Patel Hiralal
Joitaram [2001] Insc 555 (18 October 2001)
S.N.Variava,
K.T.Thomas
Appeal
(civil) 427 of THOMAS, J.
A
businessman of Patan (Gujarat) was arraigned for scorching a
young hapless woman (mother of two infant children) to death. The gory felony
was perpetrated in broad day light on a public road. The man against whom the
accusation was made had no relationship with the victim, maritally or
otherwise. The trial court exonerated him, but a Division Bench of the High
Court of Gujarat found him to be the killer of that lady and convicted him and
sentenced him to imprisonment for life. Hence this appeal by him as of right.
Asha
Ben, the roasted victim of the gory episode was one of the 7 daughters of her
father. In her wedlock with Vinod Bhai (PW-5) she became mother of two children
(Mital and Bhargav). The small family consisting of Asha Ben, her husband and
the two children were living in their own house in the city of Patan. Her eldest child Mital was
studying in Bal Mandir attached to a school by name Bombay Metal School at Patan.
The
story of the prosecution is the following.
Appellant
developed some affair with the sister of Asha Ben which the deceased resented
for her own reasons. She had expressed her detestation to her sister (Sharada
Ben) and also mentioned it to some other persons. When the appellant came to
know of the above reaction of the deceased he wanted to settle score with her.
On
21.10.1988 at about 10
A.M., Asha Ben was proceeding
to the school (Bal Mandir) for collecting her child Mital back home. On the way
appellant who was on a scooter met her and buttonholed her malevolently. He
questioned her for spreading the canard that he and Sharada Ben had illicit
relationship. So doing appellant took out a can and doused combustible liquid
contained therein on Asha Ben. He then whipped out a lighter and after lighting
it hurled its flame on her. In a trice Asha Ben was transformed into an
anthropoid inferno, screaming and yelling she scampered towards a water-flow to
escape from the devouring fire. She reached the water column situated near the
railway station and sat beneath it, and the water flowed therefrom eventually
extinguished the flames and embers which enwrapped her. But by then she was
blistered with substantial burns and her clothes incinerated into ashes. Among
the pedestrians there was a lady who flanked Asha Ben with some clothes to
cover up her nudity and a rickshaw was procured for rushing the charred victim
to the hospital.
On
coming to know of the incident, Vinod Bhai (husband of Asha Ben) reached the
place and by taking her in a rickshaw, speeded up her route to the hospital.
Though she was treated in the hospital for nearly a fortnight she succumbed to
her burn injuries on 15.11.1988.
On
21.10.1988, FIR was registered on the basis of the statement made by Asha Ben
to the police officer (PW.10) who reached the hospital on getting some uncrystalised
information of the episode. In the meanwhile, the Executive Magistrate (PW-1)
on being informed by the doctor who examined the lady, visited the hospital and
recorded her statement around 11.15 A.M. In
that statement she mentioned the name of Hiralal Patel as the culprit.
After
her death the police continued the investigation and completed it and
charge-sheeted the appellant for the offence of murder of Asha Ben.
There
is practically no dispute that Asha Ben was set ablaze after dousing her with
some inflammable liquid on the morning of 21.10.1988. But on the question of
who the culprit was, the prosecution and the defence had great divergence.
Prosecution relied on the statements made by the deceased for establishing the
identity of the culprit, which included the statement given to her husband, to
the Executive Magistrate and to the police in the FIR.
The
Sessions Judge picked out some infirmities in the statements of the deceased
and finally held that those statements cannot be relied on as dying
declarations. He also found that the description of the incident narrated by Asha
Ben is not consistent with probability, particularly when the investigating
officer demonstrated in court how the lighter (alleged to have been used in
setting her ablaze) could be lighted.
The
Division Bench of the High Court after re- evaluating the evidence came to the
conclusion that the trial court has grossly erred in rejecting the statements
of the deceased and that the reasons advanced by the trial court were so
erroneous that no court would ever have come to such conclusions. Relying on
the statements of the deceased learned Judges of the Division Bench of the High
Court came to the irresistible conclusion that the identity of the assailant
had been unmistakably established as against the appellant.
Hence,
the High Court convicted him and sentenced him as aforesaid.
Shri
U.R. Lalit, learned senior counsel for the appellant urged, at the outset, that
the High Court should have borne in mind that it was an appeal against the
acquittal which they were dealing with and the approach should have been
different from that of appeal against conviction. According to the learned
senior counsel the Division Bench has overlooked the standard formulated by
this Court for dealing with an appeal against acquittal and consequently the
order of the acquittal was wrongly reversed. We reminded ourselves of the
standard to be adhered to while dealing with an appeal against acquittal.
In Dhanna
vs. State of M.P. {1996 (10) SCC 79} this Court has
reiterated the perspective to be adopted in such a situation, after referring
to some of the earlier decisions rendered by this Court on that aspect. We may
extract the following observations from the said decision:
Though
the Code does not make any distinction between an appeal from acquittal and an
appeal from conviction so far as powers of the appellate court are concerned,
certain unwritten rules of adjudication have consistently been followed by
Judges while dealing with appeals against acquittal. No doubt, the High Court
has full power to review the evidence and to arrive at its own independent
conclusion whether the appeal is against conviction or acquittal. But while
dealing with an appeal against acquittal the appellate court has to bear in
mind: first, that there is a general presumption in favour of the innocence of
the person accused in criminal cases and that presumption is only strengthened
by the acquittal. The second is, every accused is entitled to the benefit of
reasonable doubt regarding his guilt and when the trial court acquitted him, he
would retain that benefit in the appellate court also. Thus, the appellate
court in appeals against acquittals has to proceed more cautiously and only if
there is absolute assurance of the guilt of the accused, upon the evidence on
record, that the order of acquittal is liable to be interfered with or
disturbed.
Bearing
in mind the above standard of caution we may make the judicial scrutiny of the
findings arrived at by the High Court. As pointed out earlier, the focus of
discussion can first be mustered on the identity of the assailant, for, there
is little dispute on the fact situation that one assailant had set her ablaze
at the time and place mentioned in her statements. We are, in this context,
tempted to dub the reasoning of the Sessions Judge for concluding that it is
impossible that the Saree could catch fire if the lighter is thrown at her as
preposterous. It requires no effort for any sensible person to understand that
it was the flame on the lighter which was hurled at the victim who was by then
soaked with inflammable liquid and catching fire in such a situation is a
matter of easy grasping for any one.
We are
aware that the statements made by the deceased are the only materials available
for establishing the identity of the appellant and hence if those statements
are inadmissible or unreliable even if admissible, or insufficient to point to
the appellant as the assailant, its inevitable consequence is to set the
appellant free.
Knowing
this position well Shri U.R. Lalit, learned senior counsel first focussed his
contention for showing that the prosecution has failed to prove that Asha Bens
death was due to burns sustained by her on 21.10.1988.
The
interval between the date of the incident when the deceased sustained burns and
the date of her death was a fortnight. PW-2 Dr. Vikarambhai, who examined Asha
Ben at 10.30 A.M. on 21-10-1988, noticed second degree burns on the upper and lower
portions of her hands, front and back of her chest and on the neck, ears and
forehead. He found that her condition was critical when he saw her first.
PW-12
Dr. N.N. Parikh, a tutor in Forensic Medicine of the BJ Medical College, Ahmedabad,
conducted autopsy on her dead body on 15.11.1988. He noticed burns of the third
degree on the front and back of her trunk, both thighs, etc., besides second
degree burns on some other limbs. In his opinion the death of the deceased was
due to a stroke on account of such burns and that those burns were sufficient
in the ordinary course of nature to cause her death.
Harping
on an answer given by PW-12 in cross- examination that death of the deceased
had occurred due to septic learned senior counsel made out an argument that
such septic condition could have developed on account of other causes. Mere
possibility of other causes supervening during her hospitalisation is not a
safe premise for deciding whether she would not have died due to the burns
sustained on 21.10.1988. The cause of death can be determined on broad
probabilities. In this context we may refer to a passage from Modis Medical
Jurisprudence & Toxicology, dealing with death by burns.
As
already mentioned, death may occur within 24 to 48 hours, but usually the first
week is the most fatal. In suppurative cases, death may occur after five or six
weeks or even longer.
In Om Prakash
vs. State of Punjab {1992 (4) SCC 212}, the victim was set ablaze on 17.3.1979
and she sustained burns with which she died only 13 days thereafter. The
assailant was convicted of murder and the conviction was confirmed by this
Court.
It is
preposterous to say that deceased in this case would have been healed of the
burn injuries and that she would have contracted infection through some other
causes and developed septicemia and died of that on 15.11.1988.
Court
of law need not countenance mere academic possibilities when the prosecution
case regarding death of the deceased was established on broad probabilities as
sequel to the burns sustained by her. Hence we repel the contention of the
learned counsel on that score.
Next
contention which needs consideration is that even from the statements made by
the deceased after sustaining the burns, the identity of the assailant cannot
unmistakably refer to the appellant. The first occasion on which she made
statement revealing the name of the assailant was when she talked to PW-3 (Sadbhai),
a pedestrian. The witness has deposed that when the victim was sitting beneath
the water column of the railway station writhing in pain and frantically trying
to get the flames quelled, some Sadhus gathered nearby and asked her who had
done it to her and then she answered by mentioning the name as Hiralal. A little
later, when she narrated the incident to her husband (PW-5 Vinod Bhai) she
disclosed a little more details about the identity of the assailant.
This
is how PW-5 had deposed about it:
Asha
told me that she was burnt by Hiralal Patel of our society She told me that Hiralal
asked her why she was defaming him by spreading the story that he had illicit
relations with her sister Sharada.
It
must be borne in mind that so far as PW-5 is concerned he had absolutely no
doubt that Hiralal Patel referred to by her is the appellant. When Asha Ben
spoke to PW-2 Dr. Vikarambhai she did not mention the name of the assailant.
Learned senior counsel highlighted that omission for contending that she did
not know who that assailant was when she narrated the incident to that doctor.
We are unable to give accord to the said contention as it is too much to expect
a lady in such a condition to disclose the name of the assailant to the doctor
spontaneously without being asked for it. For the doctor, the name of the
assailant or even his identity is of no use and hence he would not have
bothered to know about it.
The
main dying declaration was given by Asha Ben to the Executive Magistrate
(PW-1). That dying declaration was marked as Ext.11. It was recorded at 11.15 A.M. on 21.10.1988, when she said this:
Hiralal
Patel, who burnt me, met me near Siddharaj Nagar. His scooter No. is 3040. He
asked me why are you spreading wrong stories about me. He got very excited and
poured some corrosive liquid from a tin of 500 gms.
on me
and threw a lighter lighted on me Hiralal is the son-in-law of Nanavati.
Three
specifications regarding the identity of the assailant could be discerned from
those statements. First is that the name of the assailant is Hiralal Patel.
Second is that he reached the place by scooter No.3040. Third is that he is the
son-in-law of Nanavati. Prosecution was able to place materials to show that
all the above three identifying features are referring to the appellant. We may
point out that appellant himself admitted that he is Hiralal Patel. When the
Investigating Officer seized the scooter from his house appellant made an
application before the court for return of the said scooter. It is significant
to point out that the registration No. of that scooter is 3040. In fact he filed
an application before the court for returning the scooter. The father-in-law of
the appellant is admittedly one Nanavati and that fact has been spoken to by Valiben
(PW-9). The aforesaid features would almost conclusively establish that it was
the appellant whom the deceased meant when she told others that it was Hiralal
who caused her burn injuries.
Shri
U.R. Lalit, learned senior counsel in his arguments projected the description
of the name of the assailant given by Asha Ben in the statement attached to the
FIR (Ext.40) as Hiralal Lalchand and contended that appellant is not the son of
Lalchand. Appellant is Hiralal Joitaram and hence the deceased would have
referred to some other person, contended the counsel.
In
this context we have to look into the words which Asha Ben has spoken in
Ext.P-40 FIR regarding that aspect.
Those
words are extracted below:
The
resident of our society, Patal Hiralal whose fathers name I dont know, he was
having illicit relationship with my sister Sharada and I saw them two or three
times. I scolded Hiralal and hence he was annoyed with me. The above said Hiralal
Lalchand, whose name I give on recollecting afterwards caused me burns.
In the
above context we have to refer to a clarificatory statement elicited from the
deceased by PW-13 (Bhagwat) the Investigating Officer. That statement is marked
as Ext.67. It reads thus:
In my
statement I have given the name of the acccuseds father as Lalchand which has
been stated inadvertently. Lalchand is the name of the father-in-law of my
sister and hence I remembered it inadvertently. The name of the father of Hiralal
is really Joitabhai. He is the son-in-law of Nanavati Soap Factory.
(The
statement was recorded in Gujarati and the above extract is the English
translation produced by the appellant before this Court).
Learned
senior counsel made a two-fold attack on the admissibility of Ext.67. First is
that a statement recorded by police under Section 161 of the Code of Criminal
Procedure is inadmissible in evidence. Second is that even if it is admissible
for any purpose it cannot be used under Section 32 of the Evidence Act as the
said statement related only to the parentage of Hiralal.
If
what is extracted above from Ext.67 falls under Section 32(1) of the Evidence
Act it would stand extricated from the ban contained in Section 162 of the Code
of Criminal Procedure. The former is exempted from the ban contained in Section
162. This can be seen from sub- section (2) of Section 162 which reads thus:
Nothing
in this section shall be deemed to apply to any statement falling within the
provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions of section 27 of that Act.
We
have therefore to see whether the statement in Ext.67 (extracted above) would
fall within the purview of Section 32(1) of the Evidence Act. That sub-section
reads thus:
(1)
When it relates to cause of death.- When the statement is made by a person as
to the cause of his death, or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of that persons death
comes into question. Such statements are relevant whether the person who made
them was or was not, at the time when they were made, under expectation of
death, and whatever may be the nature of the proceeding in which the cause of
his death comes into question.
The
above provision relates to the statement made by a person before his death. Two
categories of statements are made admissible in evidence and further made them
as substantive evidence. They are:
(1)
His statement as to the cause of his death;
(2)
His statement as to any of the circumstances of the transaction which resulted
in his death. The second category can envelope a far wider amplitude than the
first category. The words statement as to any of the circumstances are by
themselves capable of expanding the width and contours of the scope of
admissibility. When the word circumstances is linked to transaction which
resulted in his death the sub-section casts the net in a very wide dimension.
Anything which has a nexus with his death, proximate or distant, direct or
indirect, can also fall within the purview of the sub- section. As the
possibility of getting the maker of the statements in flesh and blood has been
closed once and for all the endeavour should be how to include the statement of
a dead person within the sweep of the sub-section and not how to exclude it therefrom.
Admissibility is the first step and once it is admitted the court has to
consider how far it is reliable. Once that test of reliability is found
positive the court has to consider the utility of that statement in the
particular case.
In Sharad
Birdhichand Sarda vs. State of Maharashtra
{1984 (4) SCC 116}, a three Judge Bench of this Court considered the scope of
Section 32(1) of the Evidence Act.
After
referring to a number of decisions of different High Courts on the point Fazal
Ali, J, who spoke for the majority opinion, laid down five propositions. Among
them the first is that the legislature has thought it necessary to widen the
sphere of Section 32 for avoiding injustice.
Among
the remaining propositions the second is relevant for our purpose and hence it
is extracted below:
The
test of proximity cannot be too literally construed and practically reduced to
a cut-and-dried formula of universal application so as to be confined in a
straitjacket. Distance of time would depend or vary with the circumstances of
each case. Sometimes statements relevant to or furnishing an immediate motive
may also be admissible as being a part of the transaction of death. It is
manifest that all these statements come to light only after the death of the
deceased who speaks from death.
Following
the above decision a two Judge Bench of this Court has stated thus in Rattan
Singh vs. State of H.P. {1997 (4) SCC 161}:
The
collocation of the words in Section 32(1) circumstances of the transaction
which resulted in his death is apparently of wider amplitude than saying
circumstances which caused his death.
There
need not necessarily be a direct nexus between circumstances and death. It is
enough if the words spoken by the deceased have reference to any circumstance
which has connection with any of the transactions which ended up in the death
of the deceased.
Such
statement would also fall within the purview of Section 32(1) of the Evidence
Act. In other words, it is not necessary that such circumstance should be
proximate, for, even distant circumstances can also become admissible under the
sub-section, provided it has nexus with the transaction which resulted in the
death.
Taking
cue from the legal position as delineated above we have to consider now whether
the statement of Asha Ben in Ext.67 related to any circumstance connected with
her death. We cannot overlook the fact that the context in which she made such
statements was not for resolving any dispute concerning the paternity of a
person called Hiralal or even to establish his parentage. It was in the context
of clarifying her earlier statement that she was set ablaze by a man called Hiralal
whose second name happened to be mentioned by her as Lalchand. When
subsequently she was confronted by the Investigating Officer with the said
description to confirm whether it was Hiralal son of Lalchand who set her to
fire, she made the correction by saying that she made a mistake inadvertently
and that it was Hiralal Joitaram who did it and not Hiralal Lalchand.
Thus
Ext.67 is inextricably intertwined with the episode in which she was burnt and
eventually died of such burns.
Looking
at Ext.67 from the above perspective we have no doubt that the said statement
would fall within the ambit of Section 32(1) of the Evidence Act.
Thus,
from the statements made by the deceased we have no doubt that it was the
appellant whom Asha Ben referred to as the assailant who doused combustible
liquid on her and ignited her with the flame of the lighter. There is no reason
even remotely suggesting that the deceased would have had only a scanty
acquaintance with the appellant so as to commit a mistake in identifying him.
We, therefore, agree with the conclusion of the Division Bench of the High
Court that prosecution succeeded in proving beyond reasonable doubt that
appellant was the assailant who set Asha Ben ablaze.
Shri
U.R. Lalit, learned senior counsel then made an alternative argument that the
offence would not escalate beyond culpable homicide not amounting to murder.
This argument was made on the premise that the burns caused to her did not
result in her death during the initial fatal period and that her death happened
on account of setting in of some later complications.
Section
299 IPC defines culpable homicide as whoever causes death by doing an act with
the intention of causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that he is likely by
such act to cause death, commits the offence of culpable homicide.
Explanation
2 to Section 299 has a material bearing on the said contention and hence that
is extracted below:
Explanation
2.- Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been prevented.
Section
300 IPC carves out two segments, one is culpable homicide amounting to murder
and the second segment consists of culpable homicide not amounting to murder.
Four clauses enumerated in the section are enveloped in the first segment. What
is set apart for the second segment is compendiously described as except in the
cases hereinafter excepted from out of the first segment.
For
the purpose of this case we deem it necessary to quote only the second clause
in Section 300 IPC.
2ndly.-
If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused,
In the present case, appellant did not even make an effort to bring the case
within any of the four exceptions enumerated in Section 300. Hence the only
question to be answered is whether he did the act with the intention of causing
such bodily injury as he knew to be likely to cause death of the deceased. It
is inconceivable that appellant would not have known that setting a human being
ablaze after soaking her clothes with inflammable liquid would cause her death
as the type of burns resulting therefrom would at least be likely to cause her
death (if not they are sufficient in the ordinary course of nature to cause her
death). The fact that she died only after a fortnight of sustaining those burn
injuries cannot evacuate the act out of the contours of the 2ndly clause of
Section 300 IPC. There was a little abatement of the ferocity of the flames
which engulfed her as she, in the instinctive human thirst of getting
extricated from the gobbling tentacles of the fire, succeeded in tracing out a
water-flow. Such a reflex action performed by her had mitigated the
conflagration of the flames but did not save her from the fatality of the
calamity. Hence the interval of fourteen days between the attack and her death
is not a cause for mitigation of the offence perpetuated by the offender. We
are, therefore, not impressed by the alternative argument advanced by the
learned senior counsel for the appellant.
In the
result, we dismiss this appeal.
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