Hari Pal and Hari Kesh vs State (Delhi Admn.)

V.B. Gupta, J.—Above named appellants being aggrieved by the common judgment dated 24/25th November, 1993 of the Additional Sessions Judge, Delhi have filed these two appeals.

Vide impugned judgment, the appellants were convicted u/s 302/34 of Indian Penal Code and were sentenced to undergo imprisonment for life and fined for Rs. 500/- each. In default of payment of fine they were ordered to undergo R.I. for seven days.

Initially in this case F.I.R. u/s 307 IPC was registered at P.S. Narela on 23rd October, 1986 on the statement of injured Brahm Prakash, S/o Sh.Chotu Ram. Later on this injured died on the same day at about 4:00 p.m. in the hospital and the F.I.R. was converted u/s 302/34 IPC.

On 23rd October, 1996 at about 2:50 a.m. injured Brahm Prakash went to the police station Narela and gave his statement (Ex.PW-12/A) to head constable Karan Singh (PW-18). In his statement he stated that he was sleeping in the night on his cot. At about 2:00 a.m., he got awakened on getting fire on his cot and then ran. He further stated that he had every doubt that he had been burnt by his wife Kamla as he had an altercation/quarrel with his wife who threatened him to poison or to burn and kill him. He further reported that his two brother-in-laws (sala) Hari Pal and Hari Kesh had also come on the said night.

On the basis of this statement, F.I.R. was registered. Since the deceased died on the same day, this statement of injured became a dying declaration after his death as per Section 32(1) of the Indian Evidence Act. Besides this dying declaration, prosecution in support of its case examined in all 22 witnesses.

Appellant Kamla in her statement u/s 313 Cr.P.C. denied the prosecution story. She stated that she was married with deceased for more than seven months ago and at the time of occurrence she was pregnant for 61/2 months. Deceased was in the habit of drinking very heavily. Somehow, pallies under his nylon cot caught fire and while he was intoxicated got entrapped in the fire. She has been falsely implicated at the instance of Smt. Channo Devi (PW-1), her mother-in-law who wanted to divest her and her off shoot from inheriting the property from the deceased and wanted to turn her out from the house.

To similar effect are the statements of the other two appellants, namely, Hari Pal and Hari Kesh.

In their defence, the appellants examined six witnesses.

It has been contended by learned Counsel for the appellants that perusal of alleged dying declaration Ex.PW12/A shows that deceased therein, did not attribute any act as such to any of the appellants. In fact in the said dying declaration, deceased has categorically stated that he was awakened from asleep at about 2:00 a.m. on account of burning and he suspected that his wife might have burnt him because she was having dispute with him and his two brothers- in-law (salas) were also there in the house. Deceased nowhere stated that any of the appellants burnt him. Moreover deceased had not mentioned name of any eye witness in his dying declaration.

The version given by Smt. Channo Devi (PW-1), the mother of deceased with regards to the incident runs counter to the version of the occurrence as mentioned in Ex.PW-12/A. The conduct of PW1 shows that in fact she was not present at the scene of occurrence, as she neither tried to save her son nor tried to secure any one of the assailants of her son nor even sought any help for her son.

It is further contended that as per statement of PW-1 she was sleeping in the house and deceased and his wife Kamla were sleeping in the adjoining room. She heard the noise of her son uttering "Dab liya Dab liya" which does not find mentioned in Ex.PW-12/A. It is further contended that PW-1 has stated that after hearing the noise, she ran towards the room where her son was sleeping and there she saw that appellant Hari Kesh had caught hold of deceased while appellant Hari Pal had a plastic can in his hand containing kerosene oil who sprinkled kerosene oil on deceased. Appellant Kamla was also standing there and she set fire to her son with a match stick.

All these facts do not find mention in the dying declaration of the deceased. Deceased has no where stated in his dying declaration that appellant Hari Kesh caught hold of him while appellant Hari Pal sprinkled kerosene oil over him and he was put on fire by his wife Kamla.

It is further contended that Surender (PW-4), Nanhe (PW-5), Jai Prakash (PW-6) and Satbir (PW-8) are the other so called eye witnesses. However, none of these witnesses have seen the occurrence with their own eyes and whatever they have stated, is all hearsay and no reliance can be put on their statements.

Another contention is that the injured (Brahm Parkash) himself had gone to the police station and was thus fully conscious. As per statement of Rameshwar Dutt (PW-21) the I.O, he got injured admitted in the hospital, where injured was declared fit for statement by the doctor but injured (Brahm Prakash) did not give any statement to him. He again approached the doctor at about 11:35 a.m. on 23rd October, 1986 whereupon doctor opined vide his report (Ex.PW15/C) that the injured was unfit for statement. PW-21 has further stated that prior to this, Brahm Prakash had been declared fit for statement by Dr. G.S.Aggarwal at 5:00 a.m. on 23rd October, 1986. So it is contended that when deceased was fit in the hospital why he did not give any statement either to the police or to the doctor. This goes on to show that deceased did not suspect, either his wife or any of his brothers-in-law for incident.

Lastly, it is contended that as per statement of PW-1 her son was burnt by pouring kerosene oil. However, there is no evidence to this effect, as the post mortem report says that there was no smell of kerosene oil.

Since the deceased has nowhere implicated any of the appellants in his dying declaration, there is no evidence to connect any of the appellants with the commission of the offence and as such all the appellants are liable to be acquitted.

On the other hand, it has been contended by learned prosecutor that Smt. Channo Devi (PW-1) who is the mother of the deceased, is the eye witness to the incident and she has narrated complete details of the incident, though there are certain minor contradictions in her statement. However, these minor contradictions are immaterial since PW-1 had herself seen appellant Hari Kesh holding deceased while appellant Hari Pal had poured kerosene oil and appellant Kamla had set fire to the deceased.

In the dying declaration (Ex.PW12/A), deceased has clearly stated that he had every doubt that he had been burnt by his wife Kamla as he had an altercation with her and his wife had threatened to poison or to burn and kill him. Moreover, deceased in his dying declaration has also named his two brothers-in-law, namely Hari Pal and Hari Kesh and had stated that they were also present in the house on the said night.

As far as smell of kerosene oil is concerned, it is contended by learned prosecutor that residue of kerosene oil was found on the clothes and pillows and moreover kerosene can was also found in the room, which corroborates the statement of PW-1 that the appellants have poured kerosene oil over the deceased and had burnt him. Under these circumstances, there is no ambiguity in the judgment of the trial court.

Prosecution case is based on dying declaration of deceased which is Ex.PW-12/A as well as on the statement of alleged eye witnesses, namely, Smt. Channo Devi (PW-1), Surender (PW-4), Nanhe (PW-5), Jai Prakash (PW-6) and Satbir (PW-8).

As per dying declaration Ex/PW12A, deceased nowhere implicated any of the appellants in this case nor has he mentioned as to what specific role was played by each of the appellants in burning him, as deceased did not state in his dying declaration that any of the appellants had actually burnt him. He has also not stated as to which appellant had poured kerosene oil over him and which appellant lit the match stick.

In his dying declaration, deceased stated that he was sleeping in the night on his cot and on getting fire on his cot he got awakened and then ran. He merely stated that he had every doubt that he had been burnt by his wife Kamla as he had an altercation with his wife who threatened him to poison or to burn him. Regarding appellants Hari Pal and Hari Kesh, deceased in his dying declaration had only stated that his two brothers-in-law, namely, Hari Pal and Hari Kesh were also present in the said night. So, reading of this dying declaration goes on to show that nowhere it states that deceased had seen any of the appellants pouring kerosene oil over him or burning him.

On the other hand, PW-1, the eye witness who is the mother of the deceased has given altogether different story which is not the case as per dying declaration. She, in her statement, has stated that she was sleeping in the house while deceased and his wife Kamla were sleeping in the adjoining room. She heard her son uttering "Daab liya Daab liya" and on hearing the noise, she ran towards the room of her son and there she found that Hari Kesh had caught hold of the deceased while appellant Hari Pal who was having a plastic can of kerosene oil had sprinkled kerosene oil on deceased. The appellant Kamla was also standing there and she had set fire to the deceased with a match stick. She has further stated that Surinder (PW- 4), Satbir (PW-8) and Om Prakash had collected at the spot and they also tried to extinguish the fire. However, PW-4 and PW-8 did not state about these facts in their statements.

All these material facts also do not find mention in the dying declaration of the deceased.

The other so-called eye witnesses examined by the prosecution in this case are not witnesses to the incident and whatever they have stated is all hearsay.

Surinder (PW-4) in his statement has stated that on 23rd October, 1986 at about 2:00 am he had returned from his field and was on his way to his house. He saw a crowd having collected outside the house of the deceased and people were saying "Aag laga di Aag laga di". He went towards that side and at that time deceased was standing in the gali outside his house and who stated that he had been set ablaze by his wife.

In his examination-in-chief he has nowhere mentioned about the presence of appellants Hari Kesh and Hari Pal and role attributed to them, if any. This witness was declared hostile.

In cross-examination, he stated that he had enquired from Brahm Prakash (deceased) as to how he caught fire. Brahm Prakash had told in the police station that he had been set ablaze by his wife Kamla and brothers-in-law Hari Kesh and Hari Pal by sprinkling kerosene oil upon him. So, whatever this witness has stated is all hearsay.

Nanhe (PW-5) another eye witness has stated that on 23rd October, 1986 at about 2:00 a.m. he was sleeping in his house and Surinder (PW-4) had called him. He came out of his house and saw deceased standing in burnt condition. They then went to the house of Pradhan, Jai Parkash who was awakened. In his cross-examination, he stated that deceased was naming his wife only and has stated that he was burnt while he was sleeping. This witness excludes the presence of other appellants, namely, Hari Kesh and Hari Pal.

Jai Prakash (PW-6) on the other hand stated that on 23rd October, 1986 at about 2:30 a.m. he was sleeping in his house and on being called when he opened the door, he found four persons, namely, Surinder, Satbir, Nanhe and Brahm Prakash standing outside his house. He saw that Brahm Prakash was burnt and so he enquired from him as to what has happened. Brahm Prakash replied that his wife had set him on fire.

This witness also nowhere states about the presence of other two appellants. This witness is also not a witness to the occurrence of the incident and whatever he has stated was hearsay, because the deceased allegedly told him that he had been burnt by his wife.

Lastly, we come to the statement of Satbir Singh (PW8) another alleged eye witness. He has stated that on 22nd October, 1986 he was going towards his house from his Ghair and the house of deceased is adjoining his house. At that time, he heard the noise of "Mar gaya Mar gaya, Jal gaya Jal gaya" and then he went towards the house of the deceased. He enquired from the deceased as to what happened, who allegedly told him that his wife and his brothers-in-law had set him ablaze. In cross-examination, this witness has stated that Brahm Prakash (deceased) had not named the brothers-in law, but had only said that his wife and brothers-in-law (salas) had set him ablaze. He did not know how many brothers-in-law Braham Prakash had nor he knew their names. So, whatever this witness has stated about the incident is all hearsay, as told to him by deceased Brahm Prakash.

Now, the question which arises for consideration is as to whether the present appellants have caused the death of the deceased by pouring kerosene upon him and by burning him or not or whether deceased sustained burn injury accidently which is the defence of these appellants.

Before relying upon dying declaration, it has to be seen that it is truthful, voluntary and inspires confidence. If these conditions are fulfilled, then in view of Section 32 of the Indian Evidence Act, dying declaration can be acted upon.

Section 32(1) of the Indian Evidence Act which deals with dying declaration reads as under;

32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of the person''s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question.

(2 to 8) xxx xxx xxx xxx xxx

Section 32(1) of the Indian Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a result of homicide or of suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.

In cases of homicide, statements made by a person, since deceased, are admissible to prove the cause and circumstances of the man''s death. Such statements are called dying declarations''.

The dying declaration is entitled to great weight. But, the Court has to satisfy itself that the dying declaration is of such a nature as to inspire full confidence of the court with regard to its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. The Court has to be further satisfied that the deceased was in that state of mind and had a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration as has been held by the Supreme Court in a catena of cases.

It is well settled that there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that dying declaration cannot be acted upon unless it is corroborated. Dying declaration can be accepted even if it is not corroborated by other evidence. The court must not look for corroboration unless it suffers from any infirmity. Once the Court comes to the conclusion that the dying declaration is a truthful version, there is no question of further corroboration.

Now, coming to the facts of the present case, as per dying declaration (Ex.PW12/A), it excludes the presence of brothers-in-law of the deceased, namely, appellant Hari Kesh and appellant Hari Pal and also about the involvement of his wife appellant Kamla.

On the other hand, PW-1 mother of the deceased stated that she has seen appellants pouring kerosene oil on deceased and burning him.

When in the dying declaration itself the, deceased has not attributed any role to any of the appellants, the statement given by PW-1 under these circumstances does not inspires confidence. The so called corroboration given by PW-1 to the dying declaration give a new twist to the dying declaration made by the deceased, which is not the purpose of corroboration. Corroboration is required to strengthen a fact which is already there. Here, when deceased himself in his dying declaration nowhere attributed any role to his two brothers-in-law and specifically to his wife with regard to the burning incident, the statement given by PW-1 implicating all the three appellants in the burning incident can have no meaning or value.

The other independent witnesses, namely, PW-4, PW-5, PW-6 & PW-8 were not present in the room of the deceased when he was burnt and whatever they have stated in their statement is all hearsay.

If the deceased had any grievance against the present appellants or had the present appellants been involved in burning the deceased, the deceased would have definitely named the appellants in his dying declaration. Moreover, later on in the hospital, in spite of being fit for statement, deceased did not give any statement implicating the present appellants, either to police or to a doctor.

Dr. George Paul (PW-11) who has conducted the post mortem, has stated that no smell of kerosene oil was evident on the body or in the scalp region at the time of the post mortem. Had deceased been burnt by pouring of kerosene oil on his body, there must have been smell of kerosene oil on the body, which is not there in this case and it supports the defence version that deceased who was in the habit of drinking heavily, caught fire while he was intoxicated and was entrapped in the fire.

So, from the entire evidence on record, we come to the conclusion that prosecution has failed to prove its case against the present appellants. Under these circumstances, conviction and sentence awarded by the trial court is set aside. The appeals of the appellants are allowed and all the three appellants stand acquitted. Their bail bonds stand cancelled and sureties stand discharged.