Criminal Appeal No. 404-DBA of 1986

23rd August, 1991.

Petitioner Counsel: Mr. G. S. Cheerna, A.A.G., Punjab
Respondent Counsel: Mr. H.S. Bhullar, Advocate, .

Cases Cited:
1989 Cri LJ 95,AIR 1988 SC 2013 [Para 6]
1976 Cri LJ 1718,(1976) 3 SCC 104,AIR 1976 SC 2199 [Para 5]
1959 Cri LJ 796,AIR 1959 All 409,1959 All LJ 239 [Para 11]
AIR 1946 PC 3 [Para 12]

JUDGMENT

S. S.GREWAL, J. :-This appeal is directed against the order of Sessions Judge, Gurdaspur, dated 24-3-1986, whereby Narinder Kumar accused was acquitted of the charge under S. 302 of the Indian Penal Code for committing the murder of his wife Suman.

2. In brief facts relevant for the disposal of this case are that Suman deceased was married to the accused about three months prior to the present occurrence at Gurdaspur. Suman was earlier once married and her marriage with Narinder Kumar accused was her second marriage. Her daughter Jiwan Jyoti was born to her during her first wedlock. On 27-4-1985, at about 12.30 P.M. the deceased was cooking rice in the Kitchen on the first floor of the house. Meanwhile her husband Narinder Kumar accused sprinkled kerosene oil on her and set her ablaze and succeeded in running away. The occurrence was witnessed by Jiwan Jyoti daughter of the deceased. One of the neighbours went and informed Varinder Kumar brotherof the deceased who along with his wife Asha Rani

removed Suman in injured condition to the hospital. On receipt of information from the doctor about admission of Suman with burn injuries on her person in Civil Hospital, Gurdaspur, ASI Santokh Singh went and recorded the statement of Suman deceased and on its basis formal F.I.R. was subsequently registered at the Police Station. Suman died at about 7 P.M, on that evening and offence was converted to one under Section 302 of the Indian Penal Code.

3. Dr. S.C. Sharad who conducted post-mortem examination on the dead body of Suman on the next day of the occurrence at about 12.05 P.M. found superficial to deep burns on the whole of the body except left foot, lower third of front of left leg, right foot, middle and lower third of right leg, right side of the face and forehead. Long heir of the deceased were partially burnt. According to the opinion of the doctor, the cause of death was due to burns leading to shock. The doctor further opined that the burns were ante-mortem and sufficient to cause death in the ordinary course of nature. After completion of the investigation, the accused was challaned, tried and acquitted by the trial Court. Aggrieved against the order of acquittal passed by the learned trial Corut, the State has filed the present appeal.

4. The learned counsel for the parties were heard.

5. As observed by the apex Court in Munnu Raja v. State of M.P., 1976 (3) SCC 104 : (1976 Cri LJ 1718) the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, 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 method.

6. Relying on the authority in Munnu Raja's case their Lordships of the Supreme Court in State of Punjab v. Amarjit Singh, AIR 1988 SC 2013 : (1989 Cri LJ 95), observed that it would be better to have dying declaration recorded by a Magistrate. It was further observed that no hard and fast rule can be laid down in this regard and it all depends upon the facts and circumstances of each case.

7. In the instant case, it is significant to note that though information from the hospital authorities that Suman was lying admitted in the hospital with burn injuries had been received at the Police Station at 3.55 P.M. which was hardly one or one and half furlong from the hospital, yet, ASI Santokh Singh reached the hospital at 4.45 P.M. After recording the alleged dying declaration of Suman he made his endorsement and sent the said statement from Civil Hospital, Gurdaspur to the Police Station for registration of the case at 6.40 P. M. on the same evening and on its basis formal F.I.R. Ex. PH/3 was subsequently registered at the Police Station. According to the testimony of Dr. S. C. Sharad, the Investigating Officer came to him submitted application that Suman was fit to make a statement at 5.50 P.M. and after examining the patient gave his opinion that Suman was fit to make her statement. The alleged dying declaration of Suman is a short statement and taking into consideration that Suman had burn injuries, it would not take more than 10 to 15 minutes for recording the said statement. The deceased expired at 7.05 P.M. due to extensive burn injuries on her body. The house of the Ilaqa Magistrate is also at a distance of three or four furlongs from the hospital. Admittedly no effort was made by ASI Santokh Singh to call the Ilaqa Magistrate to record the dying declaration of Suman. Mere fact that the doctor was present at the time when the alleged dying declaration was recorded or had attested the same would not absolve remissness on the part of said IAS not to inform the Ilaqa Magistrate to record the statement of Suman, who was admitted in the hospital with extensive burn injuries. ASI Santokh Singh spent about two hours before he recorded the dying declaration of Suman, in the hospital.

8. It is also significant to note that an interpolation has been made in the dying declaration recorded by ASI Santokh Singh. The word 'Nahin' (No) has been deliberately changed to 'Ehi' (this very) in the original statement Ex. PH which purports to be the dying dclaration of Suman deceased. In the copy of the formal F.I.R. the word written is 'Nahin'. Even ASI Santokh Singh admitted in his cross-examination that originally the word in the statement Ex. PH was 'Nahin'. In her alleged dying declaration the deceased had mentioned that she did not give any statement that her husband set her ablaze. Dr. S.C. Sharad admitted in his cross-examination that last three lines in the statement of Suman Ex. PH were inserted later on by the Investigating Officer. The doctor seems to have made only verbal complaint as the original complaint was produced by this witness himself when he appeared in the Court. His explanation that only copy of the complaint was forwarded does not inspire much confidence. The interpolation in the statement Ex. PH is only with regard to the Word 'Nahin' (No). The dying declaration was not recorded in question and answer form. All these factors taken together clearly indicate that the alleged dying declaration of Suman deceased was not correctly and faithfully recorded by ASI Santokh Singh whose conduct in the instant case is not above board. Thus mere mention in the dying declaration that on the day of occurrence the accused had quarrelled with the deceased and latter's mother-in-law too had harassed her would not per se be sufficient to hold that the accused had adequate motive to commit the murder of his wife. Dying declaration read as a whole shows that there was no specific allegation that the accused had actually set the deceased ablaze. No implicit reliance can thus be placed on the alleged dying declaration.

9. As far as presence of Jiwan Jyoti dauthter of the deceased from her first husband and a child witness about seven years old (at the time of the alleged occurrence) is concerned, her very presence at the spot when the deceased received burn injuries does not find mention even in the dying declaration of Suman, which incidentally constitutes the first information report in this case. Rather in her statement Ex. PH the deceased had specifically mentioned that no other person was present nearby when the occurrence took place. The deceased in her dying declaration had not implicated the accused in this case. It seems quite probable that Jiwan Jyoti because of her tender age had been tutored or prevailed upon to depose against the accused who is not her real father. It also seems quite plausible in the circumstances of the present case that out of necessity the relations of the deceased in connivance with the Investigating agency named her as an eye-witness, in order to cover up the lacuna in the prosecution case. This witness has not said a word that any dispute or quarrel took place between the accused and the deceased before the alleged occurrence. Her conduct in neither raising any alarm during the occurrence, nor, coming out of the house to secure help for her mother, who, was in great agony due to her burns is inconsistent with natural human conduct. The version given by Jiwan Jyoti that after the deceased caught fire she went down stairs and again came up stairs does not seem probable, in view of the version given by child witness that the deceased had tried to extinguish fire by pouring water on herself. No material evidence has been produced to prove either that the clothes worn by the deceased smelt of kerosene oil, or, that any kerosene oil on the floor of the kitchen was noticed by the Investigating Officer when he went and inspected the spot. The tin containing two bottles of kerosene oil was recovered from the kitchen. However, it is difficult to believe that in case the accused wanted to commit the murder of the deceased by pouring kerosene oil from the tin and then set her ablaze he would not pour or sprinkle the entire kerosene oil from the tin.

10. Testimony of Jiwan Jyoti PW the only alleged eye-witness and a child witness of tender years has been scrutinized with due care and caution. We are of the considered view that because of the aforesaid infirmities in the testimony of Jiwan Jyoti PW and the fact that she belongs to that untrustworthy class of witnesses who because of tender age

can easily be prevailed upon, or, tutored to give false evidence under the undue influence of their relations with whom they live, it would not be safe to place implicit reliance on the testimony of this child witness of extreme tender age.

11. We find support from the Division Bench authority of Allahabad High Court in Ram Hazoor Pandey v. State, AIR 1959 All 409 : (1959 Cri LJ 796) wherein it was observed as follows (at page 798 (of Cri LJ) :

"The difficulty with child Witnesses often is that they can be made to believe in things which they themselves have not seen and this belief, when once it gets hold of a child witness, is difficult to shake. It is also well known that child witnesses can be tutored much better than adults and further that when once a child witness has been properly tutored then such a child witness cannot easily be shaken in cross-examination."

12. While appreciating the evidence of a child witness of extreme tender age, it would be desirable for the Court to keep in mind the principle that although there is no bar in accepting the uncorroborated testimony of a child witness yet prudence requires that court should not act on the uncorroborated evidence of a child whether sworn or unsworn. While dealing with this aspect of the case, their Lordships of the Privy Council in Mohamed Sugal Esa v. The King, AIR 1946 PC 3, observed as follows (at pages 5 and 6 :-

"In the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it, corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."

13. For the foregoing reasons, in our opinion, the order of acquittal passed by the learned trial Court does not suffer from any legal infirmity. This appeal is accordingly dismissed.

Appeal Dismissed