Shakuntla vs State of Haryana

K.S. Bhalla, J.

In case First Information Report No. 75 dated 29th of January, 19985 Police Station City Ambala, Shri Hari Ram, Sessions Judge, Ambala convicted appellant Smt. Shakutla Smt. Shakuntla aged about 50 years, under Section 302 of the Indian Penal Code and sentenced her to undergo imprisonment for life. The court on trial of the appellant came to the conclusion that on 29th January, 1985 in the afternoon the appellant had sprinkled kerosene on her daugtherinlaw Smt. Usha Rani and set her on fire, as a result of which deceased Usha Rani got 100 percent burns, consequent to which she died in Civil Hospital, Ambala City at 6.40 P.M. on 2nd February, 1985.

The relevant facts are that deceased Usha Rani was married to Joginder Pal son of the appellant about 15 months prior to present occurrence. Allegedly, relations of accusedappellant with the deceased were strained and she used to harass the latter for bringing meager dowry. On 29th of January, 1985, when only the appellant and the deceased were at home, present occurrence took place at about 3.30 P.M. Ladha Ram (P.W. 6), uncle of the deceased was coming from the side of Hari Palace cinema in the afternoon and on his way to his house he heard noise that Usha Rani Caught fir. On getting that information he went to the house of his brother Nebh Raj, father of the deceased, and from there he, Nebh Raj his wife Smt. Jiwan Bai and Sham Lal went to the house of the deceased. On arrival there they found that Usha Rani was laying burnt and she was crying with pain. The deceased at that time was remarking that her motherinlaw put kerosene on her and then put her on fire. Usha Rani was carried to Civil Hospital, Amabla City, on a cot and was admitted there.

In Civil Hospital, Ambala City, Usha Rani was medico legally examined by Dr. V.P. Mann (P.W. 8) on 29th January, 1985 at 4.40 P.M. and the doctor observed 100 per cent burns on whole of the body, saying of hair was present burnt pieces of clothes were sticking with the body and smell of kerosene was present. Nature of the injuries was declared as dangerous and their of the medicolegal report. The doctor also sent ruqa, Exhibit P.C./1, to the Incharge, Police Post No. 3 at 4.40 P.M. about the admission of Usha Rani in the Hospital. That ruqa attracted H.C.Mansa Ram (P.W. 10) of Police Post No. 3 of Police Station Ambala City.

On arrival in the Hospital, H.C.Mansa Ram made application, Exhibit P.H., to ascertain if Usha Rani was fit to make statement. On his said application Dr. V.P. Mann opined vide Exhibit P.H/1 that she was mentally fit to make statement. Therefore, the Head Constable recorded statement, Exhibit P.B,of Usha RAni in the presence of Dr. V.P. Mann. The same is now being used a dying declaration. Usha Rani thumb marked her said statement and Dr. V.P. Mann also made his endorsement. Exhibit PB/2, on that statement of the deceased, denoting that the same was taken in his presence. Said statement of Usha Rani was sent to the Police Station by the Head Constable for registration of the case. On the basis of that statement of Usha Rani, Exhibit P.B., present case against the accused was registered under section 301 of the Indian Penal Code to start with, The statement was completed at 5.25 P.M. on 29th of January, 1985, and the formal first information report was registered on the same day at 5.45 P.M.

After registration of the case SubInspector Ashok Kumar (P.W. 12), the then Incharge of Police Post No. 4 of Police Station City Ambala took up the investigation from H.C.Mansa Ram. He visited the spot and prepared rough site plan, Exhibit P.L., with correct marginal notes. From the spot the SubInspector took into possession small can, Exhibit P.1, match box, Exhibit P.2, and burnt pieces of cloth, Exhibit P.3, vide recovery memo, Exhibit P.F., in the presence of Nebh Raj, father of the deceased. Accused Shakuntla was arrested by the said SubInspector on 31st of January, 1985, from her house.

Usha Rani died in the Hospital on 2nd of February, 1985, at 6.40 P.M. and ruqa, Exhibit P.D., was sent to police at 6.50 P.M. by Dr.Kailash Chaudhary (P.W. 9) intimating about her death. On receipt of the ruqa, Daily Diary Report, Exhibit P.D./1, was recorded and the offence was converted to one under Section 302 of the Indian Penal Code. Special report was despatched and S.I.Anhok Kumar (P.W. 12) then proceeded to Civil Hospital, Ambala City. On arrival there he prepared inquest, Exhibit P.A./2 of the dead body of Usha Rani and thereafter the dead body was despatched to the mortuary for postmortem examination by the SubInspector along with his request, Exhibit P.A./1 for the purpose.

Autopsy on the dead body of Usha Rani was performed by Dr.Mrs.Arun Bedi (P.W. 1) on 3rd of February, 1985, at 10.35 A.M. The doctor observed that it was dead body of a moderately built and nourished person, aged 20 years, and the whole body was burnt except the area of abdomen 4" x 11/2" above symphasis pubis, slightly towards left side. The burns were deep with peeling of skin and soughing at various places. Skin was blackened with saying of hair. In the opinion of the doctor, the burns on the dead body were ante mortem and sufficient to cause death in the ordinary course of nature. The death occurred within a few days of the receipt of injuries and the probable time that elapsed between death and postmortem examination was within 24 hours. Exhibit P.A. is the correct carbon copy of the postmortem report.

The prosecution case rests solely upon alleged dying declaration of the deceased and no direct evidence about the incident is forthcoming. Alleged strained relations of the accused with the deceased too have not been satisfactorily proved so as to provide an effective motive for the commission of the offence. The case as placed on the record by the prosecution rather indicates that the deceased has probably committed suicide and thus has been rendered suspicious. So far as the strained relations are concerned no direct evidence if forthcoming Didar Singh (P.W. 5), draftsman, has stated during crossexamination that the house of the deceased is situated in a thickly populated area. No neighbour has been brought in to the witness box to assert about harassment of the deceased of her complaining to that effect S.I.Ashok Kumar (P.W. 12) has admitted during crossexmination that he did not record the statement of any neighbour to find out that he deceased was being maltreated by the accusedStatement of Ladha Ram (P.W. 6) in this respect is based on supposition only. He has stated in the examinationinchief itself that the occurrence had a background of some household quarrel and has further added that he did not know what was the nature of quarrel. Testimony of Nebh Raj (P.W. 7) too is vague in this respect. He has only stated that his daughter, had been telling them about the quarrel of the accused with her on the question of dowry. No details about the definite occasion of any such talk has been provided by the said witness. Lahda RAm (P.W. 6) has stated during crossexamination that Moti Ram, who grandson Tilak Raj is married to sister of deceased, resided across the street and thus a close relation of the deceased''s paternal family was available for communicating such complaints Despite that, said sister of the deceased has not come into the witness box to support that suggestion, nor her father has stated that she was the source of his information about maltreatment. Uncle of the deceased has also admitted during crossexamiantion that house of Jit Singh Lambardar is at the back of the house of the accused and Raj Kaur is wife of Jit Singh. That Raj Kaur has come into the witness box as D.W. 1. She has stated that her house adjoins the house of the accused and that he deceased never complained to her that she was being harassed by her motherinlaw, although she had been meeting the deceased while she was alone in the house. Thus, we are not satisfied that any strained relationship or harassment stands proved on the record.

A dying declaration, if found reliable and truthful, no doubt cannot be discarded merely on the account that it is not being corroborated by other evidence. But, in the absence of any corroboration, as is the case here, it is required to be put to a very careful scrutiny, particularly when the same is not recorded by a Magistrate. Ordinarily, presence of a Magistrate should be ensure at the time of recording the same. Police was attracted to Civil Hospital, Ambala City, on 29th of January, 1985 by 5 P.M. and Usha Rani died on 2nd of February, 1985, at 6.40 P.M., that is, after more than four days. Still no attempt was made to get her dying declaration recorded from a Magistrate irrespective of the fact that she had 100 per cent burns on whole of the body and the nature of her injuries was declared dangerous. If we refer to the endorsement of H.C.Mansa Ram on statement, Exhibit P.B., on Usha Rani, he has mentioned in the last line of the said endorsement relating to action taken y the police that a separate application had been sent to Cheif Judicial Magistrate for obtaining the dying declaration. What happened to the said application has been disclosed on the record. Withholding of the same by itself is sufficient to make the nature of the dying declaration recorded by a petty police official of the rank of Head Constable suspicious.

It is said that dying declaration, Exhibit P.B., was recorded by H.C.Mansa Ram in the presence of Dr. V.P. Mann as p.W. 8 has owned that fact. He however, has stated during crossexamiantion that firstly the patient gave her version in the narrative and some clarifications were made after putting question to her by the Head Constable. If we refer to the statement of H.C.Mansa Ram (P.W. 10), he has stated in crossexamination that he recorded the statement, Exhibit P.B., of Usha Rani as to narrated and that no questions were put to her. Thus, statement of the two responsible witnesses of the dying declaration are materially discrepant.

Itis the case of the prosecution itself that at the time of the occurrence only accused Shakuntla and deceased Usha Rani were present been mentioned in the dying declaration, Exhibit P., itself. Shakuntla is aged 50 years whereas Usha Rani at time of the occurrence was aged 20 years. Dr.Mrs. Arun Bedi (P.W. 1) also observed that the dead body was moderately built and nourished. In view of the comparison of ages Usha Rani, a young lady, could not have possibly been overpowered by old lady Shakuntla during day time so as to successfully sprinkle kerosene on her and then set her on fire like a helpless creature, it is nowhere suggested that deceased was sleeping when that was done and place where the dead body was found lying does not even indicate that her movements were in any way restricted. It appears to us that it was highly improbable for Shakuntal accused to overpower Usha Rani deceased signlehanded. Nobody wants to die in a passive manner and rather one always exerts of exist. The moment the old lady brought small can of Kerosene, if the relations were strained, the deceased was bound to have smelt of her mischievous intentions and could run away outside in the street or to the house of her sister residing across the street. Even if accused Shakuntla had covered the outer door, she could very easily be given a push and thrown on the ground by the deceased in an attempt to escape. In the given circumstances it is highly improbable to think that the incident, as suggested by the prosecution, was possible. Raj Kaur (D.W. 1) perhaps was the first to arrive from the adjoining house form over the roof, which was possible as per statement of Labha Ram (P.W. 6). According to her she heard cries of the deceased and immediately went to their house from the roof of the kitchen of the house of the accused. She threw two buckets of water on the de4ceased and raised alarm, upon which other neighbours collected there. The witness has further stated that Shakuntla was not present in the house at that time, which obviously indicates that this probably was a case of commission of suicide. According to Raj Kaur (D.W. 1, the husband of the deceased had reached the house soon thereafter. Dr. V.P. Mann (P.W. 8) has also stated during crossexamination that the patient was brought to the Hospital by her husband. He also stated in examiantioninchief that she was brought at 4.40P.M. and her husband Joginder pal was along with her at that time. If the old lady was out to kill her, deceased Usha Rani could not possibly have any respect for her and on the other hand was bound to be desperate in saving her life, particularly when she was pregnant too. A mother is most attached to her child and goes to any extent to save the life to the child, even when he is in the womb. Dr. Mrs. Arun Bedi (P.W. 1) has stated that on opening of the uterus a male foetus of corresponding size, that is 20 weeks was present. Absence of any such behavior or attempt on the part of Usha Rani deceased strongly indicates that possibly things did not move in the manner suggested by the prosecution If we refer to the statement of Laha Ram (P.W. 6), uncle of the deceased he was also stated in the examiantioninchief itself that he heard noise that Usha Rani caught fire, which terminology obviously leans towards suicidal or accidental death rather than homicidal. He does not state that he learnt that she was put to fire. Nebh Raj (P.W. 7), father of the deceased, has also stated that Ladha RAm (P.W. 6) came to their house and told them that Usha Rani was lying burnt. He does not suggest that she had been burnt by any person, still less in laws. For all these reasons dying declaration has to be ruled out of consideration. If we exclude the same there is nothing on the record to connect the accused with the crime.

For the foregoing reasons, the case of the prosecution is not free from doubt, benefit of which must be given to the accused. We, therefore, accept this appeal, set aside the conviction and sentence recorded by the learned Sessions Judge and direct acquittal of accused appellant Shankuntla.