Case Summary
| Citation | Patel Hiralal Joitaram v. State of Gujarat(2002) 1 SCC 22 |
| Keywords | Sec 32 of IEA, dying declaration, mistaken in names |
| Facts | Asha Ben, victim, was in a wedlock with Vinod Bhai and had 2 children. Hiralal Joitaram (Appellant) developed affair with the sister of Asha Ben. She had expressed her detestation to her sister (Shradha Ben) and also mentioned it to some other person. On 21st October, Asha Ben was proceeding to the school to bring her children home and on the way, Appellant came there and burned her down with a lighter. She started screaming and quickly ran towards a water flow to escape from fire. She reached the water column near the railway station and water followed extinguished the flames but her clothes burnt into ashes. Among the pedestrians, a lady come and flanked Asha with some clothes to cover up her nudity and take her to the hospital. She made statement to inspector and magistrate and mentioned “Hiralal Patel” as culprit but she made correction by saying that she made a mistake inadvertently and that it was Hiralal son of Lalchand, i.e., Hiralal Lalchand. |
| Issues | Whether dying declaration of the victim established the identity of her assailant unmistakably as that of the accused? Whether the identity of the assailant of the victim is established as the identity of the accused herein? |
| Contentions | |
| Law Points | SC observed that doctors who treated the victim claimed in her autopsy that she was died by the burns sustained on 21st Oct needed no countenance mere academic possibilities when the prosecution case regarding death of the deceased was established on broad probabilities. Multiple dying declaration were given in this case. Essential ingredients of multiple DD are:- * DD given by the deceased must be consistence with one other. * If all DD are not identical, the Court will analyze the facts of the case with the dying statement, or examine the witnesses. It is inconceivable that appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of burn resulting therefrom would at least be “likely” to cause her death (if, not they are sufficient in the ordinary course of nature to cause her death). The fact that she died only after a fortnight of sustaining those burn injuries cannot evacuate the act out of the contours of the “2ndly” clause of Section 300 of IPC. The apex court concluded that admissibility of DD as evidence is initial step and once the court accepts the DD then next thing is the reliability of DD. Deceased mistaken in the name of Appellant and it is inconceivable that Appellant would not have known inflammable liquid would cause her death. The prosecution had established the identity of the assailant. The multiple DD given by deceased are admissible as they all are consistent with one another and voluntarily given in her fit state of mind. |
| Judgement | Finally, SC considered the DD of the victim and upheld the Appellant’s conviction by the HC of Gujarat and dismissed the appeal. |
| Ratio Decidendi & Case Authority |
Full Case Details
K.T. THOMAS, J. – A businessman of Patan (Gujarat) was arraigned for scorching a
young hapless woman (mother of two infant children) to death. The gory felony was
perpetrated in broad daylight on a public road. The man against whom the accusation was
made had no relationship with the victim, maritally or otherwise. The trial court exonerated
him, but a Division Bench of the High Court of Gujarat found him to be the killer of that lady
and convicted him and sentenced him to imprisonment for life. Hence this appeal by him as of
right.
2. Asha Ben, the roasted victim of the gory episode was one of the 7 daughters of her
father. In her wedlock with Vinod Bhai (PW 5) she became mother of two children (Mital and
Bhargav). The small family consisting of Asha Ben, her husband and the two children were
living in their own house in the city of Patan. Her eldest child Mital was studying in Bal
Mandir attached to a school by the name of Bombay Metal School at Patan.
3. The story of the prosecution is the following: the appellant developed some affair with
the sister of Asha Ben which the deceased resented for her own reasons. She had expressed
her detestation to her sister (Sharada Ben) and also mentioned it to some other persons. When
the appellant came to know of the above reaction of the deceased he wanted to settle score
with her.
4. On 21-10-1988 at about 10 a.m., Asha Ben was proceeding to the school (Bal Mandir)
for collecting her child Mital back home. On the way the appellant who was on a scooter met
her and buttonholed her malevolently. He questioned her for spreading the canard that he and
Sharada Ben had an illicit relationship. So doing the appellant took out a can and doused
combustible liquid contained therein on Asha Ben. He then whipped out a lighter and after
lighting it hurled its flame on her. In a trice Asha Ben was transformed into an anthropoid
inferno, screaming and yelling she scampered towards a waterflow to escape from the
devouring fire. She reached the water column situated near the railway station and sat beneath
it, and the water flowing therefrom eventually extinguished the flames and embers which
enwrapped her. But by then she was blistered with substantial burns and her clothes
incinerated into ashes. Among the pedestrians there was a lady who flanked Asha Ben with
some clothes to cover up her nudity and a rickshaw was procured for rushing the charred
victim to the hospital.
5. On coming to know of the incident, Vinod Bhai (husband of Asha Ben) reached the
place and by taking her in a rickshaw, speeded up her route to the hospital. Though she was
treated in the hospital for nearly a fortnight she succumbed to her burn injuries on 15-11-
1988.
6. On 21-10-1988, an FIR was registered on the basis of the statement made by Asha Ben
to the police officer (PW 10) who reached the hospital on getting some uncrystallised
information of the episode. In the meanwhile, the Executive Magistrate (PW 1) on being
informed by the doctor who examined the lady, visited the hospital and recorded her
statement around 11.15 a.m. In that statement she mentioned the name of “Hiralal Patel” as
102
the culprit. After her death the police continued the investigation and completed it and chargesheeted the appellant for the offence of murder of Asha Ben.
7. There is practically no dispute that Asha Ben was set ablaze after dousing her with
some inflammable liquid on the morning of 21-10-1988. But on the question of who the
culprit was, the prosecution and the defence had great divergence. The prosecution relied on
the statements made by the deceased for establishing the identity of the culprit, which
included the statement given to her husband, to the Executive Magistrate and to the police in
the FIR.
8. The Sessions Judge picked out some infirmities in the statements of the deceased and
finally held that those statements cannot be relied on as dying declarations. He also found that
the description of the incident narrated by Asha Ben is not consistent with probability,
particularly when the investigating officer demonstrated in the court how the lighter (alleged
to have been used in setting her ablaze) could be lighted.
9. The Division Bench of the High Court after re-evaluating the evidence came to the
conclusion that the trial court has grossly erred in rejecting the statements of the deceased and
that the reasons advanced by the trial court were so erroneous that no court would ever have
come to such conclusions. Relying on the statements of the deceased, learned Judges of the
Division Bench of the High Court came to the irresistible conclusion that the identity of the
assailant had been unmistakably established as against the appellant.
10. Hence, the High Court convicted him and sentenced him as aforesaid.
11. Shri U.R. Lalit, learned Senior Counsel for the appellant urged, at the outset, that the
High Court should have borne in mind that it was an appeal against the acquittal which they
were dealing with and the approach should have been different from that of appeal against
conviction. According to the learned Senior Counsel the Division Bench has overlooked the
standard formulated by this Court for dealing with an appeal against acquittal and
consequently the order of the acquittal was wrongly reversed. We reminded ourselves of the
standards to be adhered to while dealing with an appeal against acquittal. In Dhanna v. State
of M.P. [(1996) 10 SCC 79], this Court has reiterated the perspective to be adopted in such a
situation, after referring to some of the earlier decisions rendered by this Court on that aspect.
We may extract the following observations from the said decision:
“11. Though the Code does not make any distinction between an appeal from
acquittal and an appeal from conviction so far as powers of the appellate court are
concerned, certain unwritten rules of adjudication have consistently been followed by
Judges while dealing with appeals against acquittal. No doubt, the High Court has
full power to review the evidence and to arrive at its own independent conclusion
whether the appeal is against conviction or acquittal. But while dealing with an
appeal against acquittal the appellate court has to bear in mind: first, that there is a
general presumption in favour of the innocence of the person accused in criminal
cases and that presumption is only strengthened by the acquittal. The second is, every
accused is entitled to the benefit of reasonable doubt regarding his guilt and when the
trial court acquitted him, he would retain that benefit in the appellate court also.
Thus, the appellate court in appeals against acquittals has to proceed more cautiously
103
and only if there is absolute assurance of the guilt of the accused, upon the evidence
on record, that the order of acquittal is liable to be interfered with or disturbed.”
12. Bearing in mind the above standard of caution we may make the judicial scrutiny of
the findings arrived at by the High Court. As pointed out earlier, the focus of discussion can
first be mustered on the identity of the assailant, for, there is little dispute on the fact situation
that one assailant had set her ablaze at the time and place mentioned in her statements. We
are, in this context, tempted to dub the reasoning of the Sessions Judge for concluding that “it
is impossible that the saree could catch fire if the lighter is thrown at her” as preposterous. It
requires no effort for any sensible person to understand that it was the flame of the lighter
which was hurled at the victim who was by then soaked with inflammable liquid and catching
fire in such a situation is a matter of easy grasping for anyone.
13. We are aware that the statements made by the deceased are the only materials
available for establishing the identity of the appellant and hence if those statements are
inadmissible or unreliable, even if admissible, or insufficient to point to the appellant as the
assailant, its inevitable consequence is to set the appellant free. Knowing this position well
Shri U.R. Lalit, learned Senior Counsel first focussed his contention for showing that the
prosecution has failed to prove that Asha Ben’s death was due to burns sustained by her on
21-10-1988.
14. The interval between the date of the incident when the deceased sustained burns and
the date of her death was a fortnight. PW 2 Dr Vikarambhai, who examined Asha Ben at
10.30 a.m. on 21-10-1988, noticed second-degree burns on the upper and lower portions of
her hands, front and back of her chest and on the neck, ears and forehead. He found that her
condition was “critical” when he saw her first.
15. PW 12 Dr N.N. Parikh, a tutor in Forensic Medicine of B.J. Medical College,
Ahmedabad, conducted autopsy on her dead body on 15-11-1988. He noticed burns of the
third degree on the front and back of her trunk, both thighs etc., besides second-degree burns
on some other limbs. In his opinion the death of the deceased was due to a stroke on account
of such burns and that those burns were sufficient in the ordinary course of nature to cause her
death.
16. Harping on an answer given by PW 12 in cross-examination that death of the
deceased had occurred due to “septic” learned Senior Counsel made out an argument that
such septic condition could have developed on account of other causes. Mere possibility of
other causes supervening during her hospitalisation is not a safe premise for deciding whether
she would not have died due to the burns sustained on 21-10-1988. The cause of death can be
determined on broad probabilities. In this context we may refer to a passage from Modi’s
Medical Jurisprudence and Toxicology, dealing with death by burns:
“As already mentioned, death may occur within 24 to 48 hours, but usually the
first week is the most fatal. In suppurative cases, death may occur after five or six
weeks or even longer.”
17. In Om Parkash v. State of Punjab [(1992) 4 SCC 212], the victim was set ablaze on
17-3-1979 and she sustained burns with which she died only 13 days thereafter. The assailant
was convicted of murder and the conviction was confirmed by this Court.
104
18. It is preposterous to say that the deceased in this case would have been healed of the
burn injuries and that she would have contracted infection through some other causes and
developed septicaemia and died of that on 15-11-1988. Court of law need not countenance
mere academic possibilities when the prosecution case regarding death of the deceased was
established on broad probabilities as a sequel to the burns sustained by her. Hence we repel
the contention of the learned counsel on that score.
19. Next contention which needs consideration is that even from the statements made by
the deceased after sustaining the burns, the identity of the assailant cannot unmistakably refer
to the appellant. The first occasion on which she made statement revealing the name of the
assailant was when she talked to PW 3 (Sadbhai), a pedestrian. The witness has deposed that
when the victim was sitting beneath the water column of the railway station writhing in pain
and frantically trying to get the flames quelled, some sadhus gathered nearby and asked her
who had done it to her and then she answered by mentioning the name as “Hiralal”. A little
later, when she narrated the incident to her husband (PW 5 Vinod Bhai) she disclosed a little
more details about the identity of the assailant. This is how PW 5 had deposed about it:
“Asha told me that she was burnt by Hiralal Patel of our society…. She told me
that Hiralal asked her why she was defaming him by spreading the story that he had
illicit relations with her sister Sharada.”
20. It must be borne in mind that so far as PW 5 is concerned he had absolutely no doubt
that Hiralal Patel referred to by her is the appellant. When Asha Ben spoke to PW 2 Dr
Vikarambhai she did not mention the name of the assailant. Learned Senior Counsel
highlighted that omission for contending that she did not know who that assailant was when
she narrated the incident to that doctor. We are unable to give accord to the said contention as
it is too much to expect a lady in such a condition to disclose the name of the assailant to the
doctor spontaneously without being asked for it. For the doctor, the name of the assailant or
even his identity is of no use and hence he would not have bothered to know about it.
21. The main dying declaration was given by Asha Ben to the Executive Magistrate (PW
1). That dying declaration was marked as Ext. 11. It was recorded at 11.15 a.m. on 21-10-
1988, when she said this:
“Hiralal Patel, who burnt me, met me near Siddharaj Nagar. His Scooter No. is
3040. He asked me why are you spreading wrong stories about me. He got very
excited and poured some corrosive liquid from a tin of 500 gm on me and threw a
lighter lighted on me…. Hiralal is the son-in-law of Nanavati.”
22. Three specifications regarding the identity of the assailant could be discerned from
those statements. First is that the name of the assailant is Hiralal Patel. Second is that he
reached the place by Scooter No. 3040. Third is that he is the son-in-law of Nanavati.
Prosecution was able to place materials to show that all the above three identifying features
are referring to the appellant. We may point out that the appellant himself admitted that he is
Hiralal Patel. When the investigating officer seized the scooter from his house the appellant
made an application before the court for return of the said scooter. It is significant to point out
that the registration number of that scooter is 3040. In fact he filed an application before the
court for returning the scooter. The father-in-law of the appellant is admittedly one Nanavati
105
and that fact has been spoken to by Valiben (PW 9). The aforesaid features would almost
conclusively establish that it was the appellant whom the deceased meant when she told
others that it was Hiralal who caused her burn injuries.
23. Shri U.R. Lalit, learned Senior Counsel in his arguments projected the description of
the name of the assailant given by Asha Ben in the statement attached to the FIR (Ext. 40) as
“Hiralal Lalchand” and contended that the appellant is not the son of Lalchand. The appellant
is “Hiralal Joitaram” and hence the deceased would have referred to some other person,
contended the counsel.
24. In this context we have to look into the words which Asha Ben has spoken in Ext. P40, FIR regarding that aspect. Those words are extracted below:
“The resident of our society, Patel Hiralal whose father’s name I don’t know, he
was having illicit relationship with my sister Sharada and I saw them two or three
times. I scolded Hiralal and hence he was annoyed with me. The abovesaid Hiralal
Lalchand, whose name I give on recollecting afterwards caused me burns.”
25. In the above context we have to refer to a clarificatory statement elicited from the
deceased by PW 13 (Bhagwat), the investigating officer. That statement is marked as Ext. 67.
It reads thus:
“In my statement I have given the name of the accused’s father as Lalchand
which has been stated inadvertently. Lalchand is the name of the father-in-law of my
sister and hence I remembered it inadvertently. The name of the father of Hiralal is
really Joitabhai. He is the son-in-law of Nanavati Soap Factory.”
26. Learned Senior Counsel made a twofold attack on the admissibility of Ext. 67. First is
that a statement recorded by the police under Section 161 of the Code of Criminal Procedure
is inadmissible in evidence. Second is that even if it is admissible for any purpose it cannot be
used under Section 32 of the Evidence Act as the said statement related only to the parentage
of Hiralal.
27. If what is extracted above from Ext. 67 falls under Section 32(1) of the Evidence Act
it would stand extricated from the ban contained in Section 162 of the Code of Criminal
Procedure. The former is exempted from the ban contained in Section 162. This can be seen
from sub-section (2) of Section 162 which reads thus:
“162. (2) Nothing in this section shall be deemed to apply to any statement
falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act,
1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.”
28. We have therefore to see whether the statement in Ext. 67 would fall within the
purview of Section 32(1) of the Evidence Act.
29. The above provision relates to the statement made by a person before his death. Two
categories of statements are made admissible in evidence and further made them as
substantive evidence. They are: (1) his statement as to the cause of his death; (2) his statement
as to any of the circumstances of the transaction which resulted in his death. The second
category can envelop a far wider amplitude than the first category. The words “statement as to
any of the circumstances” are by themselves capable of expanding the width and contours of
106
the scope of admissibility. When the word “circumstances” is linked to “transaction which
resulted in his death” the sub-section casts the net in a very wide dimension. Anything which
has a nexus with his death, proximate or distant, direct or indirect, can also fall within the
purview of the sub-section. As the possibility of getting the maker of the statements in flesh
and blood has been closed once and for all the endeavour should be how to include the
statement of a dead person within the sweep of the sub-section and not how to exclude it
therefrom. Admissibility is the first step and once it is admitted the court has to consider how
far it is reliable. Once that test of reliability is found positive the court has to consider the
utility of that statement in the particular case.
30. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] a threeJudge Bench of this Court considered the scope of Section 32(1) of the Evidence Act. After
referring to a number of decisions of different High Courts on the point Fazal Ali, J. who
spoke for the majority opinion, laid down five propositions. Among them the first is that the
legislature has thought it necessary to widen the sphere of Section 32 for avoiding injustice.
Among the remaining propositions the second is relevant for our purpose and hence it is
extracted below:
“(2) The test of proximity cannot be too literally construed and practically
reduced to a cut-and-dried formula of universal application so as to be confined in a
straitjacket. Distance of time would depend or vary with the circumstances of each
case. … Sometimes statements relevant to or furnishing an immediate motive may
also be admissible as being a part of the transaction of death. It is manifest that all
these statements come to light only after the death of the deceased who speaks from
death.”
32. Taking cue from the legal position as delineated above we have to consider now
whether the statement of Asha Ben in Ext. 67 related to any circumstance connected with her
death. We cannot overlook the fact that the context in which she made such statements was
not for resolving any dispute concerning the paternity of a person called Hiralal or even to
establish his parentage. It was in the context of clarifying her earlier statement that she was
set ablaze by a man called Hiralal whose second name happened to be mentioned by her as
Lalchand. When subsequently she was confronted by the investigating officer with the said
description to confirm whether it was Hiralal, son of Lalchand who set her to fire, she made
the correction by saying that she made a mistake inadvertently and that it was Hiralal Joitaram
who did it and not Hiralal Lalchand. Thus Ext. 67 is inextricably intertwined with the episode
in which she was burnt and eventually died of such burns. Looking at Ext. 67 from the above
perspective we have no doubt that the said statement would fall within the ambit of Section
32(1) of the Evidence Act.
33. Thus, from the statements made by the deceased we have no doubt that it was the
appellant whom Asha Ben referred to as the assailant who doused combustible liquid on her
and ignited her with the flame of the lighter. There is no reason even remotely suggesting that
the deceased would have had only a scanty acquaintance with the appellant so as to commit a
mistake in identifying him. We, therefore, agree with the conclusion of the Division Bench of
the High Court that the prosecution succeeded in proving beyond reasonable doubt that the
appellant was the assailant who set Asha Ben ablaze.
107
34. Shri U.R. Lalit, learned Senior Counsel then made an alternative argument that the
offence would not escalate beyond culpable homicide not amounting to murder. This
argument was made on the premise that the burns caused to her did not result in her death
during the initial fatal period and that her death happened on account of setting in of some
later complications.
35. Section 299 IPC defines “culpable homicide” as:
“299. Whoever causes death by doing an act with the intention of causing death,
or with the intention of causing such bodily injury as is likely to cause death, or with
the knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.”
36. Explanation 2 to Section 299 has a material bearing on the said contention and hence
that is extracted below:
“Explanation 2. – Where death is caused by bodily injury, the person who causes
such bodily injury shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been prevented.”
37. Section 300 IPC carves out two segments, one is culpable homicide amounting to
murder and the second segment consists of culpable homicide not amounting to murder. Four
clauses enumerated in the section are enveloped in the first segment. What is set apart for the
second segment is compendiously described as “except in the cases hereinafter excepted”
from out of the first segment. For the purpose of this case we deem it necessary to quote only
the second clause in Section 300 IPC:
“2ndly. – If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused,…”
38. In the present case, the appellant did not even make an effort to bring the case within
any of the four exceptions enumerated in Section 300. Hence the only question to be
answered is whether he did the act with the intention of causing such bodily injury as he knew
“to be likely to cause death of the deceased”. It is inconceivable that the appellant would not
have known that setting a human being ablaze after soaking her clothes with inflammable
liquid would cause her death as the type of burns resulting therefrom would at least be
“likely” to cause her death (if not, they are sufficient in the ordinary course of nature to cause
her death). The fact that she died only after a fortnight of sustaining those burn injuries cannot
evacuate the act out of the contours of the 2ndly clause of Section 300 IPC. There was a little
abatement of the ferocity of the flames which engulfed her as she, in the instinctive human
thirst of getting extricated from the gobbling tentacles of the fire, succeeded in tracing out a
waterflow. Such a reflex action performed by her had mitigated the conflagration of the
flames but did not save her from the fatality of the calamity. Hence the interval of fourteen
days between the attack and her death is not a cause for mitigation of the offence perpetuated
by the offender. We are, therefore, not impressed by the alternative argument advanced by the
learned Senior Counsel for the appellant. In the result, we dismiss this appeal.
