IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: July 24, 2009
Judgment delivered on: July 31, 2009
+ CRIMINAL APPEAL NO. 241/1995
BHUPINDER SINGH .....Appellant
Through: Mr. K.B. Andley, Sr. Advocate with
Mr. M.L. Yadav, Advocate, Mr.
Shamibh & Mr. Mohit Mathur,
Advocates.
Versus
THE STATE (GOVT. OF N.C.T. OF DELHI) .....Respondent
Through: Mr. Sunil Sharma, Advocate.
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 AJIT BHARIHOKE, J
1. The appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life for having committed murder of his wife Smt. Sheela and daughter Kumari Veena by setting them on fire after pouring kerosene on them.
2. Briefly stated, case of the prosecution is that on 5 th October 1992 at about 6.30 AM, the appellant got admitted Smt. Sheela and Crl. A. 241/1995 Page 1 of 9 Kumari Veena in RML Hospital with alleged history of substantial burns by pouring kerosene oil. On examination, Kumari Veena was declared `brought dead' and Smt. Sheela was found to have suffered ihundred per cent burns.
3. On 5th October 1992 at about 4.50 AM, on the receipt of an information about a fire incident at House No.T-121, Indira Colony, Narela, DD No.17A was recorded at the Police Station Narela. Pursuant to the DD report, SHO Inspector Ramesh Malik and other police officers visited said house. They were informed that the fire tender had already left after extinguishing the fire. Inspector Ramesh Malik also came to know that Smt. Sheela and Kumari Veena, who had suffered burn injuries had been removed to RML Hospital, New Delhi. He left Constable Attar Singh at the spot of occurrence and reached the hospital. He collected MLCs of Kumari Veena and Smt. Sheela who was declared fit for statement. The Investigating Officer called the SDM Kingsway Camp to the hospital who recorded the statement of Smt. Sheela Ex.PW-5/B. Smt. Sheela narrated in her statement that her husband had set her on fire after pouring kerosene on her. On the basis of said statement, formal FIR was registered. After completing the necessary formalities of investigation, appellant Bhupinder Singh was sent for trial for the offence punishable under Section 302 IPC. He pleaded not guilty and sought to be tried.
4. The learned Additional Sessions Judge, on conclusion of trial, placed reliance upon the dying declaration made by Smt.Sheela Crl. A. 241/1995 Page 2 of 9 (Ex.PW-5/B) convicted the appellant under Section 302 IPC for murder of Smt.Sheela and Kumari Veena and sentenced him accordingly.
5. The learned counsel for the appellant has submitted that in the instant case there is no eye witness account to establish the culpability of the appellant or to show that there was any motive on the part of the appellant to kill the deceased. Despite of that, the learned trial court has routinely relied upon the dying declaration of Smt. Sheela Ex.PW5/B ignoring the conduct of the appellant in taking both the deceased to the hospital for treatment which points towards his innocence. He has submitted that it is highly doubtful if at all the dying declaration was recorded by the SDM PW5 Mrs. Nandita Sehgal and even if it was recorded it is doubtful that the deceased could have been in a fit state of mind to give the statement, therefore, the learned Trial Court ought to have extended the benefit of doubt to the accused.
6. Expanding on the argument, he has submitted that perusal of the endorsement Ex.PW5/A on the MLC of the deceased Sheela Ex.PW14/A would show that as per this endorsement, the patient was declared fit for statement at 7.40 PM, whereas as per the testimony of PW5, Mrs. Nandita Sehgal, SDM on the receipt of a call from the police, she reached at the RML Hospital at 7.30 AM and went to the burns ward where Sheela was admitted. Thereafter, she called the Doctor to ascertain whether she was fit for making statement and after getting clearance from the Doctor, she Crl. A. 241/1995 Page 3 of 9 recorded her statement in the morning at 7.40 AM. The learned counsel for the appellant submitted that if the patient was declared fit for making statement at 7.40 in the evening, it is highly impossible that Mrs. Nandita Sehgal could have recorded the dying declaration Ex.PW5/B at 7.40 AM. He has also drawn our attention to the dying declaration Ex.PW5/B and submitted this precisely was the reason that SDM Mrs. Nandita Sehgal while certifying that she has recorded the statement of Smt. Sheela at 8.40 AM has not mentioned the date of recording the dying declaration.
7. We are not convinced with this argument because perusal of Ex.PW5/B would reveal that this statement was endorsed by the SHO Inspector Ramesh Malik vide his endorsement Ex.PW16/A and sent to the Police Station for registration of the case. Perusal of the Rukka Ex.PW16/A/Ex.PW5/A reveal that it was forwarded to the Police Station at 10.30 AM on 05.10.1992 for the registration of the case. This fact finds corroboration from the statement of PW9 Head Constable Raj Kumar who recorded formal FIR as also PW16 SHO Ramesh Malik. The fact that endorsement on the statement Ex.PW5/B was made by the SHO in the morning at around 10.30 AM clearly show that dying declaration of Smt. Sheela Ex.PW5/B was recorded in the morning between 7.40 to 8.40 as deposed by the SDM Mrs. Nandita Sehgal and it appears that the word 7.40 PM occurring on the endorsement Ex.PW5/A of the Doctor is nothing but a clerical error.
Crl. A. 241/1995 Page 4 of 9
8. It is further argued by the learned counsel for the appellant that there is nothing on the record to suggest that the Investigating Officer had any stage of time moved an application to the Doctor concerned seeking permission for recording of statement of patient Sheela (since deceased). Only endorsement on the MLC of deceased Sheela certifying her to be fit for statement is timed as 7.40 PM (should be AM). He has submitted that if this was so, where was the occasion for the Investigating Officer to call the SDM for her statement. Thus, he has submitted that it is highly doubtful that Mrs. Nandita Sehgal was at all called to Hospital for recording statement of Smt. Sheela and a possibility cannot be ruled out that the dying declaration is a sham document.
9. We do not find merit in this contention. PW16, SHO Ramesh Malik in his examination-in-chief has stated that the Doctor had declared Smt. Sheela fit for statement and, therefore, he had called SDM Kingsway Camp for recording of her statement. No cross- examination on this aspect of testimony was done by the appellant/accused. Therefore, the aforesaid version is deemed to have been admitted. Otherwise also, PW5 Mrs. Nandita Sehgal, SDM as also PW16 Inspector Ramesh Malik, SHO are responsible public servants. There is nothing on the record to suggest that they were under any pressure from any corner to falsely implicate the appellant or that they had motive or animosity against the accused. Therefore, it is inconceivable that they might have fabricated the document Ex.PW5/B to falsely implicate the appellant. Crl. A. 241/1995 Page 5 of 9
10. The learned counsel for the appellant has further argued that it is settled law that before placing reliance upon on dying declaration, the court must be satisfied that it is true and voluntary and it is not the result of tutoring, prompting or imagination and that the deceased had opportunity to see the assailant. He has submitted that in this case, it is highly doubtful that the deceased was in a fit state of mind. He has pointed out that the prosecution had left a serious lacuna in this case by not producing the Doctor who allegedly certified the patient fit for statement before her statement was recorded by the SDM and this has deprived the appellant of his valuable right to cross-examine the Doctor concerned to find out whether or not the deceased was actually in fit state of mind to make the dying declaration. Therefore, the appellant is entitled to benefit of doubt.
11. We are unable to agree with the contention of learned counsel for the appellant. It would have been better if the Doctor had been produced as a witness but, to our mind, his non-production cannot be made basis for rejecting the testimony of PW5 Mrs. Nandita Sehgal, SDM who is a responsible government servant, which is found to be reliable. There are other ways of finding whether or not the patient was in fit state of mind. Perusal of the dying declaration of the deceased Ex.PW5/B would reveal that deceased Sheela in her dying declaration has given a clean chit to her in-laws by saying that they had never harassed her. She has also stated that there was no issue of dowry but, her husband was a short-tempered person and he used to lose self-control on minor issues. She has Crl. A. 241/1995 Page 6 of 9 stated that a day before the occurrence, she had slapped her child and on this her husband lost temper and gave severe beating to her. She has also stated that on the fateful night also, they had a fight and her husband poured kerosene over her and set her on fire. The statement has a ring of truth around it and it appears to have been made by a person with a clear mind. Therefore, we have no hesitation in concluding that the learned Trial Court has rightly relied upon the dying declaration.
12. The learned counsel for the appellant has also submitted that as per the case of prosecution, the appellant had set on fire not only Smt. Sheela but also her daughter Veena. Despite that, there is no whisper of setting Veena on fire in the dying declaration Ex.PW5/B of the deceased Sheela. He has submitted from this it is apparent that Smt. Sheela was not in a fit state of mind to make dying declaration at the relevant time otherwise she would have also mentioned about her daughter.
13. We are not convinced with the aforesaid submission. On perusal of the dying declaration Ex.PW5/B, it transpires that Smt. Sheela has stated to the SDM that on the fateful night, she had fight with her husband and thereafter her husband poured kerosene on her and set her on fire and she lost consciousness. It is quite possible that at the time of incident, before losing consciousness she might not have noticed that in the process her daughter Veena had also suffered burn injuries. From the MLC Ex.PW14/A, it transpires that when Smt. Sheela reached the hospital, she was Crl. A. 241/1995 Page 7 of 9 unconscious and she was declared fit for statement only in the morning at 7.40 AM when the SDM recorded her statement. Therefore, from the time of admission in the hospital till recording of her statement, she being unconscious could not come to know that her daughter Veena has also suffered burn injuries resulting in her death.
14. There also are other aspects to this case. PW2 Smt. Vidya Devi, the mother of the accused, has stated that on the fateful night at about 3.30 AM on hearing the noise, she got up and went to the room of her son Bhupinder Singh and there she saw that the sari of the Sheela was in flames and at that time she was breast-feeding her daughter. In the cross-examination by the learned APP, she has admitted the suggestion that her son and daughter-in-law were sleeping in that room. From the aforesaid statement, it is apparent that when the occurrence took place the appellant was present in the room. Thus, he had an opportunity to set the deceased on fire. Since the appellant was only person present in the room at the relevant time, it was within his knowledge as to what had transpired, despite that he had not given any explanation whatsoever about the manner in which the incident took place. This casts a strong suspicion about the involvement of the appellant in the incident and corroborates the dying declaration. We may point out that on perusal of MLC Ex.PW14/A, it transpires that the appellant took the deceased Sheela to the Hospital and the alleged history mentioned in the MLC is "substantially burnt by pouring kerosene". As per the MLC, patient Sheela was unconscious at that Crl. A. 241/1995 Page 8 of 9 time. That being the case, the alleged history must have been given by the husband Bhupinder Singh. While giving the history to the Doctor, the appellant has stopped short of mentioning who poured kerosene and how the deceased got burnt. If the appellant had not played any role in the deceased being burnt, nothing prevented him from telling the Doctor if the deceased persons caught fire due to accident or it was a case of suicide. This circumstance also points towards the guilt of the appellant and corroborates the dying declaration Ex.PW5/B.
15. In view of our discussion above, there is no iota of doubt in our mind that the appellant is guilty of having committed of murder of his wife Smt. Sheela and daughter Veena by setting them on fire after pouring kerosene. Thus, we do not find any infirmity in the impugned judgment.
16. The appeal is devoid of merit. It is, accordingly, dismissed.
17. The appellant Bhupinder Singh is on bail. His bail-cum-surety bond is, accordingly, cancelled. He is ordered to be taken into custody to undergo the remaining sentence as awarded by the learned Additional Sessions Judge.
AJIT BHARIHOKE, J.
JULY 31, 2009 SANJAY KISHAN KAUL, J.
Ks/pst
Crl. A. 241/1995 Page 9 of 9