Facts of the case:
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.
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.
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.
The main dying declaration was given by Asha Ben to the Executive Magistrate (PW 1). 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.”
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 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.
Learned Senior Counsel projected the description of the name of the assailant given by Asha Ben in the statement attached to the FIR 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.
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, 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.”
In the above context we have to refer to a clarificatory statement elicited from the deceased by PW 13, 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.”
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.
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. 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, or to affect the provisions of Section 27 of that Act.”
We have therefore to see whether the statement in Ext. 67 would fall within the purview of Section 32(1) of the Evidence Act.
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 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 v. State of Maharashtra [1984 SC] a three-Judge Bench of this Court considered the scope of Section 32(1) of the Evidence Act. It laid down five 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.”
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.
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