Mohan vs The State (Delhi Admn.)

Sanjay Kishan Kaul, J.—The appeal is directed against the impugned judgement dated 26.9.1996 convicting the appellant for offence u/s 302 of the IPC for setting his wife, Veena (deceased), on fire and the order of sentence of the even date sentencing him to undergo RI for life and to pay a fine of Rs. 500.00 and in default to pay fine to undergo RI for one (1) month. The conviction is based on dying declaration of the deceased.

The case of the prosecution is that in the night intervening the lst/2nd March 1990 at about 2:30 a.m. the appellant came to the police station at Shahdara and lodged a report to the effect that his wife was preparing tea on the stove and in that process had got burnt. The appellant informed that his brother-in-law, Kishan Lai, PW-11, had taken the deceased to GTB Hospital. The information given by the appellant was recorded as DD No. 18-A (exhibit PW-9/A) and was marked to S.I. Mahender Singh, PW-13, who along with the appellant and Constable Sukhbir Singh, PW-6, reached GTB Hospital. On arrival it was found that the deceased had not been admitted to the hospital. S.I. Mahender Singh, PW-13, thereafter went back to the spot where he met Constable Brahm Singh, who handed over to him DD No. 20 (exhibit PW-9/B) and it was informed to him that the deceased had been taken to JPN Hospital while Constable Brahm Singh had remained at the spot to safeguard it. S.I. Mahender Singh went to JPN Hospital and collected the MLC (exhibit PW-2/A) and informed the SHO who also reached the Hospital. The SHO directed that the SDM should be called. Shri B.S. Rana, PW-5, who was the SDM came to the Hospital and recorded the dying declaration of the deceased. In the dying declaration it is recorded that as per the deceased the appellant had come at around 2:00 a.m. from the duty and wanted to have sexual intercourse with her but because she was on fast and was a believer of peer baba she declined the overture of the appellant. On this the appellant got angry and poured kerosene oil on the deceased and lit the clothes with matchstick and set her on fire which caused the burn injuries. On hearing the shouts of the deceased, her brother came and removed her to JPN Hospital. The deceased has also stated that the appellant was not properly behaving with her for the last two-three years and had started disliking her. This dying declaration is exhibit PW-5/A, which was duly attested by the SDM and on which an endorsement was made by the SHO which is exhibit PW-13/A. The same was sent to P.S. Shahdara at 6:00 a.m. for registration of the case. The FIR was registered as exhibit PW-l/C. The appellant was arrested and his personal search was conducted. Information was thereafter received vide DD No. 9-A that the deceased had passed away. Her body was sent for postmortem. The Sub-Inspector took over the possession of the iron stove, matchbox and the burnt razai (quilt). The kerosene was also picked up from the floor with the help of cotton and was taken into possession (exhibit PW-6/C). A site plan was prepared as exhibit PW-13/B. The draftsman prepared the site plan on 12.3.1990 as exhibit PW-7/A. A total of 17 witnesses were produced by the prosecution in their support.

The case of the prosecution is based on dying declaration recorded of the deceased by the SDM. The brother-in-law of the appellant, PW-11, however, turned hostile as he resiled from his earlier statement that the deceased had informed him about the appellant setting her on fire while she was being taken to the hospital by PW-11 in the three-wheeler scooter to the hospital. In cross-examination he claimed ignorance as to how his sister caught fire.

Dr. Vikas Mahajan has appeared as PW-17, who declared the deceased fit for statement at 4:53 a.m. whereafter the deceased was admitted to the burns ward. PW-5 has corroborated that he had called the doctor who had declared the patient fit for statement before the dying declaration was recorded by PW-5. The testimonies of PW-5 & PW-17 are at tandem.

In the statement made u/s 313 Cr.P.C. the appellant claimed he was falsely implicated in this case and that his wife (the deceased) has burnt herself. The appellant claimed that he was sleeping at that time and after knowing of the incident of burning tried to put out the fire and in that process even his hands were burnt.

The defence also produced three witnesses in support of its case. Dayawati, DW-1, deposed that when she went to the house of the appellant, the appellant was asking the deceased as to why she set herself on fire and the deceased had stated that because she was a TB patient she was frustrated and wanted to die. DW-1 further deposed that the deceased was treated by Dr. Rajinder Pal at Shanti Nursing Home and that she used to go with her to the hospital for treatment. DW-1 claimed that the appellant took the deceased to Shanti Nursing Home whereafter it was advised that the deceased should be taken to LNJP Hospital. She has further stated the deceased remained unconscious till she died and no one spoke to her. Babu Ram, DW-2, claims to have heard the voice of the daughter of the deceased whereupon he rushed to the house of the appellant and was informed by the daughter that the deceased had set herself on fire. The appellant was making preparation to take the deceased to the hospital and on reaching Shanti Nursing Home she was administered an injection and was removed to Irwin Hospital. He further stated that the deceased remained unconscious throughout her stay in the hospital. Sobna, DW-3, claimed that she was sleeping with her mother on the fateful night when her father knocked at the door and upon this her mother opened the door. The appellant (father) told the deceased that he was tired and also to warm the food but the appellant slept without having food. The deceased thereafter went to the latrine to ease herself and after coming from the latrine she poured kerosene oil on herself set herself on fire. The deceased is stated to have informed her daughter, DW-3 that she had to do this and then the appellant wrapped a quilt around the deceased and removed her to the hospital.

A material aspect in the present case, in our considered view, is that the testimonies of the defence witnesses are contrary to the evidence brought on record not only by the prosecution but is also contrary to the stand of the appellant. In the report initially made to the police station the appellant had claimed that while making tea his wife had suffered burns. In his 313 Cr.P.C. statement he claimed that his wife had set herself on fire. It is not the case of the appellant that he went with his wife to the hospital but that his brother-in-law went with his wife (the deceased) while he had gone to the police station. Thus, the testimonies of the defence witnesses to the effect the appellant went with the deceased to the hospital is clearly false and an endeavour to protect the appellant. This is also the finding of the trial court. DW-2 in his cross-examination had admitted that he did not go to the burn ward nor had the SDM come in his presence. Similarly DW-1 admitted that she knew the appellant for the last 20-22 years and had reached the spot when the incident had already taken place. DW-3 is clearly trying to save the father.

If the theory put forward by the appellant is to be believed, the case is one of suicide on account of frustration of suffering from TB by the deceased. However, no material has been brought on record from any hospital nor has any doctor been examined to substantiate this plea.

On the other hand, the case of the prosecution is one of homicide supported by a dying declaration. A dying declaration is sacrosanct as it is the last words on the lips of the deceased before he/she makes peace with the maker. The dying declaration is, thus, given a greater sanctity even though the opportunity of cross-examination to the suspect is not available. The principles underlying a dying declaration have been set out in a recent judgement of this Court in Crl. A. No. 207/2009 titled Sukhdev Singh v. State & connected matter decided on 25.9.2009 wherein it was observed as under:

It is also not in doubt that the dying declaration made by a person on the verge on the death has a special sanctity as the person is most unlikely to make any untrue statements in the shadow of impending death. This is the reason why a dying declaration is given special weightage as per Section 32 of the Indian Evidence Act, 1872 as ''truth sits on the lips of a dying man''. Simultaneously, it cannot be lost sight of that, in case of a dying declaration, the accused does not have an opportunity to cross-examine the witness. The dying declaration can be the sole basis of conviction if it inspires full confidence of the court and the rule of corroboration is merely a rule of prudence as observed in Muthu Kutty and Another Vs. State by Inspector of Police, Tamil Nadu, . In the facts of the case, the doctor had not certified the condition of the declarant but the testimony of the doctor who was present when the dying declaration was recorded came to the assistance of the prosecution.

In the present case the doctor has stepped into the witness box to affirm the certificate given by him of the proper medical condition of the deceased to give the statement which has been recorded by the SDM. There is no reason to disbelieve this dying declaration. Not much weight, however, be given to the earlier statement of PW-11, the brother-in-law of the appellant since he turned hostile. The story of the appellant admitting the deceased to the hospital is not borne out from any record.

We may note that the trial court has rightly considered the additional fact of a wrong information being given by the appellant to the police that his wife is taken to GTB Hospital by his brother-in-law to delay access of his wife to the police.

We are unable to accept the contention of the learned Counsel for the appellant that in the present case the dying declaration needs any corroboration from a third party. Learned Counsel has laid great emphasis on the absence of any evidence to show the nature of treatment given to the deceased at the Shanti Nursing Home as also the failure to examine the doctor who had recorded the MLC. However, what is material in the present case is that the conviction is based on the dying declaration of the deceased and her fitness to make the dying declaration is certified by PW-17 who appeared in the witness box to confirm the same. We are of the view that in view of the dying declaration the appellant cannot take advantage of his brother-in-law, PW-11, turning hostile.

A further plea advanced by learned Counsel for the appellant was that it was improbable that the appellant can dare to burn the deceased in a single room where the child was present. The fact, however, remains that the deceased deposed of the appellant being under the influence of alcohol and the refusal by the deceased to have sex with the appellant enraged him and caused him to commit the horrendous act of setting her on fire. We have already noticed that the defence has produced no material for the theory of suicide on account of suffering from TB by the deceased.

A plea sought to be advanced by learned Counsel for the appellant was that the appellant himself had suffered burns on the hands. There is admission to this effect by PW-13. The dying declaration of the deceased clearly points out that the accused sprinkled kerosene oil on her and setting her ablaze with the help of a matchbox, he placed a quilt on her and in that process injuries on the hands of the appellant are quite probable.

We find that the case against the appellant of having set his wife on fire has been proved beyond all reasonable doubts and the appellant cannot escape the consequences of the heinous act. The trial court has correctly appreciated the evidence on record.

The appeal is accordingly dismissed. The bail bond and surety stand cancelled. The appellant to surrender forthwith failing which the trial court should take steps to take the appellant into custody.