1978 INSC 0246 Jaswant Singh Vs State (Delhi Administration) Criminal Appeal No. 346 of 1974 (Jaswant Singh, P. S. Kailasam JJ) 14.09.1978 JUDGMENT JASWANT SINGH, J. - 1. This appeal by special leave is directed against the judgment and order dated October 12, 1973 of the High Court, Delhi confirming the judgment and order dated July 29, 1972 of the Additional Sessions Judge, Delhi convicting the appellant under Section 302 of the Indian Penal Code and sentencing him thereunder to imprisonment for life for causing the death of his wife. 2. Briefly stated, the circumstances giving rise to this appeal are : Attracted by the screams emanating from the house of the appellant situate in Basti Chain Sukh Das, Kala Mahal, Daryaganj, Delhi on the afternoon of July 6, 1971, the neighbours namely Murari Lal (PW 4), Gulab Singh (PW 5) and one Kishan Lal rushed to the spot. On reaching the first floor of the house, they found the appellant's wife named Kamla, aged 27 years, lying unconscious outside the living room in the courtyard with burns all over her body. Alongwith the appellant who was present there, they covered Kamla with a bed-sheet, put her on a cot and took her downstairs in the street wherefrom she was removed in a tempo to Irwin Hospital, Delhi. At about 5.20 in the evening on that day, constable Baldev Singh (PW 7) posted on duty at the emergency ward of the said hospital, rang up the Police Station, Jama Masjid, Delhi, informing it that the appellant had got his wife, Kamla, admitted in the emergency ward of the hospital at about 4.15 or 4.30 p.m. because of some burns sustained by her at her house and requesting that some officer might be sent to the place of the occurrence. On receipt of this information, S. I. Din Dayal (PW 21) proceeded to the hospital accompanied by constable Raghubir Singh (PW 6). On being informed by the doctor on duty at the hospital that Kamla was unconscious and as such not in a fit condition to make a statement, the Sub- Inspector sent constable Reghubir Singh to the scene of occurrence with instructions to keep watch over the same, and himself remained in the hospital waiting for an appropriate opportunity to record the statement of Kamla after her revival. He tried several times upto the midnight to have the permission of the doctor on duty to record the statement of Kamla but each time the doctor declared the patient unfit to make a statement. At 7.50 a.m. on the morning of July 7, 1971, the Sub- Inspector again repeated his request to the doctor on duty for permission to record the statement of Kamla but it was only at 10.50 a.m. that Dr. Avtar Singh Gill (PW 18) who was on duty at that time gave him the requisite permission which enabled him to record the statement (Exh. PW 21/F) of Kamla in the presence of the said doctor. This statement was to the following effect :- My husband sprinkled kerosene oil over me and set fire and when later on I had sufficiently been burnt he put a bucketful of water over me. It was about 1 p.m. and I had not quarrelled with my husband Jaswant Singh. I had asked him as to why he had come home late whereupon he got annoyed and beat me. After beating me he sprinkled kerosene oil over me and set fire to my clothes. At the time of setting fire to my clothes he had closed the door from inside. 3. After completing the necessary formalities, the Sub-Inspector sent 'Rooqa' (Exh. PW 10/A) together with Kamla's aforesaid statement (Exh. PW 21/F) to his Police Station for registration of the case under Section 307 of the Indian Penal Code and himself left for the scene of the occurrence. Shortly after the departure of the Sub-Inspector the parents of Kamla namely Roshan (PW 1) and Phool Vati (PW 2) enquired of Kamla as to how she had sustained the burns on her body. In reply to their query, Kamla told them that the appellant did not come back to the house from his office on the evening of July 5, 1971 and spent the whole of the night intervening the 5th and 6th of July, 1971 in Shahdara; that on returning to the house on the morning of July 6, 1971, the appellant awakened her and asked her to prepare the meal which she did but the appellant threw it away and beat her; that on her asking the appellant to send her to her parents' house, the appellant abused her, bolted the door of the room from inside, sprinkled the kerosene oil on her clothing and set them on fire. After about an hour of this statement, the condition of Kamla deteriorated and she succumbed to her injuries at about 12.25 p.m. Dr. Bharat Singh, Police Surgeon, Delhi (PW 11) performed the autopsy on the dead body of Kamla on July 8, 1971. He found superficial burns all over the body from the skull to the toes which according to him were ante-mortem and sufficient in the ordinary course of nature to cause death. The doctor also found almost full grown dead male foetus in the womb of the deceased. On the basis of the observations made by him, the doctor opined that the cause of the death of Kamla was shock and toximia due to burns. 4. On arrival at the scene of occurrence after dispatching the dying declaration (Exh. PW 21/F) to the Police Station, the Sub-Inspector prepared the site plan, got the place photographed by Head Constable Inder Singh (PW 3) and seized a few articles from the living room of the appellant's house including a bottle containing some kerosene oil, a match-box, some burnt match sticks, some half burnt clothes of the deceased and an unserviceable stove without any kerosene oil vide Exh. PW 8/A which he sent to the Chemical Examiner for examination. After performing the necessary tests, the Chemical Examiner sent a report to the Superintendent of Police, Central District, Delhi inter alia stating therein that the liquid contained in the bottle was kerosene oil and that traces of kerosene oil were present on the half-burnt clothes of the deceased. On July 8, 1971, the Sub- Inspector also got the appellant examined by Dr. Abnash Kaur (PW 20) who found the following injuries on his person : (i) Multiple blisters posterior aspect lower 1/3rd left upper arm; (ii) An irregular superficial torn out blisters ulceration on the posterior aspect left fore-arm upper 1/3rd. (iii) An irregular superficial burn with minor blisters dorsum (back side of wrist) of left wrist. (iv) A torn blister ulceration on the first joint of the left index finger dorsum side. 5. In the opinion of the doctor, injuries (i) to (iv) were simple burns of more than 24 hours' duration. 6. On completion of the investigation, the appellant was proceeded against in the Court of the Judicial Magistrate Ist Class, Delhi, who committed him to the Court of Session at Delhi for trial under Section 302 of the Indian Penal Code. The Additional Sessions Judge, Delhi who tried the appellant held that the appellant was guilty of the offence with which he was charged and sentenced him to imprisonment for life. The appeal preferred by the appellant to the High Court having proved abortive, he has come up in appeal to this Court by special leave, as already stated. 7. We have heard counsel for the parties and gone through the record. 8. The short question that arises for determination in this case is whether the prosecution has succeeded in bringing home the offence under Section 302 of the Indian Penal Code to the appellant. It is true that in the instant case, there is no direct evidence regarding the guilt of the appellant and the prosecution case rests wholly on the circumstantial evidence and the dying declarations made by the deceased before S. I. Din Dayal and Roshan (PW 1) and Phool Vati (PW 2). It is also true that the circumstantial evidence in order to sustain conviction must be complete and must be incapable of explanation on any other hypothesis than that of the guilt of the accused. It is also true that the dying declaration which is not recorded by a Magistrate has to be scrutinized closely, but it is well settled that if the Court is satisfied on a close scrutiny of the dying declaration that it is truthful, it is open to the Court to convict the accused on its basis without any independent corroboration. (See Khushal Rao v. The State of Bombay (1958 SCR 552 : AIR 1958 SC 22 : 1958 Cri LJ 106); Lallubhai Devchand Shah v. The State of Gujarat ((1971) 3 SCC 767 : 1972 SCC (Cri) 13) and Vithal Somnath Kore v. State of Maharashtra ((1978) 1 SCC 622 : 1978 SCC (Cri) 175). In the instant case, on a careful consideration of the evidence on the record, we are satisfied that the dying declaration (Ex. PW 21/F), the genuineness of which is verified by Dr. Avtar Singh Gill (PW 18), is truthful and convincing and it cannot be brushed aside merely on the ground that it was not recorded by a Magistrate especially when it is remembered that it was recorded by S. I. Din Dayal in the presence of the duty doctor Avtar Singh Gill at a time when the deceased was in great agony and the life in her was fast ebbing away. It is well-recognised that when the words are few, they are seldom spent in vain. It would also be well at this stage to recall the statement made in cross- examination by Shri Yashpaul, Link Judicial Magistrate, Jama Masjid, Delhi to the effect that when he reached the hospital to record the statement of the deceased but could not do so as she had expired before his arrival, he was informed that a police officer had already recorded her statement. The testimony of the parents of the deceased namely, Roshan (PW 1) and Phool Vati (PW 2) also lends strong corroboration to Exhibit PW 21/F. They have categorically stated that the relations between the deceased and the appellant were strained as the latter was ill-treating the former and was carrying on with another woman from Shahdara who used to visit his (the appellant's) house every now and then; that the deceased often used to complain to them about the misbehaviour and cruel conduct of the appellant towards her and used to send oral and written messages imploring them to take her away from the matrimonial house; that they sometimes spoke to the appellant about his alleged misbehaviour when he would assure them that he would behave properly in future and that hoping that things would improve in due course, they advised the deceased to stick to the matrimonial house. It is also in evidence that when on hearing the screams of the deceased, the neighbours arrived at the spot, they found her lying unconscious outside her living room with burns all over her body. From the aforesaid dying declarations, it stands established beyond doubt that the appellant who had been ill-treating the deceased and was carrying on with another woman from Shahdara got enraged and caused the death of the deceased by sprinkling kerosene oil on her clothing and setting them on fire after closing the door of his living room from inside so that succour does not reach her when she raised a protest about the appellant's absence from the house throughout the previous night. The dying declarations also receive corroboration from the report of the Chemical Examiner which shows that the traces of kerosene oil were found on the half-burnt clothes of the deceased recovered from the living room by S. I. Din Dayal vide Exh. PW 8/A and the fact that the inside portion of the door of the room was found burnt as also from the statement of Dr. Bharat Singh, Police Surgeon, Delhi (PW 11); that on the basis of the appearances met with by him on post mortem examination of the dead body of the deceased, he came to the conclusion that the cause of death of the deceased was shock and toximia due to burns. 9. The plea sought to be raised on behalf of the appellant that the fire was accidental seems to be an afterthought and is negatived by the fact that no cooking material was found in the living room where the incident appears to have taken place as also by the fact that the 'Primus' stove recovered and seized from the living room vide Exhibit PW 8/A was admittedly unserviceable. That the appellant committed the ghastly crime is also proved from the recovery of the bottle containing kerosene oil, burnt match sticks, matchbox and half-burnt clothes of the deceased as also from the fact that he did not suggest either to Murari Lal (PW 4) or to Gulab Singh (PW 5) at the stage of cross-examination that on their arrival at the scene of occurrence on hearing the screams on the afternoon of July 6, 1971, he gave out that the incident was accidental. Thus the evidence inevitably points to the conclusion that it was appellant and the appellant alone who intentionally caused the death of the deceased. Accordingly we see no reason to interfere with the findings concurrently arrived at by the courts below. 10. In the result, the appeal fails and is dismissed.