Mohd. Hussain Ansari vs State, Govt. Of Nct Of Delhi
2005 Latest Caselaw 548 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present appeal is directed against the judgment and order dated 11th January, 2002 passed by the learned Additional Sessions Judge convicting the appellant herein under Section 302 IPC and under Section 4 of the Dowry Prohibition Act thundergo life imprisonment and to pay a fine of Rs.1,000/- or to undergo simple imprisonment for one month in default under Section 302 IPC and to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- or to undergo simple imprisonment for one month in default under Section 4 of the Dowry Prohibition Act. By the aforesaid judgment and order it was held by the learned Additional Sessions Judge that the charge framed against the appellant under Section 30 IPC and Section 498 IPC did not stand established against him.

2. On the allegation that Smt. Abida, who was residing in the same house as that of Smt. Mushrrat, PW4, was burnt in House No.568 by her husband, the appellant herein, a case was registered after recording the statement of Smt. Mushrrat. On 16th June, 1999 at about 11.15 P.M. an information was received in the Police Control Room that one stove had burst in WZ 567, Village Naraina. The said information was recorded vide D.D.No.34-A and was marked to SI Dharam Pal for investigation. The said investigating officer, on reaching the spot, came to learn that no stove had burst there but one woman received burn injuries in House No.568 and that she had been taken to the hospital by her sister and brother-in-law. Thereafter, at about 1.40 A.M, a duty constable from Safdarjung Hospital informed the Police Station Naraina that Abida wife of Mohd. Hussain Ansari was brought to hospital with 100 per cent burns. Smt. Abida expired in the morning of 17th June, 1999. Statement of her sister Smt. Mushrrat was recorded by the SDM, who stated that she was residing in the same house in which Smt. Abida was residing and that at about 10/11 A.M. she heard a sound and when she went upstairs she saw Smt. Abida crying in burns and that Smt. Abida told her that her husband had burnt her whereupon she took Smt. Abida to the hospital and on the way to hospital Smt. Abida kept on repeating that her husband had burnt her. The aforesaid first information report was registered on the basis of the said statement of Smt. Mushrrt. The police, thereafter started investigation and arrested the present appellant and on completion of the investigation submitted a chargesheet under Section 498 and 304 IPC, 302 IPC and also under Section 4 of the Dowry Prohibition Act.

3. The learned Additional Sessions Judge framed charges against the appellant herein under all the aforesaid provisions, to which the appellant pleaded not guilty and claimed to be tried. During the trial prosecution examined 22 witnesses in support of its case. No witness was, however, examined in defense. The learned Additional Sessions Judge after going through the evidence adduced and upon hearing the counsel for the parties held that the charge under Section 498 and 304(B) of the IPC, which were framed against the accused/appellant herein had not been proved and established and consequently he acquitted him of the aforesaid charges. He, however, held that the charge under Section 302 IPC and Section 4 of the Dowry Prohibition Act were proved and established in the trial and, therefore, he was convicted under the aforesaid sections and sentenced to the aforesaid punishment. Being aggrieved by the aforesaid judgment and order, the present appeal is preferred, on which we have heard the learned counsel for the parties.

4. The learned counsel appearing for the appellant submitted before us that the alleged dying declarations, on which reliance had been placed by the learned trial court are not trustworthy and truthful and, therefore, the said version should have been rejected by the learned trial court and thereafter should have acquitted the appellant herein holding that there is no other reliable evidence on record.

5. We have scrutinised the evidence, in the light of the aforesaid submissions made before us by the learned counsel for the appellant. The learned trial court held that the charge under Section 302 IPC is proved on the basis of the dying declaration allegedly made by the deceased first to her sister Smt. Mushrrat and then to Dr. Sanjiv Kumar in the Safdarjung Hospital, which according to him were corroborated by the letter being PW2/8, which was written by the husband of the deceased on 13th June, 1999. The sister of the deceased, Smt. Mushrrat, on the basis of whose statement the first information was registered, was examined in the trial as the fourth witness. She was residing in the same house in which the deceased was residing with the accused/appellant. According to her, on the day of incident at about 10.00 PM she heard a sound and came out of her premises and went to the room of the deceased and found her in a burnt condition. She stated that she and her husband took the deceased to the hospital in an auto rickshaw and that during the journey to the hospital the deceased kept on saying to the said witness that she was burnt by her husband. The aforesaid statement made by the deceased to PW4 was considered as a dying declaration made by the deceased. The other dying declaration was allegedly made before Dr.Sanjiv Kumar, who was examined in the trial as PW7. He had deposed that he examined Smt. Abida in the Safdarjung Hospital and prepared the MLC, which is proved as Ex.PW7/1. The sai MLC was written in his own hand. He had deposed that the patient herself told him that she had a quarrel with her husband and that he poured kerosene oil on her and set her on fire. During cross-examination, he stated that the patient was conscious then she gave statement to him. He also denied the specific suggestion that if the patient had 100% burn injuries, she was not fit for making the said dying declaration. According to him, he had specifically asked the patient as to how she had got burn injuries and the reply given by the deceased was recorded by him in the MLC.

6. Reliance was also placed by the learned trial court on the contents of the letter EX.PW2/A, which was handed over by the father of the deceased to the police on 26th September, 1999 and was seized vide memo Ex.PW-5/8. The father of the deceased was examined as PW2, who stated that the said letter was received by him on 18th June, 1999. He also stated that he used to receive number of letters sent by the accused and, therefore, he could identify his writing. He, however, stated that he had not brought those letters, which were earlier written by the accused/appellant to him.

7. There is no eye-witness, who had seen the occurrence of appellant pouring kerosene oil and thereafter igniting and burning the deceased. The first person, who arrived at the scene of occurrence was Smt.Mushrrat, who is the sister of the deceased. She had stated categorically and assertively that her sister told her that it was her husband (Mohd. Hussain Ansari), who had burnt her. It was contended by the learned counsel appearing for the appellant that the statement of Smt.Mushrrat regarding dying declaration should not be believed as her husband, who also allegedly accompanied the deceased to the hospital did not corroborate her statement in this regard. The husband of Smt. Mushrrat was examined in the trial as PW3. He had stated that on hearing a sound of bang ('dhamaka'), he want to the first floor when he found Smt. Abida was in flames and he tried to extinguish the fire with his hands but he did not succeed. He stated that he could not hear properly what the deceased told to her sister about the cause of her fire. He also admitted that he and sister of the deceased, namely, PW4 had taken Smt. Abida to the hospital. He also stated that in his presence the deceased had given the cause of fire to the doctor stating that her husband poured kerosene on her and set her ablaze. The said witness was, however, declared hostile by the prosecution as he denied that he did not tell the police that the deceased Abida had told him that her husband set her on fire, which was, in fact, stated by him before the police in his statement recorded under Section 161 Cr.PC when he stated that when he was entering the premises of the deceased, he found that the accused was not inside the room but he was outside the room bringing water in a bucket from the ta. He also stated that he did see not see the appellant extinguishing the fire with his hands but admitted that he (PW3) received burn injures in his hand in his attempt to extinguish the fire with his hands.

8. PW-4, Mussarat had stated in her deposition that during the journey to the hospital, the deceased kept on telling her that she had been set ablaze by Ansari, who was her husband. She stated that when she reached the place of occurrence the fire had already been doused but she found her sister Abida in a burnt condition. She, however, admitted that leg, hand and hair of the accused were in burnt condition.

9. PW-2, Mohd.Issa, father of the deceased, had stated about the demand of dowry by the accused. PW-7 was the doctor who had prepared the MLC in his own hand. He had stated that the patient herself had told him that she had a quarrel with her husband and he poured kerosene oil on her and set her on fire which caused the burn injuries. He stated that burn injuries were found all over the body's surface and he made endorsement on the MLC regarding the statement made to him by the patient Abida. He stated in the cross-examination that the patient was conscious when she gave the statement to him. He also stated that he did not remember whether any other person was present at that time or not. He also denied the suggestion that if the patient had 100 per cent burn, she would not be fit for making statement. He stated that no police official was present at the time when the patient gave statement to him. He also stated that when he asked the patient as to how she got burn injuries, the reply received by him to the said query was recorded in the MLC. The MLC was exhibited in the trial. In the said MLC it was written that the patient (deceased) was brought by Mohd. Issaq, brother-in-law but the information was given by the deceased herself.

10. The appellant/accused was examined under Section 313 Cr.P.C wherein his attention was drawn to the contents of the letter Ex.2/A. He, however, stated that the said letter was not in his hand. However, to a different question he admitted that he, as well as his wife, used to send letters to his father-in-law. The doctor, who performed the post mortem examination, was examined in the trial as PW-19. He stated that on 21st June, 1999 he conducted post morten on the dead body of Abida, who was brought to the hospital on 17th June, 1999 with alleged history that after quarrel with her husband he had poured kerosene and set her on fire and that she expired on 17th June, 1999 at 7.10 A.M. He stated in his deposition that no smell of kerosene/petrol as present on the body and that no mark of violence /signs of struggle were found on the body. He, however, stated that the smell of kerosene is not usually found after 48 hours.

11. Counsel appearing for the appellant strongly argued that no reliance could be placed on the contents of Ex.PW2/A as the handwriting therein was not proved to be that of the appellant. It was also submitted that it is not also proved from the said letter that it was posted from Delhi but that it only contains a postal stamp of the place where it was received; that it was received near-about the time of the incident as is, however, clear from the said letter. Ex.PW2/A is the letter handed over to the appellant by the father of the deceased. The handwriting thereof is, however, not got confirmed by an expert for comparing the handwriting therein. However, the father of the deceased had specifically stated that he used to receive letter sent by the accused/appellant herein and, therefore, he could identify his handwriting. The accused in his statement recorded under Section 313 Cr.P.C corroborated the aforesaid position. The said letter was sent to PW2, namely, the father-in-law of the accused to come immediately to Delhi and to separate Abida/deceased from him. In the said letter it was also written that if the same is not done, either the appellant would kill Abida or she would kill him and thereafter he (father-in-law) would not be able to danything.

12. It was also submitted by the learned counsel for the appellant that the dying declaration stated to have been made by the deceased before PW-4, her sister, was not corroborated by her husband, who was co-passenger in the auto rickshaw and, therefore, the said dying declaration should be rejected. The said witness, namely, the brother-in-law of the deceased and husband of PW4 was declared hostile by the prosecution and, therefore, his evidence should be held to be unreliable. PW4, however, stood her ground and stated whatever her deceased sister told her while she was being taken to the hospital. In any case, a declaration was made to the doctor attending to her by the deceased immediately on her taking to the hospital and at the time when he was examined her, which fact is also recorded in the MLC. The said declaration, which is recorded in the MLC and proved by the doctor in his deposition, is in the nature of a dying declaration. The said doctor does not have any animus as against the appellant/accused and was an independent and neutral person. Whatever was told to him by the deceased at the time when he was examining her was recorded truthfully in the MLC and the said fact was also stated by him in his statement recorded before the court. He had also stated that the deceased was conscious when she gave the aforesaid statement to her.

13. Counsel appearing for the appellant, however, submitted that the doctor had not recorded either in his MLC nor stated before the court that she was in a position to make a statement when he was examining her and prepared the MLC and, therefore, his deposition could not be relied upon. In support of the aforesaid contention, the counsel relied upon the decisions of this court in the case of Jagdish Lal Malhotra v. The State reported in 25 (1984) DLT 404, Kamal Kumar v. State and a Supreme Court decision in Papareambaka Rosamma and Ors v. State of A.P. . Relying on the decision in the case of Jagdish Lal Malhotra (supra) it was submitted by the counsel appearing for the appellant that since the dying declaration was not recorded in the question-answer form, which was required to be so recorded, the aforesaid dying declaration should be held to be unreliable. Learned counsel for the appellant next referred to the decision of this court in Kamal Kumar v. State (supra) wherein it was held by this court that a dying declaration could be relied upon only when it is found to be trustworthy and reliable. He also referred to the decision of the Supreme Court in Papareambaka Rosamma and Ors. v. State of A.P. (supra) wherein it was held by the Supreme Court that when a dying declaration is recorded by the Magistrate, which is not certified by the Magistrate that the deceased was in a fit condition to make the statement, such dying declaration should be discarded.

14. Counsel appearing for the respondent, however, refuted the aforesaid position and submitted that the aforesaid position stood expressly and also impliedly overruled by the later decision of the Supreme Court in Laxman v. State of Maharashtra . We have perused the ratio of the aforesaid decision of the Supreme Court. The aforesaid decision of the Supreme Court is a decision of five Judges Bench. In para one of the said decision, reference is made to the decision of the Supreme Court in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh reported in JT 1999 (7) SCC 695 and also to another decision of the Supreme Court in Koli Chunilal Savji and Anr. v. State of Gujarat reported in JT 1999 (7) 568. In view of the conflicting decision rendered by the three Judges Bench of the Supreme Court in the aforesaid two decisions, the five Judges Bench of the Supreme Court proceeded to resolve the conflict between the aforesaid three Judges Bench decision of the Supreme Court. In para 3 of the said judgment, the juristic theory regarding acceptability of a dying declaration was stated as follows:-

"The juristic theory regarding acceptability of a dying declaration is that such declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason, the requirement of oath and cross-examination a e dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But, where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

14. Thereafter, the court proceeded to consider the ratio laid down in the aforesaid two decisions in the light of the aforesaid juristic theory and thereafter had held that judgment of the court in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh (supra) should be held to be not correctly decided and instead held that the law laid down in Koli Chunilal Savji and Another v. State of Gujarat (supra) is the correct law. In support of the said position that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question, the court also referred to another decision of the Supreme Court in RAVI CHANDER V STATE OF PUNJAB reported in JT 1998 (8) SC 211 wherein it was held that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted and that the magistrate being a disinterested witness and being a responsible officer and these being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

15. In our considered opinion, the ratio of the decision of Laxman v. State Of Maharashtra (supra) , RAVI CHANDER V STATE OF PUNJAB (supra) and in KOLI CHUNILAL SAVJI AND ANOTHER v STATE OF GUJARAT (supra ) squarely applies to the facts of the present case. In the present case also, the doctor, who recorded the dying declaration of the deceased Abida and who was examined as PW7, is a completely disinterested witness and is a responsible officer. No evidence is lead to disprove his statement. There is also no circumstance or material on record to suspect that the said doctor had any animus against the appellant/accused or was in any way interested for fabricating the dying declaration. Therefore, the said dying declaration cannot be doubled in any manner. It is also conclusively held by the Supreme Court that a conviction could also be based on the dying declaration if the same is found to be truthful and reliable. The doctor had stated that the deceased was conscious when she made the aforesaid statement and he recorded the statement as given by the deceased. Since the doctor recorded the statement made by the deceased and also denied the suggestion that she was not in a position to make such a statement as she had received 100% bun injuries, therefore, we hold that the deceased was fit to make a statement of the nature. The said statement was given by the deceased herself to the doctor. The deceased was brought to the hospital by her brother-in-law and also by the sister-in-law but there is no evidence on record that they had tutored the deceased in any manner at the time of making the said statement to the doctor. On the other hand, the definite evidence is that the deceased had made the said statement to the doctor by herself. Therefore, we find no reason to disbelieve the aforesaid dying declaration, which was made to the doctor by the deceased herself. It was contended by the counsel for the appellant that the appellant tried to extinguish the fire on his wife consequent to which he received burn injuries on his leg, hair and hand and, therefore, motive to kill is not established. We are not impressed by the said submission. If the accused had the intention to extinguish the fire, the same would have been done by his palm. But, there is no burn injury to his palm. The injuries received by him are also superficial. There is also no evidence on record that the accused shouted for help to extinguish the fire on his wife. Motive for killing his wife is also established as it is in evidence that the deceased and the accused were quarreling over the question of dowry.

16. We, therefore, accept the aforesaid dying declration as legal and valid and rely upon the same for upholding the conviction and sentence imposed by the learned trial court on the accused/appellant finding him guilty under the provisions of Section 302 IPC and Section 4 of the Dowry Prohibition Act. The appeal stands disposed of in terms of the aforesaid order.