Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
PATEL HIRALAL JOITARAM
Vs.
RESPONDENT:
DATE OF JUDGMENT: 18/10/2001
BENCH:
S.N.Variava, K.T.Thomas
JUDGMENT:
Appeal (civil) 427 of
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 day light 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.
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 name Bombay Metal
School at Patan.
The story of the prosecution is the following.
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.
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 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 illicit relationship. So doing 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 water-flow to escape from
the devouring fire. She reached the water column situated
near the railway station and sat beneath it, and the water
flowed 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
rickshaw was procured for rushing the charred victim to the
hospital.
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.
On 21.10.1988, 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 uncrystalised
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 the culprit.
After her death the police continued the investigation and
completed it and charge-sheeted the appellant for the
offence of murder of Asha Ben.
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. 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.
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 court how
the lighter (alleged to have been used in setting her
ablaze) could be lighted.
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.
Hence, the High Court convicted him and sentenced him
as aforesaid.
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 standard to be
adhered to while dealing with an appeal against acquittal.
In Dhanna vs. State of M.P. {1996 (10) SCC 79} this Court
has reiterated the perspective to be adopted in such a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
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:
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
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.
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 on 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 any one.
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 Bens death was
due to burns sustained by her on 21.10.1988.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
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.
PW-12 Dr. N.N. Parikh, a tutor in Forensic Medicine of
the BJ 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.
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 Modis Medical Jurisprudence &
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.
In Om Prakash vs. 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.
It is preposterous to say that 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 septicemia 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
sequel to the burns sustained by her. Hence we repel the
contention of the learned counsel on that score.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
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.
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.
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 gms.
on me and threw a lighter lighted on me
Hiralal is the son-in-law of Nanavati.
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 appellant himself admitted that he is
Hiralal Patel. When the Investigating Officer seized the
scooter from his house appellant made an application before
the court for return of the said scooter. It is
significant to point out that the registration No. 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 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.
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
appellant is not the son of Lalchand. Appellant is Hiralal
Joitaram and hence the deceased would have referred to
some other person, contended the counsel.
In this context we have to look into the words which
Asha Ben has spoken in Ext.P-40 FIR regarding that aspect.
Those words are extracted below:
The resident of our society, Patal Hiralal
whose fathers name I dont know, he was
having illicit relationship with my sister
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
Sharada and I saw them two or three times. I
scolded Hiralal and hence he was annoyed
with me. The above said Hiralal Lalchand,
whose name I give on recollecting afterwards
caused me burns.
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 acccuseds 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.
(The statement was recorded in Gujarati and the above
extract is the English translation produced by the
appellant before this Court).
Learned senior counsel made a two-fold attack on the
admissibility of Ext.67. First is that a statement recorded
by 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.
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:
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.
We have therefore to see whether the statement in
Ext.67 (extracted above) would fall within the purview of
Section 32(1) of the Evidence Act. That sub-section reads
thus:
(1) When it relates to cause of death.-
When the statement is made by a person as to
the cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that persons death comes into
question. Such statements are relevant
whether the person who made them was or was
not, at the time when they were made, under
expectation of death, and whatever may be
the nature of the proceeding in which the
cause of his death comes into question.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
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 envelope 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 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.
In Sharad Birdhichand Sarda vs. State of Maharashtra
{1984 (4) SCC 116}, a three Judge 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:
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.
Following the above decision a two Judge Bench of this
Court has stated thus in Rattan Singh vs. State of H.P.
{1997 (4) SCC 161}:
The collocation of the words in Section
32(1) circumstances of the transaction
which resulted in his death is apparently
of wider amplitude than saying
circumstances which caused his death.
There need not necessarily be a direct nexus
between circumstances and death. It is
enough if the words spoken by the deceased
have reference to any circumstance which has
connection with any of the transactions
which ended up in the death of the deceased.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
Such statement would also fall within the
purview of Section 32(1) of the Evidence
Act. In other words, it is not necessary
that such circumstance should be proximate,
for, even distant circumstances can also
become admissible under the sub-section,
provided it has nexus with the transaction
which resulted in the death.
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.
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 prosecution succeeded in proving beyond
reasonable doubt that appellant was the assailant who set
Asha Ben ablaze.
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.
Section 299 IPC defines culpable homicide as
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.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
might have been prevented.
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,
In the present case, 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
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
water-flow. 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.