Insc 550 (11 May 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J.
1. Appellant is the mother in law of the deceased. They were living in the
same premises. Whereas the deceased and her husband Dinesh Danabhai were
occupying the first floor, appellants were occupying the ground floor. There
was, however, a common wash room at the ground floor. The passage to the first
floor of the house was also through the ground floor.
2. There was a dispute between the families in regard to the charges for
consumption of electrical energy. The dispute between the parties led even to
the appellant lodging a complaint against her son Dinesh resulting in his
arrest. At the relevant point of time, the deceased was pregnant. At about 10.15 a.m. on 31.7.2002, when Dinesh was in his office and their daughter Dolly was
asleep, the deceased came to the ground floor for answering the call of the
3. As she was about to climb the staircase for going to the first floor,
Girishbhai (Accused No. 1) is said to have caught her hair from behind and
forcibly threw her on the floor, poured some kerosene over her body, and
appellant is said to have lighted the match stick. Both the accused thereafter
went outside the house. The deceased tried to extinguish the fire by pouring
water on her person from a bucket. In the meanwhile, she received extensive
burn injuries. She cried out for help whereupon the wives of her elder
brothers-in-law, namely Pushpaben and Gitaben, came together with some
neighborers. They took her to a hospital and her husband was informed. She
disclosed the cause of her receiving burn injuries to the doctor. She was
referred to the Civil Hospital at Ahmedabad in view of seriousness of her
condition. She was immediately taken to Ahmedabad and was admitted in the V.S. Hospital
in the burns ward.
4. Her statement was recorded by PSI Mr. N.J. Gohil and again she stated
about the incident at some detail. Her dying declaration was also recorded by
an Executive Magistrate, Metro Area Court at about 8.30 in the afternoon. She
answered all the questions, the relevant part whereof is as under:- "10.
Facts of the incident - We are staying on upper portion.
Out mother-in-law and brother- in-law deny to stay on upper part. Latrine is
at the outside.
My brother-in-law closed the window which is for going upper and down house
and my brother- in-law named Girish by pouring Kerosene and my mother-in-law by
lighting match-stick have burnt me."
5. She also made similar statements at the time of her admission in the
Burns Ward of the V.S. Hospital, Ahmedabad to the doctors.
6. Both the accused were convicted by the learned Trial Judge and the appeal
preferred by them has been dismissed by reason of the impugned judgment.
7. The Special Leave Petition was filed by both of them. The Special Leave
Petition of Girishbhai was however, dismissed.
8. Mr. H.A. Raichura, learned counsel appearing on behalf of the appellant
in support of this appeal raised the following contentions.
(i) There being discrepancies in the statements of the deceased in her
so-called dying declarations, conviction could not have been based solely
thereupon, as in some of the dying declarations she did not mention the
specific mention role played by the appellant herein.
(ii) Her dying declaration could not have been relied upon as the death took
place only after 25 days of the First Information Report.
(iii) As would appear from the record that before the dying declarations
were made, her husband was present and thus, she must have been tutored.
9. Ms. Hemantika Wahi, learned counsel appearing on behalf of the State, on
the other hand, would submit that in all her dying declarations, she has made a
specific statement in regard to the involvement of the appellant together with
her son Girish Bhai, and these dying declarations are consistent in nature and
there is, thus, no infirmity in the impugned judgments.
10. The deceased suffered 85% burn injuries which as per the statement of
Dr. Vipul are :- "...there were 4% burns in the head and neck of
Kokilaben. There was 9% burns on the right shoulder upto finger. There was 5%
burns from left shoulder to left hand fingers. There was 6% burn on the front
side of the chest. There was 9% burn at the back side of the chest. There was
15% burns on the right leg. There was 18% burn on the left leg. There was 1%
burn on the private part. In this way there there was total burn of 85%. The
burns had reached upto depth from upper side....."
11. The burn injuries were caused by kerosene as is also evident from the
Report of the Forensic Science Laboratory (Ext. 73). It may be true that the
deceased gave her statement about the cause of her suffering injuries at about
12.45 in the morning before Dr. Ashish, but she gave her statement also before
the Magistrate. Admittedly, there is no discrepancy in regard to the
involvement of the appellant vis-`-vis her son Girishbhai. The only discrepancy
which has been pointed out by Mr. Raichura was that in some of her statements,
she had not stated the actual overt act played by appellant herein. In these
statements, she merely had answered the questions put to her by different
persons. When questions are put differently, answers would also appear to be
different. On a first glance, it may appear that the detailed description of
the offence is missing, but in our opinion the statement of the decease must be
construed reasonably. It is in dispute that she had involved both the accused
in all her statements. Only because her husband had rushed to the hospital upon
hearing the news, the same would not mean that the deceased was tutored by him.
A son would not falsely implicate his mother, despite their bitter
relationships. Furthermore first disclosure in regard to the cause of the incident
having been attributed upon her brother-in-law and the appellant, it is
unlikely that the same was tutored by her husband. She was an educated lady,
she had studied upto the second year of graduation. The very fact that the
appellant and her son had developed ill relations with the deceased and her
husband is an indicator to show that why the incident had taken place. The
presence of the appellant at the house at the relevant time is not disputed.
Also, the involvement of Girishbhai has not been disputed.
12. The defence case was that the deceased had committed suicide. The
defence case to that effect was disbelieved for good reasons as because she was
pregnant and she had a daughter aged about 2 and = years. The daughter was
sleeping on the first floor. Indisputably the wash room was on the ground
floor. It was a common one. Her statement, therefore, that she had come to
answer the call of the nature and thereafter had been going upstairs cannot be
disbelieved keeping in view the nature of the injuries.
Even Mr. Raichura conceded that she must have fallen on the ground and the
kerosene was poured on the front portion of her body.
13. Immediately, after the incident, she raised a hue and cry. Other
relatives immediately came there. She was taken to the hospital and her husband
was informed. Had the appellant not participated in the commission of the
offence, she should have been the first person to raise a hue and cry and call
her other daughter-in-laws and neighbours. Immediately after the occurrence,
she was not found at her house. Both the accused were arrested at a much later
14. Much capital is sought to be made from the fact that Dr. Deepti who took
down her statement at the hospital, Ahmedabad has not been examined.
However, Dr. Nitin who treated her, has been examined and he also supported
the prosecution case in regard to the incident in question. Dr.
Nitin might not have taken down her statement but it is natural that he
would ask the deceased about the cause of her sustaining burn injuries.
15. The submission of Mr. Raichura that the 'degree of burn' was not
disclosed by Dr. Ashish is, in our opinion, immaterial.
16. In 'The Order of Things' by Mr. Barbara Ann Kipfer, classification in
regard to the burn injuries has been made as under:- "first degree
(affects epidermis; as from sunburn, steam) second degree (affects dermis; from
scalding water, holding hot metal) third degree (full layer of skin destroyed;
17. In Taylor's Principles and Practice of Medical Jurisprudence at page
250, it is stated that the classification of burns would depend upon the depth
of involvement of the tissues which are measured by the body surface affected.
In view of the admitted fact that kerosene was used for causing injuries and
having regard to the nature of the injuries, the injuries would be of third
degree as classified by Wilson.
18. A dying declaration need not be cease to be one only because death took
place 25 days after the incident. All attempts would be made to save a precious
life of a 25 year old young woman. The Doctors must have tried their best.
Dying declaration which is recorded in expectation of death, need not be
discarded only because death took place after a few days. What is necessary for
the said purpose inter alia is that the statement had been made by a person who
cannot be found or who is dead and thus incapable of giving evidence. The
statements of the deceased must be of relevant facts vide Najjam Faraghi v
State of W.B. [A.I.R 1998 SC 682], B. Shashikala v State of Andhra Pradesh [AIR
2004 SC 1610], Uka Ram v State of Rajasthan [AIR 2001 SC 1814], Smt. Paniben v
State of Gujarat [AIR 1992 SC 1817] and Mohan Lal and Ors. v State of Haryana
[2007 (3) SCALE 282]
19. Strong reliance has been placed by Mr. Raichura on Ravikumar Alias Kutti
Ravi v State of T.N. [(2006) 9 SCC 240], wherein this Court opined;
"5. Section 32 of the Evidence Act, 1872 is an exception to the general
rule against hearsay. Sub- section (1) of Section 32 makes the statement of the
deceased admissible which is generally described as "dying
declaration". The dying declaration essentially means statements made by
the person as to the cause of his death or as to the circumstances of the
transaction resulting in his death. The admissibility of the dying declaration
is based upon the principle that the sense of impending death produces in man's
mind the same feeling as that of a conscientious and virtuous man under oath.
The dying declaration is admissible upon consideration that the declarant has made
it in extremity, when the maker is at the point of death and when every hope of
this world is gone, when every motive to the falsehood is silenced and the mind
is induced by the most powerful consideration to speak the truth.
Notwithstanding the same, care and caution must be exercised in considering the
weight to be given to these species of evidence on account of the existence of
many circumstances which may affect their truth.
The court has always to be on guard to see that the statement of the deceased
was not the result of either tutoring or prompting or a product of imagination.
The court has also to see and ensure that the deceased was in a fit state of
mind and had the opportunity to observe and identify the assailant. Normally,
therefore, the court in order to satisfy itself that the deceased was in fit
mental condition to make the dying declaration, has to look for the medical
opinion. Once the court is satisfied that the declaration was true and
voluntary, it undoubtedly, can base its conviction on the dying declaration
without any further corroboration. It cannot be laid down as an absolute rule
of law that the dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration is merely the rule
This case satisfies the legal requirements as noticed therein.
20. For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly.
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