Supreme Court of India
GHULAM HUSSAIN AND ANR.versusSTATE OF DELHI
- Citation
- 2000 INSC 375
- Decided
- 4 August 2000
- Disposal
- Case Partly allowed
- Bench
- K T THOMAS
Holding
A statement made by a dying person to an ASI before investigation commences is admissible as a dying declaration under Section 32 of the Evidence Act, and while such a declaration need not be corroborated, the court found sufficient corroboration to uphold the convictions of the father‑in‑law and brother‑in‑law but acquitted the wife and co‑brother for lack of proof of common intention.
Summary
The deceased, Islamuddin, died from burn injuries after his in‑laws allegedly poured kerosene on him and set him alight. His statements recorded by an Assistant Sub‑Inspector (ASI) in the hospital and by a magistrate were treated as dying declarations. The Supreme Court examined whether the ASI's statement, made before any formal investigation, was admissible under Section 32 of the Evidence Act and whether a dying declaration must be corroborated. The Court held that the ASI's statement is a valid dying declaration and, although corroboration is not a legal requirement, sufficient corroborative evidence was found in the case. Consequently, the convictions of the father‑in‑law and brother‑in‑law were upheld, while the wife and co‑brother were acquitted for lack of proof of common intention. The appeals were partly allowed, setting aside the convictions of the wife and co‑brother and affirming those of the father‑in‑law and brother‑in‑law.
Issues considered
- Whether a statement recorded by an ASI before the commencement of investigation qualifies as a dying declaration under Section 32 of the Evidence Act.
- Whether the dying declaration recorded by the magistrate was properly proved and admissible.
- Whether a dying declaration requires corroboration to be upheld.
- Whether the wife and co‑brother shared a common intention to murder under Section 302 IPC.
- Whether the father‑in‑law and brother‑in‑law shared a common intention to murder under Section 302 IPC.
Legislation cited
Subjects
dying declarationSection 32 Evidence Actcorroborationcommon intentionSection 302 IPCadmissibility of evidencemurderappeal
Judgment
GHULAM HUSSAIN AND ANR. A
v.
STATE OF DELHI
AUGUST 4, 2000
[K.T. THOMAS AND R.P. SETHI, JJ.] B
Evidence Act, 1872-Section 32-Dying declaration-Admissibility of-
Held. on facts, dying declaration is corroborated by material facts and
therefore valid-Penal Code, 1860-Section 302.
Deceased died on account of burn injuries. The statement of the
c
deceased was recorded by Assistant Sub-Inspector of Police (ASI) at the
hospital. Magistrate also recorded the statement of the deceased separately.
The deceased stated that he had strained marital relations with his wife;
his wife went to her father's house; he went there to take his wife back;
on refusal by his father-in-law, the deceased slept in a tea shop situated D
in a corner of the house for three days; next day very early In the morning
he was woken up from sleep; his co-brother held both his hands from
behind; his father-in-law asked the wife of the deceased to bring kerosene;
she brought kerosene in a container and gave it to her father; he poured
the kerosene on his son-in-law forcibly; and was set ablaze by the brother- E
in-law of the deceased. The statements of the deceased were treated as
dying declarations after his death. The Additional Sessions Judge convicted
the wife, father-in-law, brother-in-law and co-brother of the deceased
under Section 302 IPC and sentenced them to imprisonment for life with
a fine of Rs. 500 each. The High Court dismissed the appeals of all the
ac~used. It, however, rejected the dying declaration recorded by the
Magistrate on the ground that the prosecution has failed to fully establish
the recording of it.
In appeal to this Court, the accused-appellants contended that the
.dying declaration of the deceased was not corroborated by any other G
evidence; that the dying declaration was recorded in suspicious circumstances
which cannot be held to have been proved; that the statement of the
deceased was recorded by investigating officer which was subsequently
treated as First Information Report (FIR) and, therefore, the same could
not be treated as dying declaration admissible in evidence. H
141
142 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A The prosecution contended that the dyinjl declarations have been
duly recorded and the material facts are corroborated by other evidence.
Disposing of the appeals, the Court
HELD 1.1. Section 32 of the Evidence Act, 1872 is an exception to the
B general rule of exclusion of hearsay evidence and the statement made by a
person written or verbal of relevant facts, after the death of the person, is
admissible in evidence if it refers to the cause of the death or any
circumstances of the transactions which resulted in death. It cannot, however,
be said that the statement recorded by the investigating officer which was
treated as FIR later could not be treated as dying declaration and
C inadmissible in evidence, because at the time of recording the statement the
ASI did not possess the capacity of an investigating officer as the investigation
had not commenced by then. Such a statement can be treated as a dying
declaration which is admissible in evidence under Section 32(1) of the Act.
The statement was voluntarily made by the deceased which was reduced to
D writing and have rightly been treated as dying declaration after the death of
the maker. The deceased has referred to the circumstances which ultimately
proved to be the cause of his death. Nothing has been pointed out by the
appellants which could create any doubt regarding the making or
admissibility in evidence of the statement. [146-C; 145-H; 146-A-B; D-E]
E 1.2. The High Court is right in rejecting the dying declaration recorded
by the Magistrate on the ground that the prosecution has failed to fully
establish the recording of the statement. [147-C]
1.3. On close scrutiny it is seen that the dying declaration of the ASI
is the truthful version of the occurrence which narrates the circumstances
F leading to the death of its maker. As the said statement was made immediately
after the occurrence, there is no reason doubt its veracity and correctness.
The circumstances surrounding the dying declaration are clear and
convincing which is found to be corroborated in material particulars. [148-
H; 149-A]
G Khushan Rao v. Stale of Bombay, [1958] SCR 552; Munna Raja v. State
of Madhya Pradesh, [1976] 2 SCC 764, relied on.
2. The wife of the deceased could not have held a common intention
with the other accused persons in committing the crime of murdering her
husband. When her father had asked her to bring kerosene she did so without
H knowing for the purpose. It cannot be denied that kerosene might have been
-
GHULAM HUSSAIN '" STATE !43
obtained to put the deceased in fear or force him to go away from the house A
of his in-laws. No other overt act is attributed to the wife who is the
unfortunate widow of the deceased. Similarly the prosecution has not proved
its case beyond doubt so for as the co-brother of the deceased is concerned.
He is stated to have caught hold of both the hands of the deceased. If the
deceased was intended to be killed by setting him on fire, it could have been
B
done while he was asleep. There was no reason to wake him up which could
have necessitated catching hold of his hands by the co-brother apparently
to over-power him. The mere presence of the co-brother would have
prompted the deceased to mention his name in the statement but the said
co-brother cannot be said to have shared the alleged common intention of
causing the death of the deceased. It is true that the intention to commit C
murder could emerge at any time but such intention has to be gathered
from the circumstances of each case. It might be that the co-brother had
accompanied his in-laws to see that the deceased did not create problem by
remaining as an unwanted guest in their house. Thus the prosecution has
failed to prove its case agains c the wife and the co-brother beyond all D
reasonable doubts. Therefore, the two appellants are entitled to the benefit
of doubt. Their conviction and sentence are set aside. [149-C-H]
3. So far as father-in-law and the brother-in-law are concerned, the
prosecution has proved its case beyond all reasonable doubts that they had
shared the common intention to kill the deceased in furtherance of which E
one poured the kerosene oil on deceased and the other lit him on fire;
Hence their conviction and sentence are confirmed. [150-A]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 781
of 1998.
F
I
From the Judgment and Order dated 19 .11. 96 of the Delhi High Court
~
in Crl.A. No. 132 of 1994.
WITH
Criminal Appeal No. 782 of 1998.
G
From the Judgment and Order dated 19.11.96 of the Delhi High Court
in Crl.A. No. 192 of 1993.
WITH
Criminal Appeal No. 783 of 1998.
H
144 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A From the Judgment and Order dated 19.11.96 of the Delhi High Court
in Crl.A. No. 230 of 1994.
K.N. Shukla, Jagdev Singh Manhas (A.C.), A.S. Rawat, Ms. Sushma
Suri and C. Ravichandran Iyer Adv. (A.C.) for the appearing parties.
B The Judgment of the Court was delivered by
SETHI, J. The appellant Ms.Shabnam is the wife, appellant Gulam
Hussain, is the father-in-law, appellant Roshan is the brother-in-law and
appellant Shakil Ahmad is the co-brother of the deceased Islamuddin who died
C on 13.10.1989 of the burn injuries caused on his person by the appellants.
Upon conclusion of the trial, the court of Additional Sessions Judge, Delhi
convicted the appellants under Section 302 IPC and sentenced them to undergo
imprisonment for hfe and to pay a fine of Rs.500 each. The appeals filed
against the conviction and sentence were dismissed by the High Court of Delhi
D vide the judgments impugned in these appeals which have been preferred by
the appellants from the jail.
We have heard Shri Jagdev Singh Manhas, amicus curaie appointed and
Shri K.N. Shukla, Senior counsel who appeared for the respondents.
E According to the prosecution FIR was registered on the basis of
statement of the deceased which was recorded after he was admitted in LNJP
Hospital. In the statement Islamuddin had stated that he was married to
appellant Shabnam, daughter of'Gulam Hussain about 5-6 months before the
date of occurrence. When he came to Jhuggi No.215, near Public Latrine,
F Sanjay Amar Colony, Boat Bridge, Yamuna Pushta about 7-8 days before the
occurrence to take back Ms.Shabnam, a quarrel ensued between him and
Shabnam because of her having brought with her gold and silver ornaments
worth Rs.5,000. As Shabnam was not sent along with him he slept for three
nights in a: tea shop which was situated on the corner of the house of his father-
in-law and he was not allowed to live in Jhuggi with other members of Gulam
G Hussain. On 13.10.1989 at about 3.30 a.m. all the three male accused came
on the spot where he was sleeping and woke him up. Shakil Ahmad caught
hold of his both hands from behind. His father-in-law asked Shabnam to bring
kerosene oil which she brought in a small container and handed over the same
to her father who poured kerosene oil on Islamu<ldin forcibly and Roshan
H thereafter set him ablaze. The neighbourers came there and tried to extinguish
GHULAM HUSSAIN v. STATE [SETHI, J.] 145
the fire while crying "Bachao-Bachao" (save-save), he reached near the iron A
bridge where a policeman got him seated in a three wheeler scooter for being
taken to the hospital. PW22 Balwan Singh is stated to have recorded his
statement which was later on treated as his dying declaration.
To prove the case against the appellants, the prosecution examined PW 1
B
Constable Rajbir Singh, PW2 Constable Naubat Singh, PW3 Constable Jit
Singh, PW4 lady constable Tara, PW5 Constable Krishan Pal, PW6 Inspector
Davinder Singh, PW7 ASI Budhi Singh, PW8 Shashi Dharan, PW9 Nannay
Khan, PWIO Inspector Niranjan Singh, PWll Constable Balbir Singh, PW12
Mohd. Satter, PW13 Laloo, PW14 Dr.B.N. Acharya, PW15 Constable Krishan
Kumar, PW16 Dr.George Paul, PW17 Constable Krishan Kumar, PW18 c
Aslam, PW19 S.N. Shai, PW20 Constable Surinder Singh, PW21 Head
Constable Prem Pal Singh, and PW22 ASI Balwan Singh. Besides oral
testimony of the witnesses, the prosecution relied upon two written dying
declarations i.e. Exhibit PW19/A and Exhibit PW22/B.
D
Despite various opportunities granted, the accused did not lead
any evidence.
Learned counsel appearing for the appellants has vehemently argued that
as there was no direct evidence in the case it was not proper
for the courts below to convict and sentence the appellants merely relying upon E
the dying declaration which, according to him, was not corroborated
by any other witness in its material particulars. He has further contended
that the dying declarations having been recorded in suspicious circumstances
cannot be held to have been proved. Per contra, the learned Senior Advocate
appearing for the respondent submitted that the dying declarations have
F
been duly recorded and the material facts corroborated by other evidence
produced in the case.
Exhibit PW22/B was recorded by PW22 ASI Balwan Singh in the
hospital on 14.10.1989 at about 6.30 a.m. after getting an opinion from the
Doctor that the injured was fit for statement. The endorsement of the doctor G
is recorded as Exhibit PW22/A. Learned counsel appearing for the appellants
submitted that as the statement was recorded by the investigating officer which
was treated as FIR, the same could not be treated as dying declaration and was
inadmissible in evidence. The submission has no substance because at the time
of recording the statement PW22 Balwan Singh did not possess the capacity
H
146 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A of an investigating officer as the investigation had not ccmmenced by then.
Such a statement can be treated as a dying declaration which is admissible in
evidence under Section 32( l) of the Evidence Act. After critically scanning
the statement of PW22 ASI Bal wan Singh and details of Exhibit PW22/B, we
have no hesitation to hold that the aforesaid statement was voluntarily made
B by the deceased which was reduced to writing and have rightly been treated
as dying declaration after the death of the maker.
Section 32 of the Evidence Act is an exception to the general rule of
exclusion of hearsay evidence and the statement made by a person written or
verbal of relevant facts after his death is admissible in evidence if it refers to
C the cause of his death or any circumstances of the transactions which resulted
in his death. To attract the provisions of Section 32, the prosecution is required
to prove that the statement was made by a person who is dead or who cannot
be found or whose attendance cannot be procured without any amount of delay
or expense or he is incapable of giving evidence and that such statement had
D been made under any of the circumstances specified in sub-sections (l) to (8)
of Section 32 of the Evidence Act. It cannot be disputed that Islamuddin who
made a statement PW22/B has died and in his deposition he has referred to
the circumstances which ultimately proved to be the cause of his death.
Nothing has been pointed out by the defence side which could create any doubt
in our mind regarding the making or admissibility in evidence of the statement
E Exhibit PW22/B.
Assailing dying declaration PW19/A, the learned counsel has submitted
that as the witnesses to it, namely, PW12 Mohd.Satter and PW!8 Aslam
who are real brothers of the deceased have not supported the prosecution
F version and there existed other circumstances which created suspicion, it
was not safe to hold the said dying declaration to have been proved. It
is submitted that the SDM has not assigned any reason in Exhibit PW19/A
for not recording the statement himself. However, during the trial he
has submitted that as one of his finger was injured, he dictated the dying
declarati9J1 to PW22 Bal wan Singh. PW22 Bal wan Singh in turn has stated that
G he had not recorded PW19/A. Learned counsel also drew our attention to the
two aforesaid statements and urged that as on the face of it PW22/B and PW 19/
A do not appear to have been written by one and the same person, reliance
upon PW19/A and by treating it a dying declaration would be unsafe.
Accepting such a contention of the accused persons, the High Court in this
H regard had concluded:
GHULAM HUSSAIN v. STATE [SETHI, J.] 147
"Thus, the statements of both PWs 12 & 18 coupled with the A
observation made by the above fully support the submission referred
to above advanced on behalf of the accused in regard to Ex.PW 19/
A not having been made by the deceased before PW 19. Trial Court
had acted erroneously in relying upon Ex.PW19/A. It has to be
excluded from consideration for recording the finding of guilt against
B
the accused."
We also agree with the findings of the High Court and feel that the
prosecution has failed to fully establish the recording of Exhibit PW19/A.
However, in view of our finding that Exhibit PW22/B has been proved to
be a dying declaration of the deceased we do not find any inherent weakness C
in the case of the prosecution which would per se entitle the appellants to
acquittal.
It is well settled that dying declaration must be dealt with caution for
the reason that the maker of the statement had not been subjected to
cross-examination. There is no rule of law or rule of prudence that dying
D
declaration cannot be accepted unless it is corroborated. [Khushan Rao v. State
of Bombay, [1958] SCR 552; Munna Raja v. State of Madhya Pradesh, [1976]
2 sec 764.
However, as prosecution is left with only one dying declaration, namely, E
PW22/B, we feel that in the instant case it would not be safe to convict the
appellants only on the basis of the aforesaid dying declaration unless corroborated
in other material particulars. We have found sufficient corroboration in this
case. The contents of the dying declaration are to the effect that the deceased
was married to Ms.Shabnam, daughter of Gulam Hussain, resident of Jhuggi
F
No.215, near Public Latrine, Sanjay Amar Colony, Boat Bridge, Yamuna
Pushta about 5- 6 months before the occurrence. 7-8 days before the date of
making the statement he had come at the residence of Gulam Hussain to take
his wife back. After 2-3 days of his coming he had a quarrel with his wife
because she had brought gold and silver ornaments worth Rs.5,000 with her
from his house without his consent. He spent three nights at a tea shop in front G
of the house of his father-in-law as he was not allowed to stay in the house
with other members of Gulam Hussain. On that day he went to sleep in the
house of his father-in-law who had called him there. He slept on a "Rehari"
(moving-cart) outside the house of his father-in-law. At about 3.30 a.m. his co-
brother Shakil Ahmad. his father-in-law Gulam Hussain and brother-in-law H
148 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A Roshan came there and woke him up. Shakil Ahmad, appellant caught hold
of his both the hands from behind. His father-in-law asked Shabnam to bring
kerosene which she brought in a small container and handed over to her father
who poured it upon with the intention to burn him
and Roshan set him ablaze. He raised alarm upon which neighbourers
B came there and tried to extinguish the fire. He ran in flames crying
"Bachao-Bachao" (save-save) near iron bridge. He met with one policeman
whom he stated that his in-laws have burnt him. The policeman made him
seat in a three wheeler scooter and brought him to the hospital. The material
facts of the case as disclosed in the dying declaration that (i) the deceased was
married to Ms. Shabnam with whom the relations had been strained; (ii) the
c in-laws of the deceased were not permitting his wife to go back with him;
(iii) he had come from his village in Bijnor, District of U.P.; (iv) he was
set ablaze by his in-laws in consequence of which he ultimately died;
stand proved by the prosecution. PW2 has corroborated the version of
the dying declaration by stating that he had seen the deceased in burnt
D conditions with cries 'Jala diya, jala diya, bachao-bachao' (burnt-burnt,
save-save). Upon enquiry he had told him that he had been burnt by his
in-laws. PW5 Krishan Pal Singh has stated that from the place of incident ASI
Balwan Singh had seized one small container of kerosene, one match-box
containing match sticks, one purse, two sheets of paper and one shirt in burnt
conditions. PW9 Nanhe Khan though declared hostile has admitted that at
E
about 2.30 a.m. when he was going to fetch water for his child, he had seen
the deceased running with his clothes on flames. PW 13 Laloo who was also
declared hostile has admitted that he had heard noise and saw Islamuddin in
flames. Later he informed the accused persons that the man in flames was
running from their side of Jhuggi. PW16 Dr. George Paul has stated that in
F his opinion the deceased had died due to septicaemia and toxaemia and that
his body had burn injuries. PW19 S.N. Shai, the then SOM has referred to the
recording of statement Exhibit PW19/A, the narration of which is almost
idential as detailed in Exhibit PW22/B. It is worthwhile to mention that all the
four accused were arrested immediately after recording of the statement of the
G deceased and registration of the case against them. It is, therefore, evident that
the material facts stated in the Exhibit PW22/B have been corroborated by
various witnesses and the attending circumstances of the case.
Upon close scrutiny we have no hesitation to hold that the dying
declaration Exhibit PW22/B is the truthful version of the occurrence
H which narrates the circumstances leading to the death of its maker. As
GHULAM HUSSAIN v. STATE [SETHI, J.] 149
the said statement was made immediately after the occurrence, there is A
no reason to doubt about its veracity and correctness. The circumstances
surrounding the dying declaration are clear and convincing which we have
found to be corroborated in material particulars. The general criticism of the
defence cannot, in any way, be made a basis for discarding the aforesaid
statement which was later on rightly treated as dying declaration of the B
deceased.
On proof of a valid dying declaration it has to be determined as to all
or any of the accused are guilty of offence for which they have been charged,
convicted and sentenced. It appears to us that role of Ms.Shabnam is not such
which could be made a basis of her holding a common intention with the other C
accused persons in committing the crime of murdering Islamuddin. Without
declaring as to what was to be done with the kerosene, her father had asked
her to bring it which she did apparently without knowing for what purpose the
- kerosene had been obtained by her father. It cannot be denied that kerosene
might have been obtained to put the deceased in fear or force him to go away
from the house of his in-laws where he was stated to have been staying for
about 7-8 days before the date of occurrence. No other overt act is attributed
D
to Ms.Shabnarn who is the unfortunate widow of the deceased. Similarly
we find that the prosecution has not proved its case beyond doubt so far
as Shakil Ahmad is concerned. He is the co-brother of the deceased and
is stated to have caught hold of both the hands of the deceased. If the E
deceased was intended to be killed by setting him on fire, it could have
been done while he was asleep. There was no reason of waking him up
which could have necessitated catching hold of his hands by Shakil
Ahmad apparently to over-power him. The mere presence of Shakil
Ahmad would have prompted the deceased to mention his name in the F
statement but the said appellant cannot be held to have been proved to be
sharing the alleged common intention of causing the death of Islarnuddin.
It is true that the intention to commit murder could emerge at any time
but such intention has to be gathered from the circumstances of each case.
It cannot be excluded that Shakil Ahmad might have accompanied his in-laws
G
,c ~ee that his co-brother does not create any problem by remaining as
an unwanted guest in and around their house for 7-8 days. There is
no evidence on record to suggest that any of the accused had indicated
their intention to kill the deceased. We feel that the prosecution has failed to
prove its case against appellants Ms.Shabnam and Shakil Ahmad beyond all
reasonable doubts. In our opinion these two appellants are entitled to the H
150 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A benefit of doubt.
So far as Gularn Hussain and his son Roshan are concerned, the
prosecution has proved its case beyond all reaosnable doubts that they had
shared the common intention to kill the deceased in furtherance of which one
poured the kerosene oil on deceased's body and the other lit him on fire.
B
Under the circumstances Appeal No.782/98 filed by Shabnarn is allowed
and Appeal No. 781/98 is partly allowed, so far as accused Shakil Ahmad is
concerned by setting aside the judgment of conviction and sentence passed
against them. They are acquitted and directed to be set at liberty immediately
C unless required in some other case. There is no merit in Appeal No.783/98 filed
by Roshan and Appeal No.781/98 so far as appellant Gularn Hussain is
concerned, and the same are dismissed.
B.S. Cr!. A. No. 781/98 partly allowed.
Cr!. A. No. 782/98 allowed.
Cr!. A. No. 783/98 dismissed. -
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