BETAL SINGHversusSTATE OF M.P.

                            BETAL SINGH                                        A
                                 v.
                            STATE OF M.P.

                             APRIL 15, 1996

              [M.M. PUNCHHI AND K.T. THOMAS, JJ.)                              B

      C1in1inal Lalv :

      Evidence Act, 1872 : Section 32.

      Blide bwning-Dying declaration-Recorded by Police Office,-Held:          c
could be acted upon if same was trae,. coherent and consistent and free from
any effort to prompt deceased to make such statement.

      Penal Code, 1860: Section 302.

      B1ide bwning-Accused-husband neither put out fire nor raised alann       D
seeking help of others-Held: such conduct was consistent with guilt of
accused.

       The appellant-accused was charged for murder of his wife. Though
the Sessions Court acquitted the appellant the High Court in an appeal         E
filed by the State, reversed the acquittal and convicted him under Section
302 of the Indian Penal Code, 1860 and sentenced him to undergo im-
prisonment for life. Hence this appeal by the convicted appellant.

       According to tbe prosecution, the appellant, his wife and their
little child were living together with appellant's mother. The appellant's F
wife was entertaining suspicion that her hnsband was carrying on illicit
sexual connection with his elder sister-in-law, and she used to openly
accuse him of it. This conduct of' the appellant's wife invited trouble to
her from appellant as well as her mother-in-law and she was subjected
to torture by them on account of it. A few days prior to her murder her G
mother- in-law left the house and went to a nearby village on some
errand. On the date of occurrence, appellant doused the deceased with
kerosene and set her ablaze by lighting a match-stick. Her little child
also caught fire and both sustained severe burn injuries. Hearing her
tantrums neople around, including some of the prosecution witnesses,
rushed into the room and they witnessed a human inferno remaining H
                                     307
    308                   SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.

A helpless. They made some efforts to extinguish the fire. But the burn
    injuries sustained by the deceased were so devastating that she could not
    survive beyond evening.

          Before her death the deceased was taken to a nearby hospital. FIR
    was registered on the strength of statement given by a neighbour (PW-1).
B   A police officer (PW-14), went to the hospital and record her dying decla-
    ration.

          Dismissing the appeal, this court

C         HELD : 1. Dying declaration under Section 32 of the Evidence Act,
    1872 should be scrutinised very carefully and if the Court is satisfied
    after such scrutiny that the dying declaration was true and was free
    from any effort to prompt the deceased to make such a statement and
    is coherent and consistent, there is no legal impediment in fonnding the
D   conviction on it. The position does not change even if such a dying
    declaration is put forward in a bride burning case whether or not it has
    been recorded by the police officer during investigation, [313-A-B)

         Munnu Raja v. State of M.P., AIR (1976) SC 2199; Dalip Singh & Ors.
  v. State of Punjab, AIR (1979) SC 1173; Kusa v. State of Orissa, AIR (1980)
E SC 559; State of Punjab v. Amarjit Singh, AIR (1988) SC 2.013; Smt. Paniben
  v. State of Gujarat, AIR (1992) SC 1817 and Charipalli Sankararao v. Public
  Prosecutor, High Court of A.P., [1995) Suppl. 4 SCC 24, relied on.

          2. The appellant did not move a little finger to pot out the fire when
F   his wife and child were struggling in fire, nor did he raise even an alann
    seeking the help of others to rescue bis wife and child. This conduct of the
    appellant is very much consistent with the conduct of a culprit who did the
    act attributed to him. (312-A-B; 313-D]

G         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    124 of 1987.

         From the Judgment and Order dated 31.7.86 of the Madhya Pradesh
    High Court in Cr!. A no. 122 of 1980.

H         U .R. Lalit and S.K. Gambhir for the Appellants.
                    BETALSINGH v. STATE [THOMAS, J.]                    309

         K.N. Shukla, Prashant Kumar and Uma Nath Singh for the Respon-        A
dents.

         The Judgment of the Court was delivered by

      THOMAS, J. This is a case of uxoricide. Kamla, the teenaged wife
of the appellant was burnt to death. Her suckling baby also sustained burns    B
but did not die then. Appellant was charged for murder of Kamla. Though
Sessions Court acquitted the appellant the High Court of Madhya Pradesh
in an appeal filed by the State, reversed the acquittal and convicted him
under Section 302 !PC and sentenced him to imprisonment for life. Hence
this appeal by the convicted appellant.                                        C
         Fact,, set up by the prosecution, in brief, are these :

      Kamla and her husband Beta! Singh (appellant) and their little child
were living together with appellant's mother. Kamla was entertaining
suspicion that her husband was carrying on illicit sexual connection with      D
his elder sister-in-law, and Kamla used to openly accuse him of it. This
conduct of Kamla invited trouble to her from appellant as well as her
mother-in-law and she was subjected to torture by them on account of it.
The murder took place on 7.6.1979. A few days prior to it her mother-in-
law left the house and went to a nearby village on some errand. Around
10 A.M. on the date of occurrence, appellant doused the deceased with          E
kerosene and set her ablaze by lighting a match-stick. Her little child also
caught fire and both sustained severe burn injuries. Hearing her tantrums
people around, including some of the prosecution witnesses, rushed into
the room and they witnessed a human inferno remaining helpless. They
made some efforts to extinguish the fire. But the burn injuries sustained by   F
kamla were so devastating that she could not survive beyond evening.

      Before her death Kamla was taken to a nearby hospital. FIR was
registered on the strength of a statement given by a neighbour (PW-1). A
police officer (PW-14-ASI), went to the hospital and recorded a statement
from Kamla (Ext. P-1) which later turned out to be the most important          G
item of evidence in this case as the same become admissible under Section
32 of the Evidence Act.

         The version recorded in Ext. P-1 is the following :

         Her husband had illicit connection with his sister-in-law and he H
    310                   SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

A   persisted in it despite her repeated protestations. She was subjected to
    physical assaults by her husband's father and mother and occasionally she
    was put to starvation. Once she saw her husband in liaison with the
    sister-in-law and when she protested she was beaten up by her husband as
    well as her mother-in-law. Food was denied to her for four days. About
    eight days before the occurrence, her mother-in-law had gone away but she
B
    suggested to her son to eliminate Kamla by burning her. On the occurrence
    day, while she was sleeping on a cotton carpet (Deri) in her room the
    appellant sprinkled kerosene on her and lighted a match-stick. He then
    bolted the room from outside. She was rescued by the neighbours.

C         If the version in Ext. P-1 can be acted on it certainly would prove
    the guilt of the appellant. But the Sessions Judge did not believe it and
    hence the acquittal by him. The High Court has chosen to place reliance
    on the said statement. After reminding themselves of the legal principles
    to be observed while interfering with an order of acquittal, learned .Judges
D   of the High Court reached the conclusion that Kamla was murdered by the
    appellant and accordingly convicted him and sentenced him as aforesaid.

          Appellant in his defence has examined two doctors (DW-1 and
    DW-3) who were attached to the hospital where Kamla was admitted with
    burn injuries. Those witnesses proved a statement recorded in Ext. D-1,
E   which is said to be part of the case sheet included in the "bed head ticket''.
    DW-1 Dr. Kamal Misra said that he scribbled down the version given by
    the deceased Kamla soon after she was brought to the hospital. What is
    stated in Ext. D-1 is that when Kamla was cooking food, a stove abruptly
    burst and her clothes caught fire and her husband rushed to her rescue.
F   Kamla also told the Doctor that she had no enemies, although she had
    some disputes with her mother-in-law. DW-1 said that the thumb Impres-
    sion of Kamla was taken on Ext. D-1 statement. DW-3 is a junior doctor
    working under DW-1. He too had affixed .signature on Ext. D-1.

          No doubt if Ext. D-1 is a genuine document it would cut at the root
G   of the prosecution case and nothing more need be considered by us in this
    case. But learned Judges of the High Court found Ext. D-1 as a concocted
    document. The High Court pointed out the incongruity that those doctors
    ventured to record the dying declaration of a patient who was struggling
    in pains instead of applying any ointment or medicine on her person. That
H   apart, the bed head ticket maintained for the patient which was seized by
                      BETALSINGH v. STATE [THOMAS,J.]               311

the police (marked as Ext. P-28) did not contain any sheet with a state- A
ment like Ext. D-1. Ext. P-28 shows that two other doctors (Surgeons in
charge) had attended on the patient first whereas the names of DW-1 and
DW-3 were not mentioned in it. In cross-examination, DW-1 Dr. Kamal
Misra said that he forwarded the sheet containing Ext. D-1 statement to
the office and that he collected it from the office when he was summoned
                                                                           B
to appear in the court. The High Court castigated Ext. D-1 as a concocted
document. Learned Judges pointed out that after Ext. P-28 was marked on
the prosecution side defence did not even suggest during cross-examination
that a paper containing Ext.D-1 statement was actually incorporated in it.
Nor did the defence even suggest to any prosecution witness that a stove
was kept near the place of occurrence. Those features have been high-     c
lighted by the learned Judges of the High Court for sidelining Ext. D-1.
The following conclusion has been reached by the learned Judges regarc'-
ing Ext D-1:

        "All these facts indicated that Ext. D-1 the dying declaration D
        allegedly recorded by Dr. Misra (DW-1), did not exist at all till
        the trial came to its fagend. Defence filed an application on
        13.11.79 for summoning the case sheet of Kamla containing Ext.
        D-1 and to us it seems that this Ext. D-1 was prepared after the
        trial started. We have no doubt in our mind that Ext. D-1 is not
        only a false and spurious document, but it did not exist at all on E
        7.6.1979. It appears that it was prepared later .on to show that the
        death of Kamla was caused due to bursting of stove, while she was
        cooking. 11


      Those are very cogent reasons and the High Court has reached such   F
a conclusion on the strength of those reasons. We are not persuaded to
take a different view on Ext. D-1.

      Evidence of the defence witness (DW-2) that the door of the room
was bolted from inside did not inspire confidence and the High. Court for
good reasons rejected it. Apart 'from the statement recorded by the AS! in G
Ext. P-1 certain other circumstances were also considered by the High
Court. They are: (1) when the neighbours rushed to the room Kamla told
PW-2 and PW-3 that she was being murdered by her enemy. PW-3 said
further that while saying so the dee.eased had pointed her finger to the
appellant who was standing nearby, (2) PW-1 overheard that statement H
    312                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A   which deceased gave to the AS! and the testimony of PW-1 is in substantial
    concord with what is recorded in Ext. D-1, appellant did not move a little
    finger to put out the fire when his wife and child was struggling in fire, (4)
    nor did he raise even an alarm seeking the help of others to rescue his wife
    and child. (5) the motive i.e. the conduct of the deceased constantly
    attributing incostuous adultery to the appellant would have made up his
B
    mind to do something drastic to end this menace even if there was no truth
    in such accusation.

           Learned counsel for the appellant referred to a discrepancy which
    he noticed as between the testimony of PW-2 and that of PW-3, as the
C   latter alone said that Kamla pointed her finger to the appellant. The High
    Court did not take the said discrepancy seriously. Perhaps PW-3 alone
    would have noticed that gesticulation of the deceased.

          Learned counsel attacked PW-l"s evidence as he told the police that
D   he did not know how the incident happened. We don't think that the said
    evidence needs rejection on that ground because when PW-1 met the
    police first the deceased had not made any statement to the police and so
    PW-1 would have had no reason to come to the conclusion about what
    happened. As the High Court has placed reliance on the evidence of PW-1
    we do not see any reason to take a different view regarding that.
E
          It is true that in Munnu Raja v. State of M.P., AIR (1976) SC 2199,
    this Court has struck a note of caution that investigating officers, who are
    naturally interested in the success of the investigation, ought to be dis-
    couraged in recording dying declarations, during the course of investiga-
F   tion. However, in Dalip Singh & Ors. v. State of Punjab, AIR (1979) SC
    1173, this Court noticed the above observation and pointed out that it is
    not meant to suggest that such dying declarations are always untrustworthy.
    Their Lordships observed :

             "We do not mean to suggest that such dying declarations are always
G            untru,tworthy, but, what we want to emphasize is that better and
             more reliable methods of recording a dying declaration of an
             injured person should be taken recourse to and the one recorded
             by the Police Officer may be relied upon if there was no time or
             facility available to the prosecution for adopting any better
H            method."
                 BETAL SINGH v. STATE [THOMAS, J.)                      313

       Legal position remains unaltered that dying declaration should be A
scrutinised very carefully and if the Court is satisfied after such scrutiny
that the dying declaration was true and was free from any effort to prompt
the deceased to make such a statement and is coherent and consistent,
there is no legal impediment in founding the conviction on it. Kusa v. State
of 01issa, AIR (1980) SC 559. The position does not change even if such
                                                                             B
a dying declaration is put forward in a bride burning case whether or not
it has been recorded by the police officer during investigation. (State of
Punjab v. Amarjit Singh, AIR (1988) SC 2013, Smt. Paniben v. State of
Gujarat, AIR (1992) SC 1817, Chaiipalli Sankararao v. Public Prosecutor,
High Court of A.P., (1995) Suppl. (4) SCC 24).
                                                                               c
       There is no reason for PW-14 AS! to concoct such a statement at
fa't. D-1. As PW-1 also heard Kamla telling those facts to the AS!, the
High Court is fully justified in acting on the testimony of PW-1. The
conduct of the appellant as observed by the witnesses who reached the
scene while Kamla was in flames is very much consistent with the conduct
of a culprit who did the act attributed to him.                          D
      In the result. We agree with the conclusion arrived at by the High
Court in reversal of the finding reached by the Sessions Court. Accordingly,
we dismiss the appeal.

V.S.S.                                                   Appeal dismissed.     E




                                                                    •