Virender Singh Pappu vs State
1997 Latest Caselaw 417 Del

JUDGMENT

N.G. Nandi, J.

(1) The appellant stands convicted for the offence under Section 302 Indian Penal Code . by the learned Additional Sessions Judge, New Delhi in Sessions Case No.61/89, F.I.R. No.132/86, P.S. Mayapuri, New Delhi.

(2) The facts leading to the filing of the present appeal, shortly stated are, that on 20.6.1989 at about 5.40 a.m., a telephonic information was received at Police Station Mayapuri, New Delhi that in burnt condition one girl is lying in the public park behind Syndicate Bank near Lajwanti Chowk; that on this information, Dd No.17A was recorded and the police persons went to the spot i.e. Salvage Park opposite House No. WZ-347, Nangal Rai, where a girl who disclosed her name as Champa was found lying with extensive burns on her body; that thereafter she was removed to Safdarjang Hospital; that S.D.M., New Delhi was contacted who came to the hospital and recorded the statement of Champa; that Champa told the S.D.M. that in the morning she had gone to fetch water from a nearby public water tap when Pappu sprinkled kerosene oil on her and set her to fire as she refused to meet him; that on the basis of this statement by Champa, F.I.R. came to be registered for the offence u/s. 307 IPC; that thereafter at about 9.15 a.m. an information was received from the hospital about the death of Champa and the case was converted to one under Section 302 IPC; that usual investigation was carried out and on completion of the investigation, charge sheet came to be filed against the accused Pappu for the offence u/s. 302 IPC. The accused stood the trial for the charge of having committed murder of Champa under Section 302 IPC. The prosecution, in order to bring the guilt home of the accused, adduced oral as well as the documentary evidence. The Additional Sessions Judge, considering the oral as well as the documentary evidence and the statement of the accused under Section 313 Cr.P.C. found the accused guilty for the offence charged and sentenced him to undergo imprisonment for life. It is this conviction and the sentence imposed which has been assailed in the present appeal under Section 374(2) Cr.P.c. by the appellant/convict.

(3) It may be noted at the outset that it is not in dispute that deceased Champa was residing with he uncle Parshottam Mishra since about 4-5 months prior to the incident in the premises bearing No.WZ-346/1, Nangal Rai, Delhi. It is also not disputed that the accused also resided in the compound of the premises bearing No.WZ-346/1, Nangal Rai, Delhi. It is also not disputed that the incident wherein Champa sustained 95% burn injuries took place in the morning of 20.6.1989. It is also not in dispute that Champa sustained burn injuries on account of sprinkling of the kerosene oil on her and setting her to fire culminating into her death around 8.05 a.m. on the same day in the Safdarjang Hospital.

(4) It has been mainly contended by Mr. Taneja, the learned counsel-amices curiae for the appellant that the dying declarations relied on by the prosecution do not inspire confidence and are inconsistent and not trustworthy so as to justify the recording of the finding of guilt against the accused; that the timings given by the prosecution witnesses differ; that with 95% burns the patient would not be in fit state of mind to understand the questions put to her nor she would be in a position to give replies.

(5) The evidence of PW-21 H.C.Ishwar Singh discloses that the police machinery was set into motion on receipt of a telephonic information received from Police Control Room at about 5.30 a.m. whereupon the witness went to Salvage Park, Mayapuri, Nangal Rai where a girl aged about 15 years was lying in a burnt condition. The girl gave her name as Champa. She was removed to Safdarjang Hospital by the witness in Ambulance Van and admitted in the burns ward; that on way to the hospital, the witness inquired from the girl as to what had happened and upon that he girl had told the witness that one boy named Pappu had poured kerosene oil on her and had set her ablaze as she did not agree to his advances. In the cross-examination, it has been stated that the witness did not record the statement of the injured but that he had told the Investigating Officer about the same. There is nothing substantial brought out from the cross-examination of this witness. However, as far as Champa telling the witness about the appellant having poured kerosene oil and set her ablaze, we do not put reliance on the testimony of this witness for the reason that Public Witness .22 recorded the statement of H.C.Ishwar Singh at Dhaula Kuan on 7.7.1989. The explanation for late recording of the statement of Hc Ishwar Singh is the pre-occupation with other duties. Though there is no cross-examination of the witness on this point on behalf of the defense, the explanation per se does not appear to be plausible. It is not the say of Public Witness .22 that Public Witness .21 was not available for any reason for recording his statement. The incident is that of 20.6.1989. According to Public Witness .22, the statement of Public Witness .21 was recorded on 7.7.1989. Public Witness .21 was very much in the hospital since he had taken the injured in burnt condition to the hospital. Public Witness .22 came to the hospital taking Public Witness .3, the Sdm with him for recording of the statement of the injured. It would be expected of Public Witness .21 to tell Public Witness .22 about the statement made by Champa in the Ambulance Van while coming to the hospital. The evidence of Public Witness .22 does not corroborate Public Witness .21 to the effect that Public Witness .21 had told the Investigating Officer Public Witness .22 about Champa having named the appellant pouring kerosene oil on her and set her on fire nor Public Witness .20 S.I.Vir Singh, who has conducted the investigation initially corroborates Public Witness .21 Hc Ishwar Singh to the effect that Public Witness .21 conveyed to the witness what Champa stated to him (P.W.21).

(6) In the submission of Mr. Anil Soni, learned counsel for the respondent-State, the deceased made a statement implicating the appellant in the hospital which is recorded in the Mlc (Medical Legal Report) Ex.P.W.2/A. Perusal of Mlc Ex.P.W.2/A suggests that the patient Champa was brought in burnt condition to hospital at 6.20 a.m. on 20.6.1989; that the patient was brought by police (HC Ishwar Singh) in police ambulance, Dhaula Kuan; that the patient made a statement before the doctor which has been recorded in the Mlc and that is to the effect that the patient was burnt by a boy named Pappu by kerosene oil early in the morning at 5.00 a.m; that the patient was conscious and critical; that the patient had burn injuries on face, back, front of chest, abdomen, - both thighs, legs, erbimities. Thus, according to the Mlc Ex.P.W.2/A, at 6.20 a.m. the patient was conscious and critical and gave a statement implicating appellant Pappu having poured kerosene oil and set fire to her.

P.W.2Dr. Mohammed Aslam stated in his evidence that on 20.6.1989, he was working as adhoc Medical Officer, Safdarjang Hospital in the burns ward of plastic surgery. On that day a patient named Champa daughter of Dutta aged 15 years female was admitted in the hospital in a burnt condition; that she was brought by the police; that the alleged history was given by the patient that she was burnt by a boy named Pappu by pouring kerosene oil on her person at Dhaula Kuan at 5 a.m.; that the patient was brought to the hospital at 6.20 a.m.; that the patient caught fire on her clothes; that on examination, the patient was found to be conscious and critical; that the witness prepared Mlc Ex.2/A. In the cross-examination, the witness has denied the suggestion that the patient in such type of cases with 95% burns would be in a semi-conscious state and would not be in a position to speak. The witness also denied the suggestion that on account of burns sustained at the lips, the speech becomes incoherent and it would not be possible for the patient to make a coherent statement.

IT is pertinent to note that during the cross-examination, it has not been specifically suggested to the witness that the patient Champa did not make statement to the witness to the effect deposed by the witness in the examination-in-chief nor it is suggested that at 6.20 a.m. when the patient was brought to the hospital in the burns ward, the patient was not conscious enough so as to make a statement as deposed by the witness. Appreciating the evidence of Public Witness .2 and the Mlc Ex.PW-2/A containing the statement made by Champa at 6.20 a.m. there does not seem any reason to discard or disbelieve the statement recorded in Ex.PW-2/A and also as deposed by Public Witness .2. There can be no reason for Public Witness .2 to falsely depose and mention in Mlc Ex.PW-2/A that injured Champa was conscious at 6.30 a.m. when the witness examined her in the burns ward in Safdarjang Hospital and that she made a statement implicating appellant Pappu stating that he poured kerosene oil on her and set fire to her. It may also be appreciated that it is not suggested to Public Witness .2 in the cross-examination that at the time when Champa made the statement as contained in Ex.PW-2/A, her uncle Parshottam, Public Witness .1, was by her side so as to suggest the possibility of the same being tutored.

(7) The prosecution next relies on the statement stated to have been made by Champa to her uncle Public Witness .1 Parshottam Mishra.

P.W.1Parshottam Mishra has stated in his evidence that deceased Champa alias Chanuli was his niece, daughter of his brother Devi Dutt; that the deceased was staying with the witness since about 4-5 months prior to the incident; that the accused also stays in one of the rooms in the compound of premises No.346/1: that Pappu had developed fancy/liking for Champa and used to tease her; that on 20.6.1989, at about 6 a.m. when the witness got up from the sleep, he saw public, ambulance van and police having collected; that there is a park near the gali (lane) of his house; that when the witness came out of his house, someone informed him that a woman had been burnt in the park; that in the mean time, the police came and told him that the girl who had been found burnt was saying that she lived with him (witness) being her uncle and that he (the witness) should go to the hospital and see her; that thereafter, the witness went to Safdarjang Hospital and met Champa who was admitted there; that on enquiry from her as to how all this has happened, she told that she had gone to fetch water and that she had been burnt by Pappu who had dragged her to park and that he poured kerosene oil on her and that he burnt her thereafter; that when the witness was present in the hospital, the police officer along with one lady officer also came there; that he later on learnt that the lady officer was the SDM. In the cross-examination, it has been stated by this witness that the witness and accused have been occupying different rooms in the same premises besides other tenants; that there was a water tap on the main road which was used by the residents of the area including the witness and other tenants in the premises; that the people used to go to the tap at the early hour to fetch water as the rush would increase with the passing of the day; that Champa used to go to the water tap and fetch water from the same; that the accused earlier did not go to fetch water to the tap and his mother used to do it but since about two months prior to the incident, accused synchronised his timings to fetch water when Champa used to go to fetch water.

IT is pertinent to note that in the cross-examination, it has not been suggested to the witness that Champa did not make statement in the hospital to the witness implicating Pappu stating that she had gone to fetch water; that she was dragged to the park by Pappu and there he poured kerosene oil on her and that Pappu burnt her thereafter. This part of the say of the witness, namely, Champa narrating the incident to the witness, has not been challenged by the defense during the cross-examination of the witness. The omissions suggested to the witness in the cross-examination are insignificant and minor in nature as the same are with regard to the witness having come to know about the incident at 6.30 a.m. and Champa having told the witness about Pappu having told her to run away with him. These omissions do not have any bearing on the occurrence. We, therefore, do not attach any importance to these omissions as the same are insignificant having no affect on the prosecution case.

(8) The prosecution then relies on the statement of Champa recorded by Public Witness .3 Ms. Dheera Khandelwal, S.D.M., New Delhi.

P.W.22Inspector Gajender Singh has deposed in his evidence that from the place of incident he along with Const.Bhim Singh and S.I.Vir Singh had gone to the residence of Sdm Smt.Dheera Khandelwal, situated at Vinay Marg within the jurisdiction of P.S.Chanakya Puri. The witness narrated the incident of burns by fire to the Sdm and the Sdm was taken from her residence to the burns ward of Safdarjang Hospital at 7 a.m. where Champa was admitted. The Sdm was requested to record her statement vide the application given by S.I.Vir Singh who had also collected the Mlc of injured Champa; that the doctor opined the injured to be fit for statement and the Sdm recorded her statement and after recording the statement Ex.PW-3/A of the injured, the same was given to S.I.Vir Singh who made his endorsement thereon and got the case registered by sending the same to P.S.Mayapuri through Const.Bhim Singh.

(9) Public Witness .3 Smt.Dheera Khandelwal deposed in her evidence that on 20.6.1989, she was posted as Sdm, New Delhi and on that day on the request of Si Vir Singh of P.S.Mayapuri she had gone to Safdarjang Hospital in order to record the statement of patient. On reaching the hospital the witness requested the doctor to examine the patient and to see whether the patient was fit to make the statement or not; that on the request of the witness, the doctor examined the patient and gave his certificate at portion mark B, declaring the patient as fit for oral statement; that the certificate was given by the doctor in presence of this witness; that thereafter, the witness recorded the statement of patient named Ms. Champa; that the statement is Ex.PW-3/A encircled in red ink; that the witness obtained the right thumb impression of the patient at portion mark C on Ex.PW-3/A after recording the said statement. The witness the proved the statement stating that the same is in he, hand writing and the same bears her signatures at portion mark D and that the statement was recorded as told by the patient to the witness; That before recording the statement of the patient the witness satisfied herself that the patient could understand the nature of the questions and the sanctity of the statement; that the doctor who certified the patient to be fit for statement, refused to give his full name so the witness gave her endorsement to this effect at portion mark E and that the witness inquired about the name of the doctor which she mentioned against her endorsement at portion E; that when the statement of the patient was recorded no one was present near the bed of the patient nor did the witness allow the relatives or police officials to be present near the bed in ward; that the doctor who certified the patient to be fit for statement, was in the ward but not near the patient when the witness recorded the statement.

IN the cross-examination it has been deposed by the witness that the police officials approached her around 7 a.m. at her residence; that she accompanied the police officials to the hospital; that she might have reached the hospital at about 7.10 a.m. and she immediately went to the ward where the patient was lying; that she might have reached the ward at about 7.12 a.m.; that she did not go through the Mlc before recording the statement of the injured; that the deceased had burn injuries almost all over her body when the witness saw her; that she did not record the statement in question answer form, however, she had put the questions and after having received the answers she recorded her statement; that the questions put by the witness were not reduced into writing; that one of the nurses in the hospital disclosed the name of the doctor as Dr.Aslam; that doctors were on strike in Safdarjang Hospital on 20.6.1989; that no senior doctor was working in the ward at the time when the witness recorded the statement of the patient; that Dr.Aslam was a Junior Doctor.

(10) Perusal of Ex.PW-3/A, the statement of Champa (injured then) recorded by Public Witness .3 suggests that the patient gave her name as Champa residing in Nangal and also stated that today in the morning when she was going to fetch the water at that time one boy named Pappu who is also staying in Nangal told her to come to his house but she refused; that near his house in the park Pappu poured kerosene oil on her and set her ablaze; that she was taken to the park by holding her hand; that that she went to fetch water; that he brought kerosene oil from the house and set her ablaze. The statement then proceeds to give details that Pappu does not have father, they are three brothers, his sister is Usha, Pappu told her to meet him but she refused and on this, he set fire on her; that the name of Pappu's mother is Nandi Devi.

THE statement of deceased Champa recorded by PW3 is a complete and clear statement inasmuch as it gives all the details not only of the incident but also pertaining to the appellant. The appellant has been specifically named and the reason as to why he sprinkled kerosene oil on her and set her ablaze.

ACCORDING to Public Witness .3 she reached hospital at about 7.10 a.m. and reached the ward at about 7.12 a.m. and she asked Dr.Aslam, who was on duty, to certify whether the patient was fit for making statement or not whereupon the doctor certified the patient Champa to be fit for giving oral statement. Perusal of Ex.PW-2/A, the Mlc, suggests an endorsement made at 7.10 a.m. 20.6.1989 to the effect that the patient is fit to give the statement. Public Witness .2 Dr.Mohammed Aslam stated in his evidence that on the same day i.e. 20.6.1989 at about 7.10 a.m. a police officer moved an application Ex.PW-2/B before the witness for recording the statement of the patient whereupon the witness made an endorsement with his hand and under his signature which is mark A on Ex.PW-2/B. The witness declared the patient fit for making the statement. It is further deposed that the endorsement on Ex.PW-2/A at portion mark C encircled in red was also made by the witness by which he declared the patient to be fit for statement; that this endorsement made by the witness at 7.10 a.m. Thus, it will be seen that the endorsement about the patient being fit to make statement which is encircled in red in Mlc Ex.PW-2/A has been proved by Public Witness .2 as well as by Public Witness .3 when she says that she reached the hospital at 7.10 a.m. and after obtaining the certificate of fitness from the doctor on duty, recorded the statement of injured Champa. Thus, it is proved that when the statement Ex.PW-3/A was recorded, the patient was conscious and fit/capable to give oral statement. It appears from the evidence of Public Witness .3 that nobody was present near the patient when her statement Ex.PW-3/A was recorded. There is no evidence to suggest that soon before the recording of the statement Ex.PW-3A, the patient was surrounded by the relatives or the police officials suggesting the possibility of having been tutored. It is suggested from the evidence of Public Witness .3 that she took all the precautions that no relatives or the police persons were near the patient at the time of recording of the statement. Even doctor was not near the patient though in the ward. Thus, there is absolutely no reason not to accept the say of Public Witness .3 as far as the recording of the statement Ex.PW-3/A of deceased Champa in a conscious state of mind and being fit and capable to give the statement.

AS far as the statement by Champa to Public Witness .2 Dr.Mohd Aslam recorded in Mlc, Ex.PW-2/A is concerned, the same was when she was admitted in injured state at 6.20 a.m. in the hospital and as per Mlc Ex.PW-2/A she was conscious at that time and made the statement not only implicating appellant Pappu as pointed out above but also clearly attributing to Pappu he having poured kerosene oil on her and set fire to her.

(11) As pointed out above. Champa made the statements to three different persons, one to Public Witness .2 Dr.Mohammed Aslam, second to Public Witness .3 Ms.Dheera Khandelwal, Sdm and the third to Public Witness .1 Parshottam, her uncle. In all the three statements, she has given truthful, clear and consistent version about the occurrence, namely, Pappu having poured kerosene oil on her and set her ablaze as she refused to go with him to his house, when she had gone to fetch water at the water tap in the early hours of the day.

(12) All what is required to be seen is that the dying declarations should represent a truthful version of the incident and in case where there are more than one dying declaration then there should be consistency, particularly, in material particulars in all the dying declarations. In the instant case, as pointed out above, all the dying declarations are clear and consistent in material particulars and the dying declarations represent a truthful version of the occurrence. It is a settled law that a dying declaration satisfying the above test can be the sole basis of conviction.

(13) One of the argument on behalf of the appellant is that the dying declaration Ex.PW-3/A is not in a question-answer form and is a narration and that the same can not be said to be trustworthy. There is no law which requires a dying declaration to be in a question-answer form. One of the principles, as regards the acceptability of a dying declaration is that it is desirable that the dying declaration should be in question answer form and recorded in the language of the maker but the form and the language by itself is not conclusive and the dying declaration recorded by the Sdm though not strictly in form but being otherwise clear and unambiguous and as a result of exercise of free will of the maker, it can be the basis of the conviction. As laid down by the Supreme Court in the case of Ganpat Mahadeo Mane v. State of Maharashtra and Padmaben Shamalbhai Patel Versus State of Gujarat , the requirement that dying declaration should be recorded in question-answer form is not absolute. A dying declaration, therefore, if otherwise reliable and trustworthy, can not be excluded from consideration merely on the ground that it is not recorded in question-answer form. The Division Bench of this court in the case of Ram Dhar versus State reported in 1996 (3) Ad (Delhi) p: 820, following the Supreme Court, has taken the view that the dying declarations, if otherwise reliable and trustworthy, need not be discarded merely on the ground that it is not recorded in question-answer form.

(14) One of the arguments on behalf of the appellant is that there is discrepancy in the place of occurrence inasmuch as according to the prosecution the incident took place inside the park whereas Champa was found lying in burnt condition opposite her house which is outside the park. In this regard, reference has been made to the sketch Ex.PW-7/A perusal whereof suggests point A to be the place where burnt clothes were lying, point C shows that smoke marks on the ground, point D to be the place where Champa @ Chanuli was lying in burnt condition, point E to be the place where burnt clothes were lying. It may be seen that point D and E are near the door of the premises bearing No.WZ-347. It may be appreciated that when a person catches fire, whatever be the place, because of the agony consequent upon the fire, a person would not remain static at one place and a person, may be for help or because of the unbearable agony, would try for help to extinguish the fire and in the process, would obviously run here and there and would finally fall when the agony becomes unbearable or when the person does not have the strength and the stamina enough to withstand the fire and that is why the place of occurrence, namely, pouring of the kerosene oil and setting fire can be different from the place where actually the victim falls. In such it can not be said that the place of occurrence is different than what is suggested by the prosecution and for that reason the accused can not get benefit/advantage of the incident of pouring kerosene oil and setting Champa to fire was near the trees in the park and after she was set ablaze she came near the door of her house and fell there. In our opinion there is no lacuna/inconsistency in the prosecution case as far as the place of occurrence is concerned.

(15) Appreciating the evidence on record, namely the dying declaration recorded in Mlc Ex.PW-2/A, the statement Ex.PW-3/A recorded by the Sdm and the statement made by Champa to Public Witness .1, there is no reason to discard either of the statement as Champa made the statements before two responsible officers, one a medical officer and another an Executive Magistrate. All the statements represent truthful and consistent version of the occurrence and there is consistency, particularly, in material particulars in all the dying declarations and on close scrutiny the declarations, in our opinion, satisfy the test of reliability. It may be appreciated that a due weight has to be attached to a proper dying declaration as it is not likely that a person on verge of death would commit the sin of implicating some one falsely. In our opinion on the appreciation of evidence also as regards the recording of the dying declarations, as above, the prosecution has been able to satisfy the test of reliability as far as the dying declarations Ex. PW-2/A and Ex.PW-3/A are concerned, as both the statements are absolutely clear, truthful and as exercise of free Will of the maker, namely, Champa and the same can be the sole basis of conviction without any independent corroboration as Champa, at the relevant time, was conscious, in a fit state of mind and able to speak as deposed by Public Witness s. 2 and 3, as pointed out above and the mere fact that deceased suffered 95% burns and her general condition being critical, is no reason to discard the testimony of Public Witness s. 2 and 3 and not recording of the statement in a question-answer form can not affect the probative value to be attached to the evidence of Public Witness .3. 15. In the above view of the matter, we are of the opinion that the learned trial Judge has justifiably reached the finding of guilt accepting the dying declarations, particularly in Ex.PW-2/A and Ex.PW-3/A, as the sole basis of conviction as no independent corroboration is necessary and the appeal being devoid of merits is liable to be dismissed and the conviction and sentence imposed confirmed.

(16) In the result, the appeal fails.