PETITIONER:
OM PRAKASH ETC. ETC.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT19/08/1992
BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1993 AIR 138 1992 SCR (3) 921
1992 SCC (4) 212 JT 1992 (4) 524
1992 SCALE (2)196
ACT:
Penal Code, 1860-Sections 302,34-Conviction under-Dowry
death-Dying declaration of victim-Validity of.
Evidence Act, 1872-Section 3-Appreciation of evidence-
Death due to burn injuries-whether suicide or homicide-
Determination of-Court's duty.
Criminal Trial-appreciation of evidence-Death due to
burn injuries-Whether suicide or homicide-Determination of-
Court's duty.
HEADNOTE:
The prosecution case was that in the morning, on
17.3.1979 the deceased went to the house of her sister
(PW.6). PW.6's house was in front of the house of the
deceased. The deceased told PW. 6 that the appellants were
compelling her to bring money from her parents.
The appellant in Cr. A.No.282 of 1981 was the husband,
and the appellants in Cr. A.No. 230 of 1981 were the mother-
in-law and the father-in-law of the deceased.
At about 2.30 p.m on 17.3.1979 the deceased was in her
room in the house of the appellants. Her husband along with
other co-accused including his two sisters caught hold of
the deceased and brought her in the inner compound of the
house. Her father-in-law said that she should be burnt. The
mother-in-law brought the kerosene oil and sprinkled it on
her body. Then deceased's husband set her on fire. She
raised the cries "save me, save me". Her sister (PW 6) came
there along with her father-in-law (PW 7). They found that
the inner door of the house was closed from inside. They
pushed the door and entered. At that very time PW 8 and one
Kulbir Chand hearing the cries also entered the house.
Seeing the witnesses, the accused persons ran away to the
upper storey of the house. The witnesses extinguished the
fire and enquired from the deceased regarding the
occurrence. She told them as to how she was burnt by her
husband with the help of her mother-in-law, father-in-law
and two sister-in-laws.
922
PW. 6 brought the ambulance car and victim was taken to
hospital . Police was informed. ASI came to the hospital.
Obtaining the opinion of the Doctor as to whether the
deceased was fit to make a statement, he recorded the
statement of the deceased giving the details of the
occurrence. That statement was treated as the first
information report. The deceased succumbed to her injuries
on 29.3.1979.
After investigation the charge-sheet was submitted
against the three appellants along with the two sisters of
the appellant in Cr.A.No. 282 of 1981.
The Trial Court convicted the appellant in Cr.A.No. 282
of 1981 under section 302 of the Penal Code, and the High
Court dismissed his appeal made against the conviction
order. He was sentenced to undergo rigorous imprisonment for
life. He was also directed to pay a fine of Rs. 5,000 in
default to undergo rigorous imprisonment for two years. The
Trial Court acquitted his mother, father and two sisters of
the charges levelled against them. On and appeal filed on
behalf of the State, the High Court set aside the order of
acquittal passed against the mother-in-law and father-in-law
of the deceased. They were also convicted under section 302
read with section 34 of the Penal Code. Each one of them was
sentenced to undergo rigorous imprisonment for life and to
pay a fine of Rs. 5,000 in default thereof to undergo
rigorous imprisonment for two years.
In these criminal appeals, the appellants challenged
the judgments of the High Court.
The appellants submitted that it was always open to the
court to convict the accused on the basis of a dying
declaration but before any such order of conviction was
passed the Court must be satisfied that the dying
declaration said to have been made by the victim before
death was genuine and truthful; that in this case the dying
declaration which was said to have been made by the deceased
before ASI did not appear to be a genuine and natural
statement; that because of the burn injuries the deceased
must not have been in a position to make any such
declaration: that reading the dying declaration as a whole
it did not inspire confidence because a person with burn
injuries could not make such a detailed statement; and that
the deceased committed suicide and the appellants were
falsely implicated.
Dismissing the appeals, this Court,
923
HELD: 1.01. Unless there are materials on the record to
show that the deceased was not in a position to make a
statement it is not possible to reject her statement which
has been treated as dying declaration. [926H, 927A]
1.02. P.W.4, a doctor has stated on oath that it was
the statement of the deceased which was recorded. According
to him, she remained conscious till 11.00 p.m. on March 17,
1979. PW.2, another doctor, who examined the injuries of the
deceased before her statement was recorded also has not
mentioned in his report that she was unconscious. During the
examination of PW 2 no question was put to him that because
of the injuries on the person of the deceased whether she
will be in a position to make the dying declaration,. There
were serious burn injuries on the person of the deceased,
but still she survived till March 29,1979, i.e. for about
twelve days. The deceased was in a position to make any
statement before ASI. [926E-G]
2.01. Sometimes a case of suicide is presented as a
case of homicide specially when the death is due to burn
injuries. But it need not be pointed out that whenever the
victim of torture commits suicide she leaves behind some
evidence-may be circumstantial in nature-to indicate that it
is not a case of homicide but of suicide. [927F]
2.02. It is the duty of the Court, in a case of death
because of torture and demand for dowry, to examine the
circumstances of each case and evidence adduced on behalf of
the parties, for recording a finding on the question as to
how the death has taken place. [927G]
2.03. While judging the evidence and the circumstances
of the case, the Court has to be conscious of the fact that
a death connected with dowry takes place inside the house,
where outsiders who can be said to be independent witnesses
in the traditional sense are not expected to be present. The
finding of guilt on the charge of murder has to be recorded
on the basis of circumstances of each case and the evidence
adduced before the Court. [927H,928A]
2.04. In the instant case, the occurrence took place in
the open courtyard during the day-time which is not
consistent with the theory of suicide. Apart from that, the
dying declaration of the victim along with the evidence of
PWs. 6,7 and 8 the charges levelled against the appellants
are fully established. [928B]
924
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
282 of 1981.
From the Judgment and Order dated 7.1.1981 of the
Punjab and Haryana High Court in Crl. Appeal No. 1235 of
1979.
WITH
Criminal Appeal No. 230 of 1981.
Mrs. Kawal Jit Kocher and J.D.Jain for the
Appellant.
S.Bajaj and R.S.Suri for the Respondent.
The Judgment of the Court was delivered by
N.P.SINGH, J. Appellant Om Parkash has been
convicted under section 302 of the Penal Code and has been
sentenced to undergo rogorous imprisonment for life. He has
also been directed to pay a fine of Rs. 5,000 in default to
undergo rigorous imprisonment for two years.
Appellants Sheela Wanti and Rup Lal, who are the mother
and father of the aforesaid appellant Om Parkash, had been
acquitted by the Trial Court of the charges levelled against
them, but on an appeal filed on behalf of the State of
Punjab before the High Court the order of acquittal has been
set aside and they have been convicted under section 302
read with section 34 of the Penal Code. Each one of them has
been sentenced to undergo rigorous imprisonment for life and
to pay a fine of Rs. 5,000 in default thereof to undergo
rigorous imprisonment for two years.
The prosecution case is that on March 17,1979 Rita
(since deceased) went to her sister Shushma (PW 6) in the
morning who was residing in the house in front of the house
of Rita aforesaid. Rita told her sister that accused persons
were compelling her to bring money from her parents. The
appellant Om Parkash is the husband, Sheela Wanti is the
mother-in-law and Rup Lal is the father-in-law of Rita
aforesaid. It is further the case of the prosecution that at
about 2.30 p.m. the same day Rita was in her room in the
house of the appellants. Om Parkash along with other co-
accused including his two sisters Kanchan and Shushma (since
acquitted) caught hold of Rita and brought her in the inner
compound of the house. Rup Lal the father-in-law of Rita
said that she should be burnt. Sheela
925
Wanti, the mother-in-law, brought the Kerosene oil and
sprinkled it on her body and then Om Prakash, husband, set
her on fire. She raised the cries “save me”. His sister
Shushma (PW 6) who, as already stated above, was living just
opposite the house of the appellants came there along with
her father-in-law Bhajan Lal (PW 7). They found the inner
door of the house closed from inside. They pushed the door
and entered inside the compound. At that very time Tare Lal
(PW 8) and Kulbir Chand hearing the cries also entered in
the house. Seeing the witnesses aforesaid inside the house
the accused persons ran away to the upper storey of the
house. The fire was extinguished by the witnesses. They
enquired from Rita (since deceased ) regarding the
occurrence and she told them as to how she was burnt by her
husband with the help of her mother-in-law and sister-in-
laws.
Thereafter the ambulance car was brought by Shushma (PW
6) and victim was taken to S.G.T.B Hospital, Amritsar.
Police was informed. ASI Amritlal of Police Station Kotwali
came to the hospital. He obtained the opinion of the Doctor
as to whether Rita was fit to make a statement. Thereafter
at 6.25 p.m the same evening he recorded the statement of
Rita giving the details of the occurrence. That statement
was treated as the first information report. Rita succumbed
to her injuries on March 29,1979.
After investigation the charge-sheet was submitted
against the three appellants along with the two sisters of
appellant Om Parkash. As already stated above, the Trial
Court convicted only appellant Om Parkash and acquitted his
mother, father and two sisters of the charges levelled
against them. However, on an appeal filed on behalf of the
State of Punjab, the order of acquittal passed against
Sheela Wanti and Rup Lal, the mother-in-law and father-in-
law of the deceased, was set aside by the High Court.
The Trial Court as well as the High Court have placed
reliance on the statement made by the victim which was
initially treated as the first information report but after
her death has become her dying declaration. She has stated
in detail as to how the accused persons used to harass her
for not bringing sufficient dowry and pressed her parents to
provide sufficient cash in lieu of dowry. For that reason
she was beaten by the members of the family and sent to her
parental home before the occurrence. Only about 21/22 days
before the date of the occurrence due to the intervention of
some respectable persons she returned to the house of her
husband but
926
there was no charge in the attitude of the family members.
Thereafter, she has stated as to how on the day of the
occurrence she was taken out from her room and kerosene oil
was sprinkled on her body and her husband Om Parkash set her
on fire with the matchstick. She also stated that hearing
her cries her sister Shushma (PW 6), her father-in-law
Bhajan Lal (PW 7) and others came and extiguished the fire.
The learned counsel appearing for the appellants
submitted that it is always open to the Court to convict the
accused on the basis of a dying declaration but before any
such order of conviction is passed the Court must be
satisfied that the dying declaration said to have been made
by the victim before death is genuine and truthful. She
pointed out that the so-called dying declaration which is
said to have been made by Rita before ASI Amrit Lal does not
appear to be a genuine and natural statement. According to
her, because of the burn injuries Rita must not be in a
position to make any such declaration. In this connection,
she drew our attention to the post mortem examination
report of Rita and the findings of Doctor who held the post
mortem examination. It was urged that the Doctor had found
second and first degree septic burns on the person of Rita
and as such by 6.25 when she is alleged to have made the
dying declaration, in normal course of the event she must
not be in aposition to make any such declaration. Dr.
Devinderpal Singh (PW 4) has stated on oath that it was the
statement of Rita which was recorded, According to him, she
remained conscious till 11.00 p.m. on March 17, 1979. Dr.
Haris Chander Vaid (PW 2), who examined the injuries of
Rita before her statement was recorded, also has not
mentioned in his report that she was unconscious, It may be
mentioned that during the examination of aforesaid Dr.
Harish Chander Vaid (PW 2) no question was put to him that
because of the injuries on the person of Rita whether she
will be in a position to make the dying declaration. It is
true that there were serious burn injuries, on the person of
Rita but still she survived till March 29, 1979 i.e. for
about twelve days. in this background we are not inclined to
hold that because of the burn injuries, Rita was not in a
position to make any statement before ASI Amrit Lal.
The learned counsel then pointed out that reading the
dying declaration as a whole it does not inspire confidence
because a person with burn injuries cannot make such a
detailed statement. In our opinion unless there are
materials on the record to sow that Rita was not in
aposition to make
927
a statement it is not possible to reject her statement which
has been treated as dying declaration. As already mentioned
above, Rita was in a position to make statement has been
proved by two Doctors apart from the A.S.I.
Moreover in the present case it cannot be said that the
conviction of the appellants rests solely on the dying
declaration of the victim. The evidence of Shushma (PW6)
sister of the victim, Bhajan LAl (PW 7) father-in-law of the
sister of the victim, Tarsm Lal (PW 8), who had also entered
in the courtyard, corroborates the statement made by the
victim. The Trial Court as well as the High Court have
discussed their evidence in detail. They have said as to
how hearing the cries to Rita they entered after forcibly
opening the door and saw Rita being burnt. Rita told them
as to how she had been put to fire by the accused persons
including these three appellants. The statement so made by
Rita to the three witnesses aforesaid shall be deemed to be
oral dying declaration of the victim. The witnesses have
also stated as to how they extinguished the fire and took
her in ambulance to the hospital.
It is not in dispute that Shushma (PW6), sister of the
victim, and her father-in-law Bhajan Lal (PW7) were staying
in a house just opposite to the house of the accused persons
only a road intervening. As such they are the most natural
witnesses and we find no reason to take a contrary view than
the view taken by the High Court, so far as the veracity of
the aforesaid witnesses are concerned.
It was then submitted on behalf of the appellants that
it appears that Rita committed suicide and the appellants
have been falsely implicated for an offence of murder by the
interested witnesses. It is true that sometimes a case of
suicide is presented as a case of homicide specially when
the death is due to burn injuries. But it need not be
pointed out that whenever the victim of torture commits
suicide she leaves behind some evidence-may be
circumstantial in nature to indicate that it is not a case
of homicide but of suicide. It is the duty of the Court,
in a case of death because of torture and demand for dowry,
to examine the circumstances of each case and evidence
adduced on behalf of the parties, for recording a finding on
the question as to how the death has taken place. While
judging the evidence and the circumstances of the case, the
Court has to be conscious of the fact that a death connected
with dowry takes place inside the house, where outsiders who
can be said to be independent witnesses in the
928
traditional sense, are not expected to be present. The
finding of guilt on the charge of murder has to be recorded
on the basis of circumstances of each case and the evidence
adduced before the Court. In the instant case, the
occurrence took place in the open courtyard during the day-
time which is not consistent with the theory of suicide.
Apart from that, as already stated above, the Dying
Declaration of the victim along with the evidence of PWs 6,
7 and 8, which we find no reason to discard, fully
establishes the charges levelled against the appellants.
In the result, the appeals are dismissed.
V.P.R. Appeals dismissed.
929