JUDGMENT K. Narayan, J.
1. This appeal Under Section 374(2) Criminal Procedure Code is directed against, the conviction and sentence dated 31.3 1985 rendered by the District and Sessions Judge, Almora in Session Trial No. 32 of 1984 The accused appellants Capt. Radhey Shyam and his daughter Km Rekha were convicted on the charges Under Sections 120-B and 302/34 I.P.C. and sentenced to imprisonment for life on both counts, and the sentences made to run concurrently.
2. The trial related to an occurrence of the evening of 15.7.1984 wherein one Smt. Lda Thapa suffered severe burn injuries resulting in her death in the Military Hospital on 18.7.1984 at 9.20 a.m. The charges were based on the contention that Km. Rekha had drenched Smt. Thana with kerosene oil and Captain Radhey Shyam had set her ablaze in the evening of 15.7.1984 while the defence has been that she had drenched herself in kerosene oil under some fit of morbid hysteria, and caught fire from a candle that, was burning in the bed-room.
3. The facts proved and not disputed by the accused are that Cant. Radhey Shyam had an earlier marriage and out of that Km. Rekha and one son was born. However, that wife has been deserved and has been living in Farrukhabad since before January 1984. The two children have been living with Capt. Radhey Shyam. Km. Rekha was about 17 years at thetime of incident. Karan Singh (P.W. 2), the brother of the deceased, and informant had also been living with them since sometime after the marriage. They all lived in a flat of block in Alma lines of Ranikhet Cantt. They had all gone to enjoy film Takat in Military Movies that day after noon. The other residents of the same block though different flats, were Mrs. Hardip Kaur and her husband Capt. Sant Singh with children Goldie and his sister, the couple was examined as P.Ws. 3 and 4. The others in the same block were Mrs. and Lt. Phalke who were also witnesses but have not been examined. The arrival of the couples after the fire is also not disputed. Capt. Sant Singh managed to get an army vehicle in which Smt. Lila was put in a cot and taken to Military Hospital where she is shomn to have reached around 9.30 p.m. She was immediately attended to by Dr. Miss A. Bhaskar, as a telephonic message had already been given and after some time she also sent for a Magistrate for getting a dying declaration, which was done by Km. Binda Swarup Magistrate at almost midnight. The injuries on the person of Smt. Lila Thapa as noted in Military Hospital were almost hundred percent burns of second and third degree all over the body, they have been described still better in the post-mortem examination report as "all over the body except perineum region and part of face and scalp". Needless to say that head and face are upper-most part and generally have no cloth to serve as combustible material to produce heat and perineum is the part usually kept covered by the position of thighs. The condition of burns was thus shuddering in effect.
4. An F.I.R. of the incident with police was lodged on 16.7.1984. This F.I.R., it may be said at the very outset cannot be given much weight even as a corroborative piece of evidence what to say of the weight as the first version, as it is said to have been lodged" by P.W. 2 Karan Singh a child and that too had not been recorded properly but in all probability as shown by P.W. 2 Karan Singh was given a written report prepared by the police after the narration of facts by him, and he copied but the same in his hand, which he himself could not even read properly and fluently. Thus to look upon the so called written report as a written report will be injustice not only to the cause of justice but more to P.W. 2 Karan Singh. It can be given value for parts stated about the witnesses but not a derogatory value for the facts which have been stated about lateron, though of course, these evidences will have to be considered at their own place, and with weight that they may deserve.
5. The evidence against the accused can be considered in various parts (1) Various dying declaration in order of time--
(a) to Raju to run away as he bad put fire to her. (P.W. 2)
(b) to P.W. 4 Sant Singh (though not stated by him), heard by P.W. 2 Karan Singh who alone stated about it.
(c) to Smt. Hardeep Kaur-not specifically naming him but Rekha only.
(d) to P.W. 8 Dr. Miss A. Bhaskar noted in the Bed Head Ticket.
(e) to Miss Binda Swarup Magistrate.
(f) to I.O. Under Section 161 Cr.P.C.
(g) to P.W. 7 Mohan Singh father.
(2) Direct testimony of P.W. 2 Karan Singh.
(3) The relevant facts detailing to show the guilt of the accused as confessed to the defence version of morbid hysteric action. We will like to reassess the evidence in order to give out best consideration to the accused appellants.
6. P.W. 2 Karan Singh is a child witness and at the same time his presence at the time of fire is almost undisputed. Before proceeding to consider his evidence in detail and for merits, a few words about child witness, generally will be of use. A child is not an incompetent witness whose evidence may have to be discarded always. Not only a child but we would say every witness should be considered by the Court at his own level of intelligence, as may be worked out in cross examination and understood by the Trial Court as that is a great privilege of the Trial Court and hence the law that Courts of appeal should be slow to derate from the appreciation of evidence rendered by the Trial Court. However, for the present we are concerned with the child witness. They are generally considered to be prone to tutoring, and when something is repeated to them by their elders, they began to imaging them and really feel them to be the truth. Their innocent brains are like blank papers and can retain anything written over them by repeated communication. But that does not mean that they cannot remember anything. The memories of children are also better and what they see specially when under strain, they seldom forget for a long time unless it is over written by some effort. It is not that what they state is always result of imagination but is that the same way sometimes be on effect of imagination created by others. And for that one needs another to cast that imagination and then lastly the duty of Court would be to work out the portions improved and deal with them according to law.
7. We will venture to say that there is no such person in this case. Mohan Singh the father of the deceased, may be interested in getting the accused punished but what is the reason behind it. There is no other grievance with him except the death of Smt. Lila Thapa in rather unnatural circumstances. There is no case for dowry or return thereof. It was an usual death he had no occasion to complain. It is only the reason of death which has made him sore about it. Even then we will try to work out what may be termed as a development subsequent and if it be a good reason, to ignore his evidence about these facts.
8. We may also mention that many facts stated about by P.W.2 Karan Singh were challenged in the cross examination with the ground that they were not mentioned by him in the F.I.R. and the statement Under Section 161 Cr.P.C. a reliance upon the view of material omissions enacted in the explanation. We would only like to say in this behalf that expecting completeness and comprehensiveness from one person of his age will be course would be unjust. As already said above every witness is to be appreciated at his own intelligence quotient as he cannot be said to be disqualified by what he could not attain or what has not been granted him by the Almightly.
9. P.W. 2 Karan Singh has stated that on their way back from the movies, Radhey Shyam said to Lila Thapa that she would be scolded at home and thereafter Radhey Shyam, Rekha and Madhukar moved fast to home, while he and Lila went for feat to the house of Capt. Sant Singh and there they were assured by Madhukar and Rekha that Lila will not be beaten and then alone they came to the flat. There they saw Capt. Radhey Shyam behind the tank and then he also assured in presence of Sant Singh and his children that he would not beat them. This much part of her evidence we will concede does not inspire confidence, though of course it could be material as immediate cause, as nobody likes to see himself as a laughing stock among his colleagues. We are not prepared to believe this part not only because it was not mentioned before but because it does not make much sense. A father kissing a daughter in open may not be liked by few or more but cannot be a reason for viretation of the wife even if she is step mother. Further these facts have not been stated about by Lila in her detailed dying declaration to the Magistrate, and not only that, not even by P.W. 3 Hardeep Kaur or P.W. 4 Capt. Sant Singh who could have been the best witnesses about them. We thus proceed further with his evidence ignoring this part of the statement as a narration which might have cropped up in his fertile child brain or may be that the developments desired by the police, for the reasons, best known to them, could not be well digested by him, as this part of the statement though somewhat akin to the statement of Lila Thapa under Section 161 Cr.P.C. is not an agreement with that also and as shall be wherein below is not reliable and is pregnant with improvements immaterial and typical.
10. The material part of the evidence of Karan Singh is that Radhey Shyam gave a kick below the belly region of Lila and when she knealed and took console of the wall, Rekha throw some liquid held by her into the face of the deceased causing irritation in eyes and when she began to rule her eyes, Rekha poured kerosene oil. This is only detailed version of what had been said by him in the F.I.R. or we would better put in the form what had been possible narrated by him to police officials before the F.I.R. was prepared. The child or nobody could have imagined it although infact it stood to reason also in view of what has been shown in the cross examination; Smt. Lila was taller and stout then Km. Rekha and it was thus a well thought, though may be quickly, way to overpower any possible resistance against kerosene sprinkling. It is also naturally corroborated by the fact that face and hair have been least effected by fire, and lands support to the idea of a though out conspiracy and abetment of the father and daughter. Lila was then set ablaze by Capt. Radhey Shyam and Lila cried at Raju to run away as she had been put to fire. This will be considered below, as it may be partly read as a dying declaration as well as immediate effect and part of the same transaction Under Sections 7 and 6 of the Indian Evidence Act. The part also is in corroborative value for the statement said to have been made to Smt. Hardeep by Lila in effect requesting Capt. Radhey Shyam to spare Raju (Karan Singh). He has also stated that Sant Singh and his wife came to the flat and rebuked Capt. Radhey Shyam, whereupon Lila told Sant Singh "this menial Radhey Shyam has set me to fire". The other facts stated are how Lila was taken to hospital etc. In his cross examination he has denied the suggestion that Radhey Shyam had put the fire off before Sant Singh could arrive. The most of his cross examination was devoted to thrash out his omissions in earlier statement and we fail to see any weight with them in view of his tender age and in perfect coherence.
11. P.W. 3 Smt. Hardeep Kaur and P.W. 4 Capt. Sant Singh are wife and husband. In the appreciation of evidence of the two one can easily see that the wife has maintained her calm though for that she could be blamed for being more sympathetic to the deceased being a lady, while Capt. Sant Singh has in fact, as a colleague tried to help Capt. Radhey Shyam in a manner though these facts would not obtain. They both stated that at about 9 p.m. when the electric supply was discontinued Raju came to their flat and conveyed that Lila and Radhey Shyam were fighting and that Lila be saved. As is natural for a neighbour of quarreling couple, the situation was avoided by them for sometime but this time it proved costly and soon they heard an alarm of a lady whereupon they went to the flat of Radhey Shyam and saw Lila lying on the floor with burns as stated by them Capt. Sant Singh had gone ahead with torch and he has stated to have seen Radhey Shyam trying to wrap Lila in a quilt, in which he also helped. It appears that after some consoling words Sant Singh went out to arrange for a vehicle and Smt. Hardip Kaur was narrated the other dying declaration in the say of silence and hints which shall be discussed below. In any case none of the two really connect the accused with the crime itself and only P. W. 3 Hardeep Kaur was the witness of the dying declaration or resgetae. However the part of the statement of P.W. 4 Capt. Sant Singh that there was an attempt to save Lila on the part of Radhey Shyam is neither reliable nor even if accepted of any value. The cover for fire mentioned is quilt while according to evidence the burnt nylon sari of the deceased has been found sticking to the blanket which has not been stated about by Capt. Sant Singh. In any case even if there was an effort, it could not deny the putting of fire by Radhey Shyam as even an executioner possibly feels repenting to the action done by him and does it under the effect of liqour Radhey Shyam was after all a husband. If as refer action he did it, it could not be a credit. Onething is certain with the above evidence. Smt. Lila was ablaze inside the house and if it was not an accident or anything else, Radhey Shyam and Rekha were the only grown up persons in the house who could have done it and the way she was soaked in kerosene oil, it could not be an act of one person either. Here, though a bit out of place, we will like to mention that the empty container of kerosene oil (4 Lit. container of Dalda) was found in the living room and not in the kitchen, its usual place and naturally it could not be brought there by Lila if she was rushing from kitchen with hysteric effect or mental disorder or hallucination.
12. Thus the direct evidence whatever it was, was that of P.W. 2 Karan Singh and the other evidence of Smt. Hardeep Kaur, P.W. 3 and Capt. Sant Singh, P.W. 4 directly pointed out towards the two accused as person who had jointly acted in a planned manner and put Smt. Lila Thapa to fire.
We will next turn to the evidence of dying declarations. We will take up these in the chronological order.
The first in time is in the form of communication of warning to P.W. 1 Karan Singh to run away as "Raju you run away, he (Radhey Shyam) has put fire to me". Karan Singh is an eye witness to the occurrence and these words are more in the nature of forming part of the same transaction and cause and effect of the fact in issue and thus covered by Sections 6 and 7 of the Indian Evidence Act. We do not wish to deny them, the weight of dying declaration under Section 32 of the Indian Evidence Act but only wish to say that being in the nature instantaneous reaction of a victim, to at least save her brother, they have much value and would have been relevant even if death could have been averted. The same provisions apply to the next dying declaration also which is somewhat in a different manner to Capt. Sant Singh in presence of P.W. 2 Karan Singh. It is true that Sant Singh did not like to state about that for obvious reasons but for this reason P.W. to state about that for obvious reasons but for this reason P.W. 2 Karan Singh is not to be disbelieved. This was also a reaction when she had not thought much and conveyed "Is Kamine Radhey Shyam na mujhe jala diya hai." (This menial Radhey Shyam has put fire to me). Sant Singh has of course not ever the role of police has not been above board, they had not taken down the information received by them from hospital as the First Information Report, they had preferred to obtain a written report from a child leaving others including Officers who could have given them better information. We are, therefore, of the opinion that the statement of P.W. 3 Smt. Hardeep Kaur that she had narrated these facts to the police and they had probably omitted it for the reasons best known to them is correct.
13. The statement evidenced by the bed head ticket too is to be discussed and that recorded by Km. Binda Swarup P.W. 1 is complete but it does not disname Sri Radhey Shyam as the author of fire for the psychological reasons already mentioned above. This omission should not be given much weight. The mind of married Indian woman is too well known, which is more for the safety of husband when they are economically dependant upon him. The bent of mind of Lila have been shown in the statement of her father P.W. 2 Mohan Singh, through those facts might have been otherwise immaterial.
14. The last two so called dying declarations namely the one made to I.O. Under Section 161 Cr. P.C. and the other narrated by P.W. 5 Mohan Singh, do not inspire confidence. Of course the law is that the statements Under Section 161 Cr. P.C. can be read as dying declarations, yet the ordinary caution in respect of the statements to police cannot be lest sight. We have already shown above somewhat livxity on the part of the police and to expect them to have correctly recorded the statement of Lila, is rather not desirable.
15. The statement of P.W. 5 Mohan Singh that she had named Radhey Shyam as author of fire may be true but looking to the entire statement of this witness, he cannot be said to be a reliable person. His statement about how they came in contact the accused and how the marriage took place seem to be more in effort to paint a black picture of accused as these facts should not obtain in the trial of charges of the present nature. A motive has been attempted to be made out but possibly without any need. Anything between husband and wife could have cropped up any time. In fact motive can only support the case but the absence can not undo the direct testimony. In the instant case the motive has been indicated in the suggestion of the defence to P.W.2 Karan Singh that Lila used to insist that Rekha and Madhukar be sent to Farrukhabad, their Nanihal. Though it was denied by the witness, the suggestion has its value.
16. We would like to say before entering into law relating to value of dying declaration that when there are more than one dying declarations of the same person they should be read as one in order to assess the value and weight to be attached to then. If they are contradictory the maxim morituris proesuniture mentiri--a man will not meet his maker with a lie in his mouth stands wiped out. but at the same time keeping in mind that this maxim represents the psychic effect on the persons of all religions, on them, it can not be done a way so easily and it should be seen if there has been a real contradictory versions or there have only been omissions to keep the obligations valued during the life. Absolute truth is not the requirement and the requirement expected is that the person is not making a false accusation. Applying this principle, the omission of the name of Radhey Shyam in subsequent statement is a contradiction of truth, rather than falsehood.
17. When there are more than one dying declarations of the same person they have to be read as one for proper appreciation of the value and if they differ from each other on material aspects the effort should be made to see if they can be reconciled. For this reconciliation the author of the statement is not available and the Court may go ahead with certain reasonable assumptions. If no assumption can explain the difference, the statements might become unworthy of credit but if one is possible the position may be different. The situation is almost converse of the general principles relating to circumstantial evidence. In the matter of circumstantial evidence, if there is any assumable explanation, the presumption of innocence comes in way and the accused gets the benefit. The deceased cannot be got to explain the difference and if there is a reasonable explanation for the difference, the statement may be taken at par with an omission covered by explanation to Section 161 Cr. P.C. and be considered as a matter of fact in each case on its own strength.
18. It need hardly be said that ordinarily a dying declaration has to be tested at the following touch stones :
(a) that it should not be a result of tutoring prompting or even imagination or in one word should be an expression of one's own perceptions of facts--This is solely there guaranteed by the spontaniety of the same transaction, and absence of any person who could be expected to have extended any such help till the dying declaration was given to Km. Binda Swarup.
(b) If it suffers infirmity--Naturally it had none and was getting towards infirmity in leaving the name of Radhey Shyam for which there were reasons.
(c) Want of any detail is not of any value as it is a statement made by a person of his own feelings and the deceased or anybody else cannot be blamed for it, nor the omission can later on be supplied.
(d) The mental state of the deceased has to be kept in mind. In the instant case she has been in perfect senses as has been certified by Dr. Miss. A. Bhaskar, whatever might have been her body pain obviously beyond imagination, there was nothing for her to loose senses which is even shown by the last report in bed head ticket. "The patient suddenly stopped breathing" and development during hospitalization thrombosing--of superficial veins, which was naturally gradually effecting the blood circulation. There is no reason to think of any inclarity of brain at any stage.
19. The defence version has already been touched above. However for due weight to it, it may be mentioned that it was shown in the statement of P. W. 5 Mohan Singh that Lila had once to be treated for some mental problem. It was only premarital period when hysteric tendencies can be thought of specially in this class. The detail of that illness though they could be available to the accused also have not been produced in Court. The prosecution is of course under burden to prove all facts leading to the charge and may be also at time to do away with some possible defences, but by no stretch of imagination, it could be held responsible to prove negative evidence to show that on that day Lila was not in a deranged condition of mind.
20. Even if halucination or tantrism or anything like that could be thought of, there would be no occasion for the kerosene oil can to reach the bedroom and that in itself is sufficient to deny the defence any weight.
21. There is, therefore, no occasion to come to a conclusion different to that arrived at by the learned Sessions Judge. It may however be mentioned that since nothing has been said by the learned Counsel for the appellants against simultaneous conviction Under Sections 120B and 30/34 I.P.C. we do not wish to enter into that part. In any event, it would not make any difference on the net result.
22. In view of the above discussion, this appeal should fail and is accordingly dismissed. The conviction and sentence recorded by the Sessions Judge are hereby maintained. The appellants are on bail. They shall surrender to their bails and serve out the sentences according to law.