Ram Kalan vs The State

Sanjay Kishan Kaul, J.—The appellant has been convicted u/s 302 of IPC and sentenced to suffer life imprisonment for committing murder of his wife Smt. Chandra. The conviction is based solely on the dying declaration of Smt. Chandra.

On 15.11.1993, on being informed that Smt. Chandra had been admitted in the Burns Ward of Safderjung Hospital, DD No. 45-B PS Ambedkar Nagar was recorded and a copy thereof was handed over to SI Mukesh Kumar for verification. SI Mukesh Kumar and Const.Aslam had gone to the site of occurrence, but found no one there and thereafter visited the hospital The MLC of the deceased shows that at the stage of admission of Smt. Chandra in the hospital she was alleged to have sustained burn injuries to the extent of 85 per cent allegedly on account of her husband pouring kerosene oil over her and setting her on fire. SI Mukesh Kumar thereafter made an application at 7.10 PM on 15.11.1993 itself for permission to record her statement and Dr. Rohit Nayyar declared her fit for statement.

The statement made by Ms. Chandra is to the effect that her husband had given a loan of Rs, 2,000/- to her brother's son Zile Singh. However, Zile Singh did not return the loan back to her husband resulting in acrimony between the husband and wife. The deceased had alleged that the appellant used to beat her up and even on 14.11.1993 gave her a beating. The deceased claimed to have left for her daughter Savitri's house and returned at about 5 a.m. at which stage there was again a quarrel and her husband gave a danda blow on her waist and poured kerosene oil on her and set her on fire with a matchstick. The deceased alleged that the appellant fled from the place of occurrence, but her son Rajender (PW-4) and her son-in-law (PW-3) attended to her and after dousing the fire rushed her for medical treatment to Safderjung Hospital. The deceased alleged that the appellant had set her on fire with the intention to kill her and action be taken against him. The deceased subsequently passed away.

A perusal of the record shows that statement u/s 161 of Code of Criminal Procedure, 1973 ("the said Code" for short) was recorded of PW3 Suraj Bhan and PW4 Rajender on 16.11.1993 and of daughter Savitri on 03.01.1994. The version given by all these three persons is that the deceased had committed suicide and at that time, the appellant was with them partaking tea. The same stand was taken by these three witnesses when they entered the witness box though they were declared hostile by the prosecution and cross-examined by the prosecutor. The statements also show that the stand taken by the witnesses is that the deceased wanted to teach a lesson to the appellant and was short-tempered. The factum of loan being taken from the appellant has been substantiated though there is some discrepancy inasmuch as Zile Singh, who appeared in the witness box as PW1, stated that he had already repaid the loan much before the death of the deceased. The learned Addl.Sessions Judge in terms of the impugned judgment dated 22.11.1995 convicted the appellant solely on the basis of the dying declaration. The plea advanced on behalf of the defence that dying declaration having been made to a police officer ought to be rejected, has not been accepted especially in view of the fact that a similar dying declaration was made by the deceased before the doctor at the time of her admission prior to the recording of her statement for purposes of recording of FIR by the IO of the case. The learned Addl.Sessions Judge has also found that the statements of PW2, PW3 and PW4 cannot be relied upon as all of them are interested witnesses who wanted to save the appellant and there are contradictions and discrepancies to the effect that while one version is of the deceased having set herself ablaze on the first floor, the other version is that she came down the stairs in flames where the fire was extinguished. Since the appellant was not found on the spot, the learned Addl.Sessions Judge found that the statement of the deceased that the appellant had run away and was absconding could be said to be corroborated.

We have gone through the Trial Court Record and the impugned judgment. We have had the benefit of submissions of both the learned Counsel for the parties.

Insofar as acceptance of dying declaration is concerned, the law is well settled. Learned Counsel for the appellant has referred to the judgment in P. Mani Vs. State of Tamil Nadu, where also the question which arose was whether the deceased had committed suicide or was set on fire. It was found that the dying declaration could not be relied upon as the sole basis for conviction as there were surrounding circumstances of the deceased having a belief that the appellant was having an affair with another lady. The son and daughter of the deceased did not support the case of the prosecution.

Learned Counsel for the respondent-State further submits by reference to the judgments in State of Karnataka Vs. Shariff, and Sasikumar Vs. The State of Tamil Nadu, that once a dying declaration is of such a nature as to inspire full confidence of the Court in its correctness, the same can be the basis of conviction. We may, however, note that simultaneously it has been observed that though a dying declaration is entitled to great weight, the appellant has no power of cross examination which is normally essential for eliciting truth. The Court must satisfy itself that not only was the deceased in a fit state of mind after a clear opportunity to observe and identify the assailant, the declaration should be true and voluntary and not a figment of imagination of the deceased. The dying declaration is really a piece of evidence and has to be considered along with other relevant and admissible evidence brought on record. It is in view thereof that in Jitender Kumar v. State of NCT of Delhi 2009 (1) JCC 491, a Division Bench of this Court had observed that where evidence on record casts a doubt on a factual aspect disclosed in a dying declaration, unless explained satisfactorily to the Court, the same would be fatal to a dying declaration. If we apply the aforesaid well settled principles to the present case, we find that a common thread runs through the depositions of PW-2 to PW-4 who were present at the time of the incident in the house. They are undoubtedly closely related to the deceased being the son, son-in-law and daughter of the deceased and the appellant. The statements of the son (PW- 4/Rajender) and son-in-law (PW-3/Suraj Bhan) of the deceased were recorded u/s 161 of the said Code on the next date of the incident i.e.16.11.1993 though the statement of the daughter of the deceased (PW2/Smt. Savitri) was recorded subsequently on 03.01.1994. All the three persons have taken a consistent stand that they were staying with the accused and were having tea together when they heard shrieks and found that the deceased was on fire. There is some discrepancy as to whether they rushed to douse the fire on the first floor or she came downstairs in flames, but that itself cannot result in rejection of the depositions of these three witnesses which is in fact consistent with their statements u/s 161 of the said Code. There is a background to the incident inasmuch as a loan was given by the appellant to the nephew of the deceased (PW-1 Zile Singh). Whether the loan had been returned prior to the incident is a moot point. All the three witnesses have stated that the deceased was a lady of short temper and on account of some differences had set herself on fire whereafter she had claimed that she would teach the appellant a lesson by implicating him as a perpetrator of the crime. This evidence certainly casts a doubt on the dying declaration made by the deceased. Once there is a doubt in the mind in respect of the possibility of the deceased having made a dying declaration to teach the appellant a lesson, which is corroborated by the testimony of PW-2 to PW-4, it would not be appropriate to convict the appellant solely on the basis of the dying declaration of the deceased. 8. We are thus of the view that the appellant is entitled to the benefit of doubt. The appeal is accordingly allowed and the impugned judgment dated 22.11.1995 of the learned Addl.Sessions Judge is set aside. Bail-cum-surety bonds of the appellant are discharged.