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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
JAGBIR SINGH – APPELLANT(S)
VERSUS
STATE (N.C.T. OF DELHI) – RESPONDENT(S)
CRIMINAL APPEAL NO. 967 OF 2015
Decided On : 04-09-2019
(a) Indian Evidence Act, 1872 - Section 32 - Multiple dying declarations - In earlier dying declaration accused not roped in - In later declaration, making a summersault deceased roping in the accused - Each dying declaration requires examining its truthfulness and voluntariness ruling out tutoring and prompting. (Para 31)
(b) Criminal trial - Minor omissions in deposition - Not fatal. (Para 32)
(c) Criminal trial - Conspiracy - Owner of property a widow having three daughters, all married - co-brother of appellant making call from hospital leading to third dying declaration - Appellant pleading conspiracy of roping in the case so as to deprive him of his share in the property of his mother in law - Plea rejected as appellant did not have any right in such property - Sections 15 and 16, Hindu Succession Act, 1956. (Para 33)
(d) Indian Evidence Act, 1872 - Section 32 - Dying declaration - Patient admitted on 24.01.2008 - dying declaration recorded on 27.01.2008 - Patient dying on 02.02.2008 - Patient suffering from deep burns and was in critical condition - No certificate from attending doctor as to fitness of patient to make statement - No question put to patient by investigating officer regarding her fitness to give statement - Patient giving statement on 24.01.2008 and again on 25.01.2008 when she was admittedly in a fit condition to give statement - Dying declaration recorded by a police officer on 27.01.2008 - No evidence showing worsening condition of patient after 25.01.2008 - Patient dying on sixth day of recording last dying declaration - Police officer doing his official duty - No reason to implicate appellant - Held, deceased was in a position to make the declaration - Nothing to hold that the dying declaration is a creation of deceased’s imagination. (Para 39, 40)
(e) Indian Evidence Act, 1872 - Section 32 - Dying declaration - Any statement made by a deceased as to the cause of his death or to any circumstance of the transaction which resulted in his death would be a dying declaration - Cannot be brushed aside for not being elaborate or its recording not in a particular fashion - The real point is to ascertain whether the statement contains the truth. (Para 41)
(f) Criminal trial - Cause of death - Either can be accidental or homicidal - Each excludes the other. (Para 44)
(g) Indian Evidence Act, 1872 - Section 32 - Dying declaration in Hindi, a language with which deceased was familiar - Giving detailed narrative - Evidence of using kerosene oil to burn deceased - Brother-in-law calling police to record dying declaration - Mother and brother in law witnessing the declaration - In view of rejection of conspiracy by brother-in-law, no infirmity. (Para 45, 46, 52, 55)
(h) Indian Evidence Act, 1872 - Section 32 - Three dying declarations - First two recorded exonerating appellant - Appellant was also admitted with deceased for burn injuries - Presence of appellant and threatening her - Deceased not treating first two statements as her dying declaration - Also giving motive of appellant for killing her - Declaration corroborated by PW 24 - Conviction on basis of last dying declaration - No infirmity. (Para 57, 58, 59, 63, 64)
Facts of the case:
Appellant was convicted u/s 302 and 506 IPC for threatening his wife and setting her ablaze due to which she succumbed to death.
The conviction was affirmed by High court.
Finding of the Court:
There is no infirmity in conviction.
Result: Appeal dismissed.
JUDGMENT
K.M. JOSEPH, J.
1. The appellant stands convicted under Sections 302 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for short) by the Trial court, and the appeal carried by him before the High Court being unsuccessful and is, therefore, before this Court.
2. Briefly, the case of the prosecution against the appellant is as follows:
The deceased was married to the appellant in the year 1999. He was unemployed at that time. Later, he secured employment in the C.R.P.F.. He did not take his wife on the basis that he could not take her far away. Wife continued to reside with the mother of the deceased at her house. Appellant used to harass his wife and had illicit relationship with the wife of his brother. A Panchayat was held. A settlement was arrived at, pursuant to which, after four years, when the appellant was transferred to Delhi, he assured the mother of the deceased that he will not harass his wife and he started residing at the house along with his wife and mother-in-law. It is the further case of the prosecution that the appellant continued to have an affair with the wife of his brother. On 23.01.2008, the mother of the deceased went to the matrimonial home of another daughter. On 24.01.2008, at about 06.00 P.M., the appellant came to the house under influence of liquor, and in short, poured kerosene oil upon his wife and also some kerosene oil over himself and threw a lighted matchstick on his wife. Initially, both, the appellant and the deceased, were taken to the hospital. Initially, the wife gave statement which did not implicate the appellant. However, on 27.01.2008, a dying declaration was made by the deceased pointing the finger of blame clearly at the appellant and attributing the act of pouring kerosene and setting her ablaze to him. Initially, a First Information Report was lodged on 27.01.2008 on the basis of the dying declaration dated 27.01.2008 under Section 307 of the IPC, which was, upon the deceased succumbing to the burn injuries, converted to Section 302 of the IPC. This is besides a charge under Section 506 of the IPC for extending threat to his wife.
3. 31 witnesses were examined by the prosecution. After closure of prosecution evidence, appellant was questioned under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short).
FINDINGS BY THE TRIAL COURT
4. It is a case where there are two dying declarations, viz., one made on 24.01.2008 and another on 27.01.2008. In regard to the statement on 24.1.2008 it is actually the history which is recorded in the M.L.C. of the deceased and it is stated that it has noted history of sustaining thermal burns when her husband was trying to ignite a match stick for smoking; accidently a fire erupted due to petrol leaking from the tank of the motorcycle as told by the patient herself. Patient got burnt along with her husband. Patient is unable to tell the cause of kerosene smell from her body.
5. The Trial Court noticed the contention that PW29- Investigating Officer admitted that, on 25.01.2008, the mother of the deceased also made a statement on the lines of what her daughter had made which appeared to clear the appellant of any wrong doing.
6. Commenting on PW10-Smt. Indrawati, the Court wades through her evidence and found that the witness has reached the place after the incident and seen both the deceased as well as the accused in the burnt condition. She was not an eyewitness to the incident. The same was found true about Chhoto Devi-PW7-the mother of the deceased. The statement is of no avail with regard to the dying declaration made on 24.01.2008. We may advert to paragraph 49 in regard to the first version:
“49. As per the first version, it was leaking of petrol pipe of the motorcycle, which was the cause of fire and sustaining of burn injuries by both the accused and the deceased, and in this regard, the testimony of PW-30 is very material. PW-30 Dr. Thakur Thussu has stated that as pe
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