State Of M.P vs Vishweshwar Kol

State of Madhya Pradesh ...Appellant

Versus

Vishweshwar Kol ...Respondent

O R D E R

This appeal, at the instance of the State of Madhya

Pradesh, arises out of the following facts:

The first wife of the respondent (hereinafter called "the

accused"), had died of tuberculosis and several years prior to

the date of occurrence (19th October 2003) he had started

living with Leelawati Bai deceased as a second wife. Out of

this arrangement, 4 daughters, namely, Sandhya about 6

years, Lovely 3 years, Madhu 1 year and Jyoti 10 or 11 years

had been born. As Leelawati Bai had abandoned her previous

husband and belonged to a community different from that of

the accused, she had not been accepted as a member of his

family and even otherwise there was suspicion that she was

Crl. Appeal No.1361/2006 2

not of good character. On the evening of 18th October 2003

the accused went to see a dance performance at Chandiya.

He, however, returned home at about 1.00 a.m. i.e. in the

early morning hours of 19th October 2003 before the

performance had ended and after picking up a plastic can

which contained kerosene oil, he poured the oil on his wife

and four daughters. Jyoti who was the eldest, woke up and

tried to escape but the accused got hold of her and in that

process, he too sustained burn injuries on his body. As a

consequence of the serious burn injuries, Leelawati Bai,

Sandhya, Lovely and Madhu died almost instanteously and

house was completely burnt down. Jyoti, who had sustained

severe injuries, was removed to the Primary Health Centre by

her uncle and brother of the accused, Nandi Kol PW-7 where

she was examined by Doctor Ashish Pandey, PW-1. The

Doctor also informed the police on which Sub-Inspector

S.K.Mishra, PW-10 reached the hospital and after ascertaining

from Dr. Ashish Pandey as to Jyoti's fitness to make a

statement, recorded the same between 1.40 and 2.15 a.m.. In

Crl. Appeal No.1361/2006 3

this dying declaration, she gave the story as already given

above. The accused was accordingly brought to trial for an

offence punishable under Section 302 of the IPC on the

completion of the investigation. The trial court relying on the

dying declaration and partly on the evidence of Nandi Kol PW-

7 and Jognibai PW-8, the mother of the accused, held that the

fact that the accused and Leelawati Bai were living as a man

and wife had been proved on record. The court, however, held

that the story as to the motive for the burning of Leelawati Bai

and particularly her daughters could not be entirely accepted

as the witnesses aforesaid had resiled from their police

statements in an attempt to help the accused who was a very

close relative and accordingly the primary evidence against the

accused was the dying declaration made by Jyoti. The court

observed that this was the main link in the chain of

circumstances against the accused. It was pointed out that

the dying declaration had been recorded by PW-10 after the

Doctor had opined that Jyoti was fit to make a statement.

Support for the dying declaration was also found from the

Crl. Appeal No.1361/2006 4

evidence of PW-4 Balwant, a medical assistant, who too had

been present in the Primary Health Centre. PW-10 also

deposed that no Executive Magistrate was posted at Chandiya

and as Jyoti was in a very serious condition it had not been

feasible to secure the services of an Executive Magistrate from

Umariya which was about one hour distant and that in any

case the wireless set at the Headquarters had been shut down

at midnight and the telephone too was not in working order.

PW-10 also explained that soon after the recording of the

dying declaration Jyoti too had died. The trial court observed

that a dying declaration to be more reliable and plausible

ought to be recorded by a Magistrate but if the circumstances

did not make that possible and a dying declaration was

recorded by a police officer and was found to be credible, there

was no law or practice that it could not be relied upon. The

trial court also noted that in the light of the fact that PWs.7

and 8, the brother and the mother of the accused, had resiled

from their statements though admittedly PW-7 had brought

Jyoti to the hospital, no other evidence could be produced as

Crl. Appeal No.1361/2006 5

the incident had happened at 1 a.m., an extremely awkward

time. The court then took up the question of the sentence to

be awarded and held that the case fell within the rarest of the

rare category as four innocent girls between the ages of 1 and

10 and their mother had been murdered by their father only

because he had some strained relations with the mother. It

was found that the murders had been committed in an

excessively brutal manner. An appeal was thereafter taken to

the High Court and a reference was also made under Section

366 of the Cr.P.C. The High Court has, by the impugned

judgment, allowed the appeal and acquitted the accused,

thereby declining the murder reference. The High Court

analyzed the law relating to dying declarations and held that

such a statement could by itself form the basis for conviction

provided it inspired confidence and with this background

examined the dying declaration and gave a few rather unusual

reasons for discarding it; they being (1) that as per the dying

declaration, all victims had been sleeping when the oil had

been poured on them and the fire lit but if all (including Jyoti)

Crl. Appeal No.1361/2006 6

were asleep, there was no question of Jyoti having seen the

incident; (2) that there was no smell of kerosene oil on the

dead bodies of the children which belied the story that

kerosene oil had first been poured on the victims and they had

subsequently been set afire and (3) that it appeared that a

bottle containing kerosene oil which was being used as a

crude lamp (chimney) appeared to have caused the fire and

that the story that the kerosene oil had been poured directly

on the victims was a concoction. The High Court also referred

to certain passages from Dr. Modi's Medical Jurisprudence

and Toxicology to support its views. The State is in appeal

before us.

Ms. Aishwarya Bhati, the learned counsel for the State of

Madhya Pradesh, has argued that the three reasons given by

the High Court for making an order of acquittal were

completely unjustified, as they ignored the basic fact that the

dying declaration had been recorded within a very short time

of the incident and by PW-10 after getting a fitness certificate

from the Doctor who had given the certificate in the presence

Crl. Appeal No.1361/2006 7

of PW-4 Balwant, an employee of the hospital. She has

pointed out that realizing the gravity and urgency of the

situation and Jyoti's serious condition, it had not been

possible to secure the services of a Magistrate from Umariya

which was some distance away and that PW-10 was thus fully

justified in recording the dying declaration. These pleas have

been controverted by Mr. Rajesh, the learned counsel for the

accused who has supported the judgment of the High Court.

We have gone through the evidence with the help of the

learned counsel and also examined the reasons which have

weighed with the High Court in rendering its judgment. With

great respect, we are unable to accept any of the reasons given

by the High Court. It has to be highlighted that a dying

declaration cannot be analyzed as if it were a statute and it

was only if the Court was to find that the injured was not in a

fit condition to make a statement or the possibility that it was

tutored or motivated or the story given was completely

unacceptable could be some of the reasons for discarding it. It

has come in Jyoti's statement that her father had returned

Crl. Appeal No.1361/2006 8

home completely inebriated and before the dance performance

had ended is supported by PW-7 as well. Jyoti also stated that

the accused had walked to the kitchen and picked up a can of

kerosene oil and had first poured its contents on her mother

and thereafter on her and her siblings and then set them

ablaze. She further stated that she being the eldest had

managed to get up and had attempted to escape but she had

been got hold of by the accused with the result he too had

received burn injuries in that process. The fact that the

accused received burn injuries is corroborated by the medical

evidence.

We find absolutely no reason as to why the story given in

the dying declaration should not be believed. Admittedly,

Jyoti had been brought to the hospital by PW-7 and he so

admitted in his statement. Dr. Pandey, the attending doctor,

had immediately sent for the police which had brought PW-10

to the hospital and after ascertaining from the doctor as to

Jyoti's fitness, the dying declaration had been recorded in the

presence of the doctor as also Balwant PW. The argument

Crl. Appeal No.1361/2006 9

that had found favour with the High Court that as the

presence of a chimney was conceded by the prosecution, it

appeared that the kerosene oil had spilt out after the chimney

had been accidentally broken and caused the burn injuries to

all the victims. This story is, however, not based on any

material but is an inference which does not flow from the

evidence. The question is as to the

sentence that is to be awarded in such a matter. The trial

court had rightly held that the incident was in the category of

the rarest of the rare cases. Nothing can be said in

exoneration of the accused on the facts of the case, and we are

constrained to hold that the High Court by rendering a

judgment which is completely against the evidence makes it

difficult for us to re-impose the capital sentence at this stage.

As already indicated above, the incident had happened in

October 2003. The trial court had convicted the accused

under Section 302 of the IPC and sentenced him to death vide

judgment dated 30th April 2004. The acquittal judgment was

rendered on the 6th December 2004. The accused has been

Crl. Appeal No.1361/2006 10

free on acquittal for more than 6 years now. In this view of the

matter, notwithstanding the horrendous nature of the crime

and that it called for the capital punishment, we find it

difficult to re-impose the death sentence on the accused at

this stage. We nevertheless give this opinion with regret. We

accordingly allow the appeal, set aside the judgment of the

High Court dated 6th December 2004 and restore that of the

trial court in so far as the conviction under Section 302 of the

IPC in concerned, but direct the accused to undergo a

sentence of life imprisonment.

........................................J.

(HARJIT SINGH BEDI)

........................................J.

(CHANDRAMAULI KR. PRASAD)

JANUARY 18, 2011,

NEW DELHI.