Himachal Pradesh High Court
Bhag Singh vs State Of Himachal Pradesh on 30 July, 1993
Equivalent citations: 1994CRILJ1398
JUDGMENT Bhawani Singh, J.
1. Accused Bhag Singh has been found guilty by the trial court for an offence Under Section 302 of the IPC. registered vide First Information Report No. 82/91. He has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo further simple imprisonment for a period of three years. The facts of this case may now be stated thus.
2. The accused was married to the deceased (30). They had two children out of this wedlock. According to the prosecution, the deceased had gone to meet her parents with the prior permission of the accused on 6-10-1991. She returned on 7-10-91 at about 4 p.m. She prepared food, fed her children and went to sleep at about 9 p.m. The accused came at about 11 p.m. He was in a state of intoxication. He asked the deceased as to why she came late and did not prepare vegetable for him since she should have known that he felt hungry after consuming liquor. The deceased took her children to the adjoining room and returned to the place where the accused was sitting. She attempted to console him by stating that she would cook vegetable for him but the accused was enraged to such an extent that he poured kerosene oil on her from a bottle (Ex. P.5), lit fire to a shouli (bundle of small sticks) and set the deceased on fire through it. He also dragged her out of the room and kicked her from the wall. She fell down in the kitchen garden and tore off her clothes and thereafter ran towards a nallah nearby (Chinhtu Nallah) and jumped into the water. She went to the police station in utter panic and complained to. Sub-Inspector Hem Singh (P.W. 9) at about 12.45 a.m. A complaint was recorded in the daily diary as report No. 10, Police Station Banjar. She had stated in her report that her husband Bhag Singh poured kerosene oil on her and set her on fire as a result of which she received injuries on mouth, abdomen and arms. She wanted immediate medical treatment and she was sent to Primary Health Centre, Banjar, through Constable Alam Chand.
3. Sub-Inspector Hem Singh (P.W. 9) moved an application to Block Medical Officer, Dr. Bine Ram (P.W. 1) for issuing a medical certificate whether the deceased was fit to make the statement. On 8-10-1991 at about 8-15 a.m., the doctor certified that she was fit to make the statement. This endorsement is recorded on this application (Ex.PL) as Ex.P. W. 1/A. Accordingly, statement of the deceased was recorded (Ex.PM). She has held the accused responsible for pouring the kerosene oil on her and setting her on fire. The first Information Report (Ex.PH) was recorded on this basis and a case under Section 324 of the Indian Penal Code was registered. Medical Certificate regarding injuries was issued by Dr. Bine Ram (P.W. 1). The injuries found were grievous in nature. The doctor referred the deceased to District Hospital, Kullu, for treatment by a Surgical Specialist. This is recorded on document (Ex.PL) as Ex. P.W. 9/ A. On the basis of the medico legal certificate (Ex.PA), the police converted the case to Section 326 of the Indian Penal Code.
4. The deceased remained in District Hospital, Kullu, till 13-10-1991 when the mother of the deceased got her voluntary discharge for taking her home. The doctor informed the police about it. The deceased died on the same day in her parents house. Her body was sent for postmortem examination. It was performed by Dr. Om Pal (P.W. 2) and Dr. Jitender Singh Thakur. According to them, the deceased had died due to servere burns (55-60%) leading to inversible shock. Postmortem was performed on 15-8-1991 at 12-05 p.m. Again, the case was converted under Section 304 of the IPC. and ultimately Under Section 302 of the IPC. During the course of investigation, it was found that the incident was witnessed by Geeta Devi (P.W. 3), daughter of the deceased from the previous husband. The police also came to know that the accused was in the habit of quarrelling with the deceased on petty matters while under the influence of liquor. He did not make any attempt to extinguish the fire nor rendered any kind of help to her. He did not search her during the night nor inquired about her whereabouts from her parents. He did not go to the hospital to know about her health nor spent any money on her treatment. Above all, he did not participate in the funeral procession nor in other ceremonies relating to it.
5. In this case, the police took into possession guilt cover (Ex.P. 2) vide memo. (Ex. PE), Pattu (Ex.P.3) vide Memo (Ex.P.F), burnt shalwar (Ex.P3), shirt (Ex.P4) and bottle (Exp.5), containing a few drops of kerosene oil. Burnt hair of her head (Ex.P.1) were handed over to the police by Dr. Bine Ram (P.W.1), duly sealed. Photographs of the dead body were also taken in addition to the history sheet from the hospital. Site Plan (EX.P.9) was also prepared regarding the place of incident. After completing the investigation, the accused was brought before the court for trial. Charge for an offence under Section 302 of the IPC was framed against him. It was put to him. He denied his involvement, so the trial commenced.
6. His defence can be noticed from his explanation under Section 313 of the Cr. P.C. and the case put to the witnesses during their cross-examination. In his explanation under Section 313 of the Cr. P.C., he has stated that the deceased had gone to her parents without his permission and she returned at about 8 p.m., the next day. In order to prepare food for the children, he had to call Smt. Jhalsi Devi, wife of his brother. On noticing this lady at the house, the deceased started quarrelling with him. Smt. Jhalsi Devi went away. She was followed by the deceased and when she returned to the house, she set herself on fire. He did not know at what place the deceased had doused herself in kerosene oil. It was he who tore her stretchlon clothes. The deceased had gone to the kitchen garden. He tried to put off the fire with the help of green vegetables and by putting a pattu around her. The deceased ran away from the place. He and the villagers tried to locate her, but failed. After wards, he came to know that the deceased had gone towards Banjar. He met her parents and certain villagers of her village but they did not allow him to see the deceased in the hospital. He returned to his house to see his children.
7. In defence, the accused produced Jai Singh, Record Keeper (DW. 1) to produce case file No. 144-IV/91, Belu Devi etc. v. Bhag Singh, and Shri K.C. Thakur, Advocate, (DW 2) to prove the application (Ex.DA) Under Section 125 of the Cr. P.C. against the accused dated 10-10-1991. Parivar Register was also produced in evidence to show that Kumari Geeta Devi (P.W. 3) was not living in this family. After the close of the witnesses of the prosecution and the defence, and recording the statement of the accused under Section 313 of the Cr. P.C., the trial Court examined the case on merits. It took note of statements of all the witnesses in the case, various kinds of documents and the submissions made by the learned counsel for the parties. It came to the conclusion that it was the accused who was responsible for setting the deceased on fire and was, therefore, liable to be convicted for an offence under Section 302 of the IPC. Accordingly, he was sentenced as aforesaid.
8. This decision has been assailed through this appeal before us. The accused was not represented by any counsel. Accordingly, by our order dated 15-1-1993, Shri Kuldip Singh was appointed to defend the accused under the provisions of High Court of Himachal Pradesh (Legal Aid to Accused) Rules, 1981. Shri Kuldip Singh has rendered valuable assistance in this case.
9. Shri Kuldip Singh submitted that there is contradiction between the report of the deceased to the police dated 7-8/10-91 (Ex.PG) and the statement recorded in the hospital by Sub-Inspector Hem Singh (P.W. 9). We see no substance in this submission. If we examine these two documents, it is abundantly clear that the deceased has given all the essential facts to the police on 7-8/10-91 at 10-45 a.m., although she was in critical condition. She has given the name of her husband and his address. She has also stated that it was her husband who poured kerosene oil and set her on fire as a result of which she received burns on mouth, abdomen and arms. Similarly, in her statement (Ex.PM) she has given all these facts, although some more details are also there. The fact remains that both these documents are quite sufficient to point out that the accused had set het on fire after pouring kerosene oil on her. It was on account of this act of the accused that she received burn injuries on her body, as a result of which she ultimately died.
10. Shri Kuldip Singh then contended that dying declaration is not dependable since it is given to the police in the hospital and it is not attested by the doctor. Resultantly, it is not dependable document and cannot be accepted as such. Moreover, it requires corroboration which is not available in the present case.
11. Ms. Shyama Dogra, learned Deputy Advocate General, seriously disputed this Submission. According to her, dying declaration has rightly been recorded by Sub-Inspector Hem Singh (P.W.9). The lady was certified fit to make the statement by the doctor before the statement was recorded and this dying declaration is sufficient to convict the accused without seeking further corroboration in the matter, and it is not expected from a person suffering under acute pain to give comprehensive and precise statement and description of the incident. According to her, the case is covered on facts and law by the decision of this Court in 1992 Cri LJ 2415 (Thakur Dass v. State of H.P.). Strong reliance was also placed on (Damodar Prasad Chandrika Prasad v. State of Maharashtra), (Shanker v. State of U.P.), (Ashok Kumar v. State of Rajasthan) (Gangotri Singh v. State of U.P.).
12. It is important to notice the observations of the apex court in AIR 1987 SC 1328 : (1987 Cri LJ 1065) (Dalbir Singh v. State of Punjab) (para 12, P. 1331), where it has been held that (at page 1068; of Cri LJ):
"...In any event the dying declaration in our opinion, could not be discarded merely on the ground that it does not give precise description of all the instruments of offence and also the precise description of the manner in which the injuries were inflicted and on this basis, therefore, it could not be contended that this dying declaration should be rejected as it is not consistent with the medical evidence. It is plain that substantially it is corroborated by medical evidence and also corroborated by the testimony of eye-witness."
13. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffers from any infirmity by reason of which it was necessary to look out for corroboration nor does the law requires that the maker of the dying declaration must cover the whole incident or narrate the case history (See: , Munnu Raja v. The State of M.P.).
14. In para 5 of (Kamla (Smt.) v. State of Punjab), K. Jayachandra Reddy, J., speaking for the Court, said that:
"5. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao v. State of Bombay). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any coroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
15. The court did not convict the accused on the basis of the dying declaration for the reason that there were as many as four dying declarations in the case recorded from time to time with inconsistencies in the contents thereof and it was not considered safe, therefore, to depend on a particular dying declaration for the purpose of convicting the accused.
16. In 1992 Supp. (3) SCC 60 (State of U.P. v. Shishupal Singh) the dying declaration could not be depended upon since it did not contain the signatures of the deponent, namely, the deceased and no explanation was offered by the prosecution as to why the deceased was not in a position to put the signatures and neither time was given nor date was mentioned in this document. In these circumstances, the court found that the dying declaration was impregnant with numerous suspicious circumstances which created a doubt in the mind of the court about the genuineness of this document.
17. Similarly, in 1992 Supp. (3) SCC 87 : (1990 Cri LJ 1462) (State of Gujarat v. Mohan Bhai Raghbhai Patel), the dying declaration was held undependable in the light of the evidence to the contrary and the fact that the conduct of the accused in making efforts in extinguishing the fire, made the dying declaration of doubtful nature.
18. Now, after looking to the principles and precedents, we advert to the case before us. Sub-Inspector Hem Sigh (P.W.9) has stated that during the night of 7-8/10-91, the deceased came to the police station at about 12-45 p.m. She was crying. She disclosed that she was burnt by her husband after pouring kerosene oil on her. She requested for immediate medical aid. This report was recorded in the daily-diary of the police station. This has clearly stated the name of the accused and the injuries sustained by her. He found that the deceased required immediate medical aid, so she was sent to Primary Health Centre, Banjar, with Constable Alam Chand, where she was examined by Dr. Bine Ram (P.W. 1). Sub-Inspector Hem Singh visited the hospital in the morning at 8 a.m. and inquired from the doctor whether the deceased was in a fit state to make the statement. The doctor certified on 8-1-1991 at 8-15 a.m. that she was fit to make the statement. His endorsement is Ex.P.W. 1/A. Accordingly, Sub-Inspector Hem Singh (P.W. 9) recorded the statement (Ex.P.M.). It gives a detailed description about the whole matter. It is thumb marked by the deceased after the deceased had admitted the correctness of the contents of this document. He has attested it. He has also said that while making the statement, the deceased was perfectly in senses. He found simple injuries on her person and so a case under Section 324 of the IPC was registered on her statement.
19. In the circumstances aforesaid, it can be said that there are neither inconsistencies in the two statements of the deceased nor does the later statement suffer from any kind of invalidity, though we do not encourage recording of such like statements by the Investigating Officer, we expect that in case the doctor is available, he should also remain present while such a statement is recorded. In the present case, in addition to the applicability of Section 32 of the Evidence Act, Sections 5, 6 and 8 of the Act may also be attracted.
20. Turning to the injuries, the deceased was subjected to examination by Dr. Bine Ram(P.W. 1) on 8-10-1991 at 1 a.m. when she was found in severe agony, sensible and asking for relief from pain. The injuries consisted of vesication with flaps of denuded burnt skin overhanging or coagulated with scattered in tact blisters or blisters' ruptures showing red and inflamed base surrounding skin, red appearance. The injuries extended upward to front of head hair line, down to inner and front aspect of right thigh on left to grewin region not involving the genital. On the side, vesication extended from one pinna to the other involving whole of the face, nose, front of neck, laterally sides of neck down to both the upper limbs to dorsum (back) of hand, not on palm which was clear. Beside's, the trunk from arm pit to sides of buttacks was affected, as described in the medico-legal certificate (Ex.PA). In the opinion of the doctor, these burn injuries were on account of dry heat and flame. These injuries could because by dousing on her kerosene oil and setting up fire. These were second degree burns at the stage of examination, which could not be minutely done since the patient was agitating and disturbing and not allowing it. She was visited by her mother. Dr. Om Pal (P. W. 2) corroborated the injuries mentioned in Ex.P. 1. He had performed the postmortem examination of the deceased. From the postmortem examination of the deceased, it is clear that she was having 50-60 per cent burn injuries. He as well as Dr. Roshan Lal and Dr. Jagat Ram attended her and maintained her history sheet. She was discharged from the hospital on 13-10-1991 at the request of her mother. The patient was in a severe shock and in a severe condition and her condition went from bad to worse. She was discharged from the hospital as per practice to discharge the serious patients when there was no hope of survival and she could not survive even if best efforts to cure were made. The nature of the injuries described by the doctor is similar to those as described in the statement of the deceased to the police. There is no contradiction between them. The version given by the deceased is further corroborated.
21. Geeta Devi (P.W. 3) has also stated about the manner in which the deceased was set on fire by the accused. Serious objection was raised about her presence on the spot by Shri Kuldip Singh, who submitted that as per the family register (Ex.DB), she was not living with the deceased and the accused and, therefore, her testimony is not at all dependable and she has been procured by the prosecution simply to lend credence to its case. Looking to the evidence on record, there appears some doubt about her presence in the house at the relevant time since reference relates to the small sons of the couple and in case Geeta Devi had been in the house at the relevant time, she would have raised hue and cry attracting the villagers. Without saying anything more, even if her participation in the case is ruled out, no serious dent is caused to the prosecution case which stands proved on the basis of other relevant evidence in the case, which includes, to a great extent, the own conduct of the accused. He has admitted his presence in the house at the relevant time. He has also admitted that the deceased had gone to her parents house, though stated that she had gone there without his consent and had to call his brother's wife to prepare food for the children. Obviously, on that account. He was annoyed with the deceased and the story of their inter-se quarrel at the relevant time cannot be ruled out. His explanation that she was annoyed on account of the - presence of his brother's wife and had for that reason committed suicide, is altogether un-believable. In case he was not responsible for anything, how could he have remained a silent spectator while the deceased was burning. His version that he attempted to extinguish the fire with vegetables and putting the pattu around her is hardly convincing, rather he did nothing after setting her on fire and pushing her out of the house. The fact that he did not receive any injury on his person also demonstrates that he did not make any attempt to put off the fire. He did not make any effort to search her nearby in the nallah or in the village. He did not go to her parents house to inquire about her health or tell them what actually had happened in case the deceased had set herself on fire of her own. He did not go to the hospital to inquire about her health. He did not meet the doctor nor did he pay for her treatment. He did not go to her parents house when she was discharged from the hospital nor attended any of the last rites when she ultimately died. The explanation that he was not allowed to meet her and was threatened with dire consequences, is an afterthought. His behaviour is totally blameworthy. If we look at his defence, it is not dependable. The application moved in the court under Section 124 of the Cr. P.C. appears to have been created to defend himself. As a matter of fact, it is not helpful to him. The deceased had never attended the court on this date since she was in a serious state of health lying in the hospital and thereafter from the hospital she was taken to her parents house at a time when there was no hope of her survival according to the doctor. Even this application takes note of the fact that it was the accused who had set her on fire.
22. At the time of incident, the deceased was in the company of the accused at his house. The burden lies on him to explain satisfactorily the circumstances leading to the incident. The evidence plainly demonstrates that he has failed to discharge this burden rather he has made crude attempts to escape from this responsibility by setting up false defences. His behaviour is such which no person of reasonable and ordinary prudence would ever display.
23. We have taken serious pains to scan the available record including the detailed judgment of the trial court in this case. The evidence has been properly noticed and weighed before conclusions have been drawn. We see no reason to differ with the findings of the trial court. The involvement of the accused is clearly established.
24. The result, therefore, is that we see no merit in this appeal and the same is accordingly dismissed.