* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : November 19, 2009
Judgment delivered on : November 25, 2009
+ CRIMINAL APPEAL NO.138/1996
KAMLA ..... Appellant
Through: Mr.Ajay Verma ,Amicus
Curiae/Advocate 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 be allowed
to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
AJIT BHARIHOKE, J.
1. On 21.1.1991 at about 8.30 p.m, Lady Constable Shashi no.2681/PCR informed Police Station Gokal Puri that one Ram Sujan had intimated on telephone that a lady has sustained fire burn injuries at House No.F-2/3 Dalapur, Karawal Nagar, Delhi. The information was converted into DD No.21 (Ex.PW6/A) and a copy thereof was sent to SI Champat Singh, PW20 for verification. SI Champat Singh proceeded to the spot of occurrence where he came to know that injured Malti (deceased) had been removed to GTB Hospital. SI Champat Singh then reached the hospital and collected the MLC of injured Malti. He contacted the attending doctor Crl.A.No.138/1996 Page 1 of 12 who declared injured Malti fit for statement and recorded her statement Ex.PW20/A. The deceased stated that the appellant Kamla was her neighbour and she generally remained in the company of her husband which was not liked by her. Whenever she protested, the appellant quarreled with her. On the fateful day, when she demanded money for expenses from her husband, he gave beating to her in the afternoon. At around 8.00 p.m., a quarrel ensued between her and Kamla and in the fit of anger, Kamla picked up a plastic can containing kerosene oil from her house and threw kerosene oil on her. Thereafter she set her on fire by throwing a lighted matchstick. On this, she raised alarm and ran outside. Some persons present in the street extinguished the fire by pouring water on her and rushed her to the hospital. Her aforesaid statement was attested by Dr. T.S. Daral, PW4. The Investigating Officer sent said statement along with his endorsement to the police station with a request for registration of formal FIR under Section 307/34 IPC and on the basis of said ruqqa, formal FIR was recorded.
2. That the Investigating Officer SI Champat Singh, after the receipt of copy of the FIR, went to the spot of occurrence. He prepared a rough site plan Ex.PW20/C. He found one plastic can of kerosene oil at the spot of occurrence which was taken into possession vide memo Ex.PW7/A. He also got the spot of occurrence photographed, he requisitioned the services of the SDM for recording the dying declaration of the deceased and PW21, SDM Sh. K.K. Siam recorded the dying declaration of the deceased the next morning some time before 11.15 a.m. On 31.1.1991, Malti (deceased) expired in the hospital and on receipt of information of Crl.A.No.138/1996 Page 2 of 12 her death, the offence was converted into Section 302 IPC. Inquest proceedings were conducted, dead body was sent for post mortem and the post mortem report Ex.PW15/A was collected and as per the opinion of the post mortem doctor, Dr. L.T. Ramani (PW15), the patient had suffered burns all over the body and the cause of death was opined to be septicaemia following infected burns. On 1.2.1991, the investigation was taken over by Inspector Satyavrat thereafter it was taken over by the SHO w.e.f. 20.2.1991. On 11.4.1991, scaled site plan was prepared by Inspector Davinder Singh. On completion of investigation, appellant Kamla was challaned and sent for trial under Section 302 IPC.
3. The appellant on being charged under Section 302 IPC pleaded not guilty and claimed trial.
4. During trial, the prosecution examined 21 witnesses to bring home the guilt of the appellant. PW1 Vidya Sagar, PW10 Sukhraj Singh, PW13 Shri P.L. Chopra, PW14 Rajesh, son of the deceased and PW17 Balbir Singh who are examined by the prosecution to prove that there were strained relations between the deceased and her husband and that the deceased, when the fire was extinguished, was saying that she was set on fire by the appellant after pouring kerosene on her. The above witnesses, except PW14 Rajesh, however turned hostile and did not support the case of the prosecution. Though PW14 Rajesh was also declared hostile, he stated in his examination-in-chief that when he reached in the gali, his mother was shouting that Kamla Pandatiyan has set her on fire after pouring kerosene on her. PW20 Inspector Champat Singh, in his testimony, has proved the dying declaration of the deceased Crl.A.No.138/1996 Page 3 of 12 Ex.PW20/A, which was initially recorded as the complaint statement before registration of the case and PW21 Sh.K.K. Siam, SDM, Shahdara proved the dying declaration of the deceased recorded by him on 22.1.1991.
5. The learned Trial Court on consideration of the records found the dying declaration Ex.PW20/A made by the deceased in presence of PW20 SI Champat Singh as also the dying declaration Ex.PW21/A made in presence of the SDM consistent and reliable and convicted the appellant under Section 302 IPC in terms of the impugned judgment dated 9.5.1996 and by the order on sentence of the even date, sentenced the appellant to imprisonment for life and to pay a fine of Rs.1,000/- and in default of payment of the same, to undergo SI for the period of three months.
6. Feeling aggrieved by the above referred judgment of conviction and order on sentence, the appellant has preferred the instant appeal.
7. The conviction of the appellant rests mainly on two dying declarations Ex.PW20/A and Ex.PW21/A, purportedly made by the deceased in the presence of the Investigating Officer PW20 SI Champat Singh and PW21 Sh.K.K. Siam, SDM, Shahdara.
8. Before adverting to the submissions made by the learned Amicus Curiae on behalf of the appellant, it would be useful to have a look on the law relating to dying declaration. It is well settled that conviction can rest solely upon a dying declaration provided the Court is convinced that the dying declaration is not the result of tutoring, prompting or imagination of the deceased and it is convinced of the truthfulness of the Crl.A.No.138/1996 Page 4 of 12 dying declaration. In order to find out whether or not the dying declaration is truthful, the Court is under obligation to look into the other evidence and accompanying circumstances to satisfy itself. As a matter of prudence, the Court must seek some corroboration to the dying declaration because it is only a piece of evidence made at the back of the accused which could not be tested at the anvil of cross-examination.
9. In the case of Paniben Vs. State of Gujarat, AIR 1992 SC 1817, Hon'ble Supreme Court after realizing various earlier pronouncements of the Supreme Court has summed up the principles governing the law relating to dying declaration as under:-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) this Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not be discarded.
On the contrary, the shortness of the statement itself guarantees truth
(ix) Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.Crl.A.No.138/1996 Page 5 of 12
10. Learned Amicus Curiae appearing on behalf of the appellant has submitted that the impugned conviction rests solely upon the purported dying declarations of the deceased Ex.PW20/A and Ex.PW21/A alleged to have been made by the deceased in presence of the Investigating Officer SI Champat Singh, PW20 and Shri K.K. Siam, SDM, Shahdara, PW21. The first challenge of the learned Amicus Curiae to the impugned judgment is that the Trial Court ought not have relied upon the dying declaration when prosecution witnesses PW10 Shri Sukh Raj Singh and PW13 Sh.P.L. Chopra did not support the case of prosecution regarding the dying declaration made by the deceased at the spot, while said witnesses along with others were extinguishing her fire. Learned Amicus has pointed that PW10 Sukh Raj Singh stated that the deceased did not tell them as to how she caught fire and PW13 Shri P.L. Chopra in his examination-in-chief stated that when the deceased was afire she pointed towards her room and said that person has set her on fire and thereafter her husband came out of the room and ran away. From the aforesaid evidence, learned Amicus has urged us to infer that in the first dying declaration, the deceased has implicated her husband for her plight, which creates a doubt on the correctness of alleged subsequent dying declarations Ex.PW20/A and Ex.PW21/A.
11. We do not find merit in this contention. Both PW10 and PW13 are hostile witnesses as they have resiled from their previous statements made to the police. They were confronted with their respective previous statements but they denied having made such statement before the police. However, the fact remains that both PW10 and PW13 claimed themselves to be present at the spot immediately after the Crl.A.No.138/1996 Page 6 of 12 occurrence, but their versions are contradictory. PW10, Sukh Raj Singh stated that the deceased did not tell them about the cause of the fire whereas PW13 Sh.P.L. Chopra stated that the deceased pointed towards her house and stated that person has set her on fire. From the aforesaid material contradictions in the respective versions of PW10 and PW13, who are hostile witnesses, it is apparent that they are not coming out with the truth. Therefore, their testimony has to be discarded as unreliable.
12. Learned Amicus Curiae has further submitted that the dying declarations Ex.PW20/A and Ex.PW21/A purportedly made by the deceased in presence of the Investigating Officer and the SDM Sh.K.K. Siam, PW21 are not worthy of any credence because perusal of the dying declaration Ex.PW20/A shows that the deceased suspected an extra-marital affair between her husband Dinesh Chand and the appellant. She was opposed to their meeting and she held the appellant responsible for the ill-treatment meted out to her by her husband. He has urged us to infer from the aforesaid circumstance that because of said grudge, the deceased might have falsely implicated the appellant while exonerating her husband of the crime, who possibly could have set her on fire as from the evidence, and who, as per evidence did not even care to attend to his wife in the hospital while she was combating for her life.
13. It is nobody's case that the deceased committed suicide. The instant case being a case of homicide, obviously someone must have set the deceased on fire. In that eventuality, it is highly improbable that the deceased, in her dying declaration, would have falsely implicated the appellant to settle a score with her and allow the real culprit to go scot free. Thus we are not inclined to accept the contention. Crl.A.No.138/1996 Page 7 of 12
14. Learned Amicus Curiae has further argued that the dying declaration Ex.PW20/A is not free from doubt, firstly, because from the testimony of PW14 Rajesh @ Babloo it appears that the husband of the deceased had visited the hospital when she was admitted there, therefore, a possibility of the husband of the deceased having tutored and persuaded the deceased to refrain from naming him as the person who set her on fire and put the blame on the appellant cannot be ruled out. He has further argued that it is also not certain whether the deceased was fit for making statement when the Investigating Officer recorded her statement Ex.PW20/A. In support of this contention, he has drawn our attention to the MLC of the deceased Ex.PW4/A on which the endorsement "fit for statement" is in the ink different from other particulars detailed in the MLC and from this, he has urged us to infer that the aforesaid endorsement has been subsequently appended on the MLC at the instance of the police.
15. We are not convinced with the argument. A careful reading of testimony of PW14 Rajesh @ Babloo shows that in his cross-examination by learned counsel for the appellant, he stated that his father was present at the spot when public persons extinguished the fire and he also stated that he was not aware whether or not his father went to the hospital. Thus the testimony of PW14 does not establish that husband of the deceased visited her at the hospital. Therefore, the possibility of tutoring of the deceased by her husband is ruled out. Otherwise also, had the deceased been set on fire by her husband, under the natural course of circumstances, she would not have exonerated her husband in her dying declaration and instead falsely implicated the Crl.A.No.138/1996 Page 8 of 12 appellant. Regarding the other limb of the argument, it is true that on the MLC Ex.PW4/A the endorsement of the Dr.Daral, PW4 to the effect "fit for statement" is in a different ink. This however, does not help the appellant. Ex.PW6/A is the copy of DD report No.21A about the information received at the police station regarding one lady having sustained fire injuries at house No.F-2/3, Dalapur, Karawal Nagar. From the statement of PW20, SI Champat Singh, it transpires that on the receipt of DD report, he first went to the spot of occurrence where he found that the deceased had been removed to the hospital and thereafter he reached GTB Hospital. As per MLC Ex.PW4/A, the deceased was admitted in the hospital by Vidya Sagar at 9.15 p.m. PW20, SI Champat Singh stated that on reaching the hospital, he collected the MLC of the deceased Ex.PW4/A and thereafter he must have obtained the fitness certificate from the doctor concerned. Thus, it is obvious that there has to be a gap between recording of MLC and the endorsement on the MLC about the patient being fit for statement. This explains the difference of ink so far as the fitness certificate is concerned. Further it is apparent from the record that first information about the incidence was received at the police station at 8.30 p.m., the deceased was admitted in the hospital at 9.15 p.m., her statement was recorded by the Investigating Officer some time before 10.20 p.m. when the rukka is stated to have been sent to the police station for registration of the FIR, which as per record, was registered at 10.50 p.m. From the aforesaid sequence of events, it is apparent that the statement of deceased Ex.PW20/A was recorded by the Investigating Officer within 2 hours and 20 minutes of the occurrence. There is no evidence on record to suggest that during this period Crl.A.No.138/1996 Page 9 of 12 anyone tried to influence or tutor the deceased. There was no reason whatsoever for the Investigating Officer to record incorrect statement of the deceased to falsely implicate the appellant. Further, perusal of the statement Ex.PW20/A shows that it was even attested by the attending doctor, which also gives an assurance of correctness of the statement. Thus, we do not find any reason to discard the dying declaration Ex.PW20/A.
16. Coming to the dying declaration recorded by the SDM Shahdara, learned Amicus Curiae has submitted that dying declaration Ex.PW21/A recorded by the SDM is not worthy of reliance, firstly, because it is not recorded in the exact words of the deceased, secondly, leading questions were put to the deceased by the SDM which indicates that the answers were extracted by giving suggestions to the deceased. Thirdly, he has submitted that admittedly the SDM did not even bother to contact the doctor to seek his opinion on whether or not the deceased was fit for making statement and lastly it was argued that the SDM Sh.K.K. Siam was not even aware of procedure, as is apparent from the endorsement at the bottom the dying declaration Ex.PW21/A that "after questioning her, it has come to my knowledge that the case does not comes under Section 176 but Section 174, the concerned police is directed to proceed under Section 174".
17. We do not find much merit in the above argument. Perusal of the dying declaration Ex.PW21/A shows that at the very inception, the deceased has stated that "she was burnt by Kamla Devi, she is not my relative but my neighbourer" and that answer is not in response to a leading question. Thereafter he put a question "why Crl.A.No.138/1996 Page 10 of 12 burnt" and she answered "because she (Kamla Devi) is jealous of me". The next question put to her, however, is suggestive in respect of relationship between the appellant and the husband of the deceased, to which the deceased replied that her husband used to stay with her and he sometimes used to come in and stay with the deceased. Even if the answer to this suggestive question and the 77 are discarded, then also, the dying declaration was complete when the deceased stated at the outset that she was burnt by Kamla Devi, appellant. Therefore, it cannot be concluded that version of the deceased about the cause of her fire burn injuries, which proved to be fatal, was in response to the leading question. From the manner in which the dying declaration Ex.PW21/A is recorded and also the endorsement at the bottom given by the SDM, it is obvious that the SDM was not fully aware of his responsibilities while recording the dying declaration, nor he was conversant with the procedure and precautions to be taken while recording the dying declaration. This by itself cannot be the reason to discard said dying declaration which is consistent with the earlier dying declaration Ex.PW20/A recorded by the Investigating Officer and appears to have been recorded fairly. The incompetent manner in which the dying declaration Ex.PW21/A has been recorded by the SDM, in our view, is an assurance of the fact that the SDM recorded said dying declaration on his own, uninfluenced by extraneous factors of the I.O. Had he taken guidance from the Investigating Officer, the form and shape of dying declaration would have been something different and it would have been more or less the replica of the dying declaration Ex.PW20/A. Thus, we find no reason to reject the dying declaration Ex.PW21/A. It is true that PW21 K.K. Siam did Crl.A.No.138/1996 Page 11 of 12 not consult the doctor before recording the dying declaration to ensure that the deceased was fit for making statement, yet the fact that the dying declaration Ex.PW21/A is consistent with the dying declaration Ex.PW20/A is an assurance that while giving stated dying declaration before the SDM, deceased understood the nature of questions and was in a fit state of mind to state about the circumstances leading to her death i.e. the appellant having set her on fire, we find no reason to give much importance to this aspect of the case.
18. In view of the discussion above, we find no infirmity in the dying declarations Ex.PW20/A and Ex.PW21/A so as to suspect the truthfulness of the dying declarations. Both the dying declarations are consistent in blaming the appellant Kamla for setting the deceased on fire, therefore, we find no reason to interfere with the impugned judgment of conviction based upon the above referred dying declarations.
19. The appeal is therefore dismissed.
20. The appellant is on bail. Her bail bond and surety bond stand cancelled. She be taken into custody and sent to jail for undergoing the remaining sentence.
AJIT BHARIHOKE, J.
NOVEMBER 25, 2009 SANJAY KISHAN KAUL, J.
gm
Crl.A.No.138/1996 Page 12 of 12