Gopi Chand vs State

Pradeep Nandrajog, J.—With reference to the endorsement Ex.PW-10/A on the MLC Ex.PW-6/B of Seema, and holding that the statement Ex.PW-1/A recorded by Shri Virender Kumar, then working as a Sub Divisional Magistrate in Delhi, was the dying declaration of Seema and there was nothing on record which impinged upon the veracity of what was recorded in Ex.PW-1/A; vide impugned decision dated 9.10.1998, the appellants have been convicted for the offence of murder of Seema. Sentence imposed is to undergo imprisonment for life.

Appellant Chander Pal Singh and Smt. Shakuntala are the father-in-law and the mother-in-law respectively of Seema. Gopi Chand is her brother-in-law (devar).

Ex.PW-1/A, i.e. the statement of Seema has been recorded at around 6.30 PM on 28.8.1993. The endorsement preceding the statement is in English. The statement is recorded in Devnagari script. The endorsement preceding the statement reads as under:

Was informed by SI Dalel Singh about admission of one Smt. Seema W/o Satish Kumar R/o C-27, Amanpuri, Nangloi, aged about 22 - 23 years in burnt condition in LNJP Hospital. Reached LNJP Hospital and requested Dr. Sanjay, on duty to opine about the fitness of Smt. Seema to make a statement. Dr. declared her to be fit for statement and recorded the same in MLC at 18.10 hours. Thereafter proceeded to take the following statement.

The statement of Seema, as noted above, has thereafter been recorded in Devnagari script. It is in question answer form. Translated in English, the same reads as under:

Q. Your name.

A. Seema

Q. Your husband''s name?

A. Satish.

Q. When were you married?

A. About 2 1/2 years ago.

Q. Are you responding in full control of your senses?

A. Yes.

Q. How did you get burnt?

A. Today in the morning when I was cooking in the kitchen, all of a sudden from behind Gopi came and poured oil on me. I thought he was playing a prank. But immediately my mother-in-law lit a match-stick and threw the same on my clothes. Before the incident there was a fight between me and my in-laws because I and my husband had separated in mess but in spite thereof in the morning my husband had taken food from the kitchen of my in-laws but I had refused to do so. On catching fire I ran out and doused the flames by rolling on the ground. My father-in-law was present in the house but after the incident locked the door from outside and went away. My mother-in-law, Gopi and my father-in-law Chander Pal Singh have conspired to set me on fire. They should be punished.

Q. What was the attitude of your in-laws towards you?

A. I remained in my parental house for about 21/2 years of my marriage. Because of that my mother-in-law was angry and my father-in-law used to indulge in vile talk in front of me.

Q. What is the name of your mother-in-law?

A. Shakuntala.

Q. Do you want to say anything else?

A. No.

Q. I have read your statement to you. After listening to the same is it correct that it has been correctly recorded?

A. Yes, I have heard the statement. It is correctly recorded.

At the end of the statement, the left toe impression of Seema has been obtained at the point mark ''A'' on the statement. As per Virender Kumar PW-1, the SDM who recorded the statement, he did so because the hands of Seema were burnt and it was not possible to take the impression from the thumb or the fingers.

The MLC Ex.PW-6/B of Seema records that she was brought to DDU Hospital on 28.8.1993 at 9.30 AM by HC Ved Pal. On the MLC stands recorded an endorsement Ex.PW-10/A at 10.20 AM by Dr. Jitender PW-10, that Seema was fit for statement. On the MLC there exists another endorsement Ex.PW-10/B in Hindi, wherein it is recorded by the doctor on duty i.e. Dr. Munish, who prepared the MLC, that the mother-in-law, father-in-law and Gopi have burnt Seema and left the house after locking the door. Signatures of Seema stand appended below the statement. Beneath the signatures of Seema is an endorsement certifying that the signatures are those of Seema. As per Jitender Singh PW-10, who deposed in Court on 10.3.1997, the endorsement signatures of Seema on Ex.PW-10/B was recorded by him and Seema signed in his presence and he wrote the words "Sig of Pt."

To complete the record, we may note that Seema, who was initially admitted at DDU Hospital was suffering 95% burns and was referred to LNJP Hospital. She could not be saved and died the next day on 29.8.1993.

The police received information of Seema being burnt when somebody rang up the police control room and as recorded by the duty constable at PS Nangloi, vide DD No. 4A Ex.PW-6/A at 8.46 AM on 28.8.1993, that a lady was burnt in Amanpuri Nangloi. SI Dalel Singh PW-6 accompanied by Const. Raj Singh PW-9 left for the spot and there from to DDU Hospital as they learnt that the lady who was burnt was shifted to DDU Hospital. Reaching there, they learnt that the lady named Seema had been shifted to LNJP Hospital. SI Dalel Singh sent a message to the SDM Virender Kumar to reach LNJP Hospital so that the statement of Seema could be recorded by the learned SDM.

Returning back to the spot SI Dalel Singh prepared the rough site plan Ex.PW-6/D noting the place where kerosene oil was found spilt and a plastic can was lying. He noted the place where a matchbox was lying as also the place where a burnt matchstick was lying. He found burnt skin on the passage away from the room i.e. the kitchen where Seema was burnt. He dutifully recorded the same in the site plan Ex.PW-6/D. A few days later a draftsman was taken to the spot and he prepared the site plan to scale Ex.PC. The scale of the site plan is 2 cm to a meter. The place where Seema suffered the burns is a kitchen which admeasures about 6. x 8.. The spot where kerosene oil was found spilt and plastic can was lying is mark ''B'' on the site plan. Diagonally opposite thereto, at a distance of about 5 feet is the spot marked ''C'' and adjoining thereto the spot mark ''D'' where the matchbox and burnt matchstick respectively were found. The spot mark ''A'' in the kitchen is just next to the spot mark ''D'' and is the place where Seema was set on fire. The site plan shows an open space in front of the kitchen. A passage leads into the open space from the main road. At the spot mark ''E'' on the passage is the spot where burnt skin was found. The distance of the spot mark ''E'' from the door of the kitchen is about 5 meters. Just next to the spot mark ''E'' is the spot mark ''F'' where burnt cloth was found.

The post-mortem report Ex.PW-6/G of Seema records that death was due to septicaemic shock consequent upon infected burns as a result of fire burns.

Dr. Sanjay Goswami who has certified Seema fit for statement at 6.10 PM on 28.8.1993, at the point mark ''A'' on the MLC Ex.PW-6/B, had left LNJP Hospital. His signatures were proved by Krishan Gopal PW-17, a record keeper at LNJP Hospital, who claimed to be familiar with his signatures.

At the hearing of the appeal, learned Counsel for the appellants urged that as recorded in the MLC of the deceased she was suffering from 95% burns and her hands were also burnt. Indeed, PW-1 justified taking the left toe impression of Seema on her statement because he could not take the impression from the thumb or the fingers as they were burnt. Thus, counsel urged that it was difficult to believe that Seema could have at all signed under the endorsement Ex.PW-10/B recorded on the MLC. Thus, counsel urged that the veracity of the endorsement which recorded that according to the patient, the appellants had set her on fire, was in doubt. The second contention urged was that Seema could not possibly be fit for statement at 6.10 PM. Counsel urged that Seema had suffered 95% burns and died the very next day. It was urged that a person who suffers 95% burns can never be in a fit state to understand the questions and respond thereto. It was thirdly urged that the doctor i.e. Dr. Sanjay who had ostensibly certified Seema being fit for statement at 6.10 PM was not examined as a witness and thus the correctness of said endorsement could not be taken to be proved. Lastly, counsel referred to the decisions reported as P. Mani Vs. State of Tamil Nadu, and Shaikh Rafiq and Another Vs. State of Maharashtra, , to urge that where any doubt is cast on a dying declaration, as held in said decisions, it is unsafe to sustain a conviction on the dying declaration of the maker thereof.

The first contention urged by learned Counsel for the appellant has to be considered with reference to the deposition of PW-10 Dr. Jatinder. He deposed in court on 10.3.1997 and categorically stated: the endorsement signatures of patient at PW- 10/B is recorded by me and the patient Seema signed in my presence and I wrote the words "sig. of pt". The witness was cross-examined. We note that his deposition as noted in italics hereinbefore has not even been challenged. He has been cross-examined with reference to the authorship of the writing in Hindi in the portion encircled Ex.PW-10/B on the MLC Ex.PW-6/B of Seema. Thus, on mere hypothesis, submissions made would be neither here nor there. The witness who saw Seema sign at the portion encircled Ex.PW-10/B was available for cross-examination and by not challenging his testimony on said point the only inference which can be drawn is that Seema signed after the writing was penned on her MLC. Surely, PW-10 would have given an answer, if he was questioned, as to how Seema could sign in spite of her having 95% burns. By not questioning the doctor on said issue, it would be impermissible for the appellants to raise speculative submissions. That apart, a person who is burnt is in a position to use his hands, which too are burnt, for some time, till blisters form. Thus, by around 10.20 AM when the writing was penned on the MLC, there is every likelihood of Seema being in a position to sign.

That Dr. Jatinder admitted that the writing in Hindi is not in his hand and he cannot remember as to who wrote on the MLC does not mean that the contents thereof are not proved. Dr. Jatinder appeared in court in the year 1997 i.e. after four years of his having made the endorsement on the MLC and thus it is not unnatural for him to have forgotten the name of the person in whose handwriting the contents were written. What is relevant is that Dr. Jatinder has categorically deposed that Seema signed beneath the writing encircled Ex.PW-10/B in his presence and he made the endorsement thereunder that the patient was fit for statement.

Thus, the writing encircled Ex.PW-10/B on the MLC of Seema is her first dying declaration duly proved through the deposition of PW-10.

It is true that Dr. Sanjay who certified Seema fit for statement at 6.10 PM was not examined, but the reason thereof is, that he had left the service of the hospital. It is not that the prosecution deliberately omitted to examine him as a witness.

PW-1 has categorically deposed that before he recorded the statement of Seema i.e. Ex.PW-1/A he obtained the requisite fitness certificate from the doctor on duty. We note that before recording the statement of Seema, he has made an endorsement, contents whereof have been noted in para 3 above. The same evidence that PW-1 has recorded that Dr. Sanjay certified Seema fit for making a statement. In the decision reported as Shanmugam @ Kulandaivelu Vs. State of Tamil Nadu, , it was held that where the medical officer present at the time of recording of dying declaration has made an endorsement about consciousness of the victim, mere non-examination of the doctor does not affect the evidentiary value of the dying declaration.

That by the evening, due to burns, thumb impression or the impression of any finger of Seema could not be obtained does not detract from her being conscious. No motives have been attributed to PW-1 and thus we see no reason why, while discharging his official duties, PW-1 would incorrectly record statement of any person.

That apart we find total corroboration to the dying declaration of Seema with reference to the site plan. In her dying declaration made to the learned SDM Seema has disclosed that she was in the kitchen when she was doused with oil and set on fire. Corroboration to said statement is found with reference to the spot mark ''B'', ''C'' and ''D'' in the site plan Ex.PC which shows presence of kerosene and a can at the spot mark ''B''; the spot mark ''C'' where the matchbox was recovered and the spot mark ''D'' where a burnt matchstick was recovered. Thus, it is apparent that Seema was set on fire inside the kitchen. In her dying declaration Seema informed that on catching fire she ran out and doused the flame by rolling on the ground. By ground, she meant the floor. The said statement is corroborated by the fact that at the spot mark ''E'' on the passage, at a distance of 5 meters from the kitchen, burnt skin was found and just adjacent to the spot mark ''E'', at the spot mark ''F'', burnt cloth was found. Thus, the statement of Seema that she ran out and by rolling on the ground doused the flame stands corroborated by the site plan.

Learned Counsel for the appellant did not dispute that from the post mortem report Ex.PW-6/G of the deceased it is apparent that kerosene oil was present in the scalp hair and even the scalp was burnt. Counsel conceded that it was obviously a case where kerosene oil was poured on Seema''s head. Counsel sought to explain by urging that Seema could have committed suicide. Counsel conceded that from the fact that even kerosene oil was present on the scalp of Seema it was just not possible that Seema accidently caught fire.

The submission made by counsel for the appellants has to be rejected for the simple reason if Seema had to commit suicide, she would not have run out of the room, shouting for help, on catching fire. Every person desires the consequences of his act. A person who has to commit suicide takes whatever precautions required to be taken and/or undertakes the performance of all such acts which are necessary to accomplish the mission i.e. to commit suicide.

But, we find that the learned Trial Judge has misread the statement of Seema while convicting her father-in-law Chandrapal Singh. In her statement Seema has not attributed any role to her father-in-law pertaining to her being set on fire. She has referred to her father-in-law''s act at a later stage. A perusal of her dying declaration shows that she has said that Gopi threw kerosene oil on her and her mother-in-law set her on fire. That on catching fire she ran out and doused the flames by rolling on the ground. The act of her father-in-law is disclosed at this stage. She said that her father- in-law was present in the house and after the incident locked the door from outside and went away. If this be so, Chandrapal is guilty of a moral offence of being uncaring for his daughter-in-law. Howsoever repulsive be the conduct of Chandrapal, from the statement of Seema no act is attributable to Chandrapal which can make him liable for the acts of Gopi and Shakuntala. Being a passive spectator when a crime is being committed cannot make liable the passive spectator for the acts of the offenders. Of course, we are not speaking of Section 149 IPC.

The decision cited by learned Counsel for the appellants do not hold that in each and every case, a dying declaration needs corroboration. In P. Mani''s case (supra) the Supreme Court noted that the deceased was suffering from depression and had made an attempt to commit suicide a week prior to the date of occurrence. She was not having cordial relations with her husband as she believed that he was having an affair with another lady, which affair was not proved. Under the circumstances, there being a strong suspicion to infer false implication on account of motive being established and the suicidal tendencies of the deceased, it was opined that it would be unsafe to convict the husband on the solitary evidence of a dying declaration. In fact, in para 14 of the decision, the Supreme Court observed that indisputably conviction can be recorded on the basis of dying declaration alone but for the same the dying declaration must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court, before convicting an accused on the basis thereof, should look for some corroborative evidence. Similarly, in the decision in Shaikh Rafiq''s case (supra) the dying declaration was not accepted because of the manner in which it was recorded i.e. in spite of sufficient time available for summoning a Special Executive Magistrate, the dying declaration was recorded by a police officer who admitted in cross- examination that he was in service for last 30 years and was aware of the procedures of law requiring dying declarations to be recorded by Special Executive Magistrates. Further, the Supreme Court found a grave improbability in the version of the prosecution pertaining to the deceased being set on fire for the reason the witnesses of the prosecution spoke about the in-laws of the daughter of the deceased coming to the house of the deceased and when an altercation took place they i.e. the in-laws of the daughter of the deceased poured kerosene oil on Noor Mian (the deceased) and set him on fire. The improbability found was that it was unnatural conduct for those who go to somebody''s house to patch up to be carrying kerosene oil in a can and using the same.

Before concluding we wish to only add that many a times the site plan or the photographs taken at the site throw considerable light as to what happened at the place of occurrence, and as in the instant case, corroboration can be found to the statements of fact made by the maker of the dying declaration. We have been able to find such corroboration in at least six decisions, including the present. In none of the cases, the learned Trial Judge made an attempt to seek corroboration to the dying declaration. Not that a dying declaration requires corroboration, as long as it is without a suspicion, it can safely be relied upon. But, when corroborated, the evidentiary worth of a dying declaration stands enhanced manifold.

Crl.A. No. 34/1999 and Crl.A. No. 71/1999 are dismissed.

Crl.A. No. 246/2001 is allowed. Appellant Chandrapal Singh is acquitted of the charge of having murdered Seema.

The appellants are on bail. Since Chandrapal has been acquitted, his bail bond and surety bond are discharged. Since conviction of Gopi and Shakuntala has been upheld, their bail bond and surety bonds are cancelled. They shall surrender and shall undergo the remaining sentence.