PETITIONER: GULAM HUSSAIN & ANR. , SHABNAM , ROSHAN Vs. RESPONDENT: STATE OF DELHI DATE OF JUDGMENT: 04/08/2000 BENCH: K.T. Thomas, J. & R.P. Sethi, J. JUDGMENT:
SETHI,J.
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The appellant Ms.Shabnam is the wife, appellant Gulam
Hussain, is the father-in-law, appellant Roshan is the
brother-in-law and appellant Shakil Ahmad is the
co-brother-of the deceased Islamuddin who died on 13.10.1989
of the burn injuries caused on his person by the appellants.
Upon conclusion of the trial the court of Additional
Sessions Judge, Delhi convicted the appellants under Section
302 IPC and sentenced them to undergo imprisonment for life
and to pay a fine of Rs.500/- each. The appeals filed
against the conviction and sentence were dismissed by the
High Court of Delhi vide the judgments impugned in these
appeals which have been preferred by the appellants from the
jail. We have heard Shri Jagdev Singh Manhas, amicus curaie
appointed and Shri K.N. Shukla, Senior counsel who appeared
for the respondents. According to the prosecution FIR was
registered on the basis of statement of the deceased which
was recorded after he was admitted in LNJP Hospital. In the
statement Islamuddin had stated that he was married to
appellant Shabnam, daughter of Gulam Hussain about 5-6
months before the date of occurrence. When he came to
Jhuggi No.215, near Public Latrine, Sanjay Amar Colony, Boat
Bridge, Yamuna Pushta about 7-8 days before the occurrence
to take back Ms.Shabnam, a quarrel ensued between him and
Shabnam because of her having brought with her gold and
silver ornaments worth Rs.5,000/-. As Shabnam was not sent
along with him he slept for three nights in a tea shop which
was situated on the corner of the house of his father-in-law
and he was not allowed to live in Jhuggi with other members
of Gulam Hussain. On 13.10.1989 at about 3.30 a.m. all the
three male accused came on the spot where he was sleeping
and woke him up. Shakil Ahmad caught hold of his both hands
from behind. His father-in-law asked Shabnam to bring
kerosene oil which she brought in a small container and
handed over the same to her father who poured keresene oil
on Islamuddin forcibly and Roshan thereafter set him ablaze.
The neighbourers came there and tried to extinguish the fire
while crying “Bachao-Bachao (save-save), he reached near the
iron bridge where a policeman got him seated in a three
wheeler scooter for being taken to the hospital. PW22
Balwan Singh is stated to have recorded his statement which
was later on treated as his dying declaration. To prove the
case against the appellants, the prosecution examined PW1
Constable Rajbir Singh, PW2 Constable Naubat Singh, PW3
Constable Jit Singh, PW4 lady constable Tara, PW5 Constable
Krishan Pal, PW6 Inspector Davinder Singh, PW7 ASI Budhi
Singh, PW8 Shashi Dharan, PW9 Nannay Khan, PW10 Inspector
Niranjan Singh, PW11 Constable Balbir Singh, PW12 Mohd.
Satter, PW13 Laloo, PW14 Dr.B.N. Acharya, PW15 Constable
Krishan Kumar, PW16 Dr.George Paul, PW17 Constable Krishan
Kumar, PW18 Aslam, PW19 S,N. Shai, PW20 Constable Surinder
Singh, PW21 Head Constable Prem Pal Singh, and PW22 ASI
Balwan Singh. Besides oral testimony of the witnesses, the
prosecution relied upon two written dying declarations i.e.
Exhibit PW19/A and Exhibit PW22/B.
Despite various opportunities granted, the accused did not
lead any evidence. Learned counsel appearing for the
appellants has vehemently argued that as there was no direct
evidence in the case it was not proper for the courts below
to convict and sentence the appellants merely relying upon
the dying declaration which, according to him, was not
corroborated by any other witness in its material
particulars. He has further contended that the dying
declarations having been recorded in suspicious
circumstances cannot be held to have been proved. Per
contra, the learned Senior Advocate appearing for the
respondent submitted that the dying declarations have been
duly recorded and the material facts corroborated by other
evidence produced in the case. Exhibit PW22/B was recorded
by PW22 ASI Balwan Singh in the hospital on 14.10.1989 at
about 6.30 a.m. after getting an opinion from the Doctor
that the injured was fit for statement. The endorsement of
the doctor is recorded as Exhibit PW22/A. Learned counsel
appearing for the appellants submitted that as the statement
was recorded by the investigating officer which was treated
as FIR, the same could not be treated as dying declaration
and was inadmissible in evidence. The submission has no
substance because at the time of recording the statement
PW22 Balwan Singh did not possess the capacity of an
investigating officer as the investigation had not commenced
by then. Such a statement can be treated as a dying
declaration which is admissible in evidence under Section
32(1) of the Evidence Act. After critically scanning the
statement of PW22 ASI Balwan Singh and details of Exhibit
PW22/B, we have no hesitation to hold that the aforesaid
statement was voluntarily made by the deceased which was
reduced to writing and have rightly been treated as dying
declaration after the death of the maker. Section 32 of the
Evidence Act is an exception to the general rule of
exclusion of hearsey evidence and the statement made by a
person written or verbal of relevant facts after his death
is admissible in evidence if it refers to the cause of his
death or any circumstances of the transactions which
resulted in his death. To attract the provisions of Section
32, the prosecution is required to prove that the statement
was made by a person who is dead or who cannot be found or
whose attendance cannot be procured without any amount of
delay or expense or he is incapable of giving evidence and
that such statement had been made under any of the
circumstances specified in sub-sections (1) to (8) of
Section 32 of the Evidence Act. It cannot be disputed that
Islamuddin who made a statement PW22/B has died and in his
deposition he has referred to the circumstances which
ultimately proved to be the cause of his death. Nothing has
been pointed out by the defence side which could create any
doubt in our mind regarding the making or admissibility in
evidence of the statement Exhibit PW22/B.
Assailing dying declaration PW19/A, the learned counsel has
submitted that as the witnesses to it, namely, PW12
Mohd.Satter and PW18 Aslam who are real brothers of the
deceased have not supported the prosecution version and
there existed other circumstances which created suspicion,
it was not safe to hold the said dying declaration to have
been proved. It is submitted that the SDM has not assigned
any reason in Exhibit PW19/A for not recording the statement
himself. However, during the trial he has submitted that as
one of his finger was injured, he dictated the dying
declaration to PW22 Balwan Singh. PW22 Balwan Singh in turn
has stated that he had not recorded PW19/A. Learned counsel
also drew our attention to the two aforesaid statements and
urged that as on the face of it PW22/B and PW19/A do not
appear to have been written by one and the same person,
reliance upon PW19/A and by treating it a dying declaration
would be unsafe. Accepting such a contention of the accused
persons, the High Court in this regard had concluded:
“Thus, the statements of both PWs 12 & 18 coupled with the
observation made by the above fully support the submission
referred to above advanced on behalf of the accused in
regard to Ex.PW19/A not having been made by the deceased
before PW19. Trial Court had acted erroneously in relying
upon Ex.PW19/A. It has to be excluded from consideration
for recording the finding of guilt against the accused.”
We also agree with the findings of the High Court and feel
that the prosecution has failed to fully establish the
recording of Exhibit PW19/A. However, in view of our
finding that Exhibit PW22/B has been proved to be a dying
declaration of the deceased we do not find any inherent
weakness in the case of the prosecution which would per se
entitle the appellants to acquittal. It is well settled
that dying declaration must be dealt with caution for the
reason that the maker of the statement had not been
subjected to cross-examination. There is no rule of law or
rule of prudence that dying declaration cannot be accepted
unless it is corroborated. [Khushan Rao vs. State of
Bombay 1958 SCR 552; Munna Raja vs. State of Madhya
Pradesh 1976 (2) SCC 764]. However, as prosecution is left
with only one dying declaration, namely, PW22/B, we feel
that in the instant case it would not be safe to convict the
appellants only on the basis of the aforesaid dying
declaration unless corroborated in other material
particulars. We have found sufficient corroboration in this
case. The contents of the dying declaration are to the
effect that the deceased was married to Ms.Shabnam, daughter
of Gulam Hussain, resident of Jhuggi No.215, near Public
Latrine, Sanjay Amar Colony, Boat Bridge, Yamuna Pushta
about 5- 6 months before the occurrence. 7-8 days before
the date of making the statement he had come at the
residnece of Gulam Hussain to take his wife back. After 2-3
days of his coming he had a quarrel with his wife because
she had brought gold and silver ornaments worth Rs.5,000/-
with her from his house without his consent. He spent three
nights at a tea shop in front of the house of his
father-in-law as he was not allowed to stay in the house
with other members of Gulam Hussain. On that day he went to
sleep in the house of his father-in-law who had called him
there. He slept on a “Rehari” (moving-cart) outside the
house of his father-in-law. At about 3.30 a.m. his
co-brother Shakil Ahmad, his father-in-law Gulam Hussain and
brother-in-law Roshan came there and woke him up. Shakil
Ahmad, appellant caught hold of his both the hands from
behind. His father-in-law asked Shabnam to bring kerosene
which she brought in a small container and handed over to
her father who poured it upon with the intention to burn him
and Roshan set him ablaze. He raised alarm upon which
neighbourers came there and tried to extinguish the fire.
He ran in flames crying “Bachao-Bachao” (save- save) near
iron bridge. He met with one policeman whom he stated that
his in-laws have burnt him. The policeman made him seat in
a three wheeler scooter and brought him to the hospital.
The material facts of the case as disclosed in the dying
declaration that (i) the deceased was married to Ms.Shabnam
with whom the relations had been strained; (ii) the in-laws
of the deceased were not permitting his wife to go back with
him; (iii) he had come from his village in Bijnor, District
of U.P.; (iv)he was set ablaze by his in-laws in
consequence of which he ultimately died; stand proved by
the prosecution. PW2 has corroborated the version of the
dying declaration by stating that he had seen the deceased
in burnt conditions with cries ‘Jala diya, jala diya,
bachao-bachao’ (burnt-burnt, save-save). Upon enquiry he
had told him that he had been burnt by his in-laws. PW5
Krishan Pal Singh has stated that from the place of incident
ASI Balwan Singh had seized one small container of kerosene,
one match-box containing match sticks, one purse, two sheets
of paper and one shirt in burnt conditions. PW9 Nanhe Khan
though declared hostile has admitted that at about 2.30 a.m.
when he was going to fetch water for his child, he had seen
the deceased running with his clothes on flames. PW13 Laloo
who was also declared hostile has admitted that he had heard
noise and saw Islamuddin in flames. Later he informed the
accused persons that the man in flames was running from
their side of Jhuggi. PW16 Dr.George Paul has stated that
in his opinion the deceased had died due to septicaemia and
toxaemia and that his body had burn injuries. PW19 S.N.
Shai, the then SDM has referred to the recording of
statement Exhibit PW19/A, the narration of which is almost
idential as detailed in Exhibit PW22/B. It is worthwhile to
mention that all the four accused were arrested immediately
after recording of the statement of the deceased and
registration of the case against them. It is, therefore,
evident that the material facts stated in the Exhibit PW22/B
have been corroborated by various witnesses and the
attending circumstances of the case. Upon close scrutiny we
have no hesitation to hold that the dying declaration@@
JJJJJJJJJJJ
Exhibit PW22/B is the truthful version of the occurrence@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
which narrates the circumstances leading to the death of its
maker. As the said statement was made immediately after the
occurrence, there is no reason to doubt about its veracity
and correctness. The circumstances surrounding the dying
declaration are clear and convincing which we have found to
be corroborated in material particulars. The general
criticism of the defence cannot, in any way, be made a basis
for discarding the aforesaid statement which was later on
rightly treated as dying declaration of the deceased. On
proof of a valid dying declaration it has to be determined
as to all or any of the accused are guilty of offence for
which they have been charged, convicted and sentenced. It
appears to us that role of Ms.Shabnam is not such which
could be made a basis of her holding a common intention with
the other accused persons in committing the crime of
murdering Islamuddin. Without declaring as to what was to
be done with the kerosene, her father had asked her to bring
it which she did apparently without knowing for what purpose
the kerosene had been obtained by her father. It cannot be
denied that kerosene might have been obtained to put the
deceased in fear or force him to go away from the house of
his in-laws where he was stated to have been staying for
about 7-8 days before the date of occurrence. No other
overt act is attributed to Ms.Shabnam who is the unfortunate
widow of the deceased. Similarly we find that the
prosecution has not proved its case beyond doubt so far as
Shakil Ahmad is concerned. He is the co-brother of the
deceased and is stated to have caught hold of both the hands
of the deceased. If the deceased was intended to be killed
by setting him on fire, it could have been done while he was
asleep. There was no reason of waking him up which could
have necessitated catching hold of his hands by Shakil Ahmad
apparently to over-power him. The mere presence of Shakil
Ahmad would have prompted the deceased to mention his name
in the statement but the said appellant cannot be held to
have been proved to be sharing the alleged common intention
of causing the death of Islamuddin. It is true that the
intention to commit murder could emerge at any time but such
intention has to be gathered from the circumstances of each
case. It cannot be excluded that Shakil Ahmad might have
accompanied his in-laws to see that his co-brother does not
create any problem by remaining as an unwanted guest in and
around their house for 7-8 days. There is no evidence on
record to suggest that any of the accused had indicated
their intention to kill the deceased. We feel that the
prosecution has failed to prove its case against appellants
Ms.Shabnam and Shakil Ahmad beyond all reasonable doubts.
In our opinion these two appellants are entitled to the
benefit of doubt. So far as Gulam Hussain and his son
Roshan are concerned, the prosecution has proved its case
beyond all reaosnable doubts that they had shared the common
intention to kill the deceased in furtherance of which one
poured the kerosene oil on deceased’s body and the other lit
him on fire. Under the circumstances Appeal No.782/98 filed
by Shabnam is allowed and Appeal No.781/98 is partly
allowed, so far as accused Shakil Ahmad is concerned by
setting aside the judgment of conviction and sentence passed
against them. They are acquitted and directed to be set at
liberty immediately unless required in some other case.
There is no merit in Appeal No.783/98 filed by Roshan and
Appeal No.781/98 so far as appellant Gulam Hussain is
concerned, and the same are dismissed.
