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Surinder Kumar Malhi and anr. Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1436
AppellantSurinder Kumar Malhi and anr.
RespondentState of Himachal Pradesh
Excerpt:
- t.r. handa, j.1. criminal appeal no. 22 of 1982 and criminal appeal no. 25 of 1982, arising as they do, out of the same judgment of conviction and sentence recorded by the sessions judge, dharmasala, would stand disposed of by this common judgment.2. s/shri surrinder kumar malhi and ravinder kumar malhi are the appellants in criminal appeal no. 22 of 1982. they are real brothers. smt. raj rani, appellant no. 1 in criminal appeal no. 25 of 1982 is their mother while smt. shanta bala, the other appellant hi that appeal, is the wife of shri surrinder kumar malhi, appellant no. 1 in criminal appeal no. 22 of 1982. all these appellants were accused of having committed the murder of smt vinod bala (wife of shri ravinder kumar malhi) by setting her on fire in pursuance of a criminal conspiracy.....
Judgment:

T.R. Handa, J.

1. Criminal Appeal No. 22 of 1982 and Criminal Appeal No. 25 of 1982, arising as they do, out of the same judgment of conviction and sentence recorded by the Sessions Judge, Dharmasala, would stand disposed of by this common judgment.

2. S/Shri Surrinder Kumar Malhi and Ravinder Kumar Malhi are the appellants in Criminal Appeal No. 22 of 1982. They are real brothers. Smt. Raj Rani, appellant No. 1 in Criminal Appeal No. 25 of 1982 is their mother while Smt. Shanta Bala, the other appellant hi that appeal, is the wife of Shri Surrinder Kumar Malhi, appellant No. 1 in Criminal Appeal No. 22 of 1982. All these appellants were accused of having committed the murder of Smt Vinod Bala (wife of Shri Ravinder Kumar Malhi) by setting her on fire in pursuance of a criminal conspiracy to which they were all parties; They were, therefore, all tried jointly for the offences under Sections 302 and 120-B I.P.C. Both the ladies who are appellants in Criminal Appeal No. 25 of 1982 were found guilty of the offence under Section 302 IPC by the learned Sessions Judge and convicted accordingly. The two brothers who are appellants in the other appeal were, however, found involved in the murder of Smt. Vinod Bala not directly but as co-conspirators. They were accordingly | convicted under Section 120-B read with Section 302 I. P. C. For these convictions each of the appellant has been sentenced to undergo rigorous imprisonment for life.

3. The facts of this case show that the deceased Smt Vinod Bala was married with Ravinder Kumar Malhi appellant on 4-5-1978. Two male children were born out of this wedlock. Ravinder Kumar Malhi was employed as Junior Engineer in the Binva Hydel Project, Utrala where he was residing in a Government quarter along with his family. His parents as well as the family of his elder brother Surinder Kumar Malhi were residing at Yol, district Kangra. The relations between the deceased Vinod Bala and Ravinder Kumar Malhi appellant were anything but cordial and in any case the deceased was not happy in her marital home. There was a MUNDAN ceremony in the house of Surrinder Kumar Malhi appellant on 2-7-1980 which was attended by the deceased as well. At the time of that ceremony there was some episode involving the deceased and her husband on account of which PW-10 Dharam Paul, the father of Smt. Vinod Bala deceased had to be summoned from Amritsar to the place of Surrinder Kumar Malhi where the episode took place. That episode the details of which are not very clear then ended after a letter of apology found at Ex.D.LL was executed by the deceased Smt. Vinod Bala.

4. The further facts as they appear from the record show that during the last about 10 days of her life the deceased Vinod Bala was under a great depression. She was a thoroughly dejected and disappointed person who was under a constant apprehension of her end This is obvious from the language used by her in the two letters Ex.PQ/1 and Ex.PQ/2 which she addressed from Utrala to her parents on 28-4-1979 and 2-6-1981 respectively. We shall be adverting to these letters in more details at a subsequent stage of this judgment.

5. On 3-6-1981 Surrinder Kumar Malhi brought both the deceased Vinod Bala and her husband Ravinder Kumar Malhi from then-place at Utrala to his house at Yol. According to the version of Surrinder Kumar Malhi, he did so on receipt of a report about some unpleasant incident between the deceased and her husband. Thereafter the deceased Vinod Bala continued to stay at the house of Surrinder Kumar Malhi and his parents at Yol till the day of occurrence.

6. The unfortunate occurrence took place during the morning hours of /-6-1981. The exact manner in which this incident occurred is not clear. This fact, however, remains that while at her house at Yol, the deceased received serious burn injuries of third degree. Soon after she was removed to Civil hospital, Dharamsala, where she reached at about 9.20 A.M. She succumbed to her injuries the same day in the afternoon at about 2.40 P.M. Dr. (Mrs) S. Sharma (PW 1) who was the Medical Officer on duty in the hospital at that hour immediately sent information Ex.PA to the Station House Officer, Dharamsala, pertaining to the arrival of a serious case with burn injuries at the hospital. This intimation was sent at 9.26 A.M. and a report on the basis thereof was recorded in the daily diary of the police station at 9.45 A.M. Thereafter Shri Uttam Chand, A. S. I. (PW 7) proceeded to the hospital.

7. Now the case for the prosecution is that while in the hospital, the deceased Vinod Bala made three dying declarations explaining the circumstances and the manner in which she received the fatal bum injuries on her person. The first of such statements was made to Dr. Pushp Lata (PW 2), the second to A. S. I. Uttam Chand (PW 7) and the third to Shri Dharani Dhar Gupta, Executive Magistrate, (PW 4). Whereas the first of such statements was oral, the other two were reduced into writing by the PWs before whom the same were made. Thumb impressions of the deceased were also obtained on such declarations. In such dying declarations the deceased accused the appellants Raj Rani and Shanta Bala of having set her body on fire after pouring kerosene oil on her. She had further stated that ever since her marriage all the members of her in-law's family had been harassing her for not bringing enough presents from her parents. She had also stated that though the other appellants, namely, Surrinder Kumar Malhi and Ravinder Kumar Malhi were not present in the house at the time of the occurrence they were also involved in the incident.

8. On the basis of the statement made by Vinod Bala deceased before A. S. I. Uttam Chand (PW 7), a case under Sections 326/307/109/34 I. P. C. was registered at police station vide FIR found at Ex.PAA. Later after the death of Vinod Bala deceased, the offence under Section 302 I. P. C. added in the F. I. R. In the course of investigation the police visited the place of occurrence, recovered various incriminating articles, took various photographs and also prepared a site-plan showing the relevant spots. The parents of the deceased produced some letters which the deceased had addressed to them and where she had complained of mal-treatment at the hands of members of the family of her in-laws. As a result of the investigation, the police came to the conclusion that all the appellants had entered into a criminal conspiracy to put an end to the life of the deceased and it was in pursuance of that conspiracy that the two appellants Raj Rani and Shanta Bala actually caused the dearth of the deceased by setting her body on fire.

9. The defence plea was that the deceased had committed suicide for reasons of her own and that at the time of the occurrence none of the appellants except Shanta Bala was at home. On being informed about the occurrence by a child, Shanta who was then in her room, rushed to the rescue of the deceased and tried her best to extinguish the fire.

10. At the trial, the prosecution mainly relied upon the three dying declarations one oral and two recorded which the deceased is alleged to have made in quick succession while under treatment with the Civil Hospital Dharamsala. Corroboration to these dying declarations was sought to be supplied from the medical evidence as also from the letters Exs.PQ and PQ/2 addressed by the deceased to her parents which letters, according to the prosecution, were admissible under Section 32 of | the Evidence Act. Additional corroboration was also found in the conduct of the appellants after the occurrence.

11. The trial court found the dying declarations of the deceased as consistent, reliable, trustworthy and true. According to the learned Sessions Judge these declarations needed no independent corroboration and the conviction of the appellants could be found thereon without any independent corroboration. The trial Court, however, found further corroboration to these dying declarations in the form of letters Ex. PQ and Ex.PQ/2 as also the conduct of the appellants, and, therefore, proceeded to record conviction against the appellants.

12. The learned Counsel appearing for the appellants have challenged the conviction mainly on the ground that the same is based on no evidence. The so-called dying declarations according to the contention of the defence, were never made by the deceased since she after her admission in the hospital and till her death was never physically fit to make any statement. In any case proceeds the defence contention, the evidence pertaining to the recording of these dying declarations is full of infirmities which would make it unsafe to place any reliance thereon. Another leg of the defence argument is that when considered in the light of the objective findings of the Investigating Officer on his visit to the spot, the allegations in the dying declarations are found false and as such it was not desirable on the part of the trial Court to have acted on such dying declarations. With respect to the conduct of the appellants, the learned Counsel contended that the same was totally consistent with their innocence and the conclusion drawn to the contrary by the learned trial court is perverse.

13. It is not disputed before us nor can there be any room for doubt on the point that the deceased Vinod Bala deceased in this case met with an unnatural death on account of serious burn injuries which she received in the morning hours of /-6-1981, while staying at the house of her in-laws at Vol. Generally an occurrence of the instant kind would be either accidental or suicidal or homicidal. In the instant case the possibility of its being accidental is completely ruled out. Both the prosecution as also the defence are of the same view. The important question which, therefore, needs consideration in this case is whether the death of Vinod Bala deceased was homicidal or suicidal.

14. Needless to add that it is for the prosecution alone to prove that the death of the deceased was homicidal and also to rule out the possibility of its being suicidal.

15. As stated earlier, the appellants have been convicted on the basis of the three dying declarations alleged to have been made by the deceased Vinod Bala. The law pertaining to the evidentiary value of a dying declaration is by now well settled. A dying declaration, though neither made in the presence of the accused against whom it is sought to be used nor subjected to the test of cross-examination, is nevertheless treated on the same footing as any other legal evidence. It is also now well recognised that a dying declaration, even if uncorroborated, may in appropriate cases form the very basis of conviction on a criminal charge. However, before a conviction can be validly recorded on the sole basis of a dying declaration, the Court must be fully satisfied that : (1) the declaration is reliable in the sense that it was actually made by the deceased when fully possessed of his power to understand the implications of his statement and the same was made without any exterior influence or ulterior motive and (2) that the declaration reflects a truthful version. In order to reach such a satisfaction the Court must subject the relevant evidence to a careful and close scrutiny. Where the circumstances attendant upon the dying declaration are suspicious or suffer from some infirmity, it would be highly unsafe to act upon such a declaration without seeking ample and cogent Corroboration, Similarly where the version contained in the dying declaration is found inconsistent with the actual facts collected in the course of the investigation, the dying declaration should not be attached much importance.

16-17. We shall now first consider whether the various dying declarations alleged to have been made by the deceased Vinod Bala are reliable. Such a determination would naturally call for a minute and careful scrutiny of the relevant evidence adduced on the record to prove these declarations. Before dealing with such evidence, however, we would like to make a few general observations. They are these:

Dr. S. Sharma (PW 1) was the Medical Officer Incharge on duty in the civil hospital, Dharamsala, when the deceased Vinod Bala was brought there at about 9.20 a.m. on /-6-1981, the day of occurrence. It was this PW who initially examined, the deceased and administered all the medicines to her. This PW later left the hospital at about 10.45 a.m. for taking her breakfast and returned after about an hour. The deceased was under a terrific shock and remained unconscious throughout till this witness left for the breakfast. The deceased, therefore, was neither in a position nor did she actually make any statement till 10.45 a.m. in the presence of this doctor. As per observations of this doctor Sharma, the deceased was then in a very critical condition. She had suffered 80% burns. Her face was charred, eye-lashes and eye lids were burnt, the pupils were not clearly seen, the tongue and mouth were burnt and teeth were blackened.' The skin was peeled off and the muscles had become hard due to coagulation of protein. The pulse and blood pressure could not be recorded. While leaving the hospital for her breakfast, Dr. Sharma (PW 1) left Vinod Bala deceased in the charge of Dr. Pushplata (PW 2). It is while under the care of this-Dr. Pushplata that Vinod Bala deceased is alleged to have regained her conscious and become fit to make a statement at about 11.15 a.m. Thereafter, the deceased is alleged to have made three dying declarations in quick succession before different PWs which she continued to do till after 12 noon.

18. The first of such dying declaration, according to the prosecution, was made before Dr. Pushplata (PW 2) herself. Though this witness in response to her queries claims to have elicited all the relevant information pertaining to the occurrence from the deceased, and very much intended to reduce the same into writing, she could not do so. It is explained that before PW Pushplata could make a record of the statement made to her by the deceased, the police arrived. The second declaration is then alleged to have been made by the deceased before the police Officer, A. S. I. Uttam Chand (PW 7). This police officer recorded the statement of the deceased. In fact he is stated to have prepared two copies of the statement, one original and the other a carbon copy. The carbon copy is found at Ex.PD. As soon as A. S. I, Uttam Chand, completed the statement of the deceased, Shri D. D. Gupta (PW 4), the then G. A. to the Deputy Commissioner, Dharamsala, accompanied by Shri J. R. Thakur, Dy. S. P. (PW 25) reached that place. Shri Gupta PW on his arrival questioned the authority of A, S. I. Uttam Chand and Dr. Pushplata to record the dying declaration of the deceased. PW Uttam Chand then passed on the original of Ex.PD to Shri Gupta who tore the same into two pieces and passed it on to Dr. Pushplata (PW 2) with the directions to throw it out. Shri Gupta (PW 4) then recorded another statement of the deceased which is found at Ex.PL. Before doing so, Shri Gupta had obtained certificate Ex.PE/1 from Dr. Pushplata to the effect that the deceased was fit to make her statement. A similar certificate had earlier been issued by this Doctor Pushplata before A. S. I. Uttam Chand proceeded to record the statement of the deceased, found at Ex.PD.

19. The important PWs whose testimony has bearing on the various dying declarations alleged to have been made by the deceased are Dr. S. Sharma (PW 1), Dr. Pushplata (PW 2), Shri D. D. Gupta (PW 4), Shri Uttam Chand A. S. I. (PW 7) and Shri J. R. Thakur, Dy. S. P. (PW 25). Though all these PWs appear to be responsible officers of status and outwardly of impartial character, we are constrained to observe that none of them has come forward with the truth in a straightforward manner as could be expected of witnesses of this type. Dr. S. Sharma (PW 1), Dr. Pushplata (PW 2) and A. S. I. Uttam Chand (PW 7) all the three claim that they were present by the side of the deceased when Shri D. D. Gupta (PW 4) accompanied by Shri J. R. Thakur, Dy. S. P. (PW 25) reached there. Similarly Shri Gupta (PW 4) and Shri J. R. Thakur, (PW 25) also admit that on their arrival at the hospital they found PWs 1,2 and 7 already present by the side of the deceased.

20. It is thus obvious that all these five PWs were the common witnesses to whatever happened in the hospital after the arrival of PWs Gupta and Thakur. It is, however, regrettable that these responsible witnesses have contradicted each other in respect of a very material episode which happened in their very presence. This is a common version of PWs, Dr. S. Sharma, Dr. Pushplata, A. S. I. Uttam Chand and Dy. S. P. Thakur that on his arrival, Shri Gupta (PW 4) had some altercation with Dr. Pushplata and A. S. I. Uttam Chand which was anything but pleasant and that thereafter he tore off the earlier recorded dying declaration of the deceased. Shri Gupta (PW 4) however, has made a clean dental of this fact. He denies if he had any unpleasant altercation with either of the PWs named above or if he had torn off any dying declaration earlier made by the deceased After giving our careful consideration to the depositions made by the above named witnesses in Court, we are of the view that Shri Gupta (PW 4) on his arrival at the hospital did question the authority of Dr. Pushplata (PW 2) to record the dying declaration of the deceased and that Dr. Pushplata had actually recorded such a declaration before the arrival of this witness. There was an unpleasant altercation between Shri Gupta and Dr. Pushplata. Shri Gupta then must have taken away the original dying declaration recorded by Dr. Pushplata from her hand and destroyed the same. The story now sought to be introduced that Shri Gupta had destroyed the dying declaration which had been recorded by A. S. I. Uttam Chand and of which a carbon copy is Ex.PD and not the one recorded by Dr. Pushplata appears to be a concocted one. We have our doubts if the deceased made or was in a position to make any other statement except the one which she made before Dr. Pushplata. We have already made a mention .f about the critical condition of the deceased when she was brought to the hospital. There may be a possibility of the deceased having revived her consciousness for a short-while to enable her to make some sort of statement but it is difficult to believe that she became fit enough to speak coherently for a period of 45 minutes as is alleged by the prosecution. In this connection we may briefly refer to the evidence of Dr. Vaneet M. Sarda, (DW 1). This witness holds a degree of Master of Surgery and has 17 years of service to his credit. Presently he is professor of Surgery and head of Surgical U nit, Plastic Surgery and Burn Unit of Daya Nand Medical College, Ludhiana. After examining the record pertaining to the physical condition of the deceased as found in the bed head ticket, marked X, the medico legal certificate Ex.PB and the post-mortem report, this witness opined that the deceased's consciousness could not revive nor could she make any statement after her admission in the hospital The prosecution version, however, is that the deceased made her first statement before Dr. Pushplata by about 11.15 a.m. which continued for about 10/15 minutes. She then made another statement before A. S. I. Uttam Chand which lasted for another 15 minutes up to 12 noon. Thereafter she made yet another statement before Shri Gupta (PW 4). All these statements are alleged to have been made in a coherent and audible language. This looks rather difficult to believe.

21. Again a reference to the evidence of Dr. Pushplata would by itself suggest that this witness had actually recorded the statement of the deceased. While in the witness box she stated:

I talked to the patient and found her in a fit condition to make the statement... Keeping in view the general condition of the patient, I considered it my duty to record her statement in presence of two witnesses who were present there. Before I could record the statement of Vinod Bala, police reached there. I had made enquiries from the patient and she. had narrated me the sequence of the events.

In her earlier version on this point narrated by her under Section 161 Cr. P. C. which is found in the portion marked A to A in her statement Ex.PG and with which portion she was duly confronted, she had stated thus:

I thought that the condition of the patient was critical and she might collapse before the arrival of the police. Then I started to write down her statement in the presence of two respectable persons who were not her relations.

From the aforesaid two statements coming from the mouth of Dr. Pushplata, there can be no manner of doubt that this witness did actually prepare some record of the statement made before her by the deceased. That record had admittedly been not produced in court and the only safe conclusion appears to be that it was this record of the deposition of the deceased prepared by Dr. Pushplata which had been destroyed by Shri Gupta (PW 4). In this connection we may now refer to the relevant portions of the depositions made by Dr. S. Sharma (PW 1) as also by Dr. Pushplata (PW 2) herself. Dr. S. Sharma, (PW 1) had narrated this episode in the following words:

I was present at the time when the G. A. Shri D. D. Gupta had come to record the statement of Vinod Bala Malhi. Shri Gupta questioned the authority of Dr. Pushplata to record the statement and took the original statement from her. After tearing it, the same was handed over by Shri Gupta to Dr. Pushplata PW and she was directed to destroy it.

There was no question of Shri Gupta challenging the authority of Dr. Pushplata to record the statement of the deceased in case Dr. Pushplata had not actually recorded such a statement. Again the assertion that Shri Gupta took the original statement from Dr. Pushplata would show that the statement was in the hands of Dr. Pushplata only. Now in case this statement was the one which had been recorded by A. S. I. Uttam Chand, there was no question of its being in the hands of Dr. Pushplata. Dr. Pushplata while appearing as PW 2 had deposed about this matter as under:

At the time when the G. A. to Deputy Commissioner came, he questioned our authority to record the dying declaration of Vinod Bala. At his instance I had torn this statement recorded by the police.

In her cross-examination she made the following statement;

Dr. Mrs. Sharma PW was also present at the time when the original statement was torn by me. I had shown torn pieces of the statement contained in envelope Ex.PF to the Chief Medical Officer, Dharamsala. The matter was also taken up with the Dy. Commissioner, Dharamsala. The representation to the Deputy Commissioner, was made through the Chief Medical Officer about the misbehaviour of the General Assistant and tearing of the original statement...,.... I complained against him only because he challenged my authority to record the dying declaration. I do not want to disclose the contents of the application wherein I had made allegations against the G. A.

The statement of Dr. Pushplata would show that her authority to record the statement of the deceased was challenged by Shri Gupta PW which resulted in some unpleasant altercation between the two and also the tearing of the original dying declaration. She also made some sort of complaint against the G. A. to the Deputy Commissioner through the Chief Medical Officer. The original complaint, however, has not seen the light of the day. When questioned about its contents, Dr, Pushplata plainly refused to divulge the same and it is rather sad that the learned Sessions . Judge felt content with that answer. In order to i clarify this matter we in exercise of our powers under Section 311 Cr. P. G, recalled Dr. Pushplata before us for her further examination. It is strange that while appearing before us she denied having made any complaint in writing against Shri Gupta to the Deputy Commissioner. She had stated before us that she had complained against the G. A. Shri Gupta, orally. She however, had to admit; 'I had recorded the statement of the deceased. The G. A. challenged my authority to record the same and asked me to tear it off. I then tore it off, I produced the torn pieces of that statement before the Sessions Judge'. It is true that the torn pieces which this witness produced before the Sessions Judge related to the original of Ex.PD which had been recorded by A. S. I. Uttam Chand. The fact, however, remains that she had admitted before us that she had recorded the statement of the deceased and that was why the G. A. had challenged her authority to do so. We have, therefore, every reason to believe that Dr, Pushplata had actually recorded the dying declaration of the deceased. The original dying declaration has of course been destroyed and no efforts has been made to lead secondary evidence with respect to its contents.

22. The second dying declaration of the deceased is alleged to have been recorded by A. S. I. Uttam Chand (PW 7). Apart from our earlier observations, that the deceased was not in a position to make any further statement after she had narrated her version to PW Dr. Pushplata and which observations find due support from the statement of Dr. Pushplata found at portion A to A of her statement Ex.PG, recorded under Section 161 Cr. P. C. which she admits to have made, we find that the circumstances attendant upon the recording of this dying declaration are not free torn doubt. The prosecution version is that A. S. I. Uttam Chand was summoned by Dr. Pushplata to record the statement of the deceased when the latter was found regaining consciousness by Dr. Pushplata. A, S. I., Uttam Chand then reached the deceased when she was making her statement to Dr. Pushplata. As per Dr. Pushplata, she had already summoned two independent witnesses in whose presence she was questioning the deceased with respect to the occurrence. In these circumstances it looks reasonable to assume that both the independent, witnesses earlier summoned by Dr. Pushplata were present by the side of the deceased when A. S. I. Uttam Chand reached there. According to A.S.I. Uttam Chand, however, Dr. Pushplata and Constable Prem Singh were the Ex. PD of the deceased was recorded by him. In fact as per Dr. Pushplata both the independent witnesses then present were sent out before A. S. I. Uttam Chand proceeded to record the statement of the deceased. Now the procedure for recording dying declarations by the police officers is found in Rule 25-21 of the Punjab Police Rules, (Vol. Ill) as apply to this State. This Rule reads as under:

(1) A dying declaration shall whenever possible be recorded by a Magistrate,

(2) The person making the declaration shall, if possible be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.

(3) If no Magistrate can be obtained the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two more reliable witnesses unconnected with the police department and with the parties concerned in the case.

(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.

(5) A dying declaration made to a police officer should, under Section 162 Code of Criminal Procedure, be signed by the person making it.

According to the above quoted rule, A. S. I. Uttam Chand should have in the first instance approached a magistrate for recording such a statement. Sub-rule (3) next enjoins that in case the dying declaration is not recorded by a Magistrate or by a gazetted police officer, two or more reliable witnesses not connected with the police department should be present at the time of the examination and the said witnesses should attest the statement. In the instant case, instead of summoning two independent witnesses, the police officer, Uttam Chand A, S. I. on the other hand turned out such independent witnesses who had earlier been summoned by Dr. Pushplata and were present. There is no explanation for this conduct on the part of A. S. I. Uttam Chand and this circumstance by itself would be sufficient to doubt the genuineness of this so-called dying declaration found at Ex.PD. In this connection - we may notice another aspect which support the same conclusion. Uttam Chand in his examination-in-chief had stated:

The moment I had completed the statement Ex.PD, Shri D. D. Gupta, General Assistant to Deputy Commissioner, Dharamsala, came there. The G. A. enquired from me what you are doing and I had informed that I was recording the statement of Vinod Bala. He retorted that how I had reduced( the. declaration/statement in writing as I had no authority. He also threatened lady doctor Pushp Lata. I handed over the original of Ex.PD to Shri D. D. Gupta. Shri Gupta after going through the contents of the. original of Ex.PD tore it off into two pieces and handed over to lady doctor and asked her to throw it. The G. A. thereafter started recording the statement of Vinod Bala and I had come out of the OPD.

It would mean that A.S.I. Uttam Chand along with the dying declaration recorded by him remained in the hospital with Shri Gupta G. A., till sometime after Shri Gupta started recording the dying declaration of the deceased. During this interval he had no opportunity to make any endorsement on the dying declaration recorded by him nor to send this document to the police station. Shri Gupta, G. A., it may be remarked, was out to destroy the dying declaration recorded by the A.S.I. and the A.S.I, would, therefore, naturally be hesitant in exposing the other copy of the dying declaration, even if it had been prepared, before the G.A. It, therefore, looks logical to assume that Shri Uttam Chand, A.S.I. had no opportunity of forwarding the copy of declaration Ex. PD with his endorsement thereon to the police station for registration of the case till after Shri Gupta had started recording the dying declaration of the deceased We, however, find from the statement of Amar Nand (PW-20) who had recorded the first information report on the basis of Ex. PD that this copy of the declaration Ex. PD had been received at the police station at 12 noon. There is no explanation how this copy could reach the police station by 12 noon. This declaration Ex. PD alleged to have been recorded by A.S.I. Uttam Chand is also, therefore, not that reliable.

23. The third declaration is alleged to have been recorded by Shri Gupta, G.A. to the Deputy Commissioner. Normally, a dying declaration recorded by a Magistrate should be accepted as reliable but in the instant case the circumstances in which the G. A. recorded the dying declaration appear to be somewhat abnormal. The conduct of the G.A. himself does not appear to be above-board. There is a positive conflict between his version and the versions of the other witnesses with respect to the incident of tearing off an earlier dying declaration of the deceased. He was accused of having destroyed some valuable piece of evidence in the case and as per statement of Shri Gupta himself, news to that effect had appeared in the newspapers also. Shri Gupta further admits that Dr. Pushplata had I represented to the Deputy Commissioner about his misbehaviour on the day of occurrence. Now there was no question of any allegations having been levelled against' this witness in case he had recorded the dying declaration found at Ex. PL in the manner now sought to be proved. The defence suggestion that Shri Gupta was forced to toe the line of the prosecution as he found himself in trouble does not appear to be without foundation. In any case, considering the circumstances in which the dying declaration is stated to have been recorded by this witness, it would not be safe to place absolute reliance on this declaration either.

24. We thus find that whereas the first dying declaration made by the deceased before Dr. Pushplata has not been proved, the other two found at Exs. PD and PL which are alleged to have been made before A.S.I. Uttam Chand (PW-7) and Shri Gupta (PW-4) are not reliable.

25. We now advert to the next question whether contents of these so-called dying declarations reflect a true version. These two dying declarations Exs. PD and PL are in the following language:

Ex.Pa

Stated that I was married about four years back. I have two children. One son is aged one and a half years and other son is aged six months. All the members of my in-laws used to maltreat me saying that I was not bringing anything, from the house of my parents. Due to this they used to maltreat me. Today it was at about 8.30 a.m. when I was coming from Kitchen with milk, then my Jathani Smt. Shanta and my mother-in-law Smt. Raj Rani poured upon me kerosene oil out side the room and both of them set my body on fire. At that time I was wearing a rubia suit.. At that time excepting both of them no body Was present in the house. I raised alarm but nobody came there. Both of them thereafter told the people who came afterwards that she herself had set on fire her body. Both of them after pouring kerosene oil has set me on fire. Nobody has tried to save me as the people fear from my in-laws. My parents live at Dehradoon.

Ex.PL.

Stated that my marriage took place about four years back. I have two children one son is [ aged 6 months and the other is aged one and a half years. My in-laws used to vex me on this score that I have brought nothing from my parents house. Due to this they used to vex me. Today in the morning at about 7 or 7.30 a.m. when I was coming from the kitchen with milk then my Jaithani Raj Rani poured kerosene oil upon me and both of them set me on fire. I had worn cotton rubia suit. I raised . alarm but nobody came but when some persons came then both of them said that I have burnt myself. Nobody tried to rescue me. Dharam Pal Vig is my father and is at Amritsar. Chanan Mai is my father-in-law. I am aged 26 years. I reside at home. My husband is employed as I.E. at Utrala. I had come on 3-6-1981. My husband's elder brother had gone in a vehicle and had brought me in a truck. My husband was with me. Small kid was with me and eider . was at my parents house. 'A. My husband used to take calmpose. Before this my mother- in-law had gone to temple in the morning. A.

A comparison of the language used in these two declarations would certainly reflect some discrepancies therein. For example, in the dying declaration Ex. PD the time of the occurrence is given as 8.30 a.m. whereas in the dying declaration, Ex. PL, the time is given as 7 or 7.30 A.M. Again in the dying declaration Ex. PD it is mentioned that both Smt. Shanta Jaithani of the deceased and Smt. Raj Rani, the mother-in-law of the deceased had joined-together in pouring kerosene oil on her and then set her body on fire. In the other dying declaration, Ex. PL, the version is that Smt. Raj Rani, Jaithani of the deceased had poured' kerosene oil upon the deceased and thereafter both of them sense her body on fire. There is also a mention in the statement Ex. PD that the parents of the deceased lived at Dehradoon, a fact which is admittedly false.

26. We shall, however, ignore the aforesaid discrepancies being not very material. The material version as found in these dying declarations, however, is that the two lady appellants had poured kerosene oil on the deceased and then set her body on fire when the deceased was bringing milk from the kitchen of the house to her bed room where her child was lying. This version would clearly suggest that the body of the deceased was set on fire after pouring kerosene oil on her somewhere in between the kitchen where she had gone to bring milk and the bed-room of the deceased where her child was supposed to be lying. The actual facts as found on the record in the course of investigation, however, do not support this version and reflect a different picture. S/Shri Hardyal Singh, the then Additional S. P., Kangra (CW : 2) Shri J. R. Thakur, the then Dy. S. P. (PW-25), Shri V. K. Mallik, the then S. P. Kangra (CW-1) and Shri Faquir Chand, Sub-Inspector, (PW27) are the police officers who visited the spot the same afternoon at about 2.45 p.m. in connection with the investigation of this case. Shri Faquir Chand (PW-27) prepared a rough I site-plan of the house where the occurrence took place. This plan is found at Ex. PW.27/1. There are two kitchens in this house which are towards the North-Western corner of the house and are shown in the plan. The bedroom of the deceased is towards the South-Eastern corner. No signs of fire were traced by any of these witnesses in between either of the two kitchens and the bed room used by the deceased. On the other hand, the Investigating Officers found material signs indicating that the body of the deceased had been set on fire in or around the deserted latrine existing towards the South of the house and which clearly does not fall on the way from either of the kitchens to the room of the deceased. The Investigating Officer had collected burnt cloth pieces both from inside and outside the deserted latrine, burnt match-sticks from the latrine, sample of earth from outside the latrine and also from the path near the latrine. There was a store adjoining the latrine with cement sheets and on one of the cement-sheets was found stuck a burnt human hair. This cement sheet was also taken into possession by the Investigating Officer. Two pieces of plaster cement from the latrine with stains of smoke were also lifted from the said deserted latrine. Scraps of burnt paint from the wooden door of the latrine were also and besmeared with smoke was also picked up. A pair of 'chappals' with a burnt cloth sticking to the right foot were also taken into possession from near the latrine. Some pieces of stones and cement plaster bearing stains of blood were also collected from near the latrine. An empty bottle smelling of kerosene oil was found lying in the open field behind the latrine and the same was also taken into possession. All these articles were taken into possession by the police vide recovery memo. Ex. PW2. Some kerosene oil was of course found lying on the ground outside the door of the kitchen. There was, however, no signs of any fire having taken place near that spot. The investigation conducted on the spot thus clearly shows that though the kerosene oil used in the occurrence had been collected from the kitchen, the actual occurrence had taken place in or about the deserted kitchen which did not lie on the way from the kitchen to the bed room of the deceased. There is no reference in either of the two declarations if the deceased was put on fire anywhere near the kitchen nor is there any explanation as to how she managed to reach in or near the kitchen. The obvious conclusion, therefore, is that either the deceased made no dying declaration, or if at all she made a dying declaration, the same was false.

27. We would now briefly advert to the letters Exs. PQ and PQ/2 written by the deceased to her parents about a week before the occurrence and which letters the prosecution endeavoured to press into service i in corroboration of the dying declarations of the deceased. We have carefully studied the language employed in these letters and the more we study these letters the more we are convinced that the deceased had at the time of writing of these letters determined to put an end to her life by one means or the other and also to fix the liability for her act on the members of the family of her in-laws. In this connection we will extract the relevant portions from the two letters. We would first deal with the letter dt. 29-5-1981 found at Ex. PO wherein the deceased wrote as under:

I did not want to narrate my past days and to perturb you but when my days are numbered, I thought it advisable to inform you that the end of your daughter is nearing. Now these people will kill me, on the instigation of his parents, his brothers and sisters, my collected. An empty tin lying in the latrine and B doing the same as they want... At one time he goes after one woman and the other time he follows the other lady. He is unmindful of me as well as his children....He says that he will kill me by administering calmpose tablets. He has | become so characterless that I cannot write. He says to me that he was happy to see my relations with others and why I was refraining him. He says to me to bring Rs. 10,000/- from my parents otherwise they would kill me...I do not care for my death but I think of the children as, to what will happen to them. I prefer being killed at his hands than this miserable life. You will come to know my death soon but you should not worry... I was not going to tell you but thinking this that you may come to know about my death, I am writing you ... I always go on thinking and weeping that my days are numbered.... Let us see how many more days live ....I have been fed up from my life. Let these people kill me today than killing me by tomorrow, so that I may not see the evils ' committed by him. He is now very much anxious to go to his Bharjai because he has relations with her'. In the next letter dated 2-6-1981 found at Ex. PO/2 the following portions deserve notice:

My dear Mumiji, they have now started very much troubling me....He says that I do not commit the suicide. He says that now he would poison me. He says that he would burn me by pouring kerosene oil on me. The inmates of the house, i.e., parents-in-law, brothers and sisters-in-law also say that I ' may be killed. He also says that I may be killed and he would be 'remarried....On 30-5-1981 he had gone alone to Vol. On 1-6-1981 he returned alone. He is not talking with me. I do not know what they have planned there. He repeatedly asked me that he would make me sound sleep by administering me tablets of calmpose so that he could marry again... In my view he would kill me in this very week as advised to by the inmates of his house.... Pay my love to my son Roxy that his mother is likely to die at the hands of his father....You will also get the news of my death when you will be receiving my letter. I am not giving you all the details so far...I will bury so many wishes in my heart after my death... He instigates the other people against me to get the side of them and against me that if he would kill me then all of them would side with him....Now he would kill me today or tomorrow. I cannot see you even before my death... When you will receive this letter, my husband would have killed me....

The language employed in these letters is certainly not a language of a healthy and normal person. It is the language of an impulsive mind. Now what exactly impelled the deceased to behave in this fashion is not known. All that we can say is that for some reasons, may be real, may be imaginary, the deceased had made up her mind to put an end to her life and was on the look out of a suitable opportunity for that purpose. That is, why she had warned her parents that she might be dead even before they received her letters. She had certainly no reason to believe that her husband or any other member of his family would kill her in a day or two. In any case, she had mentioned no such reasons in her letters. This clearly shows that she was contemplating to commit suicide and was also considering of various means of doing so. In case she had no mind to commit suicide and she had apprehension of being killed at the hands of her husband or any other member of his family, there is no explanation as to why she did not run away from her house. She had admittedly I every opportunity of doing so especially when it is mentioned in the letters themselves that her husband had gone out of station to Yol.

28. At the same time the language of these letters shows that the deceased was keen to involve every member of the family of her in-laws with her death. It was with this object that she had levied all sorts of allegations and against every member of the family of her husband. She did not spare even the old parents and married sisters of her husband .The allegations made against them are prima facie reckless and irresponsible and they only reflect prejudice of the deceased towards her in-laws. She only wanted to ensure that her in-laws should not live in peace after her death. May be she had some genuine grievance against some of them but we certainly cannot subscribe to the view that she had a grudge even against the old parents and married sisters of her husband.

29. Our considered view in these circumstances is that these letters would only support the theory of suicide and the prosecution can take no support from them for connecting the appellants with the death of the deceased.

30. The learned Sessions Judge has adversely commented upon the conduct of the appellants after the occurrence. We, however, see no justification for such adverse comments. The occurrence admittedly took place at about 8.30 a.m. The deceased was : brought to the civil hospital, Dharamsala, by 9.20 a.m. This shows that the appellants did their best to render medical aid to the deceased at the earliest. This conduct on their part is certainly consistent with their innocence only. It is contended that the two lady appellants I did not accompany the deceased to the hospital. This contention overlooks the facts that the deceased had left behind an infant child of about six months old and it had to be looked after. It also overlooks the fact that one of the lady appellants is an old lady of 70 years. Soon after the deceased was attended to at the hospital, the appellants sent telegrams to the parents of the deceased and also booked telephone calls in order to convey the news of this occurrence to them. We do not think if in the circumstances of this case the appellants could do anything better. It is next contended that the appellants did not join the cremation of the deceased which took place on the following day. The appellants have explained that on account of this incident which had been given the publicity of bride burning, the local residents had become hostile to them. The appellants were apprehensive of being attacked in case they appeared before the public. They were, therefore, advised to keep away from the cremation ground. In view of this explanation offered on behalf of the appellants, it was not fair on the part of the I learned Sessions Judge to have adversely commented upon their conduct simply because : they had {ailed to take part in the cremation of the deceased.

31. Giving our careful consideration to the entire evidence adduced in the case, we are of the view that the death of the deceased was suicidal and not homicidal and that the conviction of the appellants is totally unjustified. We accordingly accept both these appeals, quash the convictions and sentences as recorded against the appellants and direct their acquittal. Appellants in Criminal Appeal No. 22 of 82 being in custody are directed to be released forthwith if not required in any other case. The appellants in Criminal Appeal No. 25 of 1982 being on bail, their bail bonds and surety bonds are discharged.


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