Viru Ram and Others vs State of Punjab

V.K. Bali, J.—Appellants Vim Ram, Bittu, Vinod Kumar, Prem Kumar and Darshan Devi has been held guilty u/s 302 read with Section 149 of the Indian Penal Code vide order of conviction and sentence recorded by the Additional Sessions Judge, Mansa dated 12.11.1993 and ordered to undergo R.I. for life and to pay a fine of Rs. 1,000/- each or in default of payment of fine to further undergo R.I. for two months each. It is against this order of conviction and sentence that the present appeal has been filed.

The appellants named above were tried for offences u/s 302 read with Section 149 of the Indian Penal Code for intentionally causing death of one Veena Rani who died on 3.7.1988 at about 12.00 noon. F.I.R. with regard to the incident came to be recorded on the statement of Veena which was recorded by Judicial Magistrate 1st Class, Mansa at 3.35 p.m. The Special Report with regard to the incident reached the Illaqa Magistrate at 7.00 p.m. on 3.7.1998. Veena Rani who had made the statement before the Judicial Magistrate on 3.7.1998 breathed her last on 4.7.1998 at 4.10 p.m. While giving narration of events, she stated that she was resident of Mohalla Veer Nagar and was married about 11 years ago. She had three sons. Her husband has three brothers. Veeru was the eldest. Prem Nath was younger to him. Her husband was younger to Prem Nath and Charni was the youngest. The name of her father-in-law Was Dalip Chand. They all were living separately in separate houses. On the date on which she lodged the report at about 12 noon, when she reached her house as she was working in the houses of offences, then Veeru her Jeth (elder brother of her husband), her Jethani Muni wife of Veeru, Vinod and Bittu sons of Veeru came to her house behind her and they started quarrelling with her and beating her. Darshna her Darani (wife of Charni, younger brother of her husband) started taunting her that she had illicit relations with her husband Charni. Charni had gone to attend the marriage and while going he had taken a new towel from her and due to which Darshan was taunting her. Veeru and his wife Muni were also helping her. When dispute continued, Veeru picked up a pint of kerosene oil and sprinkled on her, while Muni wife of elder brother of her husband and her both sons who were accompanying them caught hold of her. Darshan lit the match stick and set her ablaze. She was wearing a Gewadeen suit which stuck with her body due to fire, so she was burnt. She raised hue and cry at which their neighbours gathered there and brought her to hospital. Darshna her Darani (wife of younger brother of her husband), Veeru her Jeth (elder brother of her husband) Muni her Jethani and her sons had set her ablaze with common intention to kill her.

The prosecution in its endeavour to bring home the offences against the appellants examined Dr. H.S. Sandhu P.W. 1 who stated that on 4.7.1998 he had sent Ruqa Ex. PA at 4.15 p.m. to S.H.O. of Police Station Mansa regarding the death of Veena wife of Satpal at 4.10 p.m. in the emergency ward, Civil Hospital, Mansa. She was admitted with burn injuries. Dr. Rajinder Kumar who was examined as P.W. 7 stated that on 3.7.1998 an application was moved by ASI Bansi Lal regarding fitness of Smt. Veena who was declared fit to make a statement vide his endorsement Ex. PW5/C with his opinion that patient Veena wife of Sat Pal was admitted with extensive burns but was responding to all questions and was declared fit to make a statement at 3.25 on 3.7.1998. As per report of Record Keeper dated 4.12.1996 C.R. No. 1573 record had been destroyed and is not available in the records of the Civil Hospital. In his cross-examination he stated that PW5/B was the application on which he opined vide report Ex. PW5/C. He did not remember if any statement of Veera was recorded in his presence or not. He further stated that had the statement been recorded in his presence, then he would have signed the statement. He denied the suggestion that Veena was not fit to make a statement. Dr. K.C. Goyal who appeared as P.W. 8 stated that he had conducted post-mortem examination on the dead body of Veena. Dr. Janak Raj Goyal was also with him while conducting the said post-mortem. The dead body was identified by Sat Pal and Prem Nath sons of Dalip Chand. Dead body was brought by Surinder Pal Singh Constable No. 411 of Police Station Mansa. The death in the opinion of the doctor was due to shock as a result of extensive burns which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. He further stated that there were extensive burns on whole of the body. There was vesiculation and peeling of skin was present on most of the parts of the body. Redness and bleaching to skin was also present. Singeing of hair was also present. Limbs and arms were flexed and fingers were locked like claws. In his cross-examination he stated that 100% burns were described if the entire body was covered with deep burns. He did not know percentage of burns on the trunk of the body. There was no mention either of deep or superficial burns in the post-mortem report. He could not tell whether the burns were deep or superficial. Possibility of 100% burns in this case could not be ruled out. Such like burns could be possible by accidently catching fire on clothes of the deceased.

There was burning of hair over the scalp in this case. He stated that he did not know if burning of head hair would cause steaming of brain fluid and would cause confusion in the mind of the patient. Congestion of larynx and trachea in this case was due to inhalation of monoxide gas from the smoke. Patient would go to shock immediately after the burns. He further stated that post-mortem examination report was in the hand of Dr. Janak Raj Goyal and he had only supervised the postmortem examination in this case. He denied the suggestion that post-mortem examination was conducted in his presence and that he had simply signed the postmortem report. Ruldu Ram who was examined as P.W. 2 in this case stated that about four years ago, he was present in his shop. It was about 1 p.m. when he heard a noise towards the house of Veena deceased. He went towards the house of Veena and found that Veena was burning in the room. Om Parkash was also with him. They entered the house and put a quilt on the person of Veena and extinguished the fire. He alongwith Om Parkash and 2/3 other persons removed Veena to the Hospital. They sent, a message to Veeru appellant and other family members and they also came to the hospital. Veena disclosed to him that due to burning of flame of stove she had caught the fire. She did not disclose to him that Muni wife of Veeru and Darshna wife of Charni were taunting her over the alleged illicit relation between her and Charni. The witness was declared hostile and was cross-examined by the Public Prosecutor. He denied the suggestion of his having been won over by the appellants and that Muni and Darshna were taunting Veena on account of her illicit relation with Charni younger brother of husband of Veena and on that count there was a quarrel in the family and due to that she was burnt. He was confronted with portions A to A of his statement wherein it was so recorded. He denied the suggestion that he was won over by the accused and, therefore, was giving false statement. Vinod was a student of Plus I at the time of occurrence. He was studying in the college. Bittu used to reside with his maternal uncle of Sangrur. Darshna was taken by her father to her parental village in the morning on the same day. Veeru also called the parents of the deceased Veena. Some ladies instigated Veena to make statement against the accused. There was one room with the deceased in which she was cooking the meals and there was a stove lying in that room. Om Parkash who was examined as P.W. 3 stated that when he heard a noise at 1 p.m. then he alongwith Ruldu Ram went to the house of Satpal husband of the deceased. Smoke was coming out of the house. They went to the house and saw that Veena was burning. They put a cloth for extinguishing the fire. He alongwith Ruldu Ram and others removed her to the hospital and got her admitted. She told that she caught fire by accident from the stove and that she did not disclose to them that any member of the family was harassing her. This witness too was declared hostile and was subjected to cross-examination. He denied the suggestion that he was deposing falsely having been won over by the appellants. Murari Lal P.W. 4 also did not support the prosecution version and was cross-examined by the Public Prosecutor. The Public Prosecutor vide his statement dated 25.8.1992 gave up Raj Kumar as having been won over and Rup Chand, Mathu Ram, Prem Nath, Satpal, Inspector Amrik Singh and Inspector Kamaljit Singh as unnecessary. Bansi Lal Inspector of Police who appeared as P.W. 5 detailed the steps that he had taken while investigating the case. He admitted in his cross-examination that before recording the statement of deceased it came to his notice that she had received burn injuries due to catching of fire while working on stove. He further submitted that during the course of investigation, all the appellants who were named in the F.I.R. were found innocent by him and thereafter investigation was carried out by S.I. Lal Singh. Shri R.S. Sachdeva Judicial Magistrate was examined as P.W. 6. He stated that dying declaration shown to him pertained to Veena Rani. On 3.7.1998 he was posted as JMIC, Mansa when application Ex. PW/ A was submitted before him by ASI Bansi Lal for recording the statement of Veena Rani who was admitted in Civil Hospital, Mansa. The application was submitted at 3.20 p.m. and he made his endorsement on the application as Ex. PW/6/B. Then he went to Civil Hospital, Mansa and obtained the opinion of the doctor whether Smt. Veena wife of Satpal was fit to make a statement and responded to all questions. Thereafter, he recorded the statement of Veena. The statement was read over to her and after admitting the same to be correct, she thumb-marked the same in token of its correctness. Lal Singh, Retired Inspector, who was examined as P.W. 9 stated that on 4.7.1998 he was posted as Addl. S.H.O., Police Station City, Mansa. On 7.7.1998 he was handed over the investigation of this case. He went to the spot and made enquiries. After enquiries it was found that offence that could be made was u/s 306 of the Indian Penal Code. In his cross-examination he stated that he had given a note in case diary as also Challan that Veena had committed suicide by pouring kerosene oil on her and Veeru Ram, his son Vinod and Bittu, Darshna and Muni had no hand in setting her ablaze, however, during the investigation it came to light that the deceased committed suicide due to quarrel of ladies. When he was verifying the facts Harbhajan Singh DSP had also reached the spot and he also verified the case. According to his verification also, it was a case of suicide. P.W. 10 Surinder Pal Singh only tendered his affidavit Ex. PW 10/A.

When examined u/s 313 of the Code of Criminal Procedure appellant Veeru besides denying incriminating material put to him further stated that he has been falsely implicated. Clothes of Veena Rani had caught fire accidently while cooking on a stove. She was taken to hospital by Ruldu Ram and Om Parkash after extinguishing fire. Sheela Devi relation of Veena got her admitted. Sheela Devi was annoyed with them. She tutored Veena to make a false statement against them. His son Bittu was residing at Sangrur prior to the day of occurrence. Darshna was taken by her father in the morning of occurrence to her parents village. He and his wife Munni had gone to clear the lanes in city and learnt about accidental burns of Veena and he informed parents of Veena. The statements of other appellants are in tune with the statement of Veeru. Appellants led evidence in defence. Hardip Singh who was examined as D. W. 1 stated that he knew appellant Vinod and Muni Devi. In 1998 Vinod was tutored by him in English subject. He was a student of Plus I at that stage. Muni Devi appellant used to work at his house for cleanliness. On 3.7.1998 both Vinod Kumar and Muni Devi came to his house at 9.30 a.m. and they remained at his house upto 11.30 a.m. Their house is at a distance of 300 yards. He narrated all the facts to the police. Suraj Bhan who was examined as D.W. 2 stated that appellant Bittu was his sister''s son and was residing with him when he was 5/ 6 years old. In the year 1998 when he was residing with him, after the present occurrence the police arrested him from his house at Sangrur.

From the narration of facts as have been given above it would straightaway transpire that none of the witnesses examined by prosecution has supported the prosecution story. So much so that even the Investigating Officers have candidly admitted that on verifying the facts it came to light that the appellants were not involved in the murder and in fact and reality Veena Rani had committed suicide as some of the appellants used to taunt her. The conviction concededly has been based upon the dying declaration. The significant question that arises for consideration in this case is as to whether conviction can be based upon dying declaration made by Veena which is neither supported by the witnesses examined by prosecution nor by those who investigated the case. It is no doubt true that conviction can be solely based on dying declaration without there being any corroboration, even though by way of abundant caution Court should look in for some corroboration. However, in a case in which far from there being any corroboration, there is intrinsic evidence impinging upon veracity of dying declaration, the question that arises is as to whether on such dying declaration alone conviction can be based. We are of the clear view that if there is intrinsic evidence that militates against the dying declaration, the same, i.e. dying declaration has to be rejected. In other words, no conviction can be based on such dying declaration. At this stage it would be relevant to notice dying declaration Ex. PW6/L itself. The dying declaration starts with the endorsement of the doctor which reads as follows:

"Patient Smt. Veena wife of Sat Paul C.R. No. 1573 was admitted with extensive burns who is responding to all questions and is fit to make a statement.

This endorsement has been made on 3.7.1998 at 3.30 p.m. To the question put to her as to how she had caught fire, she stated that Darshna of Patra Wali wife of elder brother of her husband again said Devrani (wife of younger brother of my husband) and Jethani (wife of elder brother of my husband) Muni and her sons namely Bittu, Vinod and his husband''s elder brother Veeru had put her on fire who had sprinkled kerosene on her. To the other question as to whether she had enmity with any one, she stated that she had enmity with her sister-in-law (Devrani) Darshna who had always been quarrelling with her. Abovesaid persons wanted her to be arrested in the police station. They with the assistance of Darshna had set her on fire. To another question she stated that above said persons had sprinkled kerosene on her when she was wearing Gewadin suit. This statement as per endorsement made by the Magistrate appears to have been recorded at 3.35 p.m. It may be recalled at this stage that P.W. 7 Dr. Rajinder Kumar Garg in his cross-examination stated that he did not remember if any statement of Veena was recorded in his presence or not and that if the statement had been recorded in his presence then he would have signed the statement. It is quite apparent that the doctor was not present when statement of Smt Veena was recorded by the concerned Magistrate. This fact is also evident from reading of dying declaration where, as mentioned above, the endorsement of the doctor is at the top and not at bottom nor where the statement ends. The doctor has not made the endorsement that all through when Veena Rani was making the statement he was present. It is the case of the appellants that Sheela Rani relation of Veena Rani had got her admitted in the hospital. Sheel Devi (Rani ?) was annoyed with them. She tutored Veena Rani to make a false statement against them. In the present case even the parents of Veena Rani had not supported the prosecution case. In so far as the eye-witnesses are concerned, they have clearly stated that when they had gone after hearing the noise coming from the house of Veena, she was burning in the room, had caught fire from burning stove and she told them so. In these circumstances, we are of the clear view that dying declaration alone cannot form basis of conviction. As mentioned above, there is absolutely no corroboration whatsoever to dying declaration. Sufficient evidence has come on the records which militates against the veracity of the dying declaration. As mentioned above even though conviction can be based upon a dying declaration without there being any corroboration but in a case where evidence is available to suggest otherwise i.e. dying declaration not be true or the same may be an outcome of tutoring by somebody, no conviction can be based on such a dying declaration. We may reiterate that not only that parents of even Veena had not chosen to be witnesses to corroborate dying declaration but all witnesses as also the Investigating Officer had made such statements that go a long way to show that the dying declaration made by Veena in this case may not be true. In our view, therefore, the appellants deserve the benefit of doubt.

That being so, we accept the appeal and set aside the order of conviction and sentence recorded against the appellants by the learned trial Judge. The appeal is accordingly allowed. The appellants be set at liberty forthwith if not required in any other case. In so far as Darshna Devi is concerned, she is already on bail, her bail bonds are discharged.