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PETITIONER: DARSHANA DEVI

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT11/10/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) MUKHERJEE M.K. (J)

CITATION:  1995 SCC  Supl.  (4) 126 JT 1995 (7)   269  1995 SCALE  (5)695

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND. J.      The appellant  was tried  for an  offence under Section 302 IPC  for the  alleged murder  of Madan Lal, her husband. The learned  Judge of the Special Court, Ferozepur convicted her for  the  said  offence  and  sentenced  her  to  suffer imprisonment for life vide judgment dated 29.8.1985. Through this statutory  appeal under  Section 14  of  the  Terrorist Affected Areas (Special Courts) Act, 1984, the appellant has called in question her conviction and sentence.      The prosecution  story in  short is  that the appellant and deceased  were married  about 10 years prior to the date of occurrence.  They were serving as Government teachers and posted at  different places.  The couple  had a  son who was suffering  from  blood  cancer  and  unfortunately  died  on 23.7.1984. Trough  the  summer  vacations  had  finished  on 22.7.1984, the  couple had applied for extension of leave on account of  the death of their son and the leave in the case of each  one of them was extended upto 31.8.1984, the day of the occurrence.  It is alleged that on the night intervening 30-31 August,  1984 at  about 2.00  a.m. deceased  Madan Lal knocked at  the door  of his mother, Lachhmi Devi, PW-1, who was living  separately alongwith  one of  the sisters of the deceased, Bimla  Devi, PW-2  just across  the lane. When PW1 opened the  door she found the deceased to be burning and on enquiry he told his mother and sister, PWs 1 and 2, that the appellant had  sprinkled kerosene  oil on him and set him on fire. Lachhmi  Devi, PW-1  rushed him  to the hospital where they reached  about 2.30  a.m. Dr.  Janak  Lal  Mittal  PW-4 started treating  him and  sent information  to  the  police through rukka  Ex.P3. The  deceased had  suffered  extensive burn injuries  and was  semi-conscious. Shri Rajinder Singh, SHO, Police Station PW-5 arrived at the hospital and made an enquiry from  the doctor  whether the  deceased was in a fit condition to  make a  statement. The  doctor replied  in the

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negative. The  SHO PW-5,  thereafter, recorded the statement of Lachhmi  Devi PW1, Ex.P1, at about 4.30 a.m. and sent the same to  the police station for registration of the case and that forms  the basis  of the  formal FIR  Ex. P1/B.  It was initially registered  under Section  307 IPC but after Madan Lal succumbed  to the burn injuries at about 8.30 a.m.in the hospital, the  offence was  converted into one under Section 302 IPC.  When the  deceased was  brought to the hospital by his wife  Jitender Lal,  PW-3, A  Municipal Commissioner was present at the hospital, as he had taken his elder brother’s daughter Radha  Rani and  admitted her in the emergency ward of the  hospital. PW-3  informed the  investigating  officer that he  was lying in he verandah when he heard the deceased saying aloud  that he  had  been  burnt  by  his  wife.  His statement was recorded by the SHO.      During the  course of  investigation, SHO  PW-5 visited the spot  and prepared  a rough  site plan  of the  place of occurrence. He took into possession a broken bottle smelling of kerosene  oil Ex.M/O/1  from the  house of  the  deceased under seizure  memo Ex.  P8. A  match-box Ex. M/O/4 was also taken into possession from the room vide seizure memo Ex.P9. Some burnt  portion of  the shirt  belonging to the deceased was collected  from the  lane and  seized vide memo Ex. P10. The inquest report was prepared by the SHO PW-5 and the dead body was  sent for  postmortem examination.  The autopsy was performed by  Dr. K.K.  Singhla and it revealed death due to shock and  haemorrhage on  account of  extensive burns.  The viscera of  the deceased  besides pieces  of liver, lung and spleen were  preserved and  sent for  chemical  examination. According to the report of chemical examiner, Ex. P12, there was presence  of alcohal  in the viscera and that the blood- alcohal concentration was 86.25 mgml per 100 mls. The report of the  chemical examiner  also revealed  that  alcohal  was found present  in he  pieces of  liver, spleen,  kindly  and lungs besides  the pieces  of stomach,  small intestine  and large intestines. After completion of the investigation, the appellant was  tried and  convicted and sentenced as noticed above.      While  convicting   the  appellant,   the  Trial  Court considered the  testimonies of  Lachhmi  Devi,  PW-1:  Bimla Devi, PW-2:  Jitendar Lal,  PW-3; Dr. Janak Lal Mittal, PW-4 and Shri  Rajinder Singh,  Inspector, PW-5.  Various seizure memos and the report of the chemical examiner and statements of the  police officials  whose evidence  was  of  a  formal character were also taken into consideration.      According to  the evidence  of PW-1 and PW-2. relations of the  appellant with the deceased were strained and it was on that  account that  she had burnt the deceased by pouring kerosene oil  on him and setting him on fire. The oral dying declaration made  by the  deceased to  his mother,  PW-1 and sister, PW-2  as also the statement of the deceased as heard by PW-3  at the  hospital were  heavily relied  upon by  the Trial Court  in convicting  the appellant.  The Trial  Court rejected the  version of the appellant on the ground that it was contrary  to the  oral dying  declaration  made  to  the mother and  sister by the deceased while he was still in the state of burning.      While Mr.  Lalit, the  learned senior counsel appearing for  the   appellant  submitted   that  the   story  of  the prosecution suffers from inherent improbabilities as no wife would commit  the murder  of her husband when the couple had lost their only child only a few weeks before the occurrence and there  was no  motive whatsoever  for the  appellant  to commit the crime and the fact that both the deceased and the appellant were  living together  separately from  the mother

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and sister  of the  deceased was indicative of the fact that the relations between the mother-in-law and sister-in-law of the appellant  were not  cordial with  the deceased  and the appellant. He  further submitted  that the  prosecution  had failed to  establish that  the occurrence  took place in the room where  the  appellant  and  the  deceased  were  living together because of the absence of any burn marks on the bed or recovery  of the  burnt bedding from the room. Argued Mr. Lalit, that  the alcohal  concentration in  the blood of the deceased, as  reflected from  the  report  of  the  chemical examiner, showed  that the  deceased was under the influence of liquor  and possibly  he received  the burn injuries in a manner other  than the  one suggested  by  the  prosecution. Learned  counsel   also  submitted   that  the   oral  dying declaration cannot  claim a  probative value  equal  to  the dying declaration  reduced into  writing by a Magistrate and that the  oral dying  declaration  on  the  record  did  not inspire confidence and cannot from the basis of conviction.      Mr. Ranbir Yadav, learned counsel for the State, on the other hand  submitted that  the conduct  of the appellant in not taking  the deceased  to  the  hospital  and  not  being available on search by the police lateron exposes her guilty mind and  lends credence  to  the  oral  dying  declaration. Learned counsel  submitted that  the oral  dying declaration made by  the deceased to his mother and sister have received ample corroboration  from the  statement of  the deceased as heard by PW-3 at the hospital and that evidence by itself is sufficient to establish that the appellant had committed the crime.      That the  deceased and  the appellant  were married  10 years prior  to the  occurrence and  their only  son died on July 23, 1984 is not disputed. There is also no dispute that the deceased  died as  a result  of extensive  burn injuries received by  him during  the night intervening 30-31 August, 1984. The  extent of  the alcohal concentration in the blood of the deceased has also been established to be very high by the chemical  examiner indicating  thereby that the deceased must have  been under  the influence  of liquor  at the time when  he   received  the   burn  injuries.  There  being  no eyewitness  of  the  occurrence,  the  case  rests  only  on circumstantial  evidence  and  the  question  before  us  is whether the  circumstances brought on the record connect the appellant with  the crime  and are  compatible only with her guilt and incompatible with the hypothesis of her innocence.      While considering  the circumstances,  we  shall  first take up for consideration the alleged dying declaration made to Lachhmi  Devi, PW-1  and Bimla  Devi, PW-2 at one and the same time by the deceased when he knocked at the door of his mother’s  room  at  about  2.00  a.m.  while  in  a  burning condition. According  to PW-1  Lachhmi Devi,  mother of  the deceased, when  the deceased  knocked at  her door  and  she alongwith Bimla  Devi PW2  came out  and saw  Madan  Lal  in burning condition,  "Madan Lal on enquiry told that Darshana Devi accused had sprinkled kerosene oil on him and had burnt him." She  went on to add that thereafter she took Madan Lal to the  hospital, in a rickshaw which met them on the way to the hospital.  PW-2 while  deposing  about  the  oral  dying declaration made  by the  deceased, when  he knocked  at the door at about 2.00 a.m., stated:      "Madan Lal  knocked at  our door.  I and      Lachhmi Devi  came out and saw Madan Lal      burnt. Madan  Lal had told that Darshana      Devi had  sprinkled kerosene  oil on him      when he  was lying  asleep and had burnt      him. My  mother took him to the hospital

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    where he subsequently expired."      There is  variance in the statements of the two witness with regard  to the  exact words allegedly used was not in a fit condition  to make  a statement  after  the  police  had arrived at  the hospital  at about  3.45 a.m.,in response to the police  query.  We,  therefore,  find  it  difficult  to believe, as  PW3 would  like us  to,  that  a  patient  with extensive burn  injuries whose  pulse could  not be felt and whose blood pressure could not be recorded, was mentally fit and making  a coherent  statement that  he had been burnt by his wife,  keeping in  view the  concentration of alcohal in his blood,  so as to be heard so clearly by PW3. It does not appear probable  to us that the deceased could have made the statement as is being attributed to him by PW3. Even without the burn  injuries, because  of  the  alcohal  concentration found in  the body of the deceased, he could not be making a coherent. We  therefore, find  it difficult to rely upon the statement of PW3.      The prosecution has also not been able to establish any motive for the appellant to commit the murder of her husband particularly when  the couple had lost their 9 year old only child just  a few  weeks before the occurrence. According to the investigating  officer there were no marks of burning on the bed and through a broken bottle smelling of kerosene was taken into  possession from the deceased neither the bed nor the bedding  was found  to have  any burn  marks.  No  burnt article was  found in  the room  nor any  such  article  was seized. Had the deceased been sleeping as deposed to by PW2, when kerosene  oil was poured on him and he was set on fire, the bedding  could not  have remained unaffected by the room by the  police either.  The burnt pieces of the shirt of the deceased were  recovered from  the lane  between the room of the deceased  and his mother. In her statement under Section 313 Cr.P.C.  the appellant  while  denying  the  prosecution allegations gave the following version:      "I was  putting up with my husband Madan      Lal in  the room  facing the house of my      mother-in-law at Mansa.      Our only  son died  on  July  23,  1984,      which  made   my   husband   Madan   Lal      depressed and  the depression countinued      Madan Lal developed insomnia as a result      of which  he started  taking  liquor  in      addition to  intoxicating  pills.  Madan      Lal had  developed suicidal  tendencies.      On   the    night   intervening   August      30/August 31,  1984 I  heard cries of my      husband in the lane. I came in the lane.      The clothes  on the  person of Madan Lal      stood burnt  and he was restless, in the      lane. I  rushed  him  to  the  hospital.      Lachhmi Devi  PW1  and  Bimla  Devi  PW2      followed us  to the  hospital where  the      condition  of  my  husband  became  more      serious. The hospital attendants made me      sit in  the verandah. After the death of      my husband  I was placed under arrest by      the police  under  the  pressure  of  my      mother-in-law  and   sister-in-law  with      whom, my  relations were  strained since      long.  Their   grouse  was  that  I  was      hinderence in  the way  of my husband in      giving maintenance to them. My relations      with my husband were affectionate. I had      written letter  Ex. D  7 to  my  brother

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    Harbans Lal.  I had  moved the Education      Department that  I and my husband may be      transferred to  one place.  I  had  made      allegations therein  against my  mother-      in-law, Madan Lal was talking irrelevant      and incoherently when he was being taken      to the hospital."      Of  course  the  investigating  officer,  PW-5  in  his statement asserted  that the  appellant  was  not  available inspite of search but did not take the Court into confidence to state as to when and where he made the search for her. He stated that  the appellant  had been  produced before him on the day  of the occurrence itself at about 7.00 p.m. by Com. Balwinder  Singh  and  he  placed  her  under  arrest.  But, interestingly Com.  Balwinder Singh has not been examined by the prosecution  at  the  trial  to  support  this  version. According to  the appellant  she had  been arrested from the hospital itself.  There is  no material  on the record which may belie  that assertion  particularly when  it is admitted that she  had been formally placed under arrest at 7.00 p.m. on 31st  August, 1984 itself. From a careful analysis of the evidence on  the record  we find that the possibility of the appellant being involved in the crime at the instance of the mother-in-law PW-1  and the  sister-in-law, PW-2 as asserted by the  appellant in her statement under Section 313 Cr.P.C. cannot be  ruled out.  PW-2 Bimla  Devi had been deserted by her husband.  She was  living with  her mother. Through, she stated in  her cross-examination  that  Madan  Lal  was  not supporting  her   and  her  mother,  the  appellant  in  her statement  under  Section  313  Cr.P.C.  asserted  that  her mother-in-law and  her sister-in-law  considered her to be a hindrance in  the way  of the deceased giving maintenance to them. The  letters written by the appellant to the Education Department and  to her brother Harbans Lal, the authenticity of which  has not  been assailed by the prosecution, support the version  of the  appellant and  show that  the relations between the  couple were  cordial but  the mother-in-law was not allowing  them to  live in  peace. She had requested the Education Department  through her  letter Ex. D7 to post her at the  place of  posting of  her husband so that they could live together.  This conduct  of the appellant does not show that the  relationships between her and her husband were not cordial. Of course in the FIR PW-1, Lachhmi Devi, mother-in- law of  the deceased,  had stated  that the deceased and his wife had  strained relations since long and the deceased had been burnt  by  the  appellant  because  of  those  strained relations but  did not  give out any cause for estrangement. At the  trial she,  however, tried  to give  the reasons for strained relations  and went  on to say, voluntarily, during the cross-examination,  that the  deceased used to object to the visit  of some  male teachers  visiting the appellant at the house.  This clearly  is an  improvement and exposes the extent to  which PW-1  could go  while  making  a  statement against the  appellant. In our opinion, the appellant had no motive to  commit the  crime  and  on  the  other  hand  the possibility of  her being  falsely implicated by her mother- in-law, PW1  cannot be ruled out. During the pendency of the trial against the appellant, the mother of the deceased, PW- 1, who herself is a widow had engaged a counsel and moved an application for  grant of  succession certificate  regarding the amounts  due to  the deceased  from  his  employer,  the Punjab Government. PW1 admitted during the cross-examination that she  had engaged a counsel and moved an application for grant of  succession certificate about two and a half months after the  death of the deceased. The hot haste in which she

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made the  application when  the case against, the legal heir of  the   deceased,  the  appellant  herein,  had  not  even proceeded to  trial, is  quite indicative  of her  design to grab the  money of  the deceased.  Thus, she  stood to  gain financially from  the conviction  of the  appellant, as  the only son  of the deceased and the appellant had already died and the  appellant, after  conviction, would not be entitled to inherit  the property  of the  deceased. She  had thus  a reason, to falsely implicate the appellant and her action in claiming the amounts due to the deceased is tell tale.      The  prosecution,   in  our   opinion,  has  failed  to establish any  of the circumstances to connect the appellant with the  crime and has thus not been able to bring home the guilt to  the appellant beyond a reasonable doubt. The order of conviction  and  sentence  of  the  appellant  cannot  be sustained. The  appeal consequently succeeds and is allowed. The conviction  and sentence  of the appellant is set aside. The appellant  is  on  bail.  Her  bail  bonds  shall  stand discharged.