* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: December 15, 2009
Judgment delivered on: December 18, 2009
+ CRIMINAL APPEAL No.15/1997
BAL KISHAN ..... Appellant
Through: Mr.Ujjal Singh and Mr.J.P.Singh
Advocates with appellant in
person.
Versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be Yes
reported in Digest ?
AJIT BHARIHOKE, J.
1. The instant appeal is directed against the impugned judgment dated 23rd November 1996 in Sessions Case No.226/1993 arising out of FIR No.177/1993, Police Station Nabi Karim convicting the appellant Bal Kishan for the offence under Section 302 IPC as also the order on sentence dated 27th November 1996 in terms of Crl.A.No.15/1997 Page 1 of 12 which the appellant has been sentenced to undergo imprisonment for life and also to pay a fine of Rs.2000/- and in default of payment of fine to undergo rigorous imprisonment for further period of two months.
2. Briefly stated, case of the prosecution is that Ms.Sunita(hereinafter referred to as the `deceased') was married to one Pinki Sharma s/o Ms.Gomti Devi on 14th May 1992. The appellant Bal Kishan is the brother-in-law of the deceased. It is stated that the married life of the deceased remained normal for a short span of two months. Thereafter, when the deceased visited her parents, she complained to her mother that her husband used to beat her and he had raised a demand for a motorcycle and a Godrej almirah. She also complained that her mother-in-law and the appellant Bal Kishan also used to threaten her with her life.
3. On 5th June 1993, deceased Sunita suffered burn injuries at her in-laws house and was taken to JPN Hospital by her husband Pinki Sharma. At about 1.40 pm, Dr.Prem Kumar (PW-17) examined the deceased and prepared her MLC Ex.PW-15/A. The deceased is stated to have told the doctor that her `jeth' Bal Kishan, the appellant had set her on fire after pouring kerosene oil on her and that her husband and mother-in-law were outside the room at the time of the incident. This statement of the deceased Ex.PW-17/A was incorporated by the doctor as alleged history of burns in the MLC.
Crl.A.No.15/1997 Page 2 of 12
4. The intimation regarding admission of the deceased in JPN Hospital was conveyed to the Police Station Nabi Karim by the Duty Constable and DD No. 15A (Ex.PW-12/A) was recorded. Copy of the DD entry was entrusted to ASI Shyam Singh for inquiry, who along with Constable Yogesh Kumar went to the hospital and collected the MLC of the deceased. As per the MLC, the deceased had suffered 80-90 per cent burns.
5. The SDM was informed and Shri R.C. Meena, PW-7 visited the hospital and recorded the statement of the deceased on the same day i.e. 5th June 1993 between 5.30 pm to 5.50 pm. The deceased, in the said statement Ex.PW-7/A, stated that she had caught fire accidently and she had made a wrong statement before the doctor.
6. Ms.Sunita succumbed to her injuries on 6th June 1993 at about 1.40 pm. The information was conveyed to the SDM. The SDM Shri Virender Kumar PW-16 conducted the inquest proceedings on 7th June 1993. He also recorded the statement of the mother of the deceased Ex.PW-1/A wherein she made an allegation against the appellant, his brother Pinki Sharma and mother Smt.Gomti Devi, as referred to in Para 2 above. She expressed her suspicion against them and added that Pinki Sharma had once thrown a small container (dibiya) of kerosene oil on Ms.Sunita and tried to set her on fire in his own house. The SDM, vide his endorsement Ex.PW-16/A, referred the statement Ex.PW- 1/A to the police station and directed the SHO Nabi Karim to Crl.A.No.15/1997 Page 3 of 12 register a case against the appellant Bal Kishan, Pinki Sharma and Smt.Gomti Devi. Consequent to the said directions, FIR No.177/1993 under Section 498A and 304B IPC read with 34 IPC was registered on 7th June 1993.
7. Post mortem on the dead body of Ms.Sunita was conducted by Dr.George Paul(PW-4) of Maulana Azad Medical College on 7th June 1993 at 4.00 pm. He found superficial ante mortem epidermal burns involving 76-78 per cent of the body. The viscera was preserved and was sent to CFSL. As per the CFSL report Ex.PW-14/B, the viscera tested negative for common poisoning. After going through the CFSL report, Dr.Paul opined in his deposition in the Court that the death was due to burns shock from ante mortem burn injuries by fire.
8. After completion of the investigation, the appellant, his brother Pinki Sharma and mother Smt.Gomti Devi were challaned under Section 498A/304B/302/201 IPC.
9. Charges under Section 498A and 304B were framed against all the three accused persons and an alternative charge under Section 302 IPC was also framed against the appellant Bal Kishan. All the accused pleaded not guilty and claimed trial.
10. The prosecution has examined 18 witnesses in support of its case. The accused persons denied the prosecution case in their statement under Section 313 Cr.P.C. The appellant Bal Kishan, in his statement under Section 313 Cr.P.C., with a view to explain the dying declaration Ex.PW-17/A took the plea that the Crl.A.No.15/1997 Page 4 of 12 deceased was immediately taken to the hospital where, on account of negligence of the doctor, she died. He had an exchange of hot words with the doctors and even Sunita had shouted at the doctor as to why she was not being immediately attended to. Thereafter, he and his brother Pinki Sharma were pushed out and after half-an-hour the deceased was transferred to Burns Ward where also she abused the said doctors.
11. The prosecution, with a view to establish the charges under Section 498A and 304B IPC, has relied upon the testimony of PW- 1 Smt.Lalya Devi, mother of the deceased, and PW-2 Hukam Chand Sharma, father of the deceased. The learned Trial Court, on appreciation of their testimonies in the background of the testimony of PW-6 Mohd. Azad, found their version unreliable and came to the conclusion that the prosecution has failed to establish the above referred charges and acquitted all the three accused including the appellant on the said counts. He, however, relying upon the dying declaration Ex.PW-17/A made by the deceased in the presence of Dr.Prem Kumar PW-17, convicted the appellant under Section 302 IPC for having committed murder of the deceased.
12. Learned counsel for the appellant has assailed the impugned judgment on the ground that the prosecution case rests solely on the dying declaration Ex.PW-17/A, which is not reliable. Learned counsel contended that as per the prosecution case, the deceased is stated to have made three dying declarations; first Crl.A.No.15/1997 Page 5 of 12 being Ex.PW-17/A in which she has implicated the appellant and the other two dying declarations are purported to have been made by the deceased in the presence of Shri R.C.Meena, SDM PW-7(Ex.PW-7/A) at 5.30 pm on 5th June 1993 and the dying declaration purported to have been made in the presence of ASI Shyam Singh PW-10 regarding which there is a reference in DD No.25A, Ex.PW-14/G and in the said two subsequent dying declarations, she has exonerated the appellant had stated that she got burnt accidently as her saree caught fire from the stove. Learned counsel has submitted that since the dying declarations purported to have been made by the deceased are inconsistent and contradictory, it is not safe to rely upon the dying declaration Ex.PW-17/A, as the appellant had no means to test about the correctness and veracity of the said dying declaration. Another submission made on behalf of the appellant against the dying declaration Ex.PW-17/A is that though PW-17 Dr.Prem Kumar, as stated, recorded the history regarding cause of burns suffered by the deceased as per her narration but he has not certified on MLC that at that time the deceased was fit for making statement. He has submitted that endorsement on the MLC Ex.PW-15/A that the deceased was oriented does not mean that she was in fit state of mind to make a dying declaration or to give clear and concise version about the manner in which she had suffered injury. Thus, learned counsel for the appellant has urged us to Crl.A.No.15/1997 Page 6 of 12 abstain from placing reliance on the dying declaration Ex.PW- 17/A and acquit the appellant giving him the benefit of doubt.
13. Learned counsel for the State, on the other hand, has defended the impugned judgment. He has submitted that the trial court has rightly relied upon the dying declaration Ex.PW-17/A made by the deceased in presence of Dr.Prem Kumar which was first in time and was recorded immediately after the occurrence on the arrival of the deceased in the hospital. By that time, no relative of the deceased had met her and even her husband who had taken her to the hospital was asked to go out of the room. Thus, there could be no possibility of the dying declaration of the deceased being the result of tutoring. Learned counsel further contended that otherwise also there is nothing on record to suggest any reason on the part Dr.Prem Kumar to falsely implicate the appellant by fabricating the dying declaration. Regarding the defence set up by the appellant, learned counsel for the State has submitted that it is just an afterthought because no such suggestion was given to Dr.Prem Kumar in his cross- examination. Thus, he has urged us to dismiss the appeal.
14. We may note that the learned counsel for the State has not controverted or challenged the finding of acquittal of the appellant and his co-accused persons on charges under Section 498A IPC Section 304B IPC.
15. The prosecution case rests solely on the dying declaration Ex.PW-
17/A purported to have been made by the deceased in the Crl.A.No.15/1997 Page 7 of 12 presence of PW-17 Dr.Prem Kumar. As per record, there are two other dying declarations of the deceased; one having been made in the presence of the SDM Shri R.C. Meena PW-7(Ex.PW-7/A) and the other having been made in the presence of ASI Shyam Singh which has not been proved on record, however, there is a mention of said dying declaration in DD No.25A Ex. PW-14/G. On perusal of the dying declaration Ex.PW-7/A, it transpires that in the said dying declaration the deceased had claimed that she had suffered burn injuries accidently as her saree caught fire from the stove and she exonerated all the accused including the appellant. The SDM Shri R.C. Meena was conscious of the earlier dying declaration Ex.PW-17/A. Therefore, he confronted the deceased with her earlier dying declaration wherein she had implicated her jeth i.e. the appellant Bal Kishan for having set her on fire after pouring kerosene oil. When confronted with the earlier dying declaration, the deceased explained that the aforesaid dying declaration was wrong and it was the result of slip of tongue. Thus, it is apparent that the dying declaration Ex.PW-17/A which has been relied upon by the trial court to record the finding of conviction is inconsistent with the second dying declaration Ex.PW-7/A recorded by the SDM. Even on perusal of DD report Ex.PW-14/G, it transpires that the deceased in her dying declaration made in the presence of ASI Shyam Singh claimed to have suffered burn injuries accidently. Crl.A.No.15/1997 Page 8 of 12
16. In the matter of Smt.Kamla v. State of Punjab AIR 1993 Supreme Court 374, a similar issue pertaining to inconsistent dying declarations made by the deceased came up before the Supreme Court and while dealing with the aforesaid issue, the Supreme Court held thus:-
"It is well-settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests, (vide Khushal Rao v. The State of Bombay 1958CriLJ106 . The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
17. On careful examination of the dying declaration Ex.PW-17/A made to the doctor and the dying declaration Ex.PW-7/A made in the presence of the SDM, we find that aforesaid dying declarations are not only inconsistent but totally contradictory. So far as third dying declaration which is mentioned in DD report Ex.PW-14/G is concerned, it has not been placed on record, therefore, we are deprived of the chance to examine that dying Crl.A.No.15/1997 Page 9 of 12 declaration to come to a proper conclusion regarding the veracity and reliability of the dying declaration Ex.PW-17/A. Otherwise also, failure of the prosecution to place on record the said dying declaration recorded by the Investigating Officer has definitely caused prejudice to the appellant in his defence. If for a moment, we ignore the dying declaration Ex.PW-7/A as also the third dying declaration mentioned in the DD report, then as per the dying declaration of the deceased Ex.PW-17/A, she was set on fire by her jeth by pouring kerosene oil on her. If that was the case, then some of the kerosene poured over the deceased must have spilled on the floor. There is no evidence on record to show that traces of spilled kerosene were found on the floor at the place of occurrence. On the other hand, the Investigating Officer S.I. Om Prakash, in his cross-examination, has stated that later in the day at about 6.00 pm, SDM Shri R.C. Meena inspected the spot of occurrence in his presence and the inspection report Ex.PW-14/F was prepared. A perusal of the inspection report reveals that on inspection, no smell of kerosene was there at the site. This circumstance belies the theory of the deceased having been set on fire after pouring kerosene oil over her. The learned Trial Court in the impugned judgment has brushed aside the absence of kerosene oil on the floor at the place of occurrence on the ground that the incident had taken place prior to 1.40 pm. The Investigating Officer S.I. Om Prakash accompanied by the SDM reached at the place of occurrence only at 5.30 pm and Crl.A.No.15/1997 Page 10 of 12 during the intervening period the spot of occurrence was not protected. Therefore, the accused persons had sufficient time to remove the traces of kerosene from the spot. The aforesaid observation of learned Trial Court, in our considered view, is in the nature of surmises and conjectures, which is not permissible under law to make basis for conviction of the accused.
18. Applying the ratio of the case of Kamla v. State of Punjab (supra), in view of there being two contradictory dying declarations, one being in favour of the appellant, we do not find it safe to sustain the conviction of the appellant on sole basis of the dying declaration Ex.PW-17/A and we are of the view that the appellant is entitled to benefit of doubt.
19. The learned Trial Court while placing reliance upon the dying declaration Ex.PW-17/A had relied upon the judgment of the Supreme Court in the matter of Mohan Lal Ganga Ram Gehani v. State of Maharashtra AIR 1982 Supreme Court 839. In the aforesaid case, it was held by the Supreme Court that the statement made by a victim to the doctor at the time of preparation of the MLC, being first in point of time, must be preferred to any subsequent statement of the victim. In our considered view, the ratio of the aforesaid case is not applicable to the facts of this case because aforesaid judgment was given in the context of appreciation of the testimony of an eye witness. The issue for determination in the case in hand is as to which of the dying declarations should be relied upon. In the instant case, Crl.A.No.15/1997 Page 11 of 12 since the declarant has unfortunately died, the appellant is deprived of an opportunity to cross examine the declarant with a view to seek clarification of the facts. Therefore, under the circumstances we are left with no option but to extend the benefit of doubt to the appellant.
20. In view of the discussion above, the impugned judgment of conviction and the consequent order on sentence are hereby set aside and the appellant is acquitted of charge under Section 302 IPC giving him the benefit of doubt. The appeal is accordingly accepted.
21. The appellant is on bail. His bail-cum-surety bond stand discharged.
AJIT BHARIHOKE, J.
DECEMBER 18, 2009 SANJAY KISHAN KAUL, J.
ks
Crl.A.No.15/1997 Page 12 of 12