Jaswant Singh Vs. State (Delhi Admn.)
[1978] INSC 172 (14 September 1978)
SINGH, JASWANT SINGH, JASWANT KAILASAM, P.S.
CITATION: 1979 AIR 190 1979 SCR (1) 777 1978
SCC (4) 85
ACT:
Evidence-Circumstantial evidence, value of,
in sustaining conviction-Dying declaration not recorded by a Magistrate must be
scrutinised closely.
HEADNOTE:
The appellant stood charged for trial under
s. 302 of the I.P.C. for having caused the death of his wife by sprinkling
kerosene oil and setting her clothes to fire. The Addl. Sessions Judge relying
on the dying declaration which was corroborated by the circumstantial evidence
of the narration about the incident by the deceased to her parents PW-1 and
PW-2 just before her death, found him guilty of the offence with which he was
charged and sentenced him to life imprisonment. The appeal preferred by the
appellant to the High Court having proved abortive, the appellant came up
before this Court by special leave.
Dismissing the appeal the Court,
HELD : (1) The circumstantial evidence in
order to sustain conviction must be complete and must be incapable of
explanation on any other hypothesis other than that of guilt of the accused.
[781C-D] (2) The dying declaration which is not recorded by a Magistrate has to
be scruitinised closely, but it is well settled that if the Court is satisfied
on a close scrutiny of the dying declaration that it is truthful it is open to
the Court to convict the accused on its basis without any independent
corroboration. [781D] Khmushal Rao v. The State of Bombay, [1958] SCR 552;
Lallubhai Devchand Shah & Ors. v. The
State of Gujarat, [1971] 3 SCC 767; Vithal Somnath Kore v. State of
Maharashtra, [1978] 1 S.C.C. 622, referred to.
(3) (a) In the instant case there is no
direct evidence regarding the guilt of the appellant and the prosecution case
rests wholly on the circumstantial evidence and the dying declarations made by
the deceased before the Sub- Inspector Din Dayal and Roshan PW-1 and Phool Vati
PW-2.
[781B-C] (b) On a careful consideration of the
evidence it is clear that the dying declaration Ext. PW 21/F, the genuineness
of which is verified by Dr. Avtar Singh Gill PW- 18 is truthful and convincing
and it cannot be brushed aside merely on the ground that it was not recorded by
a Magistrate especially when it was recorded by Sub-Inspector Din Dayal in the
presence of the duty doctor viz. Avtar Singh Gill at the time when the deceased
was in great agony and the life in her was fast ebbing away. The testimony of
the parents of the deceased viz. Roshan P.W. 1 and Phool Vati PW-2 also lends
strong corroboration to the dying declaration. They have categorically stated
that the relations between the deceased and the appellant were strained as the
latter was ill-treating the former and was carrying on with another woman from
Shahdara.
778 The dying declaration also receives
corroboration from the report of the Chemical Examiner and post mortem report
of PW-11 which indicate that the cause of death of the deceased was shock and
toxemia due to burns. [781E-H, 782A, E, F] (4) The evidence in the instant case
inevitably points to the conclusion that it was the appellant and the appellant
alone who intentionally caused the death of the deceased and the plea sought to
be raised by him that the fire was accidental is an afterthought and stands
refuted not only from the recovery of the bottle containing kerosene oil, burnt
match sticks, match box and half burnt clothes of the deceased but also from
the fact he did not come with this plea either to PW-4 or PW-5. [782G-H, 783A]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 346 of 1974.
Appeal by Special Leave from the Judgment and
Order dated 23-10-73 of the Delhi High Court in Criminal Appeal No. 118 of
1972.
R. L. Kohli, Amicus Curiae for the Appellant.
H. R. Khanna and R. N. Sachthey for the
Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-This appeal by special leave is directed against the judgment
and order dated October 23, 1973 of the High Court of Delhi confirming the judgment
and order dated July 29, 1972 of the Additional Sessions Judge, Delhi
convicting the appellant under section 302 of the Indian Panel Code and
sentencing him thereunder to imprisonment for life for causing the death of his
wife.
Briefly stated, the circumstances giving rise
to this appeal are : Attracted by the screams emanating from the house of the
appellant situate in Basti Chain Sukh Das, Kala Mahal, Daryaganj, Delhi on the
afternoon of July 6, 1971, the neighbours namely Murari Lal (P.W. 4), Gulab
Singh (P.W. 5) and one Kishan Lal rushed to the spot. On reaching the first
floor of the house, they found the appellant's wife named Kamla, aged 27 years,
lying unconscious outside the living room in the courtyard with burns all over
her body.
Alongwith the appellant who was present
there, they covered Kamla with a bed-sheet, put her on a cot and took her
downstairs in the street wherefrom she was removed in a tempo to Irwin
Hospital, Delhi. At about 5.20 in the evening on that day, constable Baldev
Singh (P.W. 7) posted on duty at the Emergency Ward of the said Hospital, rang
up the Police Station, Jama Masjid, Delhi, informing it that the appellant had
got his wife, Kamla, admitted in the emergency ward of the hospital at about
4.15 or 4.30 P.M. because of some burns sustained by 779 her at her house and
requesting that some officer might be sent to the place of the occurrence. On
receipt of this information, S.I. Din Dayal (P.W. 21) proceeded to the hospital
accompanied by constable Raghubir Singh (P.W. 6).
On being informed by the doctor on duty at
the hospital that Kamla was unconscious and as such not in a fit condition to
make a statement, the Sub-Inspector sent constable Raghubir Singh to the scene
of occurrence with instructions to keep a watch over the same, and himself
remained in the hospital waiting for an appropriate opportunity to record the
statement of Kamla after her revival. He tried several times upto the midnight
to have the permission of the doctor on duty to record the statement of Kamla
but each time the doctor declared the patient unfit to make a statement. At
7.50 A.M. on the morning of July 7, 1971, the Sub-Inspector again repeated his
request to the doctor on duty for permission to record the statement of Kamla
but it was only at 10.30 A.M. that Dr. Avtar Singh Gill (P.W. 18) who was on
duty at that time gave him the requisite permission which enabled him to record
the statement (Exh. P.W. 21/F) of Kamla in the presence of the said doctor.
This statement was to the following effect :- "My husband sprinkled
kerosene oil over me and set fire and when later on I had sufficiently been
burnt he put a bucket full of water over me. It was about 1 P.M.
and I had not quarreled with my husband
Jaswant Singh.
I had asked him as to why he had come home
late whereupon he got annoyed and beat me. After beating me he sprinkled
kerosene oil over me and set fire to my clothes. At the time of setting fire to
my clothes he had closed the door from inside." After completing the
necessary formalities, the Sub- Inspector sent `Rooqa' (Exh. P.W. 10/A)
together with Kamla's aforesaid statement (Exh. P.W. 21/F) to his Police
Station for registration of the case under section 307 of the Indian Penal Code
and himself left for the scene of the occurrence. Shortly after the departure
of the Sub-Inspector the parents of Kamla namely Roshan (P.W. 1) and Phool Vati
(P.W. 2) enquired of Kamla as to how she had sustained the burns on her body.
In reply to their query, Kamla told them that the appellant did not come back
to the house from his office on the evening of July 5, 1971 and spent the whole
of the night intervening the 5th and 6th of July, 1971 in Shahdara; that on
returning to the house on the morning of July 6, 1971, the appellant awakened
her and asked her to prepare the meal which she did but the appellant threw it
away and beat her; that on her asking the appellant to send her to her 780
parent's house, the appellant abused her, bolted the door of the room from
inside, sprinkled kerosene oil on her clothing and set them on fire. After
about an hour of this statement, the condition of Kamla deteriorated and she
succumbed to her injuries at about 12.25 P.M. Dr. Bharat Singh, Police Surgeon,
Delhi (P.W. 11) performed the autopsy on the dead body of Kamla on July 8,
1971. He found superficial burns all over the body from the skull to the toes
which according to him were antemortem and sufficient in the ordinary course of
nature to cause death. The doctor also found almost full grown dead male foetus
in the womb of the deceased. On the basis of the observations made by him, the
doctor opined that the cause of the death of Kamla was shock and toximia due to
burns.
On arrival of the scene of occurrence after
despatching the dying declaration (Exh. P.W. 21/F) to the Police Station, the
Sub-Inspector prepared the site plan, got the place photographed by Head
Constable Inder Singh (P.W. 3) and seized a few articles from the living room
of the appellant's house including a bottle containing some kerosene oil, a match
box, some burnt match sticks, some half burnt clothes of the deceased and an
unserviceable stove without any kerosene oil vide Exhibit P.W. 8/A which he
sent to the Chemical Examiner for examination. After performing the necessary
tests, the Chemical Examiner sent a report to the Superintendent of Police,
Central District, Delhi inter alia stating therein that the liquid contained in
the bottle was kerosene oil and that traces of kerosene oil were present on the
half burnt clothes of the deceased.
On July 8, 1971, the Sub-Inspector also got
the appellant examined by Dr. Obnesh Kaur (P.W. 20) who found the following
injuries on his person :- "(i) Multiple blisters posterior aspect lower
1/3rd left upper arm;
(ii) An irregular superficial torn out
blisters un-creation on the posterior aspect left forearm upper 1/3rd.
(iii) An irregular superficial burns with
minor blisters dorsum (back side of wrist) of left wrist.
(iv) Atorn blister ulceration on the first
joint of the left index finger dorsum side." In the opinion of the doctor,
injuries (i) to (iv) were simple burns of more than 24 hours' duration.
On completion of the investigation, the
appellant was proceeded against in the Court of the Judicial Magistrate 1st
Class, Delhi who committed him to the Court of Session at Delhi for trial under
section 781 302 of the Indian Penal Code. The Additional Sessions Judge, Delhi
who tried the appellant held that the appellant was guilty of the offence with
which he was charged and sentenced him to imprisonment for life. The appeal
preferred by the appellant to the High Court having proved abortive, he has
come up in appeal to this Court by special leave, as already stated.
We have heard counsel for the parties and
gone through the record.
The short question that arises for
determination in this case is whether the prosecution has succeeded in bringing
home the offence under section 302 of the Indian Penal Code to the appellant.
It is true that in the instant case, there is no direct evidence regarding the
guilt of the appellant and the prosecution case rests wholly on the
circumstantial evidence and the dying declarations made by the deceased before
S.I. Din Dayal and Roshan (P.W. 1) and Phool Vati (P.W. 2). It is also true
that the circumstantial evidence in order to sustain conviction must be
complete and must be incapable of explanation on any other hypothesis than that
of the guilt of the accused. It is also true that the dying declaration which
is not recorded by a Magistrate has to be scrutinised closely, but it is well
settled that if the Court is satisfied on a close scrutiny of the dying
declaration that it is truthful, it is open to the Court to convict the accused
on its basis without any independent corroboration. (See Khushal Rao v. The
State of Bombay;
Lallubhai Devchand Shah & Ors. v. The
State of Gujarat and Vithal Somnath Kore v. State of Maharashtra. In the
instant case, on a careful consideration of the evidence on the record, we are
satisfied that the dying declaration (Exh. P.W. 21/F), the genuineness of which
is verified by Dr. Avtar Singh Gill (P.W. 18), is truthful and convincing and
it cannot be brushed aside merely on the ground that it was not recorded by a
Magistrate especially when it is to be remembered that it was recorded by S.I.
Din Dayal in the presence of the duty doctor Avtar Singh Gill at a time when
the deceased was in great agony and the life in her was fast ebbing away. It is
well recognised that when the words are few, they are seldom spent in vain. It
would also be well at this stage to recall the statement made in
cross-examination by Shri Yashpaul, Link Judicial Magistrate, Jama Masjid,
Delhi to the effect that when he reached the Hospital to record the statement
of the deceased but could not do so as she had expired before his arrival, he
was informed that a police officer had already recorded 782 her statement. The
testimony of the parents of the deceased namely, Roshan (P.W. 1) and Phool Vati
(P.W. 2) also lends strong corroboration to Exhibit P.W. 21/F. They have categorically
stated that the relations between the deceased and the appellant were strained
as the latter was ill- treating the former and was carrying on with another
woman from Shahdara who used to visit his (the appellant's) house every now and
then; that the deceased often used to complain to them about the misbehavior
and cruel conduct of the appellant towards her and used to send oral and
written messages imploring them to take her away from the matrimonial house;
that they sometimes spoke to the appellant about his alleged misbehavior when
he would assure them that he would behave properly in future and that hoping
that things would improve in due course, they advised the deceased to stick to
the matrimonial house. It is also in evidence that when on hearing the screams
of the deceased, the neighbours arrived at the spot, they found her lying
unconscious outside her living room with burns all over her body. From the
aforesaid dying declarations, it stands established beyond doubt that the
appellant who had been ill-treating the deceased and was carrying on with
another woman from Shahdara got enraged and caused the death of the deceased by
sprinkling kerosene oil on her clothing and setting them on fire after closing
the door of his living room from inside so that succour does not reach her when
she raised a protest about the appellant's absence from the house throughout
the previous night. The dying declarations also receive corroboration from the
report of the Chemical Examiner which shows that the traces of kerosene oil
were found on the half-burnt clothes of the deceased recovered from the living
room by S.I. Din Dayal vide Exhibit P.W. 8/A and the fact that the inside
portion of the door of the room was found burnt as also from the statement of
Dr. Bharat Singh, Police Surgeon, Delhi (P.W. 11) that on the basis of the
appearances met with by him on post mortem examination of the dead body of the
deceased, he came to the conclusion that the cause of death of the deceased was
shock and toximia due to burns.
The plea sought to be raised on behalf of the
appellant that the fire was accidental seems to be an afterthought and is
negatived by the fact that no cooking material was found in the living room
where the incident appears to have taken place as also by the fact that the
primus stove recovered and seized from the living room vide Exhibit P.W.
8/A was admittedly unserviceable. That the
appellant committed the ghastly crime is also proved from the recovery of the
bottle containing kerosene oil, burnt match sticks, match box and half-burnt
clothes of the deceased as also from the fact that he did not suggest either to
Murari Lal (P.W. 4) or to Gulab Singh (P.W. 5) at the stage 783 of
cross-examination that on their arrival at the scene of occurrence on hearing
the screams on the afternoon of July 6, 1971, he gave out that the incident was
accidental. Thus the evidence inevitably points to the conclusion that it was
the appellant and the appellant alone who intentionally caused the death of the
deceased. Accordingly we see no reason to interfere with the findings
concurrently arrived at by the courts below.
In the result, the appeal fails and is
dismissed.
S.R. Appeal dismissed.
Back
