Introduction

• This is an important case on the concept of dying declaration under Section 32(1) of the Indian Evidence Act (1872).

Facts

• Asha Ben who is the victim in this case was in a wedlock with Vinod Bhai and she had two children.
• Hiralal Joitram (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 person.
• When the Appellant came to know about this, he wanted to settle his score with her as she was not agreeing to his relationship with her sister.
• On 21^st October 1988 at about 10 AM, Asha Ben wan proceeding to the school (Bal Mandir) for collecting her child Mital back home. On her way she was stopped by the Appellant.
• Appellant then took out a lighter and after lighting it hurled its flame on her.
• Asha ben was burnt alive, and she started screaming and yelling she quickly ran towards a water-flow to escape from the fire.
• She reached the water column situated near the railway station and at beneath it, and the water followed therefrom eventually extinguished the flames but 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.
• Though she was treated in the hospital for nearly a fortnight she succumbed to her burn injuries on 15^th November 1988.
• Before her death her statement was recorded by a police inspector as well as by the Executive Magistrate.
• In that statement she mentioned the name of "Hiralal Patel" as the culprit.
• When subsequently she as 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.
• HC convicted appellant for the murder of Asha ben.

Issue Involved

• Whether the identity of the assailant of the victim is established as the identity of the accused herein?
• Whether the dying declaration of the victim established the identity of her assailant unmistakably as that of the accused?

Observations

• It was observed by the Supreme Court after examining the doctors who treated the victim and who conducted her autopsy that the death of the victim was caused by the burns sustained by her on 21^st October 1988 needed no 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.
• Section 32(1) of the IEA dealing with dying declaration was analysed by the Supreme Court in this case.
• The Supreme Court observed that they cannot overlook the fact that the context in which the victim 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.
• From the statements made by the deceased the SC did not doubt that it was the appellant whom the victim 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.
• 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.

Conclusion

• Finally, the SC considered the dying declaration of the victim and upheld the appellant’s conviction by the HC of Gujarat and dismissed the appeal.

Note

• Section 300 of Indian Penal Code, 1870 (IPC): Murder
  • 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.
• Section 302 of IPC- Punishment for murder
  • Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
• Section 32 of IEA - Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant
  • 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 person's 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.