Satish Kumar vs State (Delhi Administration)
1993 Latest Caselaw 263 Del

JUDGMENT

Sat Pal, J.

(1) This is & petition under section 439 of the Criminal Procedure Code for release of the petitioner on bail.

(2) Briefly stated the facts of the case are that the petitioner was married to Geeta (deceased) in December 1979. The case of the prosecution is that the Cr.M(M) 2888/92 petitioner used to beat his wife and on the date of occurrence i.e. 16th July, 1991, gave her severe beating and called her a lady of bad character. At this the deceased lost tamper and poured kerosene oil on herself and set herself ablaze.It has further been Stated that the petitioner tried to extinguish the fire and in this process burnt his hands.

(3) Mr. Andley, learned counsel for the petitioner submitted that in the present case the parties were married before a period of more than seven years from the date of incident and as such no adverse presumption cap be drawn against-the petitioner. The learned counsel, further submitted that the alleged dying declaration was recorded by the Io and that the deceased died after a period of about two months from the date of incident and no step was taken for recording of her statement by the Sub Divisional Magistrate. Learned counsel, therefore, contended that no reliance can be placed on the said dying declaration. In support of his contention he referred to a Supreme Court judgment in the case of Dalip Singh and others vs. State of Punjab, 1979SCC(Cri)968. In this judgment it was held that although a dying declaration recorded by a police officer, during the course of investigation is admissible, it is better to leave such a dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a magistrate or by a doctor. It was further held in this case that a dying declaration recorded by a police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.

(4) Lastly, the learned counsel submitted that the petitioner was arrested in September 1991 and two of his relations and one neighbour, who have been examined so far have not supported the prosecution case and keeping in view the fact that the petitioner had attempted to extinguish the fire, he is entitled for bail.

(5) Mr. Ahluwalia, learned counsel for the State, however, submitted that though a large number of witnesses have already been examined, the prosecution is yet to examine the witnesses concerned who have to prove the alleged dying declaration and to explain as to why it was not recorded by a magistrate. He further submitted that the fact that the petitioner attempted to extinguish the fire will not absolve him of the offence he is alleged to have committed. In support of his contention he has placed reliance on a Division Bench judgment of the Bombay High Court in Jeevan Bapu Desai vs. State of Maharashtra, 1992 Crl.L.J. 2996. In this case though the appellant had attempted to stamp out the fire in the similar circumstances yet he was convicted under section 306 IPC.

(6) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and I have also perused the lower court file. Though from the alleged dying declaration it is clear that it was recorded by the 10 and not by the Sub Divisional Magistrate but the prosecution is yet to examine the witness concerned who may explain as to why it was not recorded by a magistrate. Further Mlc of the deceased also indicates that as per information given by the deceased herself "she sustained burns by dozing herself in kerosene and setting herself afire as her husband used to torture her and beat her". In view of the aforesaid facts and particularly when the witnesses who have to prove the dying declaration and Mlc have yet to be examined before the learned trial court, I am of the view that the petitioner is not entitled to bail at this stage.

(7) As a result of the above discussion the petition is dismissed.