P.N. BHAGWATI, J.
1. Mukta, a young woman of about 23 years of age, met with a gruesome and macabre death in the ancient holy town of Dwarka situate in Jamnagar District of the State of Gujarat. She died of injuries caused by first and second degree burns received by her a little after midnight between 9th and 10th April, 1970. The incident resulting in her receiving the fatal burn injuries took place in the house of her husband. The house consisted of a fali, that is, an open space, to which access could be obtained from the road through a gate and a structure on each side of the fali. The structure on the western side of fali consisted of a ground floor and an upper floor which were used as living quarters by the family, while the structure on the eastern side of the fali comprised an osri and to the east of it, a room. There were admittedly no electric lights in the osri and the room on the east but the structure on the western side had electric connection and there were lights in it. The family living in this house consisted of Mukta, her husband Girdharlal, also known as Ganpat, her mother-in-law Radhabai and her husband's younger brother Kanubhai. All the three members of the family, namely, Girdharlal, Radhabai and Kanubhai were indicted before the Sessions Judge, Jamnagar for intentionally causing the death of Mukta in furtherance of their common intention. The prosecution case against the accused was as follows.
2. During the night between 9th and 10th April, 1970 at about 12 in the midnight, when Mukta was preparing to go to bed after the day's work, Radhabai asked her to carry three bags of onions which were lying in the osri on the ground floor to the first floor. Mukta stated that she was very tired and she would carry the bags of onions to the first floor next morning. This, according to the prosecution, enraged Radhabai and she gave two or three slaps to Mukta. About this time Girdharlal and Kanubhai, who had gone to see a film in the last show, also returned and they were present at the time of this incident. This incident took place in the fali and was seen by one Shantilal, a neighbour, who had his house to the north of the house of Girdharlal with only one house of Karsan Natha in between. Radhabai, not content with slapping Mukta, dragged her inside the osri with the assistance of Girdharlal and from the osri into the room and then poured kerosene on her and set fire to her clothes by lighting a match-stick. Mukta shouted that she was being burnt by pouring kerosene oil. Shantilal, who at that time was on the terrace of his house, saw the incident happening in the fali of Girdharlal up to the stage when Mukta was dragged inside the osri, but thereafter he could not see what was happening. He heard the shouts of Mukta and noticed a fire and also some smoke coming out from the roof. Suspecting that Mukta was being burnt by Girdharlal, Shantilal rushed down shouting to Girdharlal not to set fire to his wife and came down in the lane. It appears that about this time several other persons also came there and they all gathered in front of the gate of Girdharlal's house. One gentleman by the name of Nandi Sheth was also there and they all asked Girdharlal to open the door. Girdharlal, after some time, came to the window of the first floor of the western part of the house and asked the persons who had collected there to disperse saying that nothing had happened in the house. The crowd, however, broke open the door and went into the house led by Nandi Sheth and Shantilal. Nandi Sheth asked Girdharlal as to where Mukta was and Girdharlal replied that she was in the room. Nandi Sheth thereupon obtained a torch and went inside the room and saw there Mukta lying with extensive burns on her face, arms and legs covered with a sari. In the meantime an ambulance was sent for and as soon as the ambulance arrived, Mukta was placed in the ambulance and Nandi Sheth took her to the Dwarka Hospital. It appears that while Nandi Sheth took Mukta to the Dwarka Hospital, Shantilal proceeded to Dwarka Police Station and gave information to Head Constable Bhikubha that a woman had received burns. When Nandi Sheth reached the hospital with Mukta, he found that the Medical Officer was not available and he, therefore, contacted Nurse Rekhaben, but Rekhaben expressed her inability to admit Mukta in the hospital in the absence of the Medical Officer. Nandi Sheth thereupon decided to take Mukta to Mithapur Hospital and asked the driver of the ambulance to proceed there, but the driver insisted on the charge of Rs 30 being paid in advance. Unfortunately, none of the persons in the ambulance had a sum of Rs 30 with him and the ambulance had, therefore, to be taken back to Bhathan Chowk near the house of Girdharlal and there Nandi Sheth collected Rs 30 from one Jiva. In the meantime, it appears that Nandi Sheth was informed by the police constable accompanying them in the ambulance that Radhabai was trying to tutor Mukta to say that she had got burnt while lighting the primus stove and not to disclose the truth. Nandi Sheth thereupon asked Radhabai to get down from the ambulance and instead, one Shantaben wife of Vallabhdas accompanied Mukta in the ambulance. Whilst they were proceeding to Mithapur Hospital, Nandi Sheth asked Mukta as to what had happened, to which Mukta replied stating that “the inmates of her house had set her aflame”. On reaching Mithapur Hospital, Mukta was admitted as an indoor patient and Dr Karani started giving her treatment. Dr Karani also interrogated Mukta and he too was informed by her that “her husband, her mother-in-law and her brother-in-law had poured kerosene on her and had set fire on her”. Soon thereafter, possibly on receipt of information from the hospital, one Mulubha Head Constable Incharge of Mithapur Outpost, arrived at the Hospital and he recorded the dying declaration of Mukta Ext. 30 at 2.30 a.m. in the morning in the presence of Dr Karani and Nandi Sheth. This dying declaration was sent by Mulubha to Dwarka Police Station and on the strength of it, an offence was registered by P.S.I. Borse and he commenced investigation. Pursuant to a yadi sent by the Police to the Taluka Magistrate for recording the dying declaration of Mukta, Ujhamlal Soni Mamlatdar and Taluka Magistrate of Dwarka came to the Hospital and recorded the dying declaration of Mukta Ext. 11 at 8.15 a.m. in the presence of Dr Karani and Nandi Sheth. This dying declaration was in the form of question and answer. Thereafter, according to the prosecution, another dying declaration was made by Mukta to her brother on the same day, that is, April 10, 1970 and this was followed by a detailed statement of Mukta taken down by P.S.I. Borse sometime in the afternoon. This statement was not produced in evidence by the prosecution, since, according to the prosecution, it was a statement made by Mukta in the course of investigation and was hit by Section 162 of the Code of Criminal Procedure but the appellant insisted on bringing it on record as a dying declaration of Mukta and it was accordingly marked Ext. 45. Mukta finally succumbed to her injuries on April 11, 1970. On these facts, the appellants were tried before the learned Sessions Judge for the offence under Section 304 read with Section 34 of the Indian Penal Code.
3. The prosecution case against the accused rested principally on the evidence of Shantilal, Karsan Natha and Nandi Sheth and the various dying declarations made by Mukta before different persons at different times. The learned Sessions Judge did not accept the evidence of Shantilal Karsan Natha and Nandi Sheth and so far as the dying declarations were concerned, he thought that they were discrepant, one from the other and did not inspire any confidence. He agreed with the prosecution that this was not a case of suicidal death and he was also inclined to rule out the possibility of accidental death, but, in the absence of evidence which he could regard as satisfactory, he found it difficult to come to the conclusion that the accused were responsible for causing the death of Mukta and in this view, he acquitted the accused.
4. The State preferred an appeal against the order passed by the learned Sessions Judge acquitting the accused. The High Court, which heard the appeal, analysed the oral as well as circumstantial evidence led on behalf of the prosecution and also examined the dying declarations made by Mukta from time to time and came to the conclusion that the view taken by the learned Sessions Judge was unreasonable insofar as Accused 1 and 2, namely, Radhabai and Girdharlal were concerned and their guilt was sufficiently established by the prosecution. So far as Accused 3, namely, Kanubhai was concerned, the High Court noted that he was only 17 years old at the date of the incident and he could not possibly be a party to the common intention to cause Mukta's death and the High Court accordingly maintained his acquittal. The result was that the appeal of the State was allowed insofar as Radhabai and Girdharlal were concerned and each of them was convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life, while the appeal of the State was dismissed as against Kanubhai. We do not know what pressures acted on the mind of Girdharlal, but soon after the judgment was delivered by the High Court convicting him, he committed suicide. That left Radhabai alone to prefer the present appeal under Section 2(1) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
5. We may first examine the question whether the death of Mukta was suicidal or accidental or homicidal. The prosecution cannot succeed unless it establishes beyond reasonable doubt that Mukta met with a homicidal death. Now there are certain circumstances in this case which are very eloquent and they clearly and unmistakably point to the conclusion that the death of Mukta was a homicidal death. The evidence, oral as well as circumstantial, plainly excludes the possibility of suicide or accidental death. Mukta was at the time of her death carrying a foetus four and a half months' old. This was her first conception. It is difficult to believe that in this condition Mukta would ever think of committing suicide. It appears that Mukta was an unfortunate lady who had never seen a life of happiness. Before marriage, in her father's home, she was ill-treated by her step-mother and after marriage, her misery continued, for the place of the step-mother was taken by the appellant who treated her inhumanly and sometimes went to the length of even physically beating her, She was now. after eight years of married life, expecting to have a child who would be a source of comfort and happiness to her and it is impossible to believe that in this situation, even the gravest provocation would lead her to take her life. Moreover, according to the defence, the only incident which precepitated the crisis was that the appellant and Girdharlal refused to allow Mukta to go to her parent's place. This could hardly be a reason which could drive Mukta to commit suicide. But apart altogether from the utter improbability of Mukta having taken her life, we find that there is positive evidence of Dr Kharadia (PW 15) which says that the death could not be suicidal. There is no reason to disbelieve this evidence particularly when the High Court as well as the learned Sessions Judge have accepted it. We can, therefore, safely rule out the possibility of suicide.
6. The theory of accidental death can also be safely excluded. It was not the defence case that Mukta went into the osri or the room at 12 o'clock in the midnight to light a primus stove. Nobody in the house wanted to have a cup of tea or coffee for which a primus stove might have been required to be lighted. The only explanation offered by the appellant in her statement under Section 342 of the Code of Criminal Procedure was that at about 12 o'clock before retiring to bed, Mukta told her that she wanted to accompany Girdharlal who was going to Jamnagar the next day, but the appellant refused permission to her to go, since she had already gone and stayed with her parents at Jamnagar for about three months a short while ago, and thereafter Mukta went inside the room near the osri in order to light a lamp and within a short time, came out burning, on which the appellant poured water over her in order to extinguish the fire. Now there is no reason suggested in this explanation as to why Mukta should have gone into the room near the osri in order to light a lamp. There was no more work to be done at 12 in the mid-night and it was time for all of them to go to the bed and according to the defence, Girdharlal had already repaired to the first floor. It is also difficult to believe that Mukta should have accidentally caught fire, while just trying to light a lamp. Moreover, it was the evidence of almost all the witnesses that there was a smell of kerosene in the osri and the room. Shantilal stated in his evidence that when he went inside the house after the door was broken open by the crowd, he found burnt clothes in the osri and the “osri was smelling of kerosene”. This statement of Shantilal was not challenged in cross-examination on behalf of the appellant. Nandi Sheth also said in his evidence that “burnt pieces of clothes lying in the osri were stinking of kerosene” and curiously enough, this statement was also not challenged in cross-examination. The panchanama of the scene of offence Ext. 23 which was prepared in the morning of April 10, 1970 by P.S.I. Borse and which was proved through the evidence of Pancha witness Nodhabhe Vagher (PW 11) also mentioned that a little kerosene-like smell was coming out of the burnt clothes in the osri and one brassiere in burnt condition which was found lying in the osri also smelt of kerosene. Now, one fails to appreciate how there could be any smell of kerosene in the osri and from the burnt clothes, if Mukta accidentally got burnt while lighting a lamp. The presence of smell of kerosene plainly and indubitably excludes the possibility of accidental burning while trying to light a lamp. That leaves only the last possibility, namely, homicidal death.
7. There is also one other circumstance which clearly indicates that the death of Mukta was homicidal. It was the evidence of both Shantilal and Nandi Sheth that when the crowd had collected outside the gate of the house and they were demanding that the gate should be opened, Girdharlal appeared at the window on the first floor of the house and asked the crowd to disperse stating that no one was burnt and nothing had happened. This is indeed strange conduct on the part of a husband who finds that his wife has been accidentally burnt. The husband would in such a case be extremely worried and anxious and he would welcome assistance from neighbours for the purpose of removing his wife immediately to the hospital for treatment. He would in fact seek the help of neighbours for this purpose and not try to drive them out when they have come for the purpose of inquiring as to what has happened to his wife. This conduct of Girdharlal was wholly inconsistent with the ordinary course of human nature and incompatible with the hypothesis of accidental death. It is apparent from his conduct that he was anxious that the incident in which Mukta received burns should not be investigated by the persons who had gathered there and he appeared to be keen to keep back this occurrence from the scrutiny and gaze of the neighbours who had collected at the gate. This is a clear pointer that Girdharlal had something to hide and unless the death of Mukta was a homicidal death, it is difficult to understand why Girdharlal should have behaved in this strange manner. We must, therefore, proceed on the basis that it has been established by the prosecution beyond reasonable doubt that the death of Mukta was a homicidal death. The only question is: whether there is any evidence to connect the appellant with the death of Mukta?
8. Before we come to the dying declarations made by Mukta at different times, we may first refer to the evidence of Shantilal. This evidence has been accepted by the High Court and we do not see any reason why we should take a different view while hearing an appeal by special leave. Shantilal was lying in his terrace at the time of the accident and in the stillness of the night, it is quite possible that he must have heard the quarrel which was going on between the appellant and Mukta in the fali of the house of Girdharlal. Shantilal asked his wife as to what was going on and she told him that once again a quarrel must have started in the house of Girdharlal. The appellant was in the habit of ill treating Mukta and quarrels must have been taking place between them and that is why it is quite natural that the wife of Shantilal should have observed that once again a quarrel must have started between the appellant and Mukta. It is also not at all unnatural that Shantilal must have tried to look into the fali of the house of Girdharlal in order to see what was happening there. We have, therefore, no reason to disbelieve Shantilal when he says in his evidence that he saw the appellant giving two or three slaps to Mukta and then dragging her inside the osri assisted by Girdharlal. Shantilal of course did not see the appellant or Girdharlal actually pouring kerosene on the clothes of Mukta and setting fire to the clothes, but he noticed smoke coming out from the roof and heard the shouts of Mukta. There can be no doubt that whatever be the cause of the fire, whether accidental or homicidal, Mukta must have shouted in agony and cried for help. It is, therefore, quite natural that Shantilal must have heard the shouts of Mukta and on hearing the shouts, he must have rushed down into the lane and joined the crowd in front of the house of Girdharlal. There is no reason why this evidence given by Shantilal should be disbelieved. No valid reason has been suggested as to why Shantilal should have come forward to falsely implicate the appellant and Girdharlal. The evidence of Shantilal, therefore, clearly establishes that the appellant had a quarrel with Mukta and she gave two or three slaps to her and then dragged her inside the osri with the assistance of Girdharlal and then fire was set to her clothes. But this would not be sufficient to connect the appellant with the crime, for it is quite possible that inside the osri, Girdharlal might have poured kerosene on Mukta and set fire to her clothes. The prosecution has to establish affirmatively that either the appellant set fire to the clothes of Mukta or in case Girdharlal did so, the appellant poured kerosene on the clothes of Mukta or otherwise shared the intention of Girdharlal to cause the death of Mukta and thus rendered herself constructively liable.
9. That takes us to a consideration of the dying declarations made by Mukta before different persons from time to time. The first dying declaration was made by Mukta before Nandi Sheth in the ambulance while she was being taken to Mithapur Hospital. When Nandi Sheth first asked her as to what had happened, she stated that she was suffering from excruciating pain and hence Nandi Sheth did not interrogate her further. But when, after some time, Nandi Sheth again questioned her, she stated that the inmates of the house had “set her aflame”. There is no reason to disbelieve this dying declaration made by Mukta and the High Court has in fact accepted it, but it does not help establish the case against the appellant, because it is too vague and does not specifically connect the appellant with the crime. We may, therefore, keep it out of consideration, as did the High Court. The second dying declaration was made by Mukta after she was admitted to Mithapur Hospital and that was before Dr Karani. When Dr Karani interrogated her, she stated that “her husband, her mother-in-law and her brother-in-law had poured kerosene on her and set fire to her”. This dying declaration was deposed to by Dr Karani as well as Nandi Sheth. We fail to see why the evidence of an independent witness like Dr Karani who was a Medical Officer attached to Mithapur Hospital and who had absolutely no connection whatsoever with the family of Girdharlal, should not be accepted. It is impossible to believe that Dr Karani should have falsely and maliciously put words in the mouth of Mukta implicating the appellant and Girdharlal. The only ground on which this dying declaration made before Dr Karani was sought to be attacked was that, according to Nandi Sheth, this dying declaration was reduced to writing and his signature was obtained on it and no oral evidence of the dying declaration could, therefore, be given and the only way of proving it was by producing the written record of the dying declaration. Now, it is true that Nandi Sheth did at one stage say that Dr Karani took the statement of Mukta and obtained his signature on it, but he immediately hastened to add that he did not remember whether his signature was obtained on the statement of Mukta or on the case papers of Dr Karani. There is no doubt that Nandi Sheth was in some confusion when he said that Dr Karani, after interrogating Mukta, recorded her statement and so far as he recollected, Dr Karani asked him to put his signature in that statement. The confusion seems to have arisen because Nandi Sheth was present not only at the time when the dying declaration was made by Mukta before Dr Karani but also at the time when her dying declaration was recorded by Mulubha which dying declaration was attested by him. If the dying declaration made by Mukta before Dr Karani were taken down in writing, there is no reason why Dr Karani should not have deposed to that effect. Dr Karani was not at all interested in the prosecution and if the statement of Mukta was recorded by him, he would have clearly stated so in his evidence. It may also be noted that not a single question was put to Dr Karani in the cross-examination suggesting that the dying declaration made by Mukta before him was recorded in writing. This argument of the defence, seeking to take advantage of an error committed by Nandi Sheth in giving evidence on account of some confusion, cannot be accepted. The evidence led on behalf of the prosecution clearly establishes that Mukta did state before Dr Karani that the appellant, Girdharlal and Kanubhai had poured kerosene on her and set fire to her clothes. So far as Kanubhai is concerned, though he was implicated by Mukta in this dying declaration, the High Court gave him the benefit of doubt since he was a young boy of 17 and the possibility could not be ruled out that he might have been only a passive witness and since he did not take any steps to protect Mukta, she might have associated him also with the act of pouring kerosene and setting fire. This dying declaration was taken down by Mulubha in the form of question and answer and it was made in the presence of Dr Karani and Nandi Sheth and was proved through the evidence of Mulubha and Dr Karani Mukta stated in this dying declaration that “my mother-in-law Radhabai together with my brother-in-law Kanubhai and my husband Girdharlal poured kerosene on me, my husband put on match-stick and I was set ablaze”. She also added in answer to a specific question that she was not happy with her husband and her mother-in-law. We do not see any reason to disbelieve this dying declaration particularly when it has been accepted by the High Court. Dr Karani has deposed to it and his evidence must carry conviction with us. This dying declaration clearly attributes the act of pouring kerosene oil to the appellant and it is in no way inconsistent with the earlier dying declarations made by Mukta.
10. Then we come to the fourth dying declaration Ext. 11 made by Mukta before the Taluka Magistrate Ujhamlal Seni. This dying declaration was in the form of question and answer and was recorded by the Taluka Magistrate in the presence of Dr Karani. Mukta narrated in some detail in this dying declaration the incident which resulted in her receiving burns and there, she directly implicated the appellant by saying that the appellant poured kerosene on her body and lighted a match-slick and threw it on her blouse which was made of nylon. She added that all her clothes caught fire and she got burnt and during the whole of this period. Girdharlal and Kanubhai were standing there and they did not say anything to the appellant or even try to prevent her from doing what she did. She also said that before the people in the neighbourhood collected on hearing her shouts, the appellant poured water on her to extinguish the fire. This dying declaration was proved through the evidence of the Taluka Magistrate and there is no reason to believe that it is not a genuine document. We must accept the prosecution case that Mukta did make this dying declaration before the Taluka Magistrate and this dying declaration also connects the appellant with the crime.
11. The appellant, however, contended that there was a material discrepancy between the dying declaration made by Mukta before Mulubha and the dying declaration made by her before the Taluka Magistrate. The argument was that before Mulubha, Mukta stated that her husband had lighted the match-stick and set fire to her clothes, while in the dying declaration made before the Taluka Magistrate, she assigned merely a passive role to her husband and attributed the act of lighting the match-stick and setting fire to the appellant. This, according to the appellant, was a very serious discrepancy between the two dying declarations and impaired the credibility of both. Now the tests for appreciating the value to be attached to a dying declaration have been laid down by this Court in numerous decisions and it is not necessary to reiterate the same. Suffice it to say that a dying declaration stands on the same footing as any other evidence and it is to be judged in the surrounding circumstances and with reference to the principles governing the weighing of evidence. The court must, in order to test the reliability of a dying declaration, keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control, whether the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and whether the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties. Here there is undoubtedly a discrepancy between the two dying declarations, one made before Mulubha and the other made before the Taluka Magistrate, but it is obvious that by the time she came to make the dying declaration before the Taluka Magistrate she, as a Hindu wife, must have felt that she should try to save her husband and, therefore, she did tell the truth in the dying declaration before Mulubha, namely, that her husband had lighted the match-stick and set fire, she tried to exonerate him in the dying declaration before the Taluka Magistrate and assigned this role to the appellant. We are satisfied that the dying declaration before Mulubha contains a true account of what really happened and substantially it is in accord with what is stated in the dying declaration made before the Taluka Magistrate with only this difference that in the latter dying declaration, Mukta tried to exonerate her husband by assigning only a passive role to him.
12. The fifth dying declaration alleged to have been made by Mukta before her brother has not been accepted by the High Court and we need not, therefore, pause to consider it. The sixth dying declaration is supposed to have been made by Mukta before P.S.I. Borse. This dying declaration has not been accepted by the High Court and no reliance has been placed upon it. It is evident from the contents of this dying declaration that it could not possibly have been made by Mukta. It is a long document running into seven or eight pages and it is difficult to believe that Mukta could have made such a dying declaration in the agonizing condition in which she must have been at that time. Moreover, there is inherent evidence in the dying declaration itself which clearly goes to show that it could not be the statement of Mukta. We agree with the High Court that this dying declaration is not a genuine document containing the statement made by Mukta and it cannot, therefore, be availed by the appellant for the purpose of throwing doubt on the veracity of the earlier dying declarations made by her.
13. It is clear from the aforesaid discussion that the prosecution has established beyond reasonable doubt that it was the appellant who poured kerosene over the clothes of Mukta and if that be so, then even if she did not light the match-stick and set fire to the clothes and it was Girdharlal who did so, she would still be constructively liable for intentionally causing the death of Mukta, for the death of Mukta would clearly be in pursuance of the common intention of the appellant and Girdharlal to cause her death. We, therefore, confirm the conviction and sentence recorded against the appellant and dismiss the appeal.