Kamla (Smt) v. State Of Punjab .

K. Jayachandra Reddy, J.— This is a case alleged to be one of dowry death. The appellant is the mother-in-law of the deceased Smt Kamal. She is convicted by the trial court under Section 302 IPC and sentenced to undergo imprisonment for life.

2. The appellant along with her husband Gurdial Mal was tried under Section 302 IPC read with Section 34 IPC. The trial court acquitted Gurdial Mal and convicted the appellant. She preferred an appeal to the High Court but the same was dismissed. Hence the present appeal.

3. The prosecution case is that the deceased in the case Smt Kamal was married to Ramesh Kumar, the son of the appellant, about 1 1/2 years prior to the present occurrence which took place on September 29, 1979. The deceased was living amicably with her husband at Ludhiana and gave birth to a male child who was about 5 months old when the incident took place. Though the relations between the deceased and her husband were cordial, the appellant who was the mother-in-law of the deceased and Gurdial Mal, father-in-law were not satisfied with the articles of dowry and they were ill-treating the deceased. Because of some quarrels the deceased left the matrimonial house and went to the house of her uncle Dwaraka Dass at Amritsar. However, her in-laws managed to bring back the deceased. On the day of occurrence the appellant and her husband had a quarrel with the deceased regarding the insufficiency of dowry. At that time the husband of the deceased was also there but he did not interfere. When the deceased was busy in the kitchen, the appellant and her husband went there and the deceased heard them talking while standing behind her. Soon thereafter the appellant sprinkled kerosene on the clothes of the deceased and set her on fire. The deceased raised an alarm which attracted her husband to the kitchen. He made an attempt to extinguish the fire and in doing so he received some burn injuries. The deceased was immediately removed to the hospital. A doctor examined her and referred her to the Plastic Surgery House Doctor. There she was examined by Dr Rupinder Singh, PW 2 who found that she had 70 per cent burns on her body. The doctor enquired from her as to how she had received the injuries and she is alleged to have made a statement Ex. PB/2 which was reduced to writing by PW 2. PW 2 sent an intimation to the police at about 10 a.m on the same day. On that very day, the Medical Superintendent also sent an intimation to the police requesting them to arrange for getting her dying declaration recorded. In that intimation it was stated that the deceased had made a statement before PW 2. It appears that the police did not pay any serious attention. Only at 8 p.m, S.I Vidya Sagar, CW 1 reached the hospital and recorded the statement which is marked as Ex. PJ. On September 30, 1979 the deceased requested the doctors on duty to record her dying declaration. Dr Abraham Thomas, PW 7 recorded the dying declaration marked as Ex. PD at about 10.30 a.m and Dr Bhupen Dass, PW 3 and Dr Jaison Chopra, CW 1, who were present in the burn unit attested the same. Later she succumbed to the injuries. A case was registered, both the accused were arrested and the charge-sheet was laid subsequently. Dr Kewal Kumar Singla, PW 4 who conducted the post-mortem, found burns all over the body of the deceased and he opined that the death was due to shock as a result of extensive burns. The prosecution case rests mainly on the dying declarations. The accused pleaded not guilty. The appellant in particular stated that she was ailing for the last two years and she was not even in a position to walk about. The other accused stated that he and the appellant were not in the house and they had gone to the Mandir as those were Navratra days. Later they came to know that their son the deceased had received burn injuries and according to them the death was an accidental one and that he gave telephonic messages to the uncle of the deceased at Amritsar and to her father at Delhi. He pleaded that he and his wife namely the appellant were falsely implicated. In their defence they examined DWs 1 to 4. The trial court relying on the dying declarations convicted the appellant but acquitted her husband Gurdial Mal, A 2.

4. Learned counsel for the appellant submitted that the prosecution has not proved beyond all reasonable doubt that the appellant sprinkled kerosene and set fire to the deceased and that the case rests entirely on the dying declarations which are highly inconsistent with each other and in such a situation it is highly unsafe to place reliance on any of these dying declarations and convict the appellant. Learned counsel also submitted that in one of the dying declarations it is mentioned that the death was accidental and that her clothes caught fire while working in the kitchen and the plea of the defence that it was a case of accident, is probablised.

5. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao v. State of Bombay AIR 1958 SC 22, 1958 SCR 552, 1958 Cri LJ 106). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.

6. Learned counsel further submitted that there are four dying declarations in the case, three of them were recorded by the doctors and one of them by the Sub-Inspector and that in spite of an intimation being given at the earliest time, the police did not make any attempt to get a dying declaration recorded by a judicial officer. Therefore that factor also has to be taken into consideration in examining the inconsistent versions given in these dying declarations.

7. There is no dispute that when the deceased made these dying declarations she was in a fit mental condition. Ex. PB/2 is the earliest statement made before Dr Rupinder Singh, PW 2 and which was reduced to writing. Apart from this the deceased made two more statements on September 29, 1979. The second one is said to have been made before Dr Jaison Chopra who was examined as CW 1. This statement is incorporated in the patient record and is marked as Ex. DA. The third statement Ex. PJ made by her on that day was recorded by S.I Vidya Sagar, CW 2 at about 8 p.m in the presence of Satpal, examined as DW 1 and Kirpal Singh. Then the fourth dying declaration is said to have been made by her on September 30, 1979 before a team of doctors consisting of Dr Abraham Thomas, PW 7, Dr Bhupen Dass, PW 3 and Dr Jaison Chopra, CW 1. The same is marked as Ex. PD. Both the courts below have relied on the earliest dying declaration ignoring the inconsistencies when compared to the other dying declarations. We think it is necessary to extract these dying declarations as found in the records. Ex. PB/2 a dying declaration recorded by Dr Rupinder Singh, PW 2 reads as follows:

“Patient informed now that her mother-in-law sprinkled kerosene on her from behind and burnt her. Then, her husband came and caught her and dragged her outside. After that, she was brought to the hospital. There had been a fight in the morning between the mother-in-law and father-in-law and the patient.”

Ex. DA, another dying declaration recorded by Dr Jaison Chopra, CW 1, which is incorporated in the patient record, reads as follows:

“History of present illness:

Patient was alright before 8 a.m when she claims to have got burnt by her clothes catching fire from a stove. She was brought to the hospital at 9.30 a.m and admitted right away.”

The third dying declaration Ex. PJ was recorded at 8 p.m on the same day by S.I Vidya Sagar, CW 2 and the relevant portion of it reads as follows:

“Somebody had put me on fire from behind. It can be possible that it might have been set in by my parents-in-law (mother-in-law and father-in-law). No injury or burning has been caused with the fire to my son Runnu. All the neighbours of vicinity had arrived at the spot, but on account of semi-unconsciousness, I could not tell anything to anybody. As my hand and most of the entire body have been burnt, therefore neither I can append signatures nor thumb impression can be affixed.”

The fourth dying declaration Ex. PD made on the next day before a team of three doctors consisting of Dr Abraham Thomas, PW 7, Dr Bhupen Dass, PW 3 and Dr Jaison Chopra, CW 1, reads as follows:

“My father-in-law and mother-in-law used to fight with me ever since my marriage asking for more dowry. Yesterday morning they quarrelled with me again. It was late for food, so I went to the kitchen to cook chenas. I was turned to the store when I heard my father-in-law and mother-in-law talking behind me. Suddenly they poured kerosene over me and there was a noise. I turned down to see what it was and a jug had fallen on the floor. At the same time they set fire on me and I was pushed. I do not know what happened afterwards.”

8. If we examine all these dying declarations one by one we notice glaring inconsistencies as to who exactly poured kerosene and set fire or whether she caught fire accidently. Suicide however is ruled out. In Ex. PB/2 recorded by PW 2 the deceased stated that her mother-in-law sprinkled kerosene from behind and burnt her. In the next statement Ex. DA recorded by Dr Jaison Chopra, CW 1, she is alleged to have stated that her clothes got burnt catching fire from the stove, thereby indicating that it was an accident. In the third statement Ex. PJ recorded by CW 2 she was rather vague as to who exactly poured kerosene and set fire on her and she only stated that it could be possible that her mother-in-law and father-in-law might have set the fire after pouring kerosene. On September 30, 1979 Ex. PD was recorded in the presence of three doctors, PW 7, PW 3 and CW 1 wherein she stated that she turned to the store and she heard her mother-in-law and father-in-law talking behind her and suddenly they poured kerosene and they set her on fire. The trial court and the High Court discarded the other statements and relied only on Ex. PB/2 recorded by PW 2 wherein she implicated only her mother-in-law. So far Ex. DA recorded by CW 1 is concerned, the High Court pointed out that CW 1 was also present when Ex. PD was recorded and that at any rate there was no occasion for CW 1 to record such statement and that he must have done the same at the instance of the accused. After having carefully examined the record and facts and circumstances, we do not think that a remark of this nature against CW 1, a responsible doctor is called for. The mere fact that CW 1 Dr Jaison Chopra was present when Ex. PD was recorded on the next day does not necessarily mean that he could not have recorded Ex. DA on the previous day. As a matter of fact, even in Ex. PD recorded by a team of doctors, she implicated both mother-in-law and father-in-law whereas in Ex. PB/2 she implicated only her mother-in-law. This itself shows that she was bent upon implicating both of them at a later stage. In this context it is also noteworthy that DW 2, the husband of the deceased supported the plea of the accused. He deposed that both the accused namely his mother and father were away to Dandi Swami Mandir on the day of occurrence and that at about 8.15 a.m he heard the shrieks raised by the deceased from the kitchen. He picked up a blanket and went running into the kitchen apprehending that she might have caught fire due to busting of the gas cylinder. He covered her with the blanket and brought her out and his clothes also caught fire and he became unconscious and regained consciousness in the hospital. In the cross-examination by the prosecution he denied the suggestion that he made a false statement with a view to save his parents. The deceased in all her dying declarations has clearly stated that her husband namely DW 2 came and rescued her. Therefore DW 2's evidence cannot simply be brushed aside on the ground that he might have given such a version to save his parents and his evidence further shows that the occurrence could be due to accident. Viewed from this angle also the version given in the statement made before CW 1 in Ex. DA that it was due to accident, is not improbable. In Ex. PJ she only expressed a suspicion against both her mother-in-law and father-in-law. The accused examined DW 1 Satpal an attesting witness of the statement Ex. PJ. He supported the defence version. Thus it can be seen that there are glaring inconsistencies in these dying declarations. Both the courts below, however, held that PW 2 Dr Rupinder Singh is a reliable and independent witness, therefore the statement recorded by him has to be accepted and accordingly convicted the appellant. We must observe that PW 2 simply recorded the statement of the deceased but the contents of that statement have to be subjected to a close scrutiny in the light of many other circumstances since the conviction has to be based on the sole dying declaration Ex. PB/2. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars. Just like PW 2, PW 7, PW 3 and CW 1 are also respectable doctors and independent witnesses who spoke about the contents of Ex. PD in which she implicated both her father-in-law and mother-in-law specifically as having participated in the crime. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation we just cannot pick out one statement namely Ex. PB/2 and base the conviction of the appellant on the sole basis of such a dying declaration. The courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her. The inconsistency between Ex. PB/2 and Ex. PD is enough to manifest the same. That being so, we do not think that either Dr Jaison Chopra, CW 1 or S.I Vidya Sagar, CW 2 who claimed to have recorded Ex. DA and Ex. PJ should be blamed, Having given our earnest consideration, we feel that under these circumstances it is highly unsafe to convict the appellant on the sole basis of the dying declaration Ex. PB/2 recorded by PW 2. In the result the conviction and sentence passed against the appellant are set aside and the appeal is allowed. If she is on bail, her bail bonds shall stand cancelled.