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PETITIONER: JASWANT SINGH

       Vs.

RESPONDENT: STATE (DELHI ADMN.)

DATE OF JUDGMENT14/09/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KAILASAM, P.S.

CITATION:  1979 AIR  190            1979 SCR  (1) 777  1978 SCC  (4)  85

ACT:      Evidence-Circumstantial   evidence,    value   of,   in sustaining conviction-Dying  declaration not  recorded by  a Magistrate must be scrutinised closely.

HEADNOTE:      The appellant  stood charged  for trial under s. 302 of the I.P.C.  for having  caused the  death  of  his  wife  by sprinkling kerosene oil and setting her clothes to fire. The Addl. Sessions  Judge relying on the dying declaration which was corroborated  by  the  circumstantial  evidence  of  the narration about  the incident by the deceased to her parents PW-1 and PW-2 just before her death, found him guilty of the offence with  which he was charged and sentenced him to life imprisonment. The  appeal preferred  by the appellant to the High Court  having proved  abortive, the  appellant came  up before this Court by special leave.      Dismissing the appeal the Court, ^      HELD :  (1) The  circumstantial evidence  in  order  to sustain conviction must be complete and must be incapable of explanation on any other hypothesis other than that of guilt of the accused. [781C-D]      (2) The  dying declaration  which is  not recorded by a Magistrate has  to be  scruitinised closely,  but it is well settled that  if the  Court is satisfied on a close scrutiny of the  dying declaration  that it is truthful it is open to the Court  to convict  the accused  on its basis without any independent corroboration. [781D]      Khmushal Rao  v. The  State of  Bombay, [1958] SCR 552; Lallubhai Devchand  Shah &  Ors. v.  The State  of  Gujarat, [1971]  3   SCC  767;   Vithal  Somnath  Kore  v.  State  of Maharashtra, [1978] 1 S.C.C. 622, referred to.      (3) (a) In the instant case there is no direct evidence regarding the  guilt of  the appellant  and the  prosecution case rests  wholly on  the circumstantial  evidence and  the dying declarations  made by  the deceased  before  the  Sub- Inspector Din  Dayal and  Roshan PW-1  and Phool  Vati PW-2. [781B-C]      (b) On  a careful  consideration of  the evidence it is clear  that   the  dying   declaration  Ext.  PW  21/F,  the genuineness of which is verified by Dr. Avtar Singh Gill PW-

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18 is truthful and convincing and it cannot be brushed aside merely  on  the  ground  that  it  was  not  recorded  by  a Magistrate especially  when it was recorded by Sub-Inspector Din Dayal  in the  presence of  the duty  doctor viz.  Avtar Singh Gill  at the time when the deceased was in great agony and the  life in  her was fast ebbing away. The testimony of the parents  of the  deceased viz.  Roshan P.W.  1 and Phool Vati PW-2  also lends  strong  corroboration  to  the  dying declaration.  They   have  categorically   stated  that  the relations  between  the  deceased  and  the  appellant  were strained as  the latter  was ill-treating the former and was carrying on with another woman from Shahdara. 778 The dying  declaration also  receives corroboration from the report of  the Chemical  Examiner and  post mortem report of PW-11 which indicate that the cause of death of the deceased was shock and toxemia due to burns. [781E-H, 782A, E, F]      (4) The  evidence in the instant case inevitably points to  the  conclusion  that  it  was  the  appellant  and  the appellant alone  who intentionally  caused the  death of the deceased and  the plea  sought to  be raised by him that the fire was  accidental is  an after thought and stands refuted not only from the recovery of the bottle containing kerosene oil, burnt match sticks, match box and half burnt clothes of the deceased  but also  from the  fact he  did not come with this plea either to PW-4 or PW-5. [782G-H, 783A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 346 of 1974.      Appeal by  Special Leave  from the  Judgment and  Order dated 23-10-73  of the  Delhi High  Court in Criminal Appeal No. 118 of 1972.      R. L. Kohli, Amicus Curiae for the Appellant.      H. R. Khanna and R. N. Sachthey for the Respondent.      The Judgment of the Court was delivered by      JASWANT SINGH,  J.-This  appeal  by  special  leave  is directed against  the judgment  and order  dated October 23, 1973 of  the High Court of Delhi confirming the judgment and order dated  July 29, 1972 of the Additional Sessions Judge, Delhi convicting  the appellant  under section  302  of  the Indian  Panel   Code  and   sentencing  him   thereunder  to imprisonment for life for causing the death of his wife.      Briefly stated,  the circumstances  giving rise to this appeal are  : Attracted  by the  screams emanating  from the house of the appellant situate in Basti Chain Sukh Das, Kala Mahal, Daryaganj,  Delhi on  the afternoon  of July 6, 1971, the neighbours namely Murari Lal (P.W. 4), Gulab Singh (P.W. 5) and  one Kishan  Lal rushed  to the spot. On reaching the first floor  of the  house, they  found the appellant’s wife named Kamla,  aged 27  years, lying  unconscious outside the living room  in the  courtyard with burns all over her body. Alongwith the  appellant who was present there, they covered Kamla with  a bed-sheet,  put her  on a  cot  and  took  her downstairs in  the street  wherefrom she  was removed  in  a tempo to Irwin Hospital, Delhi. At about 5.20 in the evening on that  day, constable Baldev Singh (P.W. 7) posted on duty at the  Emergency Ward  of the  said Hospital,  rang up  the Police Station,  Jama Masjid,  Delhi, informing  it that the appellant had got his wife, Kamla, admitted in the emergency ward of  the hospital  at about 4.15 or 4.30 P.M. because of some burns sustained by 779

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her at  her house  and requesting that some officer might be sent to  the place  of the  occurrence. On  receipt of  this information, S.I.  Din Dayal  (P.W.  21)  proceeded  to  the hospital accompanied  by constable  Raghubir Singh (P.W. 6). On being informed by the doctor on duty at the hospital that Kamla was  unconscious and as such not in a fit condition to make a  statement, the Sub-Inspector sent constable Raghubir Singh to the scene of occurrence with instructions to keep a watch over  the same,  and himself  remained in the hospital waiting  for   an  appropriate  opportunity  to  record  the statement of Kamla after her revival. He tried several times upto the  midnight to  have the  permission of the doctor on duty to  record the  statement of  Kamla but  each time  the doctor declared  the patient  unfit to  make a statement. At 7.50 A.M.  on the morning of July 7, 1971, the Sub-Inspector again repeated  his  request  to  the  doctor  on  duty  for permission to  record the statement of Kamla but it was only at 10.30 A.M. that Dr. Avtar Singh Gill (P.W. 18) who was on duty at  that time  gave him  the requisite permission which enabled him  to record  the statement  (Exh. P.W.  21/F)  of Kamla in the presence of the said doctor. This statement was to the following effect :-           "My husband sprinkled kerosene oil over me and set      fire and when later on I had sufficiently been burnt he      put a bucket full of water over me. It was about 1 P.M.      and I  had not quarreled with my husband Jaswant Singh.      I had  asked him  as to  why  he  had  come  home  late      whereupon he  got annoyed and beat me. After beating me      he sprinkled  kerosene oil  over me  and set fire to my      clothes. At  the time  of setting fire to my clothes he      had closed the door from inside."      After completing  the necessary  formalities, the  Sub- Inspector  sent  ‘Rooqa’  (Exh.  P.W.  10/A)  together  with Kamla’s aforesaid  statement (Exh.  P.W. 21/F) to his Police Station for  registration of  the case  under section 307 of the Indian  Penal Code and himself left for the scene of the occurrence. Shortly after the departure of the Sub-Inspector the parents  of Kamla  namely Roshan (P.W. 1) and Phool Vati (P.W. 2)  enquired of  Kamla as to how she had sustained the burns on  her body. In reply to their query, Kamla told them that the  appellant did  not come back to the house from his office on the evening of July 5, 1971 and spent the whole of the night  intervening the  5th and  6th of  July,  1971  in Shahdara; that  on returning  to the house on the morning of July 6,  1971, the  appellant awakened  her and asked her to prepare the  meal which  she did  but the appellant threw it away and  beat her; that on her asking the appellant to send her to her 780 parent’s house, the appellant abused her, bolted the door of the room from inside, sprinkled kerosene oil on her clothing and set them on fire. After about an hour of this statement, the condition of Kamla deteriorated and she succumbed to her injuries at  about  12.25  P.M.  Dr.  Bharat  Singh,  Police Surgeon, Delhi  (P.W. 11)  performed the autopsy on the dead body of  Kamla on  July 8,  1971. He found superficial burns all over the body from the skull to the toes which according to him were antemortem and sufficient in the ordinary course of nature  to cause death. The doctor also found almost full grown dead  male foetus  in the womb of the deceased. On the basis of  the observations  made by  him, the  doctor opined that the  cause of  the death of Kamla was shock and toximia due to burns.      On arrival of the scene of occurrence after despatching the  dying  declaration  (Exh.  P.W.  21/F)  to  the  Police

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Station, the  Sub-Inspector prepared  the site plan, got the place photographed  by Head  Constable Inder  Singh (P.W. 3) and seized  a few  articles from  the  living  room  of  the appellant’s  house   including  a   bottle  containing  some kerosene oil,  a match  box, some  burnt match  sticks, some half burnt  clothes of  the deceased  and  an  unserviceable stove without  any kerosene  oil vide Exhibit P.W. 8/A which he sent  to the  Chemical Examiner  for  examination.  After performing the necessary tests, the Chemical Examiner sent a report to  the Superintendent  of Police,  Central District, Delhi inter  alia stating  therein that the liquid contained in the  bottle was  kerosene oil and that traces of kerosene oil were  present on the half burnt clothes of the deceased. On July  8, 1971,  the Sub-Inspector  also got the appellant examined  by  Dr.  Obnesh  Kaur  (P.W.  20)  who  found  the following injuries on his person :-           "(i)  Multiple  blisters  posterior  aspect  lower                1/3rd left upper arm;           (ii) An  irregular superficial  torn out  blisters                unceration  on   the  posterior  aspect  left                forearm upper 1/3rd.            (iii) An  irregular superficial  burns with minor                blisters dorsum  (back side of wrist) of left                wrist.           (iv) Atorn  blister ulceration  on the first joint                of the left index finger dorsum side."      In the opinion of the doctor, injuries (i) to (iv) were simple burns of more than 24 hours’ duration.      On completion  of the  investigation, the appellant was proceeded against  in the  Court of  the Judicial Magistrate 1st Class,  Delhi who  committed him to the Court of Session at Delhi for trial under section 781 302 of the Indian Penal Code. The Additional Sessions Judge, Delhi who  tried the  appellant held  that the appellant was guilty  of  the  offence  with  which  he  was  charged  and sentenced him to imprisonment for life. The appeal preferred by the  appellant to  the High Court having proved abortive, he has  come up in appeal to this Court by special leave, as already stated.      We have  heard counsel for the parties and gone through the record.      The short  question that  arises for  determination  in this case  is  whether  the  prosecution  has  succeeded  in bringing home  the offence  under section  302 of the Indian Penal Code  to the appellant. It is true that in the instant case, there is no direct evidence regarding the guilt of the appellant and  the prosecution  case  rests  wholly  on  the circumstantial evidence  and the  dying declarations made by the deceased  before S.I.  Din Dayal and Roshan (P.W. 1) and Phool Vati (P.W. 2). It is also true that the circumstantial evidence in order to sustain conviction must be complete and must be  incapable of  explanation on  any other  hypothesis than that  of the guilt of the accused. It is also true that the dying  declaration which is not recorded by a Magistrate has to  be scrutinised  closely, but it is well settled that if the  Court is  satisfied on a close scrutiny of the dying declaration that  it is truthful, it is open to the Court to convict the  accused on  its basis  without any  independent corroboration. (See  Khushal Rao  v. The  State  of  Bombay; Lallubhai Devchand  Shah &  Ors. v. The State of Gujarat and Vithal Somnath  Kore v. State of Maharashtra. In the instant case, on  a careful  consideration of  the evidence  on  the record, we  are satisfied  that the dying  declaration (Exh. P.W. 21/F),  the genuineness  of which  is verified  by  Dr.

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Avtar Singh  Gill (P.W.  18), is truthful and convincing and it cannot  be brushed aside merely on the ground that it was not recorded  by a  Magistrate especially  when it  is to be remembered that  it was  recorded by  S.I. Din  Dayal in the presence of  the duty doctor Avtar Singh Gill at a time when the deceased was in great agony and the life in her was fast ebbing away.  It is  well recognised that when the words are few, they are seldom spent in vain. It would also be well at this stage to recall the statement made in cross-examination by Shri  Yashpaul, Link  Judicial Magistrate,  Jama  Masjid, Delhi to  the effect  that when  he reached  the Hospital to record the  statement of the deceased but could not do so as she had  expired before  his arrival, he was informed that a police officer had already recorded 782 her statement.  The testimony of the parents of the deceased namely, Roshan  (P.W. 1)  and Phool Vati (P.W. 2) also lends strong  corroboration   to  Exhibit  P.W.  21/F.  They  have categorically stated that the relations between the deceased and the  appellant were  strained as  the  latter  was  ill- treating the  former and  was carrying on with another woman from Shahdara  who used to visit his (the appellant’s) house every now and then; that the deceased often used to complain to them  about the  misbehavior and  cruel  conduct  of  the appellant towards  her and  used to  send oral  and  written messages  imploring   them  to   take  her   away  from  the matrimonial  house;   that  they   sometimes  spoke  to  the appellant about his alleged misbehavior when he would assure them that he would behave properly in future and that hoping that things  would improve  in due  course, they advised the deceased to  stick to  the matrimonial  house. It is also in evidence that  when on  hearing the screams of the deceased, the neighbours  arrived at  the spot,  they found  her lying unconscious outside  her living room with burns all over her body. From  the  aforesaid  dying  declarations,  it  stands established beyond  doubt that  the appellant  who had  been ill-treating the  deceased and  was carrying on with another woman from  Shahdara got enraged and caused the death of the deceased by  sprinkling kerosene  oil on  her  clothing  and setting them  on fire  after closing  the door of his living room from inside so that succour does not reach her when she raised a  protest about  the appellant’s  absence  from  the house throughout  the previous night. The dying declarations also receive  corroboration from  the report of the Chemical Examiner which  shows that  the traces  of kerosene oil were found on  the half-burnt  clothes of  the deceased recovered from the living room by S.I. Din Dayal vide Exhibit P.W. 8/A and the fact that the inside portion of the door of the room was found  burnt as  also from  the statement  of Dr. Bharat Singh, Police  Surgeon, Delhi (P.W. 11) that on the basis of the appearances  met with  by him on post mortem examination of the  dead body of the deceased, he came to the conclusion that the  cause of  death of  the  deceased  was  shock  and toximia due to burns.      The plea sought to be raised on behalf of the appellant that the  fire was  accidental seems  to be an after thought and is  negatived by  the fact  that no cooking material was found in  the living room where the incident appears to have taken place  as also  by the  fact  that  the  primus  stove recovered and  seized from the living room vide Exhibit P.W. 8/A  was   admittedly  unserviceable.   That  the  appellant committed the ghastly crime is also proved from the recovery of the  bottle containing  kerosene oil, burnt match sticks, match box  and half-burnt  clothes of  the deceased  as also from the  fact that  he did not suggest either to Murari Lal

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(P.W. 4) or to Gulab Singh (P.W. 5) at the stage 783 of cross-examination  that on  their arrival at the scene of occurrence on   hearing the screams on the afternoon of July 6, 1971,  he gave out that the incident was accidental. Thus the evidence inevitably points to the conclusion that it was the appellant  and the  appellant  alone  who  intentionally caused the  death of  the deceased.  Accordingly we  see  no reason to  interfere with  the findings concurrently arrived at by the courts below.      In the result, the appeal fails and is dismissed. S.R.                                       Appeal dismissed. 784