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PETITIONER: GULAM HUSSAIN & ANR. , SHABNAM , ROSHAN

       Vs.

RESPONDENT: STATE OF DELHI

DATE OF JUDGMENT:       04/08/2000

BENCH: K.T.  Thomas, J.  & R.P.  Sethi, J.

JUDGMENT:

SETHI,J. L.......T.......T.......T.......T.......T.......T.......T..J

The  appellant  Ms.Shabnam  is  the  wife,  appellant  Gulam Hussain,  is  the  father-in-law, appellant  Roshan  is  the brother-in-law   and   appellant  Shakil    Ahmad   is   the co-brother-of the deceased Islamuddin who died on 13.10.1989 of the burn injuries caused on his person by the appellants. Upon  conclusion  of  the  trial  the  court  of  Additional Sessions Judge, Delhi convicted the appellants under Section 302  IPC and sentenced them to undergo imprisonment for life and  to  pay  a fine of Rs.500/- each.   The  appeals  filed against  the  conviction and sentence were dismissed by  the High  Court  of Delhi vide the judgments impugned  in  these appeals which have been preferred by the appellants from the jail.  We have heard Shri Jagdev Singh Manhas, amicus curaie appointed and Shri K.N.  Shukla, Senior counsel who appeared for  the respondents.  According to the prosecution FIR  was registered  on the basis of statement of the deceased  which was recorded after he was admitted in LNJP Hospital.  In the statement  Islamuddin  had  stated that he  was  married  to appellant  Shabnam,  daughter  of Gulam  Hussain  about  5-6 months  before  the  date of occurrence.  When  he  came  to Jhuggi No.215, near Public Latrine, Sanjay Amar Colony, Boat Bridge,  Yamuna Pushta about 7-8 days before the  occurrence to  take  back Ms.Shabnam, a quarrel ensued between him  and Shabnam  because  of  her having brought with her  gold  and silver  ornaments worth Rs.5,000/-.  As Shabnam was not sent along with him he slept for three nights in a tea shop which was situated on the corner of the house of his father-in-law and  he was not allowed to live in Jhuggi with other members of Gulam Hussain.  On 13.10.1989 at about 3.30 a.m.  all the three  male  accused came on the spot where he was  sleeping and woke him up.  Shakil Ahmad caught hold of his both hands from  behind.   His  father-in-law asked  Shabnam  to  bring kerosene  oil  which  she brought in a small  container  and handed  over the same to her father who poured keresene  oil on Islamuddin forcibly and Roshan thereafter set him ablaze. The neighbourers came there and tried to extinguish the fire while crying "Bachao-Bachao (save-save), he reached near the iron  bridge  where  a policeman got him seated in  a  three wheeler  scooter  for  being taken to  the  hospital.   PW22 Balwan  Singh is stated to have recorded his statement which was later on treated as his dying declaration.  To prove the

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case  against  the appellants, the prosecution examined  PW1 Constable  Rajbir  Singh,  PW2 Constable Naubat  Singh,  PW3 Constable  Jit Singh, PW4 lady constable Tara, PW5 Constable Krishan  Pal,  PW6 Inspector Davinder Singh, PW7  ASI  Budhi Singh,  PW8  Shashi Dharan, PW9 Nannay Khan, PW10  Inspector Niranjan  Singh,  PW11  Constable Balbir Singh,  PW12  Mohd. Satter,  PW13  Laloo, PW14 Dr.B.N.  Acharya, PW15  Constable Krishan  Kumar, PW16 Dr.George Paul, PW17 Constable  Krishan Kumar,  PW18 Aslam, PW19 S,N.  Shai, PW20 Constable Surinder Singh,  PW21  Head  Constable Prem Pal Singh, and  PW22  ASI Balwan  Singh.  Besides oral testimony of the witnesses, the prosecution  relied upon two written dying declarations i.e. Exhibit PW19/A and Exhibit PW22/B.

Despite  various opportunities granted, the accused did  not lead  any  evidence.   Learned  counsel  appearing  for  the appellants has vehemently argued that as there was no direct evidence  in the case it was not proper for the courts below to  convict and sentence the appellants merely relying  upon the  dying  declaration  which, according to  him,  was  not corroborated   by   any  other   witness  in  its   material particulars.   He  has  further  contended  that  the  dying declarations    having   been     recorded   in   suspicious circumstances  cannot  be  held to have  been  proved.   Per contra,  the  learned  Senior  Advocate  appearing  for  the respondent  submitted that the dying declarations have  been duly  recorded and the material facts corroborated by  other evidence  produced in the case.  Exhibit PW22/B was recorded by  PW22  ASI Balwan Singh in the hospital on 14.10.1989  at about  6.30  a.m.  after getting an opinion from the  Doctor that  the injured was fit for statement.  The endorsement of the  doctor is recorded as Exhibit PW22/A.  Learned  counsel appearing for the appellants submitted that as the statement was  recorded by the investigating officer which was treated as  FIR, the same could not be treated as dying  declaration and  was  inadmissible in evidence.  The submission  has  no substance  because  at the time of recording  the  statement PW22  Balwan  Singh  did  not possess  the  capacity  of  an investigating officer as the investigation had not commenced by  then.   Such  a  statement can be  treated  as  a  dying declaration  which  is admissible in evidence under  Section 32(1)  of  the Evidence Act.  After critically scanning  the statement  of  PW22 ASI Balwan Singh and details of  Exhibit PW22/B,  we  have no hesitation to hold that  the  aforesaid statement  was  voluntarily made by the deceased  which  was reduced  to  writing and have rightly been treated as  dying declaration after the death of the maker.  Section 32 of the Evidence  Act  is  an  exception  to  the  general  rule  of exclusion  of  hearsey evidence and the statement made by  a person  written or verbal of relevant facts after his  death is  admissible in evidence if it refers to the cause of  his death  or  any  circumstances  of  the  transactions   which resulted in his death.  To attract the provisions of Section 32,  the prosecution is required to prove that the statement was  made by a person who is dead or who cannot be found  or whose  attendance  cannot be procured without any amount  of delay  or expense or he is incapable of giving evidence  and that  such  statement  had  been   made  under  any  of  the circumstances  specified  in  sub-sections  (1)  to  (8)  of Section  32 of the Evidence Act.  It cannot be disputed that Islamuddin  who made a statement PW22/B has died and in  his deposition  he  has  referred  to  the  circumstances  which ultimately proved to be the cause of his death.  Nothing has been  pointed out by the defence side which could create any doubt  in our mind regarding the making or admissibility  in

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evidence of the statement Exhibit PW22/B.

Assailing  dying declaration PW19/A, the learned counsel has submitted  that  as  the  witnesses   to  it,  namely,  PW12 Mohd.Satter  and  PW18  Aslam who are real brothers  of  the deceased  have  not  supported the prosecution  version  and there  existed other circumstances which created  suspicion, it  was not safe to hold the said dying declaration to  have been  proved.  It is submitted that the SDM has not assigned any reason in Exhibit PW19/A for not recording the statement himself.  However, during the trial he has submitted that as one  of  his  finger  was injured,  he  dictated  the  dying declaration to PW22 Balwan Singh.  PW22 Balwan Singh in turn has stated that he had not recorded PW19/A.  Learned counsel also  drew our attention to the two aforesaid statements and urged  that  as on the face of it PW22/B and PW19/A  do  not appear  to  have  been written by one and the  same  person, reliance  upon PW19/A and by treating it a dying declaration would be unsafe.  Accepting such a contention of the accused persons,  the  High  Court  in this  regard  had  concluded: "Thus,  the statements of both PWs 12 & 18 coupled with  the observation  made by the above fully support the  submission referred  to  above  advanced on behalf of  the  accused  in regard  to  Ex.PW19/A not having been made by  the  deceased before  PW19.  Trial Court had acted erroneously in  relying upon  Ex.PW19/A.   It has to be excluded from  consideration for recording the finding of guilt against the accused."

We  also agree with the findings of the High Court and  feel that  the  prosecution  has failed to  fully  establish  the recording  of  Exhibit  PW19/A.   However, in  view  of  our finding  that  Exhibit PW22/B has been proved to be a  dying declaration  of  the  deceased we do not find  any  inherent weakness  in the case of the prosecution which would per  se entitle  the  appellants to acquittal.  It is  well  settled that  dying  declaration must be dealt with caution for  the reason  that  the  maker  of  the  statement  had  not  been subjected  to cross-examination.  There is no rule of law or rule  of prudence that dying declaration cannot be  accepted unless  it  is  corroborated.  [Khushan Rao  vs.   State  of Bombay  1958  SCR  552;   Munna Raja vs.   State  of  Madhya Pradesh  1976 (2) SCC 764].  However, as prosecution is left with  only  one dying declaration, namely, PW22/B,  we  feel that in the instant case it would not be safe to convict the appellants  only  on  the  basis   of  the  aforesaid  dying declaration   unless   corroborated    in   other   material particulars.  We have found sufficient corroboration in this case.   The  contents  of the dying declaration are  to  the effect that the deceased was married to Ms.Shabnam, daughter of  Gulam  Hussain, resident of Jhuggi No.215,  near  Public Latrine,  Sanjay  Amar  Colony, Boat Bridge,  Yamuna  Pushta about  5-  6 months before the occurrence.  7-8 days  before the  date  of  making  the  statement he  had  come  at  the residnece of Gulam Hussain to take his wife back.  After 2-3 days  of  his coming he had a quarrel with his wife  because she  had brought gold and silver ornaments worth  Rs.5,000/- with her from his house without his consent.  He spent three nights  at  a  tea  shop  in  front  of  the  house  of  his father-in-law  as  he was not allowed to stay in  the  house with other members of Gulam Hussain.  On that day he went to sleep  in the house of his father-in-law who had called  him there.   He  slept on a "Rehari" (moving-cart)  outside  the house  of  his  father-in-law.   At  about  3.30  a.m.   his

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co-brother Shakil Ahmad, his father-in-law Gulam Hussain and brother-in-law  Roshan  came there and woke him up.   Shakil Ahmad,  appellant  caught  hold of his both the  hands  from behind.   His father-in-law asked Shabnam to bring  kerosene which  she  brought in a small container and handed over  to her father who poured it upon with the intention to burn him and  Roshan  set  him ablaze.  He raised  alarm  upon  which neighbourers  came  there and tried to extinguish the  fire. He  ran  in flames crying "Bachao-Bachao" (save- save)  near iron  bridge.  He met with one policeman whom he stated that his  in-laws have burnt him.  The policeman made him seat in a  three  wheeler scooter and brought him to  the  hospital. The  material  facts of the case as disclosed in  the  dying declaration  that (i) the deceased was married to Ms.Shabnam with whom the relations had been strained;  (ii) the in-laws of the deceased were not permitting his wife to go back with him;  (iii) he had come from his village in Bijnor, District of   U.P.;   (iv)he  was  set   ablaze  by  his  in-laws  in consequence  of  which he ultimately died;  stand proved  by the  prosecution.   PW2 has corroborated the version of  the dying  declaration by stating that he had seen the  deceased in  burnt  conditions  with  cries ’Jala  diya,  jala  diya, bachao-bachao’  (burnt-burnt,  save-save).  Upon enquiry  he had  told  him that he had been burnt by his  in-laws.   PW5 Krishan Pal Singh has stated that from the place of incident ASI Balwan Singh had seized one small container of kerosene, one match-box containing match sticks, one purse, two sheets of  paper and one shirt in burnt conditions.  PW9 Nanhe Khan though declared hostile has admitted that at about 2.30 a.m. when  he was going to fetch water for his child, he had seen the deceased running with his clothes on flames.  PW13 Laloo who was also declared hostile has admitted that he had heard noise  and saw Islamuddin in flames.  Later he informed  the accused  persons  that  the man in flames was  running  from their  side of Jhuggi.  PW16 Dr.George Paul has stated  that in  his opinion the deceased had died due to septicaemia and toxaemia  and  that his body had burn injuries.   PW19  S.N. Shai,  the  then  SDM  has  referred  to  the  recording  of statement  Exhibit PW19/A, the narration of which is  almost idential as detailed in Exhibit PW22/B.  It is worthwhile to mention  that all the four accused were arrested immediately after  recording  of  the  statement  of  the  deceased  and registration  of  the case against them.  It is,  therefore, evident that the material facts stated in the Exhibit PW22/B have   been  corroborated  by   various  witnesses  and  the attending circumstances of the case.  Upon close scrutiny we have  no  hesitation  to  hold that  the  dying  declaration@@                                                  JJJJJJJJJJJ Exhibit  PW22/B  is the truthful version of  the  occurrence@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ which narrates the circumstances leading to the death of its maker.  As the said statement was made immediately after the occurrence,  there is no reason to doubt about its  veracity and  correctness.   The circumstances surrounding the  dying declaration  are clear and convincing which we have found to be  corroborated  in  material   particulars.   The  general criticism of the defence cannot, in any way, be made a basis for  discarding  the aforesaid statement which was later  on rightly  treated  as dying declaration of the deceased.   On proof  of a valid dying declaration it has to be  determined as  to  all or any of the accused are guilty of offence  for which  they have been charged, convicted and sentenced.   It appears  to  us  that role of Ms.Shabnam is not  such  which could be made a basis of her holding a common intention with the  other  accused  persons  in  committing  the  crime  of

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murdering  Islamuddin.  Without declaring as to what was  to be done with the kerosene, her father had asked her to bring it which she did apparently without knowing for what purpose the  kerosene had been obtained by her father.  It cannot be denied  that  kerosene might have been obtained to  put  the deceased  in fear or force him to go away from the house  of his  in-laws  where he was stated to have been  staying  for about  7-8  days  before the date of occurrence.   No  other overt act is attributed to Ms.Shabnam who is the unfortunate widow  of  the  deceased.   Similarly   we  find  that   the prosecution  has not proved its case beyond doubt so far  as Shakil  Ahmad  is  concerned.  He is the co-brother  of  the deceased and is stated to have caught hold of both the hands of  the deceased.  If the deceased was intended to be killed by setting him on fire, it could have been done while he was asleep.   There  was no reason of waking him up which  could have necessitated catching hold of his hands by Shakil Ahmad apparently  to over-power him.  The mere presence of  Shakil Ahmad  would have prompted the deceased to mention his  name in  the  statement but the said appellant cannot be held  to have  been proved to be sharing the alleged common intention of  causing  the death of Islamuddin.  It is true  that  the intention to commit murder could emerge at any time but such intention  has to be gathered from the circumstances of each case.   It  cannot be excluded that Shakil Ahmad might  have accompanied  his in-laws to see that his co-brother does not create  any problem by remaining as an unwanted guest in and around  their  house for 7-8 days.  There is no evidence  on record  to  suggest  that any of the accused  had  indicated their  intention  to  kill the deceased.  We feel  that  the prosecution  has failed to prove its case against appellants Ms.Shabnam  and  Shakil Ahmad beyond all reasonable  doubts. In  our  opinion  these two appellants are entitled  to  the benefit  of  doubt.   So far as Gulam Hussain  and  his  son Roshan  are  concerned, the prosecution has proved its  case beyond all reaosnable doubts that they had shared the common intention  to kill the deceased in furtherance of which  one poured the kerosene oil on deceased’s body and the other lit him on fire.  Under the circumstances Appeal No.782/98 filed by  Shabnam  is  allowed  and  Appeal  No.781/98  is  partly allowed,  so  far  as accused Shakil Ahmad is  concerned  by setting aside the judgment of conviction and sentence passed against  them.  They are acquitted and directed to be set at liberty  immediately  unless  required in some  other  case. There  is  no merit in Appeal No.783/98 filed by Roshan  and Appeal  No.781/98  so  far  as appellant  Gulam  Hussain  is concerned, and the same are dismissed.