* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: July 29, 2009
+ CRIMINAL APPEAL NO.142/1997
MAQBOOL ..... Appellant
Through: Mr.R.M. Tuffail, Advocate.
Versus
THE STATE ..... Respondent
Through: Mr.Sunil Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not ? No
3. Whether the judgment should be reported in Digest ? No SANJAY KISHAN KAUL, J. (ORAL):
1. The appellant has been convicted under Section 302 of IPC and sentenced to suffer life imprisonment for having committed the murder of Smt.Angoori Devi by setting her on fire after pouring kerosene. The conviction is based solely on the dying declaration of the deceased.
Crl. A.142/1997 Page 1 of 8
2. On 26th March, 1993 at about 1.15 a.m. on the receipt of information from Duty Constable Naterpal about the admission of Smt.Angoori Devi in RML Hospital with alleged history of burns, DD No.6-A was recorded at the Police Station Nabi Karim and copy thereof was handed over to ASI Abhay Ram for investigation. ASI Abhay Ram along with Constable Jai Singh reached RML Hospital and collected MLC of Smt.Angoori Devi. She, however, was unfit for statement. ASI Abhay Ram waited at the hospital and when Smt.Angoori Devi was declared fit for statement, at 9.00 a.m., ASI Abhay Ram recorded a statement purportedly in presence of one Om Parkash and her husband Mittan Lal. Smt.Angoori Devi disclosed in her statement that on the night intervening 25 th and 26th March, 1993 at about 12.30 a.m., while she was urinating in drain outside the toilet of her house no. BB-101, Subash Basti, Nabi Karim, her tenant Maqbool (appellant) came downstairs along with his brother Mahmood Ali and other tenant Mohd. Israil. They poured kerosene oil on her and set her on fire. When she raised alarm, all of them ran away. Her husband and neighbour put off fire and thereafter her husband removed her to the hospital. On the basis of the aforesaid statement of Smt.Angoori Devi (deceased), a formal FIR was registered under Section 307/34 IPC. Smt.Angoori Devi expired at about 10.15 a.m. because of the burn injuries, as such Section 302/34 IPC was substituted in the FIR. As per the MLC also, the patient had given the history to the doctor that she was set on fire Crl. A.142/1997 Page 2 of 8 by the appellant Maqbool. After completion of necessary formalities of the investigation, accused Maqbool along with his brother Mahmood Ali and tenant Mohd. Israil were sent for trial for the offence punishable under Section 302/34 IPC.
3. The learned Sessions Judge on appreciation of evidence did not find the alleged dying declaration of Smt.Angoori Devi recorded by the Investigating Officer reliable as such he acquitted accused Mahmood Ali and Mohd. Israil. He, however, treated the endorsement made by the doctor on the MLC as dying declaration of the deceased and relying upon the same, convicted the appellant Maqbool for the offence punishable under Section 302 IPC for committing the murder of the deceased.
4. Learned counsel for the appellant has submitted that conviction in the instant case is based solely on the so called dying declaration, of the deceased, made to the attending doctor naming the appellant as culprit while giving the history of cause for the burn injuries suffered by her. He has drawn our attention to the MLC Ex.PW-12/A of the deceased and pointed out that there are two different endorsements on the MLC, one is "alleged history of being burnt by Maqbool" and the other endorsement is "history from patient" which is not in continuity with the former endorsement, therefore, a possibility cannot be ruled out that the second endorsement (history from patient) was made subsequently on the MLC with a view to book the appellant in this case. He has Crl. A.142/1997 Page 3 of 8 further pointed out that even in the former endorsement, the name of Maqbool is written in the second line below the words "alleged history of being burnt by" which creates a strong doubt that the name of Maqbool has also been subsequently introduced in the MLC. According to the learned counsel for the appellant, Dr.S. Johri who purportedly prepared the MLC and appended those remarks has not been produced in evidence by the prosecution to clarify the aforesaid confusion, whose non-production as witness has caused a grave prejudice to the appellant and deprived him of an opportunity to cross-examine the doctor and bring on record as to under what circumstances and when the second endorsement "history from patient" came to be mentioned on the MLC. Thus according to the learned counsel for the appellant, it is highly doubtful if the deceased made a dying declaration to the doctor concerned. Expanding on the argument, he has submitted that the aforesaid doubt is further strengthened by the fact that a second dying declaration was allegedly recorded by the Investigating Officer wherein the deceased had implicated Mahmood Ali and Mohd. Israil besides the appellant as the persons who had set her on fire. The aforesaid dying declaration was disbelieved by the learned trial Court and as a result, Mahmood Ali and Mohd. Israil were acquitted. Learned counsel for the appellant has pointed out that the prosecution has not filed any appeal against the acquittal of Mahmood Ali and Mohd. Israil, therefore, that part of judgment is Crl. A.142/1997 Page 4 of 8 deemed to have been accepted by the prosecution. That being so, according to the appellant, this is a case of unfair investigation where the Investigating Officer has tried to create evidence against the appellant and others. Therefore, the learned trial Court ought to have concluded that the story of dying declaration made by the deceased to the attending doctor is not reliable.
5. Learned counsel for the State has responded to the argument advanced by the appellant by submitting that the name of Maqbool is mentioned in the endorsement pertaining to alleged history and this fact is sufficient to draw an inference that the appellant Maqbool was named as culprit by the deceased Angoori Devi in the first instance when she gave history to the doctor concerned. He has submitted that non-production of Dr.S. Johri as a witness was not deliberate. He could not be examined because he had left the service of RML Hospital and this fact is borne out from the testimony of PW-12 Dr.Vasanti Rames who has proved the MLC Ex.PW-12/A.
6. The issue for determination which emerges from the aforesaid submission is whether or not the history of being burnt by Maqbool was given to the doctor concerned by the deceased Angoori Devi or by someone else. It is apparent that there is disconnect between the two endorsements namely "alleged h/o being burnt by Maqbool" and "history from patient" as the second endorsement is not in continuity with the first endorsement. This creates a confusion as to at what time the words "history from patient" Crl. A.142/1997 Page 5 of 8 were written on the MLC. This confusion could have been clarified only by Dr.S. Johri who had allegedly recorded these remarks. He, however, has not been produced as a witness. The explanation given by the learned counsel for the State is that Dr.S. Johri could not be produced as he had left the service of RML Hospital. The explanation to our mind is not acceptable because admittedly RML Hospital, New Delhi is a government hospital, where the record of all the employees, past and present, is maintained. With little effort, the Investigating Officer could have examined the service record of Dr.S. Johri and found out his permanent address or even his forwarding address. No effort, however, in that direction was made and instead the prosecution produced one Dr.Rajiv Kumar Johri as PW-10, who as per his version was not working in RML Hospital at the relevant time. Thereafter prosecution produced Dr.Vasanti Rames to prove the MLC by identifying the hand writing of Dr.S. Johri.
7. In our considered view, since the instant case was based solely upon the alleged dying declaration of the deceased, the prosecution was required to prove the dying declaration by primary evidence i.e., by producing the author of the MLC Ex.PW-12/A because the concerned doctor Dr.S. Johri was only the person who could have explained as to whether the alleged history was given by the deceased herself or someone else. His non-production as a witness has left a serious lacuna in this case and has deprived the appellant of his valuable right to cross-examine the witness to bring Crl. A.142/1997 Page 6 of 8 out the real facts on record. We also cannot lose sight of the fact that the dying declaration recorded by the Investigating Officer has been disbelieved. It is only these two dying declarations which were forming the basis of the case of the prosecution. The allegation of the learned counsel for the appellant that it is a case of unfair investigation since the dying declaration recorded by the SI has been disbelieved has substance in the trial Court disbelieving the said dying declaration has been accepted by the prosecution in not challenging the said finding which forms the basis of acquittal of the two co-accused.
8. It is highly doubtful that the dying declaration as alleged by the prosecution was made by the deceased Angoori Devi to the doctor at the time of preparation of her MLC. The only witness who could have thrown light on this aspect and cleared the confusion is Dr.S. Johri who has been withheld by the prosecution without any justifiable reasons. The benefit of this lapse on the part of the prosecution has to go in favour of the appellant. Since the conviction of the appellant is based solely upon the dying declaration, we, in view of the aforesaid discussion, do not find it possible to uphold the conviction.
9. In view of the discussion above, the appeal is allowed. The impugned judgment of conviction and order on sentence are accordingly set aside and the appellant is acquitted. Crl. A.142/1997 Page 7 of 8
10. The appellant Maqbool is on bail. His bail-cum-surety bond is accordingly cancelled and discharged.
SANJAY KISHAN KAUL, J.
JULY 29, 2009 AJIT BHARIHOKE, J.
gm
Crl. A.142/1997 Page 8 of 8