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PETITIONER: BETAL SINGH

       Vs.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT:       15/04/1996

BENCH: THOMAS K.T. (J) BENCH: THOMAS K.T. (J) PUNCHHI, M.M.

CITATION:  1996 SCC  (4) 203        JT 1996 (4)   734  1996 SCALE  (3)502

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS, J.      This is  a case  of uxoricide. Kamla, the teenaged wife of the  appellant was burnt to death. Her suckling baby also sustained burns  but did not die then. Appellant was charged for murder  of Kamla.  Though Sessions  Court acquitted  the appellant the  High Court  of Madhya  Pradesh in  an  appeal filed by the State, reversed the acquittal and convicted him under Section  302 IPC and sentenced him to imprisonment for life. Hence this appeal by the convicted appellant.      Facts, set up by the prosecution, in brief, are these:      Kamla and her husband Betal Singh (appellant) and their little child  were living  together with appellant’s mother. Kamla  was  entertaining  suspicion  that  her  husband  was carrying on illicit sexual connection with his elder sister- in-law, the  Kamla used  to openly  accuse him  of it.  This conduct of  Kamla invited  trouble to  her from appellant as well as  her mother-in-law  and she was subjected to torture by them on account of it. The murder took place on 7.6.1979. A few  days prior to it her mother-in-law left the house and went to  a nearby  village on some errand. Around 10 A.M. on the date  of occurrence,  appellant doused the deceased with kerosene and  set her  ablaze by lighting a match-stick. Her little child also caught fire and both sustained severe burn injuries. Hearing her tantrums people around, including some of the  prosecution witnesses, rushed into the room and they witnessed a human inferno remaining helpless. They made some efforts to  extinguish  the  fire.  But  the  burn  injuries sustained by  Kamla were  so devastating  that she could not survive beyond evening.      Before her  death Kamla was taken to a nearby hospital. FIR was registered on the strength of a statement given by a neighbour (PW-1).  A police  officer (PW-14  - ASI), went to the hospital  and recorded  a statement from Kamla (Ext.P-1) which later  turned out  to be  the most  important item  of

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evidence in  this case  as the  same became admissible under Section 32 of the Evidence Act.      The version recorded in Ext.P-1 is the following:      Her husband  had illicit connection with his sister-in- law  and   he  persisted   in  it   despite   her   repeated protestations. She was subjected to physical assaults by her husband’s father  and mother and occasionally she was put to starvation. Once  she saw  her husband  in liaison  with the sister-in-law and  when she  protested she  was beaten up by her husband as well as her mother-in-law. Food was denied to her for  four days.  About eight days before the occurrence, her mother-in-law had gone away but she suggested to her son to eliminate  Kamla by  burning her.  On the occurrence day, while she was sleeping on a cotton carpet (Deri) in her room the appellant sprinkled kerosene on her and lighted a match- stick. He then bolted the room from outside. She was rescued by the neighbours.      If the  version in Ext.P-1 can be acted on it certainly would prove  the guilt  of the  appellant. But  the Sessions Judge did not believe it and hence the acquittal by him. The High  Court  has  chosen  to  place  reliance  on  the  said statement.  After   reminding  themselves   of   the   legal principles to be observed while interfering with an order of acquittal, learned  Judges of  the High  Court  reached  the conclusion that  Kamla was  murdered by  the  appellant  and accordingly convicted him and sentenced him as aforesaid.      Appellant in his defence has examined two doctors (DW-1 and DW-3)  who were attached to the hospital where Kamla was admitted  with  burn  injuries.  Those  witnesses  proved  a statement recorded  in Ext.D-1,  which is said to be part of the case  sheet included  in the "bed head ticket". DW-1 Dr. Kamal Misra said that he scribbled down the version given by the deceased  Kamla  soon  after  she  was  brought  to  the hospital. What  is stated  in Ext.D-1 is that when Kamla was cooking food,  a stove abruptly burst and her clothes caught fire and  her husband  rushed to her rescue. Kamla also told the Doctor  that she  had no  enemies, although she had some disputes with  her mother-in-law.  DW-1 said  that the thumb impression of Kamla was taken on Ext. D-1 statement. DW-3 is a junior  doctor working  under DW-1.  He  too  had  affixed signature on Ext.D-1.      No doubt  if Ext.D-1 is a genuine document it would cut at the root of the prosecution case and nothing more need be considered by  us in  this case.  But learned  Judges of the High Court  found Ext.D-1  as a concocted document. The High Court  pointed   out  the  incongruity  that  those  doctors ventured to  record the  dying declaration  of a patient who was struggling  in pains instead of applying any ointment or medicine on  her person.  That apart,  the bed  head  ticket maintained for  the patient  which was  seized by the police (marked as  Ext.P-28) did  not  contain  any  sheet  with  a statement  like  Ext.D-1.  Ext.P-28  shows  that  two  other doctors (Surgeons  in charge)  had attended  on the  patient first whereas  the names of DW-1 and DW-3 were not mentioned in it.  In cross-examination, DW-1 Dr. Kamal Misra said that he forwarded  the sheet  containing Ext.D-1 statement to the office and  that he collected it from the office when he was summoned to  appear in  the court. The High Court castigated Ext.D-1 as  a concocted document. Learned Judges pointed out that after  Ext.P-28 was  marked on the prosecution side the defence did not even suggest during cross-examination that a paper containing Ext.D-1 statement was actually incorporated in it.  Nor did  the defence even suggest to any prosecution witness that  a stove was kept near the place of occurrence. Those features  have been  highlighted by the learned Judges

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of the  High Court  for sidelining  Ext.D-1.  The  following conclusion has  been reached by the learned Judges regarding Ext.D-1:      "All  these   facts  indicate  that      Ext.D-1   the   dying   declaration      allegedly  recorded  by  Dr.  Misra      (DW-1), did  not exist  at all till      the  trial   came  to  its  fagend.      Defence  filed  an  application  on      13.11.79  for  summoning  the  case      sheet of  Kamla containing  Ext.D-1      and to us it seems that this Ext.D-      1  was  prepared  after  the  trial      started. We  have no  doubt in  our      mind that  Ext.D-1 is  not  only  a      false and spurious document, but it      did not  exist at  all on 7.6.1979.      It appears  that  it  was  prepared      later on  to show that the death of      Kamla was caused due to bursting of      stove, while she was cooking." Those are very cogent reasons and the High Court has reached such a  conclusion on  the strength of those reasons. We are not persuaded to take a different view on Ext.D-1.      Evidence of the defence witness (DW-2) that the door of the room  was bolted  from inside did not inspire confidence and the  High Court for good reasons rejected it. Apart from the statement  recorded by  the ASI in Ext.P-1 certain other circumstances were  also considered  by the High Court. They are: (1)  when the  neighbours rushed to the room Kamla told PW-2 and PW-3 that she was being murdered by her enemy. PW-3 said further  that while  saying so the deceased had pointed her finger to the appellant who was standing nearby, (2) PW- 1 overheard the statement which deceased gave to the ASI and the testimony of PW-1 is in substantial concord with what is recorded in  Ext.D-1, (3)  appellant did  not move  a little finger to  put out  the fire  when his  wife and  child  was struggling in  fire, (4)  nor did  he raise  even  an  alarm seeking the help of others to rescue his wife and child, (5) the motive  i.e. the  conduct  of  the  deceased  constantly attributing incestuous  adultery to the appellant would have made up  his mind to do something drastic to end this menace even if there was no truth in such an accusation.      Learned  counsel   for  the  appellant  referred  to  a discrepancy which he noticed as between the testimony of PW- 2 and  that of  PW-3, as  the latter  alone said  that Kamla pointed her  finger to the appellant. The High Court did not take the  said discrepancy  seriously.  Perhaps  PW-3  alone would have noticed that gesticulation of the deceased.      Learned counsel attacked PW-1’s evidence as he told the police that  he did  not know  how the incident happened. We don’t think  that the  said evidence needs rejection on that ground because  when PW-1  met the police first the deceased had not  made any  statement to the police and so PW-1 would have had  no reason  to come  to the  conclusion about  what happened. As  the High  Court has  placed  reliance  on  the evidence of  PW-1 we  do  not  see  any  reason  to  take  a different view regarding that.      It is  true that  in Munnu  Raja vs. State of M.P., AIR 1976 SC  2199, this  Court has struck a note of caution that investigating officers,  who are naturally interested in the success of  the investigation,  ought to  be discouraged  in recording  dying   declarations,  during   the   course   of investigation. However,  in Dalip  Singh & Ors. vs. State of Punjab, AIR  1979 SC  1173, this  Court  noticed  the  above

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observation and  pointed out that it is not meant to suggest that such dying declarations are always untrustworthy. Their Lordships observed:      "We do  not mean  to  suggest  that      such dying  declarations are always      untrustworthy, but, what we want to      emphasize is  that better  and more      reliable  methods  of  recording  a      dying  declaration  of  an  injured      person should  be taken recourse to      and the  one recorded by the Police      Officer may be relied upon if there      was no  time or  facility available      to the prosecution for adopting any      better method." Legal position  remains  unaltered  that  dying  declaration should be  scrutinized very  carefully and  if the  Court is satisfied after such scrutiny that the dying declaration was true and  was free from any effort to prompt the deceased to make such  a statement and is coherent and consistent, there is no  legal impediment  in founding  the conviction  on it. (Kusa vs.  State of  Orissa, AIR  1980 SC 559). The position does not  change even  if such  a dying  declaration is  put forward in  a bride  burning case whether or not it has been recorded by  the police officer during investigation. (State of Punjab  vs. Amarjit  Singh, AIR  1992 SC 1817, Charipalli Shankararao vs.  Public Prosecutor, High Court of A.F., 1995 Supple. (4) SCC 24).      There is  no reason  for PW-14  ASI to  concoct such  a statement at Ext.D-1. As PW-1 also heard Kamla telling those facts to  the ASI,  the High  Court is  fully  justified  in acting  on  the  testimony  of  PW-1.  The  conduct  of  the appellant as observed by the witnesses who reached the scene while Kamla  was in  flames is very much consistent with the conduct of a culprit who did the act attributed to him.      In the  result, we agree with the conclusion arrived at by the  High Court in reversal of the finding reached by the Sessions Court. Accordingly, we dismiss the appeal.