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PETITIONER: STATE DELHI (ADMINISTRATION)

       Vs.

RESPONDENT: LAXMAN KUMAR & ORS.

DATE OF JUDGMENT23/09/1985

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SEN, AMARENDRA NATH (J)

CITATION:  1986 AIR  250            1985 SCR  Supl. (2) 898  1985 SCC  (4) 476        1985 SCALE  (2)701  CITATOR INFO :  R          1988 SC1785  (15)

ACT:      A. Murder  by burning  - No  eye witness to testify the act of  setting fire  to the  deceased  or  to  the  defence version of  deceased saree  catching fire accidently, except the oral  testimony of  witnesses who  ran to  the spot soon after hearing  the cries for help by the deceased, the three statements implicating  the accused  as the  perpetrators of the crime  made by  the deceased  before  admission  in  the hospital, the  conduct of  the  accused  when  the  deceased clothes were aflame, the alleged torture of the deceased for sometime preceding  the occurrence over demands for cash and goods  in   kind  and   other  circumstances   on  record  - Circumstantial evidence  corroborated by  other  evidence  - Appreciation of  evidence taking  judicial notice  of  facts Sections 3, 11, 55 and 114 of the Evidence Act, Indian Penal Code section 302.      B. Dying  declarations, relevance of - They can be used as corroborative evidence and need not be totally rejected - Evidence Act section 32 (1).      C.  Appeal   against  acquittal   and  appeal   against conviction, scope  of and the powers of the Supreme Court to intervene under Article 136 of the Constitution.      D. Sentence  -  Imposition  of  proper  punishment  and passing a  sentence while  interfering in  an appeal against acquittal by  the Supreme Court - Time lag may be one of the factors to be considered.

HEADNOTE:      Shakuntala and Srinivas have four sons Subhash, Laxman, Vinod and  Ram Avtar and two daughters. They ordinarily live at Barot  about 50  miles from  Delhi  alongwith  their  two daughters. Subhash  and his  wife Madhu  (DW5),  are  school teachers at  Delhi and  have two minor children. Sometime in May or  June, 1979  these brothers  came to  live in  ground floor flat  No. 9B  of the Janata flats in Ashok Vihar area. They purchased  the  First  Floor  Flat  No.  9D  previously occupied by Deven Dass and his wife Ishwari 899 Devi (PW4)  in 1980  and on  their request  Deven Dass moved over  to  Flat  No.  28D  in  the  same  area  in  September

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October’80. On February 16, 1980 Laxman Kumar was married to Sudha, the  deceased and  they lived  in one of the rooms in flat No.  9B. Sudha  was in the family way and was expecting to deliver  a child  towards the  end of  the first  week of December, 1980.      A little after 9 p.m. on December 1, 1980, on hearing a lady’s voice  crying "Bachao Bachao" (Save O Save) from flat No. 9B, the neighbours like Jaspal Singh (PW1) Satish Chopra (PW2) and Ishwari Devi (PW4) ran to the flat and Tarsem Jain (PW5) who  was near  about also  came there.  PW1 saw Laxman standing at  the entrance  door and  attempting to  close it while Subhash was standing with his hand on the latch of the door which  opened to  the courtyard. PW1 and others who had collected there  forced their  way inside and saw Sudha in a standing position  but aflame.  They attempted to extinguish the fire first by pulling out the saree from the body of the lady, put  a gunny  bag lying nearby on the burning body and later wrapped  her up  with a blanket brought by PW 2 Satish Chopra. When,  after extinguishing  the fire,  they  brought Sudha  to   the  room  where  Shakuntala  mother-in-law  was standing, Sudha  made a  statement to the effect that it was her  mother-in-law  who  had  set  her  fire  after  pouring kerosene on  her body.  Soon a  taxi  was  brought  and  the respondents accused  took Sudha  for treatment  to the Hindu Rao Hospital.  While being  shifted to  the taxi, Sudha made another statement to the same effect as to the authorship of the crime.  Again, when  on the  way they picked up Gayatri, one of  the sisters  of Sudha  and PW3  and her husband, she repeated the  allegation against her mother-in-law on seeing her sister  PW3 in  the taxi. At the suggestion of PW3 Sudha was taken  to St.  Stephen’s hospital  where Sudha was being looked after  for her  pre-maternity care.  The witnesses on their own, believing that Sudha was being taken to Hindu Rao Hospital, went  there and waited for some time but when they found that  Sudha was not being brought there, they returned to their  residences. However,  soon after  the distress cry for help,  a telephone  message to  the police  Control Room with telephone No. 100, that a lady had been set on fire was conveyed and  on this  First Information  having  been  duly monitored to  the mobile  police  van  around  the  area  in question, PW  17  was  deputed  to  look  into  the  matter. Learning that  Sudha was  shifted to  the  hospital,  PW  17 reached the  hospital straightway  for investigation. At the hospital a  written declaration  is said  to have  been made which was proved and relied on by the defence. Sudha died in the early hours of December 2, 1980. 900      After due investigation the respondents were prosecuted on a charge of murder. There is no eye witness to testify to the act  of setting  fire to  Sudha which is the prosecution case, or  to the  factum that of Sudha’s saree catching fire accidentally as  alleged by  the defence.  At the trial, the prosecution has  sought to  rely upon  the oral testimony of witnesses who  ran to  the spot soon after he ring the cries of deceased, the three statements made by her to the various witnesses   implicating   the   accused   persons   as   the perpetrators of  the  crime,  the  conduct  of  the  accused persons as  deposed to  by the  witnesses when  the deceased clothes were aflame, the alleged torture of the deceased for some time  preceding the occurrence over demand for cash and goods in  kind, and  other circumstances available on record and examined as many as 21 witnesses.      According to  the defence  version the  deceased, while trying to lit the kerosine stove for heating up milk for one of the  children of  Subhash who  was feeling hungry had her

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saree lit  up by  the stove  fire which led to the incident; that Laxman  her husband  was away as he had accompanied the deceased sister  up to  the  bus  stand,  that  Subhash  and Shakuntala did  take reasonable care to put out the fire. To prove this  defence they  examined PW1,  the doctor  at  the hospital, DW2 (same as PW 18) Record Keeper of the hospital, DW 3  a neighbour,  DW4 the  taxi driver  and  DW5  wife  of Subhash and also relied on certain documents.      The  trial  Judge  accepted  the  prosecution  version, namely;  (i)   the  authorship   of  the   crime;  (ii)  the relationship of  the deceased with Laxman and members of his family having become strained on account of demands for more dowry and  therefore their  decision to  do  away  with  her before the  child was  born; and (iii) the factum of failure on the part of the accused persons to take appropriate steps to save  the deceased  while the  fire was  put out  by  the neighbours PWs  1, 2,  4 and  5. Accepting  the charges  and convicting the  respondents of  murder, he  was of  the view that the  appropriate punishment  to be  meted was death. He accordingly sentenced  all the  respondents to  death and as required by  law, referred  the matter  to the High Court of Delhi  for   confirmation  of   the  death   sentence.   The respondents challenged  their conviction  by  preferring  an appeal.      The reference and the appeal were taken up together for hearing by  the High Court. The High Court differed from the trial Judge  on almost  every aspect of the testimony of the prosecution witnesses, excepting the presence of PWs 1, 2, & 5 and their role 901 in extinguishing the fire, accepted the defence version, and discharged  the   reference  and  allowed  the  appeal.  The respondents were,  therefore,  acquitted.  Hence  the  State appeal No.  93 of  1984 and  the Indian  Federation of Woman Lawyers appeal No. 94 of 1984.      Giving the  benefit of doubt to the accused Subhash and when maintaining  the conviction  of Shakuntala & Laxman for the offence  of murder  under section 302 I.P.C. recorded by the Sessions  Judge, allowing the appeal in part by altering the sentence  of death  into one  of life  imprisonment, the Court, ^      HELD: 1.1  The scope of an appeal against acquittal and the scope  of the  Supreme Court’s jurisdiction to interfere in Such  a matter  are well settled. There is not difference between an  appeal against  conviction and an appeal against acquittal except  that when  dealing with  an appeal against acquittal the  Court keeps  in view  the position  that  the presumption of  innocence in  favour of the accused has been fortified by  acquittal and  if the view adopted by the High Court in  a reasonable  one and the conclusion reached by it had its grounds well set on the materials on record. [929 A- D]      1.2 Once  evidence has  been read and the Supreme Court has proceeded to review the entire material, there is indeed not limitation  in law in exercise of the jurisdiction under Article 136  of the  Constitution for the matter of making a just decision. [929 D-E]      1.3 In  the instant  case, on the evidence it is clear: (i) that  the relationship  of the deceased with the members of the husbands’ family had become strained and the had been subjected to  physical as  well as  mental torture  for some time before  the incident;  The  physical  torture  was  the outcome of indifference to her health and the mental torture was on  account of  demand of  dowry; (ii) that the deceased

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had not  lighted the  kerosene stove  that evening  and  her wearing apparel  had not caught fire accidently but kerosene had been  sprinkled on  her clothes and she had been brought into the open space where fire was lit to her clothes; (iii) that he  deceased died  not as  an outcome  of an accidental fire but  on account  of a  designed move on the part of the members of  the family  of the accused persons to put an end to her  life; and (iv) that the husband and mother-in-law or the deceased are responsible for the killing of the deceased by setting  her on  fire and therefore committed the Offence of murder  and are  liable to  be convicted  for the offence punishable under  section 302  I.P.C., while the brother-in- law Subhash is 902 entitled to  the benefit  of doubt,  his case  being on  the border line. [924 A, H, 925 A, 928 A-B, G-H, 929 A-B, 930 B- D]      Barendra Kumar  Ghosh v.  The King  Emperor, 52 I.A. 40 referred to.      2.1 The  cause of  any person  being found  aflame with fire could  always be  either  of  the  three  alternatives, namely, (a)  suicide/self immolation;  (b) accidental  fire; and (c) "being put on fire by someone". In the instant case: (i) the  deceased having  been burnt is not in dispute; (ii) the plea  of suicide  has not  been advanced  either by  the prosecution or  by the  defence. Suicide  as the  reason  of death has  rightly not  been pressed into service in as much the deceased,  in spite  of  the  fact  that  she  had  been suffering physically  without any assistance at the advanced stage of  her pregnancy,  was getting  prepared to  play the role of  mother; (iii)  the defence  plea of accidental fire has to  be rejected  by taking  judicial notice of the facts (a) the kerosene stove was in the open space (b) there was a gas stove in the kitchen and the same was in order but there was no  evidence why the gas stove was not used (c) around 9 p.m. of  December it  would be  unbearably cold  outside the house in  Delhi. To  work  the  kerosene  stove  would  take sometime and  if milk  for the  crying child was immediately necessary, the  kerosene  stove  would  not  be  the  proper heating medium.  On the other hand, the gas stove would have served the  purpose better. Not much of gas was likely to be consumed for  heating the  milk, nor even for heating up the food for  brother-in-law Subhash;  (d) the  deceased did not have any  warm clothings  on her person and had only a nylon saree. Being  pregnant lady  at an  advanced stage  she  was expected to  keep properly  robed to  avert getting ill from exposure to  cold, and  therefore, it is not likely that she would have ventured going out to operate the kerosene stove; (e) the  deceased being  in an  advance stage  of  pregnancy would have  found it difficult to squat on the floor itself; and (f)  it would  be natural human conduct for the deceased to have  gone to the gas stove in preference to the kerosene stove.  Once  the  explanation  and  the  defence  story  of accidental fire  has been  discarded and there being no plea of suicide,  the prosecution  story that fire was set to the saree of  the deceased  is the  only other  way in which she must have been burnt. [909 B,E-F, 912 E,G-H, 913 A-D]      3. A  dying  declaration  envoys  almost  a  sacrosanct status as  a piece  of evidence  as it comes from mouth of a person who  is about  to die and at that stage of life he is not likely to make a 903 false statement.  Ordinarily a  document as  valuable  as  a dying declaration  is supposed  to be  fool proof  and is to incorporate the particulars which it is supposed to contain.

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Conviction  cannot   be   based   purely   on   oral   dying declarations, despite  earlier cases  of  conviction  solely based thereon.  However, oral  dying declarations  cannot be totally rejected  and the  name can be used as corroborative material. In  the instant  case, the  alleged written  dying declarations cannot  be accepted  because the explanation of PW 17, the police officer who recorded the dying declaration himself contrary  to the Delhi Police rules as to why he was not looking  for a Magistrate or a near relation but getting lt  endorsed   by  the  doctor  as  "attested  the  recorded statement and  without indicating  the time of the statement and without  the  signature  of  the  deceased  who  was  an educated person is unconvincing and not reliable: Equally no reliance can  be made  on the  oral statements  made by  the deceased until  corroborated with  other evidence. [913 F-G, 914 A,D,G-H, 915 G-H, 916 A-B]      Kushal Rao  v. State  of Bombay,  A.I.R. 1958  S.C. 22; Dalip Singh & Ors. v. State of Punjab A.I.R. 1979 S.C. 1173; Pedda Narayna  & Ors.  v. State  of Andhra Pradesh, [1975] 4 S.C.C. 153; Sat Paul v. Delhi administration 11976] 1 S.C.R. 727 referred to.      4. In  a suitable case of bride burning, death sentence may not  be improper. However, in the instant case the Trial Judge had  thought it  proper to  impose the  punishment  of death but  the High  Court acquitted all the accused. In the fact situation  following the  acquittal in the hands of-the High  Court  and  the  time  lag  of  two  years  since  the respondents were  acquitted must be taken into consideration while imposing  a proper punishment. In the instant case the Court awarded  sentence of  imprisonment for  life  for  the accused. [931 A-C] OBSERVATION      (It is  the obligation  of every  Court to find out the truth and act according to law once the truth is discovered. In that search for truth obviously the Court has to function within the  bounds set by law and act on the evidence placed before it.  What happens  outside the  Court room  when  the Court is  busy in  its process  of  adjudication  is  indeed irrelevant and  unless a  proper cushion is provided to keep the proceedings  within the  court room dissociated from the heat generated  outside the  court room  either through  the news media  or through flutter in the public mind, the cause of justice is bound to suffer. Mankind has shifted from the 904 state of  nature towards  a civilized  society and  it is no longer the  physical power of a litigating individual or the might of the ruler nor even the opinion of the majority that takes away  the liberty  of a  citizen by convicting him and making him  suffer a  sentence  of  imprisonment.  Award  of punishment following  conviction at  a  trial  in  a  system wedded to rule of law is the outcome of cool deliberation in the court  room after  adequate hearing  to afforded  to the parties, accusations  are brought  against the  accused, the prosecutor is  given an opportunity of supporting the charge and the  accused is  equally given an opportunity of meeting the accusations  by establishing  his innocence.  It is  the outcome of  cool deliberations  and  the  screening  of  the martial by  the informed  mint of  the Judge  that leads  to determination of  the lis.  If the  cushion is  lost ant the Court room  is allowed  to vibrate  with the  heat generated outside it,  the adjudicatory process suffers and the search for truth is stifled.)

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 93 and 94 of 1984.      From the  Judgment and  Order dated  3.11.1983  of  the Delhi High  Court in  Cr1. Appeal No. 131 of 1982 and Murder Reference No. 1 of 1983.      M.S. Gujral,  Girish Chandra,  R.N. Poddar  and Mansoor Ali for the Appellant in Crl. A. No. 93 of 1984.      R.K. Garg,  Mrs. Urmila  Sirur, M.V.  Katarke, Ms. Rani Jethmalani, Mrs.  Urmila Kapoor and Mrs. C.M. Chopra for the Appellants in Crl. A. No. 94 of 1984.      Rajendra Singh, M.N. Shroff and Dilbagrai Sheti for the Respondents in both the appeals.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. These  two appeals  are by special leave.  The  Delhi  Administration  has  preferred  Criminal Appeal No.  93/84 and the Indian Federation of Women Lawyers and others  have preferred  the other  Criminal Appeal. Both are directed  against the  same judgment  of the  Delhi High Court acquitting  the respondents  of a  charge of murder of one Sudha  by setting  fire to  her.  The  Trial  court  had accepted the  prosecution case  and considering it to be one of the  atrocious dowry  deaths, had  sentenced each  of the respondents to  death. The reference made by the trial Judge was discharged by the High Court and the appeal preferred by the respondents was allowed. 905      The three  respondents are  Shakuntala, the  mother and two  of   her  sons,   Subhash  Chandra  and  Laxman  Kumar. Shankuntala is the wife of one Sriniwas. They have four sons Subhash, Laxman, Vinod and Ram Avtar, and two daughters. The parents ordinarily  Live at  Barot about  50 miles away from Delhi along  with the  two daughters.  Subhash and  his wife Madhu, PW.5,  are school  teachers at  Delhi. They  have two minor children. Laxman Kumar was married to Sudha over whose death the  present case has arisen. Vinod and Ram Avtar were living with  the two  elder brothers  at Delhi. Some time in May or June 1979 these brothers came to live in Flat No. 9-B of the Janata Flats in Ashok Vihar area. This flat is in the ground floor.  Flat No.9-D  which is the corresponding first floor flat  was previously  in occupation  of tenant - Deven Dass -  whose wife  Ishwari Devi  has been examined as PW.4. Some time  in 1980, this flat was purchased by the family of the accused  persons and on their request the tenant shifted to Flat  No. 28-D  in the  same area about two months before the incident.      On February  16, 1980,  Laxman  Kumar  was  married  to Sudha. After  the marriage Subhash and members of his family (DW.5 and  the two  children) started  living in  one of the rooms in  the ground  floor while  Laxman and Sudha lived in the other in the same flat. The upper rooms were occupied by the two  other brothers, Vinod and Ram Avtar. As it appears, Shakuntala, the  mother, was  ordinarily  staying  with  her husband at  Barot but  now and  then came to Delhi and lived the sons.      Sudha’s two  sisters, Gayatri, P.W.3 and Snehlata, P.W. 6, were  married to Pawan Kumar Goel and Damodar Dass Gupta, respectively. Pawan Kumar was living in Premnagar area while Damodar Dass lived in Hari Nagar, both parts of Delhi. Sudha was in  the family  way and was expecting to deliver a child towards the end of the first week of December 1980.      In Flat  No. 9-B  there was a small kitchen where a gas operated stove  along with  a cylinder  was  kept.  A  small portion of  the open  space in  the courtyard by the side of the kitchen  had been  covered with  asbestos sheets.  There

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also cooking  used to  be done  with the  held of a kerosene stove as  the kitchen  was small.  Certain  other  household materials, including  smock of  kerosene in  tins were  kept there.      A little  after 9 P.M. On December 1, 1980, a shout was heard from  Flat No.  9-B. lt  was  a  lady’s  voice  crying ’Bachao Bachao’ (save O save). On hearing the cry neighbours like Jaspal 906 Singh, P.W. 1, Satish Chopra, P.W.2 Ishwari Devi, P.W. 4 ran to the  flat and  P.W. 5 Tarsem Jain who was near about also came there.  P.W. 1 saw Laxman standing at the entrance door and was  attempting to  close it  while Subhash was standing with his  hand on  the latch of the door which opened to the courtyard. He  and others who had collected forced their way inside and  saw Sudha in a standing position but aflame. The neighbours attempted to extinguish the fire first by pulling out the  saree from  the body  of the  lady, put a gunny bag lying nearby  on the  burning body  and when  Satish  Chopra brought a  blanket, the  same was  wrapped around  her body. After extinguishing  the fire they brought Sudha to the room where Shakuntala  was standing. According to the prosecution case, Sudha,  on seeing  the mother-in-law, made a statement to the  effect that it was she who had set her on fire after pouring kerosene  on her  body. Soon  a taxi was brought and the three  members of  the family  (respondents  here)  took Sudha for  treatment to the hospital. On the way they picked up P.W.3  and her husband. Initially the accused persons had decided to  take Sudha  to Hindu  Rao Hospital but on P.W. 3 suggesting that Sudha may be taken to St. Stephen’s Hospital where she was being looked after for her pre-maternity care, she was ultimately taken there.      Sudha appears  to have reached the hospital around 9.45 P.M. The  witnesses on  their own  believing that  Sudha was being taken to Hindu Rao Hospital, went there and waited for some time  but when  they found  that the lady was not being brought there, they returned to their residences. Soon after he cry for help had been heard, a telephone message had been conveyed to the Police control room having Telephone No. 100 that a  lady had  been set  on fire and this information had been duly monitored to the mobile police van around the area in question. P.W. 17 was deputed to look into the matter. By the time he reached the spot, Sudha had already been shifted to the  hospital. Therefore,  P.W. 17  went straight  to the hospital from there.      It is  further case  of the prosecution that Sudha made statements soon  after the  witnesses gathered near the flat itself pointing to the mother-in-law as the killer She again made statement while she was being shifted to the taxi. When P.W.3 and  her husband  came into the taxi on the way to the Hospital, she  is alleged  to have  repeated  the  statement about the incident. At the hospital a written declaration is said to  have been  made on  which the  prosecution does not rely but which the defence has proved.      Sudha died  in the  early hours  of December  2,  1980. After due investigation the respondents were prosecuted on a charge of 907 murder. There  is no  eye witness  to testify  to the act of setting fire  to Sudha  which is the prosecution case, or to the fact  of Sudha’s  saree catching  fire  accidentally  as alleged by  the defence. Prosecution has sought to rely upon the oral  testimony of  witnesses who  ran to  the spot soon after hearing  the cries  of Sudha,  the statements  made by Sudha to  the  various  witnesses  implicating  the  accused

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persons as the perpetrators of the crime, the conduct of the accused persons  as deposed to by the witnesses when Sudha’s clothes were  aflame, the  alleged torture of Sudha for some time preceding  the occurrence  over demands  for  cash  and goods in kind, and other circumstances available on record.      At the  trial the  prosecution examined 21 witnesses of whom P.Ws.  1, 2, 4 and 5 are neighbours who spoke about the incident from  the stage  they saw  after being attracted by the cries  raised by Sudha. P.Ws. 3 and 6 are the sisters of Sudha. P.W. 7 is her mother and PW 8 is the elder brother of Sudha and  both  of  them  lived  in  Calcutta.  These  four witnesses have been examined to speak about the relationship that existed  between Sudha  on the one side and the husband and other  members of  his family  on the other. PW.9 is the doctor who  conducted the  post-mortem examination. PWs. 10, 11 and 14 are three constables who had a role to play in the process of  investigation. PW.  12 was  the Duty  Officer at Ashok Vihar  Police Station  at the  relevant time.  He  was called to  prove the  papers where  the information from the hospital about  Sudha’s death  had been  recorded. PW. 13 is the receptionist at St. Stephen’s Hospital who had passed on the message of Sudha’s death to the duty Officer. PW. 15 had received the message given at 9.15 P.M. On December 1, 1980, about a  lady being  burnt by  fire. PW. 16 is a Draughtsman attached to  the Crime  Branch of  the Delhi  Police who had measured the  different places  in and around the flat where the occurrence  took place.  PW.  17  is  the  Investigating Officer. PW.  18 is a doctor who had examined PW. 1 for burn injuries on  his person.  PW 19 (wrongly shown in the paper- book as PW 18) was attached to the St. Stephen’s Hospital as a Record  Keeper and  he produced  certain documents. PW. 20 (wrongly shown as PW.19) was also a Duty Officer attached to the  Ashok   Vihar  Police  Station  who  on  receiving  the telephone message  in the  night of  December 1,  1980,  had monitored it  to the mobile van. PW 21 (wrongly shown as PW. 20) was a formal witness from the Police Malkhana.      According to the defence version, Sudha while trying to lit the  kerosene stove  for heating  up milk for one of the children of Subhash who was feeling hungry had her saree lit up by the stove 908 fire which  led to  the incident.  Laxman was away as he had accompanied Sudha’s  sister up to the bus stand. Subhash and Shakuntala took  reasonable care  to put  off the  fire.  To prove this  defence, they have examined five witnesses being DW.1, the  doctor at  the hospital,  DW.2  (same  person  as PW.18), Record  Keeper of  the Hospital,  DW.3, a neighbour, DW. 4, the driver of the taxi and DW.5, the wife of Subhash. They have also relied upon certain  documents.      The  learned   trial  Judge  accepted  the  prosecution version. He believed that Sudha was about to deliver a child on account  of the  advanced stage  of pregnancy  had become somewhat immobile.  Kerosene had  been sprinkled on her body with a  view to  killing her and fire was set to her clothes at the  time alleged.  The relationship of Sudha with Laxman and members  of his family had become strained on account of demands for  more dowry  and the  accused had  decided to do away with  her before  the child  was born.  He accepted the oral  evidence   on  the  side  of  the  prosecution  as  to authorship of  the crime.  He also  accepted the prosecution allegation  that   the  accused   person  that   not   taken appropriate steps  and it  is the neighbours who put out the fire. Accepting the charge and convicting the respondents of murder, he  was of  the view that the appropriate punishment to be  meted was  death. He  accordingly sentenced  all  the

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respondents to  death and  as required  by law, referred the matter to  the High  Court of  Delhi for confirmation of the death sentence.  The respondents challenged their conviction by preferring  an appeal.  The reference and the appeal were taken up together for hearing by the High Court and the High Court discharged  the reference  and allowed the appeal. The respondents thus came to be acquitted.      The High  Court differed from the trial Judge on almost every aspect  excepting the  presence of  PWs.1, 2 and 5 had their role  in extinguishing the fire. This is what the High Court stated :           "We have  no hesitation  in agreeing with Mr. Teja           Singh that  PWs. 1,  2 and  5 had  rushed  to  the           rescue of  the deceased  on hearing  her cries  of           ’Bachao  Bachao’.  They  had  actively  helped  in           extinguishing the  fire of  the deceased,  brought           her out,  and also  probably one of them brought a           taxi in which Sudha was taken to the hospital. PW.           2 states  that he  had gone to the house of Sardar           Ajit Singh  and from  there telephone  the  police           control room  regarding the occurrence. We have no           reason to  doubt  the  correctness  of  the  above           statement of PW.2" 909 The High  Court made  clean division  of its  judgment  into separate  heads  like  :  (1)  Prosecution  version  of  the occurrence; (2)  Motive; (3) Dying declarations; (4) Medical evidence; (5) Conduct of the accused; (6) Investigation; and (7) Conclusion.  While dealing  with the prosecution version of the  occurrence, the  High  Court  extracted  substantial portions of the statements given under section 313, Cr. P.C. by each of the accused persons.      That Sudha  was burnt  at the  relevant time  has never been in  dispute. There  could be three alternatives for her being burnt  (1) suicide; (2) accidental fire; and (3) being put on  fire. The  plea of  suicide has  not  been  advanced either by the prosecution or by the defence. It is true that Sudha had  been suffering physically as found by the learned trial Judge and accepted by the High Court on account of the fact that there was no one to assist her in the work at home and the  entire load  came up on her. Yet, she had withstood all that  and within  a week  or so  she  was  about  to  be relieved of  the heavy burden she carried on delivery of the child. Nature,  it is  said, processes  the instincts of the mother to  be in such a way that by the time she is about to deliver The  child, a  total transformation comes about. The record does  not have any indication that Sudha ever thought of putting an end to her life. On the other hand, we are led to hold  that like  every expectant  mother she  was looking forward to  see the  fruit  of  the  long  waiting  and  the suffering she  had undergone  for begetting the child. There is material  that she  was preparing  warm clothings for the baby to  arrive and  getting prepared  to play  the role  of mother. Suicide  as the  reason  of  death  has,  therefore, rightly not  been pressed into service leaving the two other alternatives of  accidental fire  as pleaded  by the defence and the intentional killing by burning her as pleaded by the prosecution, for consideration.      Laxman Kumar in his statement under 8. 313 Cr. P.C. had suggested that  Jaspal Singh, PW. 1 and Satish Chopra, PW. 2 had formed  a group  against him  and his  brothers. Subhash has, however,  not stated  in that strain. DW. 5 spoke about dispute  with  Jaspal  over  unauthorised  construction  and blockage of  the water  passage. PW.  1 Jaspal Singh has not been  cross   examined  in  this  regard  excepting  a  bare

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suggestion at  one place.  Jaspal  Singh,  as  his  evidence shows, is  on a  job which keeps him mostly out of Delhi and he did  not appear  to be  involved in  any politics  of the locality.  The   animosity  of   the  principal  prosecution witnesses which  the accused  persons wanted to suggest has, therefore, not been established in this case. 910      We have  already indicated that both the trial Judge as also the  High Court  have accepted  the fact that PWs. 1, 2 and 5 rushed to the spot on hearing Sudha’s cry for help. If relationship between these witnesses on one side and members of the  family of the accused on the other had been strained as alleged,  the spontaneous  response which came from these witnesses would not have been found. We cannot lose sight of the  fact   that  one   of  the  curses  of  modern  living, particularly in highly urbanised areas is to have a life cut off  from   the  community  so  as  even  not  to  know  the neighbours. Indifference  to what  happens around is the way of life. That being the ordinary behaviour of persons living in the  city, if  added to  it there  was  animosity,  these witnesses would  certainly not  have behaved  in the  manner they have.  We, therefore,  are not  impressed by the doubts expressed by  the High  Court about  the veracity  of  their evidence. these  witnesses not  only rushed  to the spot but took a  leading part  in putting  out the  fire from Sudha’s person and  ensured her  despatch for  medical assistance at the shortest  interval. As  expected of  a  good  neighbour, information was  given to  the police,  a blanket  was  made available,  a   taxi  was  called  and  human  sympathy  and assistance to  the extent  possible  was  extended.  If  the accusation of  animosity and  ill-feeling is  not  accepted, these witnesses must be taken to be not only competent being present at  the spot, but also acceptable in respect of what they say  as being  truthful witnesses.  The trial Judge had appreciated  their   evidence  that   way  and   we  see  no justification for the High Court to have differed from that. It is  pertinent to  notice that PW.1 suffered a burn injury and this  is supported  by medical  evidence. Even  the High Court accepted  the position  that this  injury was suffered when PW  1 was  attempting to  put out  the fire  on Sudha’s person.      PW. 4  is a lady who had been living in the upper floor Flat No.  9-D until  about October 1980. Sudha must have had occasion to  know her  very intimately  because  they  lived together for  about eight  months. Sudha  came from an urban background being  a resident of Calcutta. In her new setting she must  have looked for some company. DW.5, the only other lady in  the family,  worked in  a School  and possibly  her relationship with  Sudha was  not very  cordial though  they lived together.  In these  circumstances it  is only natural that Sudha  would have  turned to  PW. 4  Ishwari Devi,  for being in  friendly terms.  The evidence  of PW.4  shows that they were  quite close  to each other and Sudha-used to open her mind  to her every now and then. It is her evidence that even after  she had  shifted to her new apartment, they used to meet almost every- 911 day.  A  suggestion  was  made  that  PW.  4  had  developed animosity against the accused persons as she and her husband had been  forced to vacate the tenanted premises of Flat No. 9-D. There  is no  evidence of any pressure and consequently no ill-feeling. Knowing the difficulties which the family of the accused faced on account of want of space, PW. 4 and her husband appear  to have  volunteered to  shift  to  the  new residence. It  was also  suggested to this witness that they

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were owing Rs. 185 to the grocery shop of the accused Laxman and since  the money was demanded, strained relationship had developed. The  witness has  clearly stated  that the amount had been  paid when  Laxman had  demanded the  money about a month after the death of Sudha. A current credit of the type from the  grocery shop could be no reason tor developing bad relationship.  In   the  circumstances   we   do   not   see justification to  hold that  PW. 4 had strained relationship with the accused persons.      Mr. Rajendra Singh, Senior Advocate for the respondents with his usual persuasiveness contended that the evidence of these witnesses  should be  rejected as has been done by the High Court as each one of them has improved his version by a lot of embellishment. Statements under s. 161 of the Code of Criminal Procedure  regarding the  oral  lying  declarations made by  these witnesses  were to  the effect that Sudha had stated that it was the mother-in-law alone who had sprinkled kerosene on  the clothes  and set  fire to  her clothes. But later these  witnesses implicated  the husband and his elder brother as  being involved  in the  crime. He also contended that the  documents contemporaneously prepared by the police in normal  discharge of their duties where the cause of fire has been  mentioned should be preferred to the oral evidence particularly when  the witnesses  have substantially changed their version  and  in  the  backdrop  of  a  written  dying declaration attested  by the  attending doctor. According to Mr. Singh,  there is  evidence that there was a meeting over the issue  of Sudha’s  death held  in the morning of the 2nd December, 1980,  in which  the local  residents participated and the  conduct of  the witnesses  before  and  after  this meeting  sharply  differed.  He  suggested  that  the  stand adopted by  the prosecution  in regard  to Sudha’s death was obviously evolved  at this  meeting and  one  uniform  stand taken at  an earlier  stage was  uniformly changed after the meeting. He pleaded that the oral evidence regarding Sudha’s declarations should be discarded. He also supported the High Court’s finding  that the relationship between Sudha and her paternal relations  on one side and Laxman and his relations on the other was very cordial and, therefore, there could be no 912 motive for killing the mother-to-be. According to Mr. Singh, once  the   neighbours  knew,   on  the   basis  of  Sudha’s declarations, that  she was  set on fire by her husband, his brother and  mother, they  would not have permitted Sudha to be taken  to the hospital in the taxi in their company only. We shall  deal with  these aspects and his other submissions in due course and at the relevant places.      The cumulative  effect of  the evidence  of these  four witnesses goes  to establish  that around 9 P.M. on December 1, 1980,  Sudha had  shouted tor help saying that she was on fire. On  hearing this  cry, PW.  2  telephoned  the  Police Control Room  from a  neighbour’s telephone  and these  four witnesses rushed  to the  spot. On approaching the flat they found Laxman  at the  main entrance  door trying to close it and Subhash  at the connecting door between the room and the open space  partially covered  with  asbestos  sheets.  They found Sudha  in a  standing posture  aflame. Shakuntala  was noticed standing  in another  room. They  forced  themselves into the  room, came up to Sudha, started removing the saree on her  body which  had caught  fire and finding a gunny bag lying on  the floor, used the same for putting off the fire. PW. 2  managed to  get a blanket in which they later wrapped Sudha and helped her in being removed to the hospital. There is clear  evidence that  on their own they went to the Hindu

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Rao Hospital  thinking that Sudha would be brought there for treatment.      The evidence  also indicates that there was a gas stove in the  kitchen and the same was in order. It is the defence version that  PW. 5  had gone to Barot on November 30, 1980, and respondent  Shakuntala had  come the  previous day along with Subhash.  When Subhash  returned to  the  house  a  few minutes before  9 at  night, Sudha  wanted to  warn  up  the cooked food  for being served to him. At that point of time, the child  of Subhash  (the other  had gone with the mother) cried for  milk, Shakuntala  wanted the milk to be heated up for the child and asked Sudha to give the milk first for the crying child and then attend to Subhash. It is at that point of time  that Sudha  wanted to light the kerosene stove. The kerosene stove was in the open space. Judicial notice can be taken of the fact that around 9 P.M. of December it would be unbearably cold  outside the  house in  Delhi. To  work  the kerosine stove  would take  sometime and  if  milk  for  the crying child  was immediately  necessary, the kerosene stove would not  be the  proper heating medium. On the other hand, the gas stove would have served the purpose better. Not much of gas  was likely  to be consumed for heating the milk, nor even for  heating up  the food  for Subhash. We have to take note of the position that Sudha did 913 not have  any warm  clothings  on  her  person  and  as  the evidence shows, she had only a nylon saree. Being a pregnant lady at  an advance  stage she was expected to keep properly robed to  avert getting  ill from  exposure to  cold. It is, therefore, not likely that she would have ventured going out to operate  the kerosene  stove. There  is  another  feature which also  must be  taken note of. She being in an advanced stage of  pregnancy would  have found  it very  difficult to squat on  the floor  for operating  the kerosene stove which was on  the floor itself. It is the defence version that the gunny bag  was being used for Sitting purposes for operating the stove.  That is a conjecture accepted by the High Court. There is  no evidence  worth the name to explain why the gas stove was  not used.  In the absence of an explanation as to why the  gas stove  was not  being operated for this purpose and in  the setting  of events  which we  have indicated  it would be natural human conduct for Sudha to have gone to the gas stove  in preference  to the  kerosene stove.  In  these circumstances we  agree with counsel for the appellants that the defence  version explaining  the manner in which Sudha’s saree caught  fire is  not acceptable.  Once the explanation advanced by  the defence that Sudha’s saree caught fire from the kerosene  stove is  discarded, on  the premises that the same had  not been  lighted, the prosecution story that fire was set to her saree is the only other way in which she must have been burnt.      Before we refer to the oral evidence, it is appropriate to deal  with the  dying  declarations  are  both  oral  and written. The  oral dying  declaration are  said to have been made first  inside the  residence; thereafter when Sudha saw PW. 4  (referring to her as Bobby’s mother) and while coming by the taxi to the hospital after PW. 3 and her husband were picked up.  The High Court has indicated improvements in the evidence with  reference to what had been stated by Sudha on these  occasions.   A  dying  declaration  enjoys  almost  a sacrosanct status  as a  piece of  evidence as it comes from mouth of  a person  who is about to die and at that stage of life he  is not  likely  to  make  a  false  statement.  The evidence has  been placed  at length  before us  during  the hearing by  counsel for  both the parties. We have also read

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the evidence again with a view to forming our own assessment of it.  The fact  that Sudha  implicated Shakuntala  as  the person who  poured kerosene  on her  and  lit  fire  to  the clothes is  more or  less spoken  by every witness. Even Mr. Singh for  the respondents in his submission has agreed that it is  so. There  is also  evidence that  she had  indicated Laxman to  have actually  set fire  though at a later stage. The role assigned to Subhash was not very specific. 914      The other  part of the dying declaration is the written one in  the handwriting  of PW.  17 and  said to  have  been attested by  DW. 1.  This is claimed to have been written at the hospital  a couple  of hours  after Sudha had been taken there. PW. 17 approached the doctor for requisite permission and DW.1  after examining  the condition  of Sudha and after being satisfied  that she  was in  a fit condition to make a declaration, permitted  the same  to  be  recorded.  It  has admittedly been written by PW. 17. It has not been signed by Sudha though she was literate enough. As the evidence shows, there is  a partial impression of a finger tip said to be of Sudha on  the document.  This is  said to have been put with the assistance of the Investigating Officer who recorded the statement and DW. 1. When the doctor was available there was no Justification  for  the  police  officer  to  record  the statement. PW.17  was specifically  asked by the prosecution as to why the statement was not got recorded by a Magistrate or a doctor. He gave the following answer :           "So far  as the Magistrate is concerned, I thought           that during  the night the Magistrate might not be           easily available  and in the mean time the injured           might  die.   So  far   as  doctor  is  concerned,           generally they refuse to record a statement and in           this  case   he  had  so  refused  to  record  the           statement himself.  He had,  however, asked  me to           write the same under his permission." The doctor, DW. 1 on the other hand stated :           "I did  not suggest  or impress  upon  the  police           officer that  he should  called  a  Magistrate  to           record the  statement or  her own  relation to  be           present at  the  time  of  her  statement,  nor  I           volunteered to  record the  statement  myself.  It           would be  incorrect that  the police  officer  had           requested me  to record the statement of Sudha and           that I had refused to do so." The explanation  of the  police officer  is, therefore,  not accepted by  the doctor.  The justification  advanced by the police officer  for not  looking for  a Magistrate  does not appear to be easily convincing. At any rate, when the doctor was available,  he should  have been requested to record the dying declaration  and PW.  17 should not have taken the job on himself.  We are  prepared to  prefer the evidence of the doctor  to  the  police  officer  in  this  regard  and  we, therefore, hold that the police officer did not 915 request  the   doctor  to   record  the  statement  and  had volunteered to do so all by himself.      Though DW.1  has stated  that he  was present  when the statement was  made, a  lot of  argument has  been  advanced before the  trial Court  as also  the High  Court  and  even before us  about the  manner  of  attestation  made  by  the doctor. DW.1  has endorsed: Attested the recorded statement. If the  doctor was  present and  he had  heard the statement being made  by Sudha  he would have ordinarily endorsed that the statement  had been  made to  his hearing  and has  been recorded  in  his  presence.  The  endorsement  as  made  is

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indicative  of  the  position  that  a  statement  had  been recorded and  the same  was being attested by the doctor. As maintained, this  statement has  been given in the intensive care unit  where apart  from the patient, the doctor and the police officer,  none else  was present.  There is sumptuous evidence that  relations of  Sudha  were  available  in  the hospital premises though not within the intensive care unit. Both the  police officer  as also  the doctor  were asked to indicate the  reason for  not calling one of those relations to the  place when  Sudha’s statement was being recorded. In fact, ordinary  human conduct  would have  required  such  a relation to  be present  when the  statement was being made, particularly because  it was not known by then to the police officer as  to what  statement Sudha would make in regard to the cause of her burning.      We have  already pointed out that the document does not bear the  signature of Sudha. Admittedly, burning was to the extent of  70% and  there is  medical evidence  as to  which parts of  the body  had been  affected.  There  is  not  any positive evidence  that the palms had been affected so badly that Sudha  was not in a position to use any of her fingers. Nor is  there clear  evidence that  the left  hand thumb had been so affected that a full impression was not available to be taken. Mr. Singh has argued with emphasis that Sudha must have used  both her  hands to  extricate  herself  from  her wearing apparel  when the same was burning and thus both the palms and  the fingers  including the  tips must  have  been burnt. We  do not  think in  the absence of evidence, such a submission should  be accepted  to  explain  away  either  a signature or thumb impression in the dying declaration.      Added to  these features, the time of the statement has not been  indicated in  the document. PW. 17 must have known that the  time  aspect  was  very  important  feature  in  a document of this type. Ordinarily, a document as valuable as a dying declaration 916 is supposed  to be  fool proof  and is  to  incorporate  the particulars which  it is  supposed to contain. No justifying reason has been given as to why the time was noted.      The summary  of History  Sheet, Ext.  PW.17/0 indicates that a pethidine injection was given to Sudha at 10 P.M. and the doctor  prescribed  repetition  of  it  every  8  hours. Judicial  notice  can  be  taken  of  the  fact  that  after pethidine  is  given  the  patient  would  not  have  normal alertness. Appropriate care was not taken at the trial stage to cross  examine DW.1 with reference to this aspect. We are inclined to  agree with  counsel for the appellants that the certificate of  DW. 1  that Sudha  was in a fit condition to make a  declaration cannot  be given full credit. This Court pointed out  in Khushal Rao v. State of Bombay A.I.R. [1958] S.C. 22, that a dying declaration stands on the same footing as another  piece of  evidence and  has to  be judged in the light of surrounding circumstances and with reference to the principles governing  the weighing of evidence; that a dying declaration  which   has  been   recorded  by   a  competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of  the maker  of the  declaration, stands  on a  much higher footing  than a  dying declaration which depends upon oral testimony  which may suffer from all the infirmities of human memory  and human character, and that in order to test the reliability  of a  dying declaration,  the Court  has to keep in  view, the circumstances like the opportunity of the dying man  for observation,  for example,  whether there was sufficient light  if  the  crime  was  committed  at  night;

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whether the  capacity of  the  man  of  remember  the  facts stated, had  not been impaired at the time he was making the statement, by  circumstances beyond  his control;  that  the statement has  been consistent  throughout if he had several opportunities of  making a  dying declaration apart from the official record  of it; and that the statement had been made at the  earliest opportunity  and  was  not  the  result  of tutoring by interested parties.      In Dalip Singh & Ors. v. State of Punjab, A.I.R. [1979] S.C. 1173, this Court has pointed out :           "We may also add that although a dying declaration           recorded by  a Police Officer during the course of           the investigation  is admissible  under section 32           of  the   Indian  Evidence  Act  in  view  of  the           exception provided  in sub-section  (2) of section           162 of the Code of Criminal Procedure, 1973, it is           better to leave such 917           dying declarations  out of consideration until and           unless the  prosecution satisfies  the court as to           why it  was not  recorded by  a Magistrate or by a           doctor. As observed by this Court in Munnu Raja v.           State of  Madhya Pradesh,  [1976]  2  S.C.R.  764;           A.I.R.  1976   S.C.  2199)  the  practice  of  the           Investigating Officer  himself recording  a  dying           declaration during  the  course  of  investigation           ought not to be encouraged. ........ "      We also  find that  under the relevant Rules applicable to Delhi  area, the  investigating officer  is not to scribe the dying  declaration. Again,  unless the dying declaration is in  question and answer form it is very difficult to know to what  extent the answers have been suggested by questions put. What  is necessary  is that the exact statement made by the deceased  should be  available to  the Court. Considered from these  angles, the dying declaration in question is not acceptable. The High Court obviously lost sight of all these aspects when  reversing the  conclusion of  the trial  Court with regard to the document and agreeing to act upon it.      Considerable criticism  has been  advanced on behalf of the prosecution  to the  acceptability of  this document  on account of  these draw backs. When PW. 17 was being examined in Court,  the prosecution with leave of the Court asked him specific questions  as if  he was  being cross-examined with reference to  this document.  That shows  that grave  doubts were entertained  by the prosecution about the bona fides of this  dying   declaration.  We  have  bestowed  considerable thought on  this aspect  and we are led to accept the doubts indicated by  the trial  Court in regard to the authenticity of this  document. We  accordingly  decline  to  attach  any importance thereto.      While rejecting the written dying declaration, we would like to  point out  that we  are also not prepared to attach full credence  to the  oral dying  declarations. There  have been instances where conviction has been based solely upon a dying declaration  when it  has been  found  to  be  totally acceptable. We  are not  prepared to  attach  that  type  of importance to  the oral  dying declarations in this case. We shall refer  to these  oral statements  in the  evidence  of witnesses when  we come  to assess  the oral evidence and we are of the opinion that the oral dying declarations would be available for use as corroborative material in this case. 918      The High  Court  utilised  three  other  documents  for finding out  how Sudha  caught  fire.  The  first  of  these documents is  the site inspection note Ext. PW.17/R where it

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has been  indicated: "It  is alleged that Sudha, 20 year old wife of  Laxman Kumar,  resident of  9-B Janata Flats, Phase III, Ashok Vihar, was heating milk on stove when her clothes caught fire..." The source of this information is not known. In the circumstances no importance can at all be attached to the her  say record.  The other  document is  the  admission record of Sudha at the St. Stephen’s Hospital, Ext. PW.18/A. There it  has been indicated: "Sustained burns while heating milk on a stove". The document has admittedly been signed by Laxman Kumar,  the husband  of Sudha. One can assume that he was the source of information. Mr. Singh placed the evidence of PW.3,  sister of Sudha where she said that she had talked to the  doctor at the hospital and told her all the details. On the  basis of  this  evidence,  learned  Senior  Counsel, pleaded to  accept PW.3  as the  source of  the  information giving the  cause of fire. He also argued with emphasis that it was  for the  prosecution to  examine the  doctor who had made the  endorsement and adverse inference should have been drawn against  the prosecution  for with holding the witness from the  trial. Admittedly, the endorsement was made by one Mr. Vijaya  Kumar who  was then working at the St. Stephen’s Hospital. PW.  18 who  works in the said Hospital has stated that Mr.  Kumar had  left the  services and  his whereabouts were not known. In these circumstances, no adverse inference is  drawable.   Nor  can  we  assume  that  the  information regarding the  cause of  fire was on the basis of what PW. 3 had stated.  Since the  husband of Sudha was present and was signing the form, it is legitimate to assume that the doctor made queries  from him  and filled  up the form accordingly. Again, as  we have said, Sudha was alive, the near relations were not prepared to expose the husband and his relations to prosecution and  even PW.3  may not  have  stated  the  real cause. No  importance, therefore,  is also  available to  be attached  to  the  narration  in  the  document.  The  third document is  the report  received from the mobile van around 9.44 P.M.  where it  was said that a woman named Sudha, aged 21-22 years  is said to have sustained burns by the bursting to stove or she caught fire accidentally. The stove has been found to  be in  good order  at the  time of the seizure and this fact goes a long way to indicate that the allegation of stove bursting  was baseless.  The source cf the information not being  know, no  importance  is  also  available  to  be attached to this document. Mr. Singh was maintained that the bursting of  the stove  is an  erroneous translation  of the actual record.  What exactly  was said  is that  there was a sudden flicker  in the  kerosene stove  as a result of which Sudha’s saree 919 caught fire.  Perhaps the  criticism is  correct but nothing ultimately turns  on it.  At the  hearing  counsel  for  the appellants relied  upon the  entry in  PW. 12/B  which was a copy of  the record  maintained at  the Ashok  Vihar  Police Station. The entry shows:           "At 9.12  P.M. Shri  Nahar Singh has informed from           P.C.R. through  telephone that some unknown person           had informed  from a  public call telephone to the           effect that  one lady  had been  set on  fire in a           Janata Quarter,.............." No importance  can be  attached to  this  entry  either.  We would,   therefore,    keep   out   these   documents   from consideration while  considering the  case for  finding  out whether Sudha  had an  accidental catch  of fire or fire was set on her clothes.      It is  appropriate at  this stage  that we consider the background and the existing relationship between the parties

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with a  view to  ascertaining if  there was  any motive  for perpetrating the crime.      The evidence  in regard to the relationship between the parties so  as to  discover the  presence of  motive is both oral and  documentary.  The  High  Court  referred  to  four letters written  by Sudha  to Geeta,  sister of Laxman. Ext. D-2 is  a letter  without date but the contents suggest that it must  have been  written some time in the autumn of 1980. The letter  indicates that  Sudha’s relationship  with Geeta was quite close. They appear to be of the same age group and it is  quite possible  that while  the relationship with the other  members   of  the   family  was   strained,   Sudha’s relationship with  Geeta was  particularly cordial.  Such  a situation is  not unusual.  This letter, however, contains a statement to the following effect :           "Any way,  I would write to you in detail as now I           have no  time to concentrate my mind for writing a           detailed letter. Ext. D.3 is a letter of September 12, 1980. Here again Sudha has indicated  her longing  to be  close to  Geeta.  Therein there is  a second sentence reading thus: "You keep yourself happy and  need not  worry." Worrying,  of course,  would be with reference  to Sudha.  The High Court has underlined the following sentence of the letter : 920           "Deedi (sister) please send mother over here after           2 or  3 days as you know that I have not been able           to get any opportunity to have her company here." According to  the High  Court, Sudha  was  longing  for  the company of  the mother-in-law;  otherwise there  would be no necessity for  that sentence in the letter. As we propose to deal with  this aspect  at a  time, we  shall  indicate  our comments after  we have  referred to  the other two letters. The third  letter marked  Ext. XX is dated October 17, 1980. Therein again  Sudha wanted  the mother  (of Didi)  to visit Delhi for  2  or  4  days.  Towards  the  end  there  is  an indication that Laxman wanted the delivery to be effected at Delhi. The  last letter in the series is Ext. XXX which does not bear a date. There are two sentences in the letter which we would like to extract in particular :           "I am  of the  view that  blood  is  thicker  than           water.. I  would have  posted a letter earlier but           due to abdominal ailment I could not do so... The first  of the  sentences referred to above obviously was meant for  Didi as  she had  failed to  come and  the second sentence referred  to her ailment. There is nothing in these letters  which   is  very   material  for   the  purpose  of ascertaining the  relationship that existed between Sudha on one side  and members  of her husband’s family on the other. Geeta being  the daughter of Shakuntala, the mother-in-law , Sudha as daughter-in-law was not expected to make complaints against her particularly when the letters were being sent to Barot where  the  mother-in-law  was  living.  Similarly,  a letter written by PW. 8 to Subhash and Laxman which has been marked as  Ext.D-1, dated  September 25,  1980, and  another written by PW. 8 to Shakuhtala and her husband (Ext. PW.6/DA of the  same date)  have also  been relied  upon by the High Court. These letters are letters which PW.8 had written with reference to  the marriage  of  Ashok  (younger  brother  of PW.8). It  appears that  this marriage was negotiated and/or made to  materialise with  the assistance  of the members of the family  of the accused persons and the marriage had been fixed to  February 12,  1981. In  the  letter  Ext.  PW.6/DA written to the parents of Laxman, PW.8 had spoken well about the family  of the accused persons. That obviously one would

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expect when  a brother-in-law  of Laxman would be writing to the parents  of the  sister’s husband.  It is  customary  to write to  elders in  that  strain.  The  contents  of  these letters may not reflect the true position and any undue 921 emphasis on the contents thereof would really be misleading. Similarly, there  is a letter written by PW. 6 to Sudha also dated September  25, 1980.  Therein there  is mention:  "You need not  worry about anything; everything will be okay... I will surely  bring your  servant with  me.... The High Court has relying  on these  letters, come  to the conclusion that the relationship  was good till middle of October, 1980, and according to  it the  appreciation of  the position  by  the trial Judge  that the letters contained intentional flattery was not correct.      There is  evidence that  the deceased was being made to do most  of the household work notwithstanding the fact that she was  carrying and gradually the time for delivery of the child was  nearing.  PW.  6  had  intervened  to  meet  this situation by  bringing a servant who could take Sudha’s load to some  extent and  ease  the  position.  DW.  5,  however, terminated the  services which  meant that Sudha had to take the burden  on her.  There is  evidence that  PW. 6 had even gone to  the extent  of offering  the salary of the servant. That possibly was not appreciated and may have been for good reasons.      Once we  come to  the conclusion  that the letters have really no  material bearing  on the point at issue, the oral evidence of  the four witnesses speaking on the topic has to be referred  to. As  pointed out,  these four  witnesses are PWs. 3  and 6,  the two  sisters of  Sudha,  PW.  7  Sudha’s mother, and PW. 8 who is Sudha’s brother. PW. 3 has stated :           "Whenever I used to-visit her or she used to visit           me, Sudha always used to complain that she has not           been treated  properly. She used to complain about           the harassment  by  her  husband’s  elder  brother           Subhash, accused,  and his  wife and some times by           her mother-in-law,  both accused present in court,           as  they  used  to  make  demand  from  Sudha  for           bringing more  money from  her brothers  and  they           also used to take more work from her.           On 1.12.80,  I had visited her in the house of the           accused at  about 7 P.M. and had remained with her           for about  an hour.  At that  time the  doctor had           advised and  opined that she was likely to deliver           within two  or three days. When I was at the house           of the accused, Sudha’s mother-in-law, the accused           present in  the Court,  made  several  charges  to           accuse and malign Sudha. 922           When I was coming out of the house my sister Sudha           came out with me. She told me that on the previous           day her  brother-in-law, i.e.  Mr.  Vinod  younger           brother of Laxman had tried to forcibly remove her           gold bangles  when she  had refused  to hand  them           over to  her in-laws.  She had  also told  me that           Vinod had  given a twist to her right wrist. I had           noted bluish  mark on  her wrist. When I wanted to           take her  to my  house,  accused  Laxman  and  his           mother Smt. Shakuntala refused to send her with me           saying that  Laxman would  be dropping  her to  my           house next morning.           In cross-examination  it has  been further brought           out:           "I never  saw wife  of Subhash  pleased with Sudha

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         who always  used  to  complain  even  against  her           whenever I used to meet her She further said :           "I had  received two  or  three  letters  from  my           brother from  Calcutta requesting me to look after           Sudha as she was not happy in her in-laws’ family.           I did not preserve those letters.           PW. 6 is the other sister of Sudha. She has said :           "She told  me that she was not in a position to do           that much  of work  due to  her not having already           worked before her marriage and also because of her           being in  the family  way. Thereafter she returned           to her  in-laws. After 10 days I went to the house           of  Sudha   in  Ashok  Vihar  and  requested  Smt.           Shakuntala, accused  present in Court, and wife of           accused Subhash  to  engage  a  maid  servant  for           washing utensils  and I  offered to  pay  for  the           same. Sudha  arranged for  a maid servant who was,           however, not paid the wages by the accused persons           and  was   terminated.  Many  a  time,  Sudha  had           complained to me that Mrs. Subhash used to prepare           meals for  the rest  of the  family and she had to           cook the food for herself later on. When Sudha was           carrying a child for about 5 to 6 months, she told           me that  her in-laws had told her that if she gave           birth to  a male  h child  then they  would take a           scooter and  Fridge for  Laxman and  Rs. 10,000 in           cash from her brothers. I told 923           her that  I would  gift a  fridge from my side and           the rest  would be  given by our brothers. On many           occasions she  had told  me that  her in-laws were           making demand of a sewing machine although she did           not know  any stitching work and she had written a           letter to  her brother  about which I came to know           later."      PW. 7  is an  elderly lady  aged sixty.  Obviously  her husband was dead. She has stated that about two months after the marriage  when Sudha  was brought  to Calcutta by PW. 8, she had stated that Laxman and the mother-in-law and Subhash have been  demanding Rs. 10,000 to Rs. 20,000 in cash. PW. 8 is  Sudha’s   brother.  He  lives  at  Calcutta  and  is  by profession a  Commission Agent.  His evidence too was to the effect that Sudha had complained about the demand of cash on the occasion  of the  birth of the first child. Added to the evidence of  these witnesses  is  the  evidence  of  PW.  4. Ishwari Devi,  as already  pointed out, was a good friend of Sudha, being  a close  neighbour and  Sudha having very much liked Bobby,  the young  child of Ishwari Devi. Ishwari Devi had been  living in  the upper  flat until two months before the occurrence  and even when she had shifted, Sudha and she were meeting almost every day. She has stated           "Sudha almost  daily used  to visit me and used to           complain to  me that  she was  being maltreated on           the ground  of insufficiency of dowry and that her           husband and mother-in-law used to threaten her for           setting her on fire. There is  no particular  notification as  to why PW. 4 would depose against  the accused persons. Similarly, if there was really no  basis for  the accusation,  the  two  sisters  of Sudha, her  mother who  was an elderly lady and a widow, and her brother,  PW.  8,  would  have  not  falsely  implicated Shakuntala, Subhash  and Laxman  as the  perpetrators of the crime. If  Sudha had  succumbed to  burn injuries  caused by accidental fire,  it would  have been  an event  for  mutual

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sorrow for  every one  in the  family both of the accused as also of  Sudha. We  cannot lose  sight of  the fact that the marriage of  Ashok had already been settled and was an event to come  on February  2, 1981. Only a couple of months after the incident.  if there  was no foundation in the allegation of maltreatment  and harassment of Sudha, the four relations of Sudha  would have really not strained the relationship by making false  allegations. If  it was indeed an accident one would expect  Ashok’s marriage  to be  performed as fixed so that  the  tie  may  be  maintained.  In  that  event  false accusations against the accused 924 persons would  he wholly  out of  place. The  High Court has obviously not  kept these aspects in view while dealing with the evidence.  We are,  therefore, of  the opinion  that the material on  record is  indicative of  the position that the relationship of  Sudha with the members of the family in the husband’s side was not cordial.      We may  note here  that even  the High  Court  has  not brushed aside  the story  of demand  in the event of a child being born. It has observed :           "It may  be  that  in  September  or  October  the           mother-in-law or  some other members in the family           may have  told the  deceased that in case she gave           birth to  a male  child they would expect a fridge           and a  scooter and  some cash. It is customary for           the Hindus  that on the first delivery of a child,           particularly on  the birth  of a  male child,  the           parents give  presents. The in-laws or husband may           have felt  the need  of a scooter and a frigidaire           and therefore,  wanted the  deceased to  demand  a           frigidaire and a scooter. We find it impossible to           agree with  the learned  Additional Sessions Judge           that the accused finding no positive response from           the brothers  and  the  sisters  of  the  deceased           regarding their  above demand  had decided to kill           the deceased.  The observation  of the  Additional           Sessions Judge  that the  accused decided  to take           the life  of the  deceased before  the delivery of           the child  because after  the child  was  born  it           would have  become difficult  for them  to execute           the plan is wholly with out any basis. Perhaps the way the learned Additional Sessions Judge formed his conclusions  on the  basis of the evidence was not to be approved but  in our  opinion the  High Court  had really no justification to  condemn the  learned  Additional  Sessions Judge on  that score. We do not approve of the conclusion of the High Court that insufficiency of dowry was made an issue only to  create a  motive for  the crime.  As  a  fact,  the relationship had  been strained.  Shakuntala and  Madhu  had failed to  show normal human considerations towards Sudha, a young girl  who was for the first time going to be a mother. Both Shakuntala  and Madhu had their own experience of being in the  family way  in their own time. They, however, forgot the same  and their  behaviour  towards  Sudha  during  this period did  amount to  a  sort  of  torture.  Added  to  the physical strain, the 925 demands advanced  from  time  to  time  and  the  particular emphasis with  which the  same were reiterated as the period of  delivery   approached  gradually  strained  the  feeling between Sudha and the members of the husband’s family.      We have also come to the conclusion that the High Court failed to  take  into  account  one  material  aspect  while appreciating the  evidence of  the prosecution witnesses. It

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is a  fact that  Sudha had  been burnt  and according to the medical opinion  that was  to the  extent  of  70%.  As  the evidence shows,  Sudha was  in her senses and was capable of talking at  the time  when she  was  being  removed  to  the Hospital or  even after  she had  been admitted as an indoor patient. The two sisters or their respective husbands had no apprehension that  Sudha would  not live. In case Sudha came round, she  was to  have lived in the family of her husband. No one  interested in  the welfare  of Sudha was, therefore, prepared to  make a  statement  which  might  prejudice  the accused persons and lead to the straining of relationship in an irreparable  way. Therefore,  the silence or avoidance to make a  true disclosure about the cause of fire particularly so long  as Sudha  was alive,  cannot be over emphasised and adverse inference  drawn by  the High Court from the conduct of the  sisters was indeed not warranted in the facts of the case.      We came  across sumptuous  reference to  statements  of witnesses recorded under Section 161 of the Code of Criminal Procedure during  Investigation in  the judgment of the High Court. It is interesting to notice that the High Court found fault, and very rightly, with the trial Court for using such statements as evidence; yet, it fell into the same error and freely referred to such statements for coming to findings on material aspects. It is unnecessary to indicate reference to specific instances  at length  but one  or two  illustrative occasions we would like to point out           "The husband  of PWs.  3 and 6 in their statements           to the  police on  2nd December, 1980, have stated           that the  relations between  Sudha and her husband           were cordial." The husbands  have not  been examined  as witnesses  at  the trial. Similarly  the High  Court extracted  in extenso  the inquest statements  as if they were evidence proper. Section 162(1) of the Code of Criminal Procedure provides :           "No statement  made by  any  person  to  a  police           officer 926           in the course of investigation under this chapter,           shall, if  reduced to  writing, be  signed by  the           person making  it, nor shall any such statement or           any record  thereof, whether  in a police diary or           otherwise,  or  any  part  of  such  statement  or           record,  be   used  for   any  purpose,   save  as           hereinafter provided,  at any  inquiry or trial in           respect of  any offence under investigation at the           time when such statement was made :           Provided that  when any  witness is called for the           prosecution  in   such  inquiry   or  trial  whose           statement  has   been  reduced   into  writing  as           aforesaid, any  part of  his  statement,  if  duly           proved, may  be used  by the accused, and with the           permission of  the Court,  by the  prosecution, to           contradict such  witness in the manner provided by           section 145 of the Indian Evidence Act, 1872..." This Court  pointed out in Pedda Narayana & Ors. v. State of Andhra Pradesh,  [1975]  4  S.C.C.  153,  that  a  statement recorded by  the  police  officer  during  investigation  is inadmissible in  evidence and  the proper  procedure  is  to confront the  witness with  the contradictions when they are examined and  then ask  the Investigating  Officer regarding the contradictions.  This Court  reiterated the  position in Sat Paul  v. Delhi  Administration, [1976]  1 S.C.R. 727, by again pointing  our that  the statement  made  to  a  police officer during  the investigation  can be  used only for the

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purpose of  contradicting the  prosecution  witnesses  under s. 145  of the  Evidence Act.  It cannot  be  used  for  the purpose of  cross-examination. The  mandate of  the  law  of procedure and the law laid down by this Court have obviously been overlook  ed by  the trial Court as also the High Court although the  High Court was cognizant of the legal position and had  found fault  with the trial Court. We would like to point out  that the trial Court has marked large portions of the statements  recorded by  the police without confiding to the actual  contradiction. If attention had been bestowed at the appropriate stage, this situation would not have arisen.      We shall  now refer  to the  evidence regarding Sudha’s burning. It  has already  been indicated  that the  evidence consists of  statements of  PWs. 1,  2, 4  and 5.  These are neighbours.  The   High  Court  has  found  three  of  these witnesses to have been present and we have already indicated that PW.  4 was  also attracted  to the  spot by  the  cries raised by Sudha. Mr. Singh, it may be noted, 927 challenged this  finding of  the High  Court but  we see  no force in  the challenge.  These witnesses,  according to the High Court,  came and  helped in  putting out  the fire  and expeditiously  removing  Sudha  to  the  hospital.  We  have already indicated  our reasons for accepting the evidence of these witnesses  as being  trustworthy.  The  learned  trial Judge  who   had  occasion  to  see  the  demeanour  of  the witnesses, believed  them to  be truthful  and the reasoning advanced by  the High Court to discard the evidence has been rejected by  us. On  the  evidence  of  these  witnesses  it follows that  at the  time then  PW.  1  came,  Subhash  was standing at  the door  connecting the  room with  the  outer covered space  where Sudha had been aflame. Undue importance was given  by the  High Court  to the fact that there was no smell of  kerosene on  the head  or hair of Sudha. Sudha had been found in a standing posture by these witnesses when her wearing apparel was burning. There is some evidence that the clothes emanated  the smell  of kerosene.  At no stage Sudha had  even   suggested  that  kerosene  had  been  poured  or sprinkled on  her head.  The observation  of the  High Court that if  kerosene had  been poured  on her  body or over the wearing apparel  the burns  would have  been  of  a  greater dimension is  not a  conclusion based  upon expert evidence. The medical  examination conducted  does not  appear to have been made  keeping this  aspect in  view. Admittedly,  every part of  the body  had not been equally burnt. Therefore, it is quite  possible that  presence of kerosene on the wearing apparel had  damaged certain parts of the body more than the other parts.  Non-presence of  kerosene on the head is not a material feature  and  presence  of  smell  in  the  clothes probabilises the  prosecution case  that on  Sudha’s clothes kerosene had  been sprinkled.  The suggestion that the gunny bag and  the clothes  had  come  in  contact  with  kerosene leaking from  the stove  is indeed  not  acceptable  in  the absence of  evidence that  Sudha had  squatted on  the floor while using  the kerosene  stove. We have already found that Sudha had  not lighted  the  kerosene  stove  that  evening. Evidence that  the stove  was leaking  when lighted is of no assistance to  explain the presence of kerosene in the gunny bag as  well inasmuch  as  we  have  rejected  the  plea  of lighting of  the stove.  Mr. Singh  has placed some passages from  Taylor’s  Medical  Jurisprudence  in  support  of  his submission that in view of the medical evidence that Sudha’s burns were either of the first or the second degrees, use of kerosene which  would have  aggravated the burns was untrue. We are  not much  impressed by  this argument.  How much  of

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kerosene was  sprinkled is  not known.  For how  long  Sudha actually burnt  is also not exactly known. To work backwards from the  injured condition  of Sudha’s  body may not in the premises lead to a correct conclusion. 928      One more  feature which  must be  duly taken note of at this point  is the  place  where  Sudha  was  found  aflame. Admittedly it  was not  the room  where she lived but it was the covered  space on  the back  side. Once we have rejected the defence  plea of accidental fire while heating milk with the kerosene  stove, Sudha’s  presence in the outer space at that time  is not  natural. Sudha  was apparently brought to that place  from the  room to  be put  on fire  so that  the articles in  the rooms  would not be damaged and there would be the minimum of loss to property.      The evidence  of the  witnesses clearly  indicates that the accused  persons appeared  to be  indifferent even  when Sudha had  been aflame.  If the  mother  in-law  was  really interested in a child being born to Sudha an event likely to happen within  a few days thereafter she would have been the most disturbed  person at  the sight  of fire on the body of Sudha. Similarly,  Laxman must  have been terribly upset and would not  have been  leaving any  stone unturned  to  bring safety to  Sudha. The  evidence of the prosecution witnesses is indicative  of the  position that  there was  no sense of grief or  anxiety  in  their  conduct  and,  therefore,  the neighbours who  gathered had  to take the lead in the matter for providing relief to her.      There is  some amount of discrepancy in the evidence of the witnesses  in  regard  to  the  details  and  Mr.  Singh highlighted this  aspect in  his submission.  It  is  common human experience that different persons admittedly seeing an event give varying accounts of the same. That is because the perceptiveness varies  and a recount of the same incident is usually at variance to a considerable extent. Ordinarily, if several persons give the same account of an event, even with reference to  minor details,  the  evidence  is  branded  as parrotlike and  is considered to be the outcome of tutoring. Having read the evidence of these witnesses with great care, we are  of the view that the same has the touch of intrinsic truth and  the variations  are within  reasonable limits and the  variations   instead  of   providing  the   ground  for rejection, add to the quality of being near to truth. On the evidence, therefore,  we come to these conclusions : (1) the relationship of  Sudha with  the members  of  the  husband’s family had  become strained  and she  had been  subjected to physical as  well as mental torture for some time before the incident;  the   physical  torture   was  the   outcome   of indifference to  her health  and the  mental torture  was on account of  demand of  dowry; (2)  Sudha had not lighted the kerosene stove  that evening and her wearing apparel had not caught fire accidently but kerosene had 929 been sprinkled  on her clothes and she had been brought into the open space where fire was lit to her clothes. Thus Sudha died not  as an outcome of an accidental fire but on account of a  designed move on the part of the members of the family of the  accused persons to put an end to her life. Mr. Singh has pleaded forcefully that we should not interfere with the judgment of acquittal as it is based on a reasonable view of the matter merely by re-appreciating the evidence. The scope of an appeal against acquittal and the scope of this Court’s jurisdiction  in   such  a  matter  are  well  settled.  The preponderance of  judicial opinion  in this  Court  is  that there is  no difference between an appeal against conviction

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and an  appeal against acquittal except when dealing with an appeal  against  acquittal  the  Court  keeps  in  view  the position that  the presumption of innocence in favour of the accused has  been fortified  by acquittal  and if  the  view adopted by  the High  Court is  a  reasonable  one  and  the conclusion reached  by it  had its  grounds well  set on the materials on  record, the  acquittal may  not be  interfered with. Upon  reading the  record and  after  hearing  learned counsel we  are of  the view  that the  judgment of the High Court cannot have the immunity which Mr. Singh claimed. Once evidence has  been read  and this  Court  has  proceeded  to review the entire material, there is indeed no limitation in law in the exercise of the jurisdiction under Article 136 of the Constitution for the matter of making a just decision.      Now comes  the time  to find  out as  to  who  are  the persons responsible  for  the  killing  of  Sudha.  We  have already indicated  that DW.  5 had  been taken  to Barot  by Subhash and  on his  return he  brought Shakuntala to Delhi. Subhash appears  to have  been living  in a  different room. Though they  were living under the same roof, there does not appear  to   have  been   much  of   cordiality  and   close relationship between  Subhash and  Laxman; each one appeared to be  living in his own world within the small premises. It is  significant   that  Subhash  had  made  a  statement  as reiterated by  the prosecution witnesses that he had nothing to do  with what  happened to  Sudha and  on that ground had declined to enter into the taxi when Sudha was being removed to the  Hospital. Even  such a  statement had  been repeated earlier. It  is true  that the  prosecution  witnesses  have suggested that Subhash was closing the door when they wanted to enter  the back  space. Subhash has explained that he was trying to avoid the spread of fire. Keeping these aspects in view, we are inclined to treat his case somewhat differently from that of the husband and the mother-in-law of Sudha. 930      Mr. Garg  appearing  for  the  appellants  in  Criminal Appeal  No.   94/84,  had   emphatically  relied   upon  the observations of  the  Judicial  Committee  in  the  case  of Barendra Kumar  Ghosh v.  The King  Emperor, 52 I.A. 40, and contended that  in view  of the  fact that Subhash stood and waited exhibiting  a conduct  of indifference  when positive action for  help to  Sudha was warranted, he must be imputed with sufficient motive and be ranked at par with the accused persons. We  are, however,  prepared to give him the benefit of doubt  treating his  case to  be on  the border line. His acquittal  by  the  High  Court,  therefore,  shall  not  be interfered with.  As far  as the mother-in-law is concerned, the  position   is  very   different.  Sudha  in  her  dying declarations made  contemporaneously as  deposed to  by  the witnesses had  stated that  kerosene had  been poured by the mother-in-law and  fire had  also been  lit by her. This has been repeated  by her  more than once before she reached the hospital except  that she  assigned that lighting of fire to her husband.  We have  already dealt with this aspect of the matter and  have come to the conclusion that though we would not have  been prepared  to base  the conviction on the oral dying declarations  alone, such  dying declarations,  in our opinion, were not to be totally rejected and the same can be used as corroborative material.      We are  not prepared  to accept Laxman’s plea of alibi. He had  pleaded that  he had  gone along with PW. 3 upto the bus stand and by the time he returned the incident had taken place. Laxman  was present  and his  conduct of indifference does exhibit  his  complicity.  In  fact,  when  Laxman  was available  in   Delhi,  without   his   active   association

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Shakuntala could  not have managed the event all by herself. We are,  therefore, of the definite view that Shakuntala and Laxman are  responsible for  the killing of Sudha by setting her on  fire. They have, therefore, committed the offence of murder and  are liable  to  be  convicted  for  the  offence punishable under section 302 of the Indian Penal Code as has been found  by the  trial Court.  Mr. Singh  had  very  ably attempted to  persuade as  to accept  the position that when admittedly PW.  3 had  come to  the house  that evening,  it would be normal to expect Laxman to go with her upto the bus stand when  she was  returning to  her  residence.  He  also commended to  us to  accept the  evidence of the taxi driver DW. 4 who stated that Laxman appeared in the scene after the taxi had  come to  the spot.  We  have  pondered  over  this submission for  quite some  time but we find the evidence of the prosecution  witnesses who  saw Laxman  standing at  the front door more acceptable. 931      The next  relevant aspect  for  consideration  is  what should be  the proper  punishment to be imposed. The learned trial Judge  had thought  it proper to impose the punishment of death.  Acquittal intervened  and almost  two years  have elapsed since  the respondents  were acquitted  and  set  at liberty by  the High  Court. In  a suitable  case  of  bride burning, death  sentence may  not be  improper. But  in  the facts of  the  case  and  particularly  on  account  of  the situation following  the acquittal  in the hands of the High Court and  the time  lag, we do not think it would be proper to restore  the death  sentence as  a necessary corollary to the finding  of guilt. We accordingly allow both the appeals partly and  direct that the two respondents, Smt. Shakuntala and Laxman  Kumar shall  be sentenced  to  imprisonment  for life. Both  the appeals  against Subhash stand dismissed and his acquittal  is upheld.  Steps shall be taken by the trial Judge to  give  effect  to  this  judgment  as  promptly  as feasible.      Before we  part with these appeals we may refer to some portions of the judgment of the High Court under the heading ’Conclusion’. The High Court observed :           "The sentence  of death  awarded to  three persons           including a woman in a wife burning case was given           wide  publicity   both   by   the   national   and           international news media. The verdict of acquittal           which we  are about  to deliver  is bound to cause           flutter  in  the  public  mind  more  particularly           amongst women’s  social bodies  and organisations.           We are  performing our constitutional duty. Judges           have no special means of finding out the truth. We           entirely depend on the evidence produced on record           and do  our best  to discover the truth within the           limitations laid  down by  law. Judges  are  human           beings and  can err. The satisfying factor is that           we are  not the  final Court  and there is a Court           above us  and if our judgment is wrong it shall be           set right." What the  High Court  had visualised has perhaps partly come to happen  but the  way the  High Court  took cover  of  the existence of  a higher  forum is  not available to us as law does not  prescribe another forum beyond this Court. We are, however, disturbed  by the  fact that  the High  Court  took notice of publicity through the news media and indicated its apprehension of  flutter in  the  public  mind.  It  is  the obligation of  every Court  to find  out the  truth and  act according to law once the truth is discovered. In 932

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that search  for truth  obviously the  Court has to function within the  bounds set by law and act on the evidence placed before it.  What happens  outside the  Court room  when  the Court is  busy in  its process  of  adjudication  is  indeed irrelevant and  unless a  proper cushion is provided to keep the proceedings  within the  court room dissociated from the heat generated  outside the  court room  either through  the news media  or through flutter in the public mind, the cause of justice  is bound to suffer. Mankind has shifted from the state of  nature towards  a civilized  society and  it is no longer the  physical power of a litigating individual or the might of the ruler nor even the opinion of the majority that takes away  the liberty  of a  citizen by convicting him and making him  suffer a  sentence  of  imprisonment.  Award  of punishment following  conviction at  a  trial  in  a  system wedded to rule of law is the outcome of cool deliberation in the court  room after  adequate hearing  is afforded  to the parties, accusations  are brought  against the  accused, the prosecutor is  given an opportunity of supporting the charge and the  accused is  equally given an opportunity of meeting the accusations  by establishing  his innocence.  It is  the outcome of  cool deliberations  and  the  screening  of  the material by  the informed  mind of  the Judge  that leads to determination of  the lis.  If the  cushion is  lost and the Court room  is allowed  to vibrate  with the  heat generated outside it,  the adjudicatory process suffers and the search for truth is stifled.      In the penultimate and the last paragraphs the judgment of the High Court it has been said as follows :           "We appreciate  the anxiety  displayed by  some of           the women organisations in cases of wife burning a           crime to be condemned by one and all and if proved           deserving the severest sentence. The evil of dowry           is equally  a matter of concern for the society as           a e  and should be looked upon contemptuously both           on giver  and the  taker. This evil is in vogue in           our society  since time  immemorial and shall take           time  to   be  curbed.  The  social  and  economic           conditions are the main enemy of woman desperation           sometime compelling  her to  commit suicide. These           evils prevailing  in our society have to be fought           at different  levels. Once  economic  independence           comes in  women the  evil  of  dowry  will  die  a           natural   death.    Without   education   economic           independence cannot  be achieved  and,  therefore,           education at  all  levels  of  the  society  upper           class, middle   classes,  lower classes is a must.           We hear  of  no  wife  burning  cases  in  western           countries,  obviously   because  women  there  are           economically independent. 933           The  Courts   cannot  allow   an   emotional   and           sentimental feelings  to come  into  the  judicial           pronouncements.  Once  sentimental  and  emotional           feelings are  allowed to  enter the  judicial mind           the Judge  is bound  to view  the evidence  with a           bias and  in that  case the conclusion may also be           biased resulting in some cases in great injustice.           The cases  have to be decided strictly on evidence           howsoever cruel  or horrifying  the crime  may be.           All  possible   chances  of   innocent  man  being           convicted have to be ruled out. There should be no           hostile atmosphere  against an accused in court. A           hostile atmosphere  is bound  to interfere  in  an           unbiased approach  as well as a decision. This has

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         to be  avoided at  all costs. We are sorry for the           above diversion  but it  has become  necessary  in           this case.      With the  opinion in  the  ultimate  paragraph  of  the judgment we  agree. But  we have  not been  able to  see any reason as  to why  the High Court was obsessed with the idea that the  diversion became  necessary in the case. It cannot be gain  said that  the Court  must proceed to discharge its duties uninfluenced by any extraneous consideration.      Debate has  no place  in a judgment though invariably a debate precedes  it and  a judgment  may occasion  a debate. Every one  in  the  country  whether  an  individual  or  an organisation should  contribute to  social metabolism. It is our considered opinion that this Court has obligation within reasonable limits  and justifying bounds to provide food for thoughts which may help generate the proper social order and hold the  community in  an even  form. The High Court was of the view  that the  evil of  dowry in  our society  has been prevailing from  time immemorial.  This does  not seem to be correct. In  the olden  days in the Hindu community dowry in the modern  sense was totally unknown. Man and woman enjoyed equality of  status and  society looked upon women as living goddesses. Where  ladies lived  in peace,  harmony and  with dignity and  status, Gods  were believed to be roaming about in human  form. When  a bride was brought into the family it was considered to be a great event and it was looked upon as bringing fortune  into the family not by way of dowry but on account of  the grace the young lady carried with and around her.      The High  Court has  indicated that  once education and economic independence  for women  are achieved,  the evil of dowry would meet a natural death. There seems to be force in what the 934 High Court  has said.  We propose  to add  a few  concluding paragraphs to  our judgement  to highlight our concern about the evil.      Marriage, according  to the  community to which parties belong, is sacramental and is believed to have been ordained in heaven.  The religious  rites performed  at the  marriage alter clearly indicate that the man accepts the woman as his better-half by assuring her protection as guardian, ensuring food and  necessaries of  life as the provider, guaranteeing companionship  as   the  mate  and  by  resolving  that  the pleasures and sorrows in the pursuit of life shall be shared with her  and Dharma  shall be  observed.  If  this  be  the concept of  marriage, there  would be  no scope  to look for worldly considerations, particularly dowry.      Every marriage ordinarily involves a transplant. A girl born and  brought up  in her  natural family  when given  in marriage, has  to leave  the natural setting and come into a new family. When a tender plant is shifted from the place of origin to a  new setting, great care is taken to ensure that the new soil is suitable and not far different from the soil where the  plant had hitherto been growing; care is taken to ensure  that   there  is   not  much  of  variation  of  the temperature, watering  facility is  assured and congeniality is attempted  to be  provided. When  a girl  is transplanted from her  natural setting  into an  alien family,  the  care expected is  bound to  be more  than in the case of a plant. Plant has  life but  the girl has a more than developed one. Human emotions are unknown to the plant life. In the growing years in  the natural  setting the  girl - now a bride - has formed  her   own  habits,  gathered  her  own  impressions, developed her  own aptitudes  and got used to a way of life.

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In the  new setting  some of  these have  to be accepted and some she has to surrender. This process of adaptation is not and cannot  be one-sided.  Give and take, live and let live, are the  ways of  life and when the bride is received in the new family  she must  have a  feeling of  welcome and by the fond bonds  of love  and affection,  grace  and  generosity, attachment and  consideration that  she may  receive in  the family of  the husband,  she will  get into a new mould; the mould which  would last for her life. She has to get used to a new  set of  relationships -  one type  with the  husband, another with  the parents-in-law,  a different  one with the other superiors  and yet  a different  one with  the younger ones in  the family.  For  this  she  would  require  loving guidance. The elders in the family, including the mother-in- law, are  expected to  show her  the way. The husband has to stand as a mountain of support ready to 935 protect her  and espouse her cause where she is on the right and equally  ready to  cover her either by pulling her up to protecting her  willingly taking  the responsibility  on  to himself when  she is  at fault.  The process  has  to  be  a natural one  and there  has to  be exhibition of cooperation and willingness  from every  side. Otherwise  how would  the transplant succeed.      There is  yet another  aspect which  we think  is  very germane, Of late there is a keen competition between man and woman all  the world over. There has been a feeling that the world has been a man dominated one and women as a class have been trying  to raise  their heads  by claiming equality. We are of  the view  that woman  must rise  and on  account  of certain virtues  which Nature  has endowed  them with to the exclusion of  man, due  credit must  be given  to  women  as possessors of those exclusive qualities. It is the woman who is capable  of  playing  the  more  effective  role  in  the preservation of  society  and,  therefore,  she  has  to  be respected. She  has the  greater dose of divinity in her and by her  gifted qualities she can protect the society against evil. To  that extent  woman have special qualities to serve society in due discharge of the social responsibility. While all these  are true  and the  struggle for upliftment has to continue, can  it be  forgotten that  men and  women in  the human creation  are complementary  to each  other and  it is only when  a man and a woman are put together that a unit is formed? One  without the other has no place in the community of homosapiens.  Therefore, in  a world  where man and woman are indispensable  to each  other  and  the  status  of  one depends upon the existence and longing of the other, to what extent is  competition between  the  two  justifiable  is  a matter to be debated in a cool and healthy setting. S.R.                                  Appeal partly allowed. 936