Devi Vs. State of Punjab  INSC 549 (11 October 1995)
A.S. (J) Anand, A.S. (J) Mukherjee M.K. (J) Dr. Anand. J.
1995 SCC Supl. (4) 126 JT 1995 (7) 269 1995 SCALE (5)695
appellant was tried for an offence under Section 302 IPC for the alleged murder
of Madan Lal, her husband.
learned Judge of the Special
convicted her for the said offence and sentenced her to suffer imprisonment for
life vide judgment dated 29.8.1985. Through this statutory appeal under Section
14 of the Terrorist Affected Areas (Special Courts) Act, 1984, the appellant
has called in question her conviction and sentence.
prosecution story in short is that the appellant and deceased were married
about 10 years prior to the date of occurrence. They were serving as Government
teachers and posted at different places. The couple had a son who was suffering
from blood cancer and unfortunately died on 23.7.1984. Trough the summer
vacations had finished on 22.7.1984, the couple had applied for extension of
leave on account of the death of their son and the leave in the case of each
one of them was extended upto 31.8.1984, the day of the occurrence. It is
alleged that on the night intervening 30-31 August, 1984 at about 2.00 a.m.
deceased Madan Lal knocked at the door of his mother, Lachhmi Devi, PW-1, who
was living separately alongwith one of the sisters of the deceased, Bimla Devi,
PW-2 just across the lane. When PW1 opened the door she found the deceased to
be burning and on enquiry he told his mother and sister, PWs 1 and 2, that the
appellant had sprinkled kerosene oil on him and set him on fire. Lachhmi Devi,
PW-1 rushed him to the hospital where they reached about 2.30 a.m. Dr. Janak Lal Mittal PW-4 started treating him and
sent information to the police through rukka Ex.P3. The deceased had suffered
extensive burn injuries and was semi-conscious. Shri Rajinder Singh, SHO, Police
Station PW-5 arrived at the hospital and made an enquiry from the doctor
whether the deceased was in a fit condition to make a statement. The doctor
replied in the negative. The SHO PW-5, thereafter, recorded the statement of Lachhmi
Devi PW1, Ex.P1, at about 4.30 a.m. and
sent the same to the police station for registration of the case and that forms
the basis of the formal FIR Ex. P1/B. It was initially registered under Section
307 IPC but after Madan Lal succumbed to the burn injuries at about 8.30 a.m.in
the hospital, the offence was converted into one under Section 302 IPC. When
the deceased was brought to the hospital by his wife Jitender Lal, PW-3, A
Municipal Commissioner was present at the hospital, as he had taken his elder
brother's daughter Radha Rani and admitted her in the emergency ward of the
hospital. PW-3 informed the investigating officer that he was lying in he
verandah when he heard the deceased saying aloud that he had been burnt by his
wife. His statement was recorded by the SHO.
the course of investigation, SHO PW-5 visited the spot and prepared a rough
site plan of the place of occurrence. He took into possession a broken bottle
smelling of kerosene oil Ex.M/O/1 from the house of the deceased under seizure
memo Ex. P8. A match-box Ex. M/O/4 was also taken into possession from the room
vide seizure memo Ex.P9.
burnt portion of the shirt belonging to the deceased was collected from the
lane and seized vide memo Ex. P10.
inquest report was prepared by the SHO PW-5 and the dead body was sent for
postmortem examination. The autopsy was performed by Dr. K.K. Singhla and it
revealed death due to shock and haemorrhage on account of extensive burns. The
viscera of the deceased besides pieces of liver, lung and spleen were preserved
and sent for chemical examination.
to the report of chemical examiner, Ex. P12, there was presence of alcohal in
the viscera and that the blood- alcohal concentration was 86.25 mgml per 100 mls.
The report of the chemical examiner also revealed that alcohal was found
present in he pieces of liver, spleen, kindly and lungs besides the pieces of
stomach, small intestine and large intestines. After completion of the
investigation, the appellant was tried and convicted and sentenced as noticed
convicting the appellant, the Trial Court considered the testimonies of Lachhmi
Devi, PW-1: Bimla Devi, PW-2: Jitendar Lal, PW-3; Dr. Janak Lal Mittal, PW-4
and Shri Rajinder Singh, Inspector, PW-5. Various seizure memos and the report
of the chemical examiner and statements of the police officials whose evidence
was of a formal character were also taken into consideration.
to the evidence of PW-1 and PW-2. relations of the appellant with the deceased
were strained and it was on that account that she had burnt the deceased by
pouring kerosene oil on him and setting him on fire. The oral dying declaration
made by the deceased to his mother, PW-1 and sister, PW-2 as also the statement
of the deceased as heard by PW-3 at the hospital were heavily relied upon by
the Trial Court in convicting the appellant. The Trial Court rejected the
version of the appellant on the ground that it was contrary to the oral dying
declaration made to the mother and sister by the deceased while he was still in
the state of burning.
Mr. Lalit, the learned senior counsel appearing for the appellant submitted
that the story of the prosecution suffers from inherent improbabilities as no
wife would commit the murder of her husband when the couple had lost their only
child only a few weeks before the occurrence and there was no motive whatsoever
for the appellant to commit the crime and the fact that both the deceased and
the appellant were living together separately from the mother and sister of the
deceased was indicative of the fact that the relations between the
mother-in-law and sister-in-law of the appellant were not cordial with the
deceased and the appellant. He further submitted that the prosecution had
failed to establish that the occurrence took place in the room where the
appellant and the deceased were living together because of the absence of any
burn marks on the bed or recovery of the burnt bedding from the room. Argued
Mr. Lalit, that the alcohal concentration in the blood of the deceased, as
reflected from the report of the chemical examiner, showed that the deceased
was under the influence of liquor and possibly he received the burn injuries in
a manner other than the one suggested by the prosecution.
counsel also submitted that the oral dying declaration cannot claim a probative
value equal to the dying declaration reduced into writing by a Magistrate and
that the oral dying declaration on the record did not inspire confidence and
cannot from the basis of conviction.
Yadav, learned counsel for the State, on the other hand submitted that the
conduct of the appellant in not taking the deceased to the hospital and not
being available on search by the police lateron exposes her guilty mind and
lends credence to the oral dying declaration.
counsel submitted that the oral dying declaration made by the deceased to his
mother and sister have received ample corroboration from the statement of the
deceased as heard by PW-3 at the hospital and that evidence by itself is
sufficient to establish that the appellant had committed the crime.
the deceased and the appellant were married 10 years prior to the occurrence
and their only son died on July 23, 1984
is not disputed. There is also no dispute that the deceased died as a result of
extensive burn injuries received by him during the night intervening 30-31
August, 1984. The extent of the alcohal concentration in the blood of the
deceased has also been established to be very high by the chemical examiner
indicating thereby that the deceased must have been under the influence of
liquor at the time when he received the burn injuries. There being no
eyewitness of the occurrence, the case rests only on circumstantial evidence
and the question before us is whether the circumstances brought on the record
connect the appellant with the crime and are compatible only with her guilt and
incompatible with the hypothesis of her innocence.
considering the circumstances, we shall first take up for consideration the
alleged dying declaration made to Lachhmi Devi, PW-1 and Bimla Devi, PW-2 at
one and the same time by the deceased when he knocked at the door of his
mother's room at about 2.00 a.m. while in a burning condition. According to
PW-1 Lachhmi Devi, mother of the deceased, when the deceased knocked at her
door and she alongwith Bimla Devi PW2 came out and saw Madan Lal in burning
condition, "Madan Lal on enquiry told that Darshana Devi accused had
sprinkled kerosene oil on him and had burnt him." She went on to add that
thereafter she took Madan Lal to the hospital, in a rickshaw which met them on
the way to the hospital. PW-2 while deposing about the oral dying declaration
made by the deceased, when he knocked at the door at about 2.00 a.m., stated:
Lal knocked at our door. I and Lachhmi Devi came out and saw Madan Lal burnt. Madan
Lal had told that Darshana Devi had sprinkled kerosene oil on him when he was
lying asleep and had burnt him. My mother took him to the hospital where he
subsequently expired." There is variance in the statements of the two
witness with regard to the exact words allegedly used was not in a fit
condition to make a statement after the police had arrived at the hospital at
about 3.45 a.m.,in response to the police query. We, therefore, find it
difficult to believe, as PW3 would like us to, that a patient with extensive
burn injuries whose pulse could not be felt and whose blood pressure could not
be recorded, was mentally fit and making a coherent statement that he had been
burnt by his wife, keeping in view the concentration of alcohal in his blood,
so as to be heard so clearly by PW3. It does not appear probable to us that the
deceased could have made the statement as is being attributed to him by PW3.
Even without the burn injuries, because of the alcohal concentration found in
the body of the deceased, he could not be making a coherent. We therefore, find
it difficult to rely upon the statement of PW3.
prosecution has also not been able to establish any motive for the appellant to
commit the murder of her husband particularly when the couple had lost their 9
year old only child just a few weeks before the occurrence. According to the
investigating officer there were no marks of burning on the bed and through a
broken bottle smelling of kerosene was taken into possession from the deceased
neither the bed nor the bedding was found to have any burn marks. No burnt
article was found in the room nor any such article was seized. Had the deceased
been sleeping as deposed to by PW2, when kerosene oil was poured on him and he
was set on fire, the bedding could not have remained unaffected by the room by
the police either. The burnt pieces of the shirt of the deceased were recovered
from the lane between the room of the deceased and his mother. In her statement
under Section 313 Cr.P.C. the appellant while denying the prosecution
allegations gave the following version:
was putting up with my husband Madan Lal in the room facing the house of my
mother-in-law at Mansa.
only son died on July
23, 1984, which made
my husband Madan Lal depressed and the depression countinued Madan Lal developed
insomnia as a result of which he started taking liquor in addition to
intoxicating pills. Madan Lal had developed suicidal tendencies.
night intervening August 30/August 31, 1984
I heard cries of my husband in the lane. I came in the lane.
on the person of Madan Lal stood burnt and he was restless, in the lane. I
rushed him to the hospital.
Devi PW1 and Bimla Devi PW2 followed us to the hospital where the condition of
my husband became more serious. The hospital attendants made me sit in the
verandah. After the death of my husband I was placed under arrest by the police
under the pressure of my mother-in-law and sister-in-law with whom, my
relations were strained since long. Their grouse was that I was hinderence in
the way of my husband in giving maintenance to them. My relations with my
husband were affectionate. I had written letter Ex. D 7 to my brother Harbans Lal.
I had moved the Education Department that I and my husband may be transferred
to one place. I had made allegations therein against my mother- in-law, Madan Lal
was talking irrelevant and incoherently when he was being taken to the
hospital." Of course the investigating officer, PW-5 in his statement
asserted that the appellant was not available inspite of search but did not
take the Court into confidence to state as to when and where he made the search
for her. He stated that the appellant had been produced before him on the day
of the occurrence itself at about 7.00 p.m. by Com.
Singh and he placed her under arrest. But, interestingly Com. Balwinder Singh
has not been examined by the prosecution at the trial to support this version.
to the appellant she had been arrested from the hospital itself. There is no
material on the record which may belie that assertion particularly when it is
admitted that she had been formally placed under arrest at 7.00 p.m.
on 31st August, 1984 itself. From a careful analysis of
the evidence on the record we find that the possibility of the appellant being
involved in the crime at the instance of the mother-in-law PW-1 and the
sister-in-law, PW-2 as asserted by the appellant in her statement under Section
be ruled out. PW-2 Bimla Devi had been deserted by her husband. She was living
with her mother. Through, she stated in her cross-examination that Madan Lal
was not supporting her and her mother, the appellant in her statement under
Section 313 Cr.P.C. asserted that her mother-in-law and her sister-in-law
considered her to be a hindrance in the way of the deceased giving maintenance
to them. The letters written by the appellant to the Education Department and
to her brother Harbans Lal, the authenticity of which has not been assailed by
the prosecution, support the version of the appellant and show that the
relations between the couple were cordial but the mother-in-law was not
allowing them to live in peace. She had requested the Education Department
through her letter Ex. D7 to post her at the place of posting of her husband so
that they could live together. This conduct of the appellant does not show that
the relationships between her and her husband were not cordial. Of course in
the FIR PW-1, Lachhmi Devi, mother-in- law of the deceased, had stated that the
deceased and his wife had strained relations since long and the deceased had
been burnt by the appellant because of those strained relations but did not
give out any cause for estrangement.
trial she, however, tried to give the reasons for strained relations and went
on to say, voluntarily, during the cross-examination, that the deceased used to
object to the visit of some male teachers visiting the appellant at the house.
This clearly is an improvement and exposes the extent to which PW-1 could go
while making a statement against the appellant. In our opinion, the appellant
had no motive to commit the crime and on the other hand the possibility of her
being falsely implicated by her mother- in-law, PW1 cannot be ruled out. During
the pendency of the trial against the appellant, the mother of the deceased,
PW- 1, who herself is a widow had engaged a counsel and moved an application
for grant of succession certificate regarding the amounts due to the deceased
from his employer, the Punjab Government. PW1 admitted during the cross-examination
that she had engaged a counsel and moved an application for grant of succession
certificate about two and a half months after the death of the deceased. The
hot haste in which she made the application when the case against, the legal
heir of the deceased, the appellant herein, had not even proceeded to trial, is
quite indicative of her design to grab the money of the deceased. Thus, she
stood to gain financially from the conviction of the appellant, as the only son
of the deceased and the appellant had already died and the appellant, after
conviction, would not be entitled to inherit the property of the deceased. She
had thus a reason, to falsely implicate the appellant and her action in
claiming the amounts due to the deceased is tell tale.
prosecution, in our opinion, has failed to establish any of the circumstances
to connect the appellant with the crime and has thus not been able to bring
home the guilt to the appellant beyond a reasonable doubt. The order of
conviction and sentence of the appellant cannot be sustained. The appeal
consequently succeeds and is allowed.
conviction and sentence of the appellant is set aside.
appellant is on bail. Her bail bonds shall stand discharged.