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PETITIONER: OM PRAKASH ETC. ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT19/08/1992

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1993 AIR  138            1992 SCR  (3) 921  1992 SCC  (4) 212        JT 1992 (4)   524  1992 SCALE  (2)196

ACT:      Penal Code, 1860-Sections 302,34-Conviction under-Dowry death-Dying declaration of victim-Validity of.      Evidence Act, 1872-Section 3-Appreciation of  evidence- Death  due  to burn injuries-whether  suicide  or  homicide- Determination of-Court’s duty.      Criminal  Trial-appreciation of evidence-Death  due  to burn injuries-Whether suicide or homicide-Determination  of- Court’s duty.

HEADNOTE:      The  prosecution  case  was that  in  the  morning,  on 17.3.1979  the  deceased  went to the house  of  her  sister (PW.6).  PW.6’s  house  was in front of  the  house  of  the deceased.  The deceased told PW. 6 that the appellants  were compelling her to bring money from her parents.      The appellant in Cr. A.No.282 of 1981 was the  husband, and the appellants in Cr. A.No. 230 of 1981 were the mother- in-law and the father-in-law of the deceased.      At about 2.30 p.m on 17.3.1979 the deceased was in  her room in the house of the appellants. Her husband along  with other  co-accused including his two sisters caught  hold  of the  deceased and brought her in the inner compound  of  the house. Her father-in-law said that she should be burnt.  The mother-in-law  brought the kerosene oil and sprinkled it  on her  body.  Then  deceased’s husband set her  on  fire.  She raised the cries "save me, save me". Her sister (PW 6)  came there  along with her father-in-law (PW 7). They found  that the  inner  door of the house was closed from  inside.  They pushed the door and entered. At that very time PW 8 and  one Kulbir  Chand  hearing  the cries also  entered  the  house. Seeing  the witnesses, the accused persons ran away  to  the upper  storey of the house. The witnesses  extinguished  the fire   and   enquired  from  the  deceased   regarding   the occurrence.  She  told them as to how she was burnt  by  her husband  with the help of her  mother-in-law,  father-in-law and two sister-in-laws.                                                        922      PW. 6 brought the ambulance car and victim was taken to hospital  . Police was informed. ASI came to  the  hospital. Obtaining  the  opinion  of the Doctor  as  to  whether  the

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deceased  was  fit  to make a  statement,  he  recorded  the statement  of  the  deceased  giving  the  details  of   the occurrence.   That  statement  was  treated  as  the   first information  report. The deceased succumbed to her  injuries on 29.3.1979.      After  investigation  the  charge-sheet  was  submitted against  the three appellants along with the two sisters  of the appellant in Cr.A.No. 282 of 1981.      The Trial Court convicted the appellant in Cr.A.No. 282 of  1981 under section 302 of the Penal Code, and  the  High Court  dismissed  his  appeal made  against  the  conviction order. He was sentenced to undergo rigorous imprisonment for life.  He  was also directed to pay a fine of Rs.  5,000  in default to undergo rigorous imprisonment for two years.  The Trial Court acquitted his mother, father and two sisters  of the  charges levelled against them. On and appeal  filed  on behalf  of the State, the High Court set aside the order  of acquittal passed against the mother-in-law and father-in-law of the deceased. They were also convicted under section  302 read with section 34 of the Penal Code. Each one of them was sentenced  to undergo rigorous imprisonment for life and  to pay  a  fine  of Rs. 5,000 in  default  thereof  to  undergo rigorous imprisonment for two years.      In  these criminal appeals, the  appellants  challenged the judgments of the High Court.      The appellants submitted that it was always open to the court  to  convict  the  accused on the  basis  of  a  dying declaration  but  before any such order  of  conviction  was passed   the  Court  must  be  satisfied  that   the   dying declaration  said  to have been made by  the  victim  before death was genuine and truthful; that in this case the  dying declaration which was said to have been made by the deceased before  ASI  did  not appear to be  a  genuine  and  natural statement;  that because of the burn injuries  the  deceased must  not  have  been  in  a  position  to  make  any   such declaration:  that reading the dying declaration as a  whole it  did not inspire confidence because a person   with  burn injuries could not make such a detailed statement; and  that the  deceased  committed  suicide and  the  appellants  were falsely implicated.      Dismissing the appeals, this Court,                                                        923      HELD: 1.01. Unless there are materials on the record to show  that  the  deceased was not in a position  to  make  a statement  it is not possible to reject her statement  which has been treated as dying declaration. [926H, 927A]      1.02.  P.W.4, a doctor has stated on oath that  it  was the statement of the deceased which was recorded.  According to him, she remained conscious till 11.00 p.m. on March  17, 1979. PW.2, another doctor, who examined the injuries of the deceased  before  her statement was recorded  also  has  not mentioned in his report that she was unconscious. During the examination of PW 2 no question was put to him that  because of  the injuries on the person of the deceased  whether  she will be in a position to make the dying declaration,.  There were  serious burn injuries on the person of  the  deceased, but  still she survived till March 29,1979, i.e.  for  about twelve  days.  The deceased was in a position  to  make  any statement before ASI. [926E-G]      2.01.  Sometimes  a case of suicide is presented  as  a case  of  homicide specially when the death is due  to  burn injuries.  But it need not be pointed out that whenever  the victim  of  torture commits suicide she leaves  behind  some evidence-may be circumstantial in nature-to indicate that it is not a case of homicide but of suicide. [927F]

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    2.02.  It is the duty of the Court, in a case of  death because  of  torture and demand for dowry,  to  examine  the circumstances of each case and evidence adduced on behalf of the  parties, for recording a finding on the question as  to how the death has taken place. [927G]      2.03. While judging the evidence and the  circumstances of the case, the Court has to be conscious of the fact  that a  death connected with dowry takes place inside the  house, where outsiders who can be said to be independent  witnesses in the traditional sense are not expected to be present. The finding of guilt on the charge of murder has to be  recorded on the basis of circumstances of each case and the  evidence adduced before the Court. [927H,928A]      2.04. In the instant case, the occurrence took place in the  open  courtyard  during  the  day-time  which  is   not consistent with the theory of suicide. Apart from that,  the dying  declaration of the victim along with the evidence  of PWs.  6,7 and 8 the charges levelled against the  appellants are fully established. [928B]                                                        924

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No. 282 of 1981.      From  the  Judgment  and Order dated  7.1.1981  of  the Punjab  and  Haryana High Court in Crl. Appeal No.  1235  of 1979.                             WITH          Criminal Appeal No. 230 of 1981.          Mrs.   Kawal  Jit  Kocher  and  J.D.Jain  for   the          Appellant.          S.Bajaj and R.S.Suri for the Respondent.          The Judgment of the Court was delivered by      N.P.SINGH,   J.   Appellant  Om  Parkash   has    been convicted  under section 302 of the Penal Code and has  been sentenced to undergo rogorous imprisonment for life. He  has also been directed to pay a fine of Rs. 5,000 in default  to undergo rigorous imprisonment for two years.      Appellants Sheela Wanti and Rup Lal, who are the mother and  father of the aforesaid appellant Om Parkash, had  been acquitted by the Trial Court of the charges levelled against them,  but  on  an appeal filed on behalf of  the  State  of Punjab before the High Court the order of acquittal has been set  aside  and they have been convicted under  section  302 read with section 34 of the Penal Code. Each one of them has been sentenced to undergo rigorous imprisonment for life and to  pay  a fine of Rs. 5,000 in default thereof  to  undergo rigorous imprisonment for two years.      The  prosecution  case is that on  March  17,1979  Rita (since  deceased) went to her sister Shushma (PW 6)  in  the morning who was residing in the house in front of the  house of Rita aforesaid. Rita told her sister that accused persons were  compelling  her to bring money from her  parents.  The appellant  Om  Parkash is the husband, Sheela Wanti  is  the mother-in-law  and  Rup  Lal is the  father-in-law  of  Rita aforesaid. It is further the case of the prosecution that at about  2.30  p.m. the same day Rita was in her room  in  the house  of  the appellants. Om Parkash along with  other  co- accused including his two sisters Kanchan and Shushma (since acquitted) caught hold of Rita and brought her in the  inner compound  of  the house. Rup Lal the father-in-law  of  Rita said that she should be burnt. Sheela                                                        925

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Wanti,  the  mother-in-law,  brought the  Kerosene  oil  and sprinkled  it on her body and then Om Prakash, husband,  set her  on  fire. She raised the cries "save  me".  His  sister Shushma (PW 6) who, as already stated above, was living just opposite  the house of the appellants came there along  with her  father-in-law Bhajan Lal (PW 7). They found  the  inner door  of the house closed from inside. They pushed the  door and entered inside the compound. At that very time Tare  Lal (PW  8) and Kulbir Chand hearing the cries also  entered  in the  house. Seeing the witnesses aforesaid inside the  house the  accused  persons ran away to the upper  storey  of  the house.  The  fire was extinguished by  the  witnesses.  They enquired   from  Rita  (since  deceased  )   regarding   the occurrence and she told them as to how she was burnt by  her husband  with the help of her mother-in-law  and  sister-in- laws.      Thereafter the ambulance car was brought by Shushma (PW 6)  and  victim  was taken to  S.G.T.B  Hospital,  Amritsar. Police was informed. ASI Amritlal of Police Station  Kotwali came to the hospital. He obtained the opinion of the  Doctor as  to whether Rita was fit to make a statement.  Thereafter at  6.25 p.m the same evening he recorded the  statement  of Rita  giving the details of the occurrence.  That  statement was treated as the first information report. Rita  succumbed to her injuries on March 29,1979.      After  investigation  the  charge-sheet  was  submitted against  the three appellants along with the two sisters  of appellant  Om  Parkash. As already stated above,  the  Trial Court convicted only appellant Om Parkash and acquitted  his mother,  father  and  two sisters of  the  charges  levelled against  them. However, on an appeal filed on behalf of  the State  of  Punjab,  the order of  acquittal  passed  against Sheela  Wanti and Rup Lal, the mother-in-law and  father-in- law of the deceased, was set aside by the High Court.      The  Trial Court as well as the High Court have  placed reliance  on  the  statement made by the  victim  which  was initially treated as the first information report but  after her  death has become her dying declaration. She has  stated in  detail as to how the accused persons used to harass  her for not bringing sufficient dowry and pressed her parents to provide  sufficient cash in lieu of dowry. For  that  reason she was beaten by the members of the family and sent to  her parental  home before the occurrence. Only about 21/22  days before the date of the occurrence due to the intervention of some  respectable persons she returned to the house  of  her husband but                                                        926 there  was no charge in the attitude of the  family  members. Thereafter,  she  has  stated as to how on the  day  of  the occurrence she was taken out from her room and kerosene  oil was sprinkled on her body and her husband Om Parkash set her on  fire with the matchstick. She also stated  that  hearing her  cries  her  sister Shushma (PW  6),  her  father-in-law Bhajan Lal (PW 7) and others came and extiguished the fire.      The  learned  counsel  appearing  for  the   appellants submitted that it is always open to the Court to convict the accused  on the basis of a dying declaration but before  any such  order  of  conviction  is passed  the  Court  must  be satisfied that the dying declaration said  to have been made by  the  victim before death is genuine  and  truthful.  She pointed  out that the so-called dying declaration  which  is said to have been made by Rita before ASI Amrit Lal does  not appear  to be a genuine and natural statement. According  to her,  because  of the burn injuries Rita must not  be  in  a position  to make any such declaration. In this  connection,

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she  drew  our  attention to the  post  mortem   examination report of Rita and the findings of Doctor who held the  post mortem  examination. It was urged that the Doctor had  found second  and first degree septic burns on the person of  Rita and  as  such by 6.25 when she is alleged to have  made  the dying  declaration, in normal course of the event  she  must not  be  in  aposition to make  any  such  declaration.  Dr. Devinderpal Singh (PW 4) has stated on oath that it was  the statement of Rita which was recorded, According to him,  she remained  conscious till 11.00 p.m. on March 17,  1979.  Dr. Haris  Chander  Vaid (PW 2), who examined  the  injuries  of Rita  before  her  statement  was  recorded,  also  has  not mentioned in his report that she was unconscious, It  may be mentioned  that  during  the examination  of  aforesaid  Dr. Harish  Chander Vaid (PW 2) no question was put to him  that because  of the injuries on the person of Rita  whether  she will  be in a position to make the dying declaration. It  is true that there were serious burn injuries, on the person of Rita  but  still she survived till March 29, 1979  i.e.  for about twelve days. in this background we are not inclined to hold  that because of the burn injuries, Rita was not  in  a position to make any statement before ASI Amrit Lal.      The  learned counsel then pointed out that reading  the dying declaration as a whole it does not inspire  confidence because  a  person  with burn injuries cannot  make  such  a detailed   statement.  In  our  opinion  unless  there   are materials  on  the  record  to sow  that  Rita  was  not  in aposition to make                                                        927 a statement it is not possible to reject her statement which has been treated as dying declaration.  As already mentioned above,  Rita  was in a position to make statement  has  been proved by two Doctors apart from the A.S.I.      Moreover in the present case it cannot be said that the conviction  of  the  appellants rests solely  on  the  dying declaration  of the victim.  The evidence of  Shushma  (PW6) sister of the victim, Bhajan LAl (PW 7) father-in-law of the sister of the victim, Tarsm Lal (PW 8), who had also entered in  the  courtyard, corroborates the statement made  by  the victim.   The  Trial Court as well as the  High  Court  have discussed  their evidence in detail.  They have said  as  to how  hearing the cries to Rita they entered  after  forcibly opening  the door and saw Rita being burnt.  Rita told  them as  to how she had been put to fire by the  accused  persons including these three appellants.  The statement so made  by Rita to the three witnesses aforesaid shall be deemed to  be oral  dying declaration of the victim.  The  witnesses  have also  stated as to how they extinguished the fire  and  took her in ambulance to the hospital.      It is not in dispute that Shushma (PW6), sister of  the victim, and her father-in-law Bhajan Lal (PW7) were  staying in a house just opposite to the house of the accused persons only a road intervening.  As such they are the most  natural witnesses and we find no reason to take a contrary view than the view taken by the High Court, so far as the veracity  of the aforesaid witnesses are concerned.      It was then submitted on behalf of the appellants  that it  appears that Rita committed suicide and  the  appellants have been falsely implicated for an offence of murder by the interested  witnesses.  It is true that sometimes a case  of suicide  is presented as a case of homicide  specially  when the  death  is  due to burn injuries.  But it  need  not  be pointed  out  that whenever the victim  of  torture  commits suicide    she   leaves   behind   some   evidence-may    be circumstantial  in nature to indicate that it is not a  case

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of  homicide but of  suicide.  It is the duty of the  Court, in a case of death because of torture and demand for  dowry, to  examine  the  circumstances of each  case  and  evidence adduced on behalf of the parties, for recording a finding on the  question  as to how the death has taken  place.   While judging the evidence and the circumstances of the case,  the Court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the                                                        928 traditional  sense,  are not expected to  be  present.   The finding of guilt on the charge of murder has to be  recorded on the basis of circumstances of each case and the  evidence adduced  before  the  Court.   In  the  instant  case,   the occurrence took place in the open courtyard during the  day- time  which  is not consistent with the theory  of  suicide. Apart  from  that,  as  already  stated  above,  the   Dying Declaration of the victim along with the evidence of PWs  6, 7  and  8,  which  we  find  no  reason  to  discard,  fully establishes the charges levelled against the appellants.      In the result, the appeals are dismissed. V.P.R.                                    Appeals dismissed.                                                        929