testimony of a child witness and should base the conviction on it only if it is satisfied about the quality and reliability of the deposition made by the child witness. If the court after scrutinizing the testimony of a child witness comes to the conclusion that he/she has stood the test of cross-examination and no serious infirmity is found in her testimony, the conviction, in the facts and circumstances of a given case, can be based upon his/her testimony alone. The corroboration of the testimony of a child witness is sought more as a matter of caution and prudence, than as a rule. The testimony of the child witness cannot be discarded on account of some discrepancy here and there, in his/her deposition, provided the discrepancy does not relate to material particulars and does not go to the root of the case. In CRL. A. No.295/1997 Page 11 of 32 fact, minor discrepancies in the testimony of a child witness may lend credence to it. Also, the court needs to carefully scrutinize the testimony of a child witness to rule out the possibility of the child having been tutored or having become an instrument in the hands of someone, with some ulterior motive.
16. As noted earlier, Josy was about 7-8 years old when this incident took place. Her presence in the house, at the time of the incident was natural, and has not been disputed. Since the room, where she was present and the room/kitchen, where the incident took place, were interconnected and the door between them was not closed, she was in a position to witness the incident.
17. In Suryanarayana vs. State of Karnataka AIR 2001 SC 482, the Supreme Court believed the testimony of a witness who was aged about 4 years at the time of the occurrence despite she being the solitary eye witness of the case. In Desh Deepak Kapoor vs. The State 2006(92) DRJ 440, a Division Bench of this Court accepted and relied upon the testimony of a child aged about 7 years at the time of the incident, considering that the incident had taken place in the house, the presence of the child witness at that time was only natural.
CRL. A. No.295/1997 Page 12 of 32
18. It was also contended by the learned counsel for the appellant that since PW 10 Josy was living with her grandparents when she deposed during trial, there was a possibility of her having been tutored by them. In the case of Desh Deepak Kapoor (supra) also the child who was believed by this court was living with his maternal grant parents. In the case before us, Josy specifically stated during her cross- examination, that she had come to the court from Kerala with Bade Papa (elder brother of her father) and one friend of his. Since the child was accompanied by the elder brother of the appellant and his friend when she came from Kerala to Delhi to depose during trial, there was no reasonable possibility of her having been tutored by her maternal grant parents to depose against the appellant. In fact, the possibility could have been the other way round.
19. In Baby Kandayanathil vs State of Kerala AIR 1992 SC 2275, two children of the deceased and A-No.4, aged about 8-7 years were the eye witnesses of the incident which took place on 8th December, 1979. They were examined by the police on 12th December, 1979. The Trial Judge after preliminary questioning was satisfied that they were answering questions intelligently and without any fear. The witnesses stood the test of cross-examination. Their testimony CRL. A. No.295/1997 Page 13 of 32 was accepted by the court noticing that they were the natural witnesses of the incident which took place in their house.
20. In a very recent judgment of the Supreme Court State of U.P. vs Krishna Master and Ors JT 2010(8) SC 240, a witness Madan Lal was six years old at the time of occurrence and he was examined in chief, during trial, when he was about 16 years old. The High Court rejected his testimony on the ground that a child of six years would not have been in a position to recapitulate the facts in his memory when he is examined after such a gap. Overturning the reasoning given by the High Court, it was observed by the Supreme Court that when a child of tender age witnesses gruesome murder of his mother, father, brothers etc., he is not likely to forget the incident for his whole life and would certainly recapitulate the facts in his memory, when asked about the same at any point of time, notwithstanding the gap of about 10 years between the incident and recording of his evidence. In the case before us, Josy, who was aged about 7 years when this incident took place, was examined in the Trial Court after about two years of the incident in which kerosene oil was poured on her mother by her own father and she was set ablaze. The heinous nature of the incident itself would ensure that the child would never forget it throughout her life CRL. A. No.295/1997 Page 14 of 32 and would certainly be in a position to recollect the incident, when questioned about it at a later date.
21. In State of Karnataka vs Shariff 2003 Crl.L.J. 1254, the prosecution witness of the occurrence was a child whose mother had been murdered by his father. He supported the prosecution but during cross-examination he stated that he was in the house of his grandmother when his mother caught fire. The Supreme Court, however, did not attach any importance to this answer in the cross-examination and relied upon his evidence observing that his otherwise reliable testimony could not be impeached in his cross-examination, and the witness could not be attributed any motive for falsely deposing against his own father.
22. In Mangoo & Anr vs State of Madhya Pradesh 1995 Crl.L.J. 1461, the evidence of a child witness was sought to be disregarded on the ground that he was in police headquarters for about 12 days before adducing evidence in court. Rejecting the challenge to the testimony of the child witness, the Supreme Court observed that the mere fact that the witness was brought to the court by the police was not a ground to conclude that he must have been tutored. In the case before us the child came to the court accompanied by none other than the elder brother of the appellant. Therefore, CRL. A. No.295/1997 Page 15 of 32 we find no reasonable possibility of her having been tutored by the police or by her maternal grant parents.
23. It was pointed out by the learned counsel for the appellant that according to Josy, her father had poured kerosene oil on her mother from an oil container made of plastic whereas as per the dying declaration of the deceased kerosene oil was poured on her from a stove. It was further pointed out that according to this witness, her father had used a lamp kept in front of the God, to set her mother to fire whereas as per dying declaration a matchstick was used for the purpose.
24. It would be pertinent to note here that not only a stove but also a plastic container was seized by the police from the spot. Considering the tender age of the witness and horrifying nature of the incident witnessed by her, we do not consider these contradictions to be so serious as would persuade us to altogether reject the testimony of this witness who being the daughter of the appellant could have absolutely no reason to depose falsely against him.
Dying Declaration
25. The dying declaration recorded by ASI Bhim Singh was challenged by the learned counsel for the appellant on the ground that there was no evidence that the deceased was fit CRL. A. No.295/1997 Page 16 of 32 for making a statement, at the time this dying declaration is alleged to have been recorded by him and no attempt was made by the Investigating Officer to get the dying declaration recorded by a Magistrate. It was also pointed out that there is a cutting on the endorsement of fitness made on the MLC of the deceased.
26. We have perused the MLC of the deceased Exhibit PW 15/B. There is an endorsement on the MLC made by Dr H.S. Dass at 9-10 A.M. on 18th December, 1994. It is quite apparent from a perusal of the document that initially the doctor wrote unfit but later he struck off the words 'un' in the endorsement made by him. However, what is important in this regard is that the scoring off of 'un' was signed by the doctor, which means that it was by mistake that he wrote unfit though he wanted to write fit and that is why he scored off the words 'un' and put his signature in token of having made the correction. The dying declaration made by the deceased to ASI Bhim Singh also bears the signature of Dr H.S. Dass along with the date under his signature. ASI Bhim Singh who came in the witness box as PW 18 stated that he had recorded the statement of Smt. Krishna Exhibit PW 18/A in the presence of Dr H.S. Dass who had made endorsement at point 'A' and signed it at point 'B' in his presence. Vide endorsement at CRL. A. No.295/1997 Page 17 of 32 point 'A' Dr H.S. Dass certified that the thumb impression at point 'C' was of Smt. Krishna. The endorsement made by Dr H.S. Dass along with his signature when read with the deposition of PW 18 ASI Bhim Singh shows that Dr H.S. Dass was present when the dying declaration of the deceased was recorded by ASI Bhim Singh. The endorsement made by him vide dying declaration when read along with the deposition of ASI Bhim Singh clearly shows that the deceased was fit for making statement at about 9-10 A.M. on 18th December, 1994 and that her dying declaration was recorded by ASI Bhim Singh in the presence of Dr H.S. Dass. The thumb impression at point 'C' on the dying declaration was also obtained in the presence of Dr H.S. Dass. It is true that Dr H.S. Dass has not come in the witness box, but his signature and handwriting have been proved by PW 17 Dr Arun goel who was conversant with his handwriting and was in a position to identify the same. He also stated that Dr H.S. Dass had left the services of the hospital and his present whereabouts were not known.
27. Section 47 of the Evidence Act provides that when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was CRL. A. No.295/1997 Page 18 of 32 not written or signed by that person, is a relevant fact.
28. During cross-examination of Dr Arun Goel no suggestion was given to him that he was not conversant with the handwriting of Dr H.S. Dass. According to the witness, he was working in JPN Hospital in 1994 and during his stay he had worked with Dr H.S. Dass, who was a junior Resident. The witness, therefore, was in a position to identify the handwriting and signature of Dr H.S. Dass, but no suggestion was given to him in his cross-examination that Dr H.S. Dass had not worked with him or that he was not conversant with his handwriting and signature. No suggestion was given to him that Dr H.S. Dass had not left the services of JPN Hospital or that his present address was available in the record of the Hospital. In fact, he was not cross-examined at all, despite opportunity. It is true that the best evidence to prove a particular handwriting and/or signature would be of its author. But, when it is shown that the present whereabouts of the author of the signature/handwriting are not known, there can be no valid objection to the court accepting the opinion of a person who is acquainted with the handwriting and signature of the concerned person.
29. As regards the failure of the Investigating Officer to call a Magistrate to record the statement of the deceased, we CRL. A. No.295/1997 Page 19 of 32 notice that during cross-examination of ASI Bhim Singh, he was not asked as to why he did not call a Magistrate to record the statement of the deceased. If an adverse inference is sought to be drawn on account of a particular conduct of the witness, he should first be given an opportunity to explain the impugned conduct. It is not permissible in law to use a particular conduct to draw an adverse inference against a witness without first giving him an opportunity to explain that conduct. There could have been reasons such as non- availability of the Magistrate, or the deceased having become unfit, soon after her statement recorded by PW-18, and may be the witness would have been able to share those reasons with the court had he been questioned in this regard.
30. There is no legal bar to a police officer recording a dying declaration and the dying declaration recorded by him is not inadmissible in evidence. It is only by way of a caution and as a matter of prudence that the courts normally insist upon the dying declaration being recorded by a Magistrate. In Paras Yadav vs. State of Bihar 1999 I AD SC 28, dying declaration was made in the presence of a number of witnesses and was also recorded by a police sub-inspector. Even the doctor was not examined to establish that the deceased was conscious and in a fit condition to make the CRL. A. No.295/1997 Page 20 of 32 statement. Noticing that the evidence of the prosecution witnesses established beyond reasonable doubt that the deceased was conscious, it was held that the dying declaration could not be said to be doubtful or unworthy of evidence and the lapse on the part of the Investigating Officer could not be taken in favour of the accused since such lapse might have been committed designedly or because of negligence. In State of Rajasthan vs Parthu (2007) 12 SCC 754, the dying declaration was recorded by a police officer in the presence of a doctor who had also attested the thumb impression of the deceased on his statement. There was no certificate of the doctor, clarifying fitness of the deceased to make a statement. The allegation against the respondent was that he had poured kerosene oil on the deceased and had set her on fire pursuant to a quarrel between them. The High Court acquitted the respondent opining that since the doctor had not certified that the deceased was in a fit state of mind to make a statement before the Investigating Officer and had not treated her, no reliance could be placed thereon. Setting aside the acquittal of the respondent, the Supreme Court noted that the dying declaration was recorded in the presence of the doctor and though technically there could have been no attestation of the statement of the deceased by him, by issuing such a CRL. A. No.295/1997 Page 21 of 32 certificate, what the doctor meant was that the statement of the deceased was made by her, before the Investigating Officer, in his presence, and the same had been recorded by the latter. In the case before us not only the endorsement of the doctor appears on the statement of the deceased, but the testimony of PW 18 ASI Bhim Singh shows that Dr. H.S. Dass was very much present when the statement was recorded. Moreover, there is also an endorsement of the fitness of the deceased on her MLC. In Mohd. Islam vs. State (NCT of Delhi) 2001 Crl.L.J. 4317, the statement of the deceased was recorded by the Investigating Officer in the presence of a doctor and the FIR was registered on that statement. Even though Dr. Neeraj Goel, in whose presence the statement was recorded, was not examined because of his non-availability, a Division Bench of this Court held that it would not render the dying declaration in question unreliable or illegal. It was noted that the statement of the deceased was got foot marked by the Investigating Officer in the presence of the doctor as was apparent from the endorsement made by him. It showed that the dying declaration was recorded by the Investigating Officer in the presence of the doctor and, therefore, the contention that the dying declaration was not recorded by a doctor did not materially affect the case of the prosecution. It was CRL. A. No.295/1997 Page 22 of 32 observed, during the course of the judgment, that the dying declaration, recorded by the police officer and attested by the doctor, is admissible in evidence. As regards the failure of the Investigating Officer to call the SDM for recording the dying declaration of the deceased, this Court accepted the explanation given by the State counsel that had the Investigating Officer not recorded the statement of the deceased perhaps the prosecution would have been deprived even of that statement, since possibility of the deceased thereafter losing consciousness could not be ruled out, particularly when she had 95 to 97% burns and the time was too short with the Investigating Officer. In the case before us also, the deceased had 90% burns. Though in the absence of questioning of ASI Bhim Singh in this regard, we do not know why he could not call a SDM to record the statement of the deceased, we cannot lose sight of the fact that the deceased died early next morning and, therefore, ASI Bhim Singh could not have afforded to waste time in calling the Magistrate for recording her statement. In the absence of questioning of the Investigating Officer, we also do not know whether the deceased continued to remain conscious after her statement was recorded by ASI Bhim Singh or not. In these circumstances, it would not be appropriate to exclude the CRL. A. No.295/1997 Page 23 of 32 dying declaration recorded by ASI Bhim Singh from consideration.
31. No doubt, a dying declaration, before it is accepted by the court, needs to be scrutinized carefully, but, if after such a scrutiny, the court is satisfied that the dying declaration was made voluntarily and the deceased was not prompted to make such a statement, there is no legal impediment in relying upon such a dying declaration. In Betal Singh vs State of M.P. (1996) 4 SCC 203, the case of the prosecution was that the appellant had doused the deceased with kerosene oil and set her ablaze by lighting a matchstick. Before her death, the deceased was taken to a nearby hospital, where FIR was registered on the basis of a statement made by the deceased to a neighbour. A police officer also went to the hospital and recorded the statement of the deceased. Observing that there was no reason for the police officer to concoct the statement of the deceased and noticing that PW 1 had also heard the deceased telling those facts to the police officer it was held that the High Court was fully justified in convicting the appellant. In Vidhya Devi & Anr vs State of Haryana (2004) 9 SC 476, the doctor had opined that the deceased was in a fit state of mind and he was present when her statement was recorded. The dying CRL. A. No.295/1997 Page 24 of 32 declaration was accepted by the Supreme court for maintaining the conviction of the appellant.
32. On a scrutiny of the dying declaration recorded by ASI Bhim Singh, we notice that the deceased told him that she had four daughters and had no male child. This factual aspect is not disputed by the appellant. No other person present in the hospital on that day could have given these facts to ASI Bhim Singh. Admittedly, the family of the deceased was not residing in Delhi when this incident took place. They came to Delhi on 21st December and identified the dead body of the decease on 22nd December. There is no allegation of the deceased having been tutored by anyone before her statement was recorded by the police officer. In these circumstances, we find no good reason to disbelieve the dying declaration recorded by ASI Bhim Singh.
33. If we look for corroboration of the testimony of PW 10 Josy, it is available in the form of the dying declaration made by the deceased. If we look for corroboration of the dying declaration on the ground that it was recorded by a police officer, it is available in the form of deposition of none other than the daughter of the appellant. In other words, the dying declaration and the deposition of PW 10 Josy corroborate each other in all material particulars. Taken together, the CRL. A. No.295/1997 Page 25 of 32 deposition of the daughter of the appellant and the dying declaration made by the deceased are sufficient to warrant the conviction of the appellant.
34. It was lastly contended by the learned counsel for the appellant that since there was an altercation between the appellant and the deceased, the case is covered by exception 4 to section 300 of IPC.
35. An accused is entitled to the benefit of exception 4 to Section 300 of the Indian Penal Code only if the act committed by him satisfies the following conditions:
(i) It is committed without premeditation;
(ii) it is committed in a sudden fight; and
(iii) the act is committed in the heat of passion upon a sudden quarrel, provided the offender does not take any undue advantage and does not act in a cruel and unusual manner.
'Undue advantage' would mean an unfair advantage. The nature of the weapon used by the accused and the manner of attack made by him have a material bearing while deciding whether the accused had taken an undue advantage or not.
36. The deceased was killed by pouring kerosene oil on her and setting her ablaze. If the husband of a woman kills CRL. A. No.295/1997 Page 26 of 32 her in this manner it cannot be said that he did not act in a cruel manner and did not take undue advantage of the deceased being a woman and not being in a position to defend herself. The deceased would not be expecting that her husband would pour kerosene oil on her and then immediately set her ablaze. Since the incident took place all of a sudden and the deceased has no inkling of what was in store for her, she was hardly in a position to save her life from the hands of the appellant. Death by burning is one of the most cruel methods of killing a person and it would be extremely difficult for us to say that such an act was not a cruel act within the meaning of exception 4 to section 300 of the IPC. In Rawel Singh vs The State 1997 Crl. L.J. 1195, the appellant before this court had set his wife ablaze, after she had poured kerosene oil on herself. Rejecting the contention that the case was covered by exception 4 to section 300 of the IPC, a Division Bench of this Court held that it will not be too much to say that the accused had acted in a cruel manner inasmuch as he had set ablaze a helpless lady who was living with him as his wife, inspite of being beaten by him regularly. Following the judgment in the case of Ravel Singh (supra), another Division Bench of this Court in Harihar vs Govt. of NCT of Delhi (State) 126 (2006) DLT 566, held that since the deceased CRL. A. No.295/1997 Page 27 of 32 was unarmed and was of weaker sex, she being a woman, the accused who poured kerosene oil on her and set her ablaze had taken advantage of his superior physical position and availability of kerosene in the jhuggi, his act was also cruel. We, therefore, are unable to give benefit of exception 4 to section 300 of the IPC to the appellant. We would also like to note here that though in his statement under section 313 of the Cr. P.C., the appellant did not dispute that his wife died of burn injuries, the plea taken by him was that the deceased got accidentally burnt and he also received burn injuries in the process of pouring water on her. He, however, did not try to tell the court as to how the alleged incident had taken place. The dying declaration made by the deceased shows that she was ready to go to the church when this incident took place. There is no evidence of the deceased cooking something on the stove. No such claim was made even by the appellant who stated that the incident in question was an accident. During cross-examination of PW 10 Josy, daughter of the appellant and the deceased, no suggestion was given to her that the deceased was cooking something on the stove and had accidentally caught fire. The stove seized by the police from the spot, did not have a lid on it. At the time of cooking the lid would be fixed on the stove. This indicates that the deceased CRL. A. No.295/1997 Page 28 of 32 was not engaged in any cooking, which, in turn, falsifies the plea of accidental fire. There is no evidence of the appellant having raised any alarm when the deceased was in flames. It is true that the appellant himself got some burn injuries, but the burn injuries sustained by him were superficial as is evident from his MLC and no burn mark was found on his palm and hands which indicates that no attempt was made by the appellant to douse the fire using his hands for the purpose. In ordinary course of events, if the husband all of a sudden finds his wife in flames, his first reaction would be to make an attempt to douse the fire, using whatever he can lay his hands on and if he cannot find any other thing, he will not hesitate to use even his hands for the purpose. The appellant had come back to his house on the same day as stated by PW 18 ASI Bhim Singh, which, in turn shows that the burn injuries sustained by him were quite minor and that is why he was immediately discharged from the hospital. Pouring of water on the deceased after she had come out of the room/kitchen by itself does not make out a case of accidental fire in the facts and circumstances of the case before us.
37. The learned counsel for the appellant, while claiming benefit of exception 4 to Section 300 of the IPC, relied upon the decision of Kalu Ram vs. State of Rajasthan (2000) 10 CRL. A. No.295/1997 Page 29 of 32 SCC 324. The appellant therein asked Vimla, one of his two wives to spare her ornaments, presumably for raising some more money for buying liquor. He was then also drunk. Vimla, however, refused to part with her ornaments, which infuriated the appellant. He then doused Vimla with kerosene, wanted her to die and supplied a box of matchsticks to her. Since she failed to ignite the matchsticks, the appellant took the matchstick from her and lit one of the matchstick setting her ablaze. When the flames were up, he suddenly and frantically poured water to save her from death. While altering the conviction of the appellant from section 302 to section 304 (II) of the IPC, the Supreme Court felt that the conduct of the appellant, in frantically pouring water to save the deceased from the tongues of flames, could not be seen divorced from the totality of the circumstances. Observing that very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die and if he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her, the Court was of the view that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. The Court was of the view that the appellant would CRL. A. No.295/1997 Page 30 of 32 not have intended to inflict the injuries which she sustained on account of his act. The facts of the case before us are, however, different. There is no evidence of the appellant having even consumed liquor what to speak of being under the influence of liquor. There is no evidence of the appellant having tried to douse the fire while the deceased was still in the kitchen/room where she was set ablaze. The appellant poured water on her only when she raised an alarm and came out in the courtyard. Probably he had no option left but to pour water on her since the neighbors were bound to reach the spot on hearing the shrikes of the deceased. As noted earlier by us, no attempt was made by the deceased to douse the fire using any object lying in the room or his hands for the purpose. The burn injuries sustained by the appellant were very minor, he having sustained them only on his face and right upper arm. No alarm was raised by the appellant in order to call the neighbors for help. In his statement under section 313 of the Cr.PC the appellant does not claim any provocation from the deceased, his plea being that it was an accidental fire. In the facts and circumstances of this case, it is difficult for us to convert the conviction of the appellant from section 302 to section 304 of the IPC.
38. For the reasons given in the preceding paragraphs, CRL. A. No.295/1997 Page 31 of 32 we are of the view that the appellant has rightly been convicted under section 302 of the IPC, we find no merit in the appeal and the same is, therefore, dismissed.
(V.K. JAIN) JUDGE (BADAR DURREZ AHMED) JUDGE SEPTEMBER 07, 2010 RS CRL. A. No.295/1997 Page 32 of 32