Varinder Kumar @ Vikki S/O Late Sh. ... vs State Of Delhi
2006 Latest Caselaw 2236 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is aggrieved by the judgment and order dated 27th March, 1997 passed by the learned Additional Sessions Judge in Sessions Case No. 44/1996. By the impugned judgment and order, the Appellant was convicted of an offence punishable under Section 302 of the Indian Penal Code (for short IPC) as well as under Section 307 of the IPC. By a subsequent order passed on 29th March, 1997, the Appellant was sentenced to imprisonment for life and also to pay a fine in respect of the offence punishable under Section 302 of the IPC and to undergo rigorous imprisonment for a period of four years and to pay a fine in respect of the offence punishable under Section 307 of the IPC. Both the sentences were to run concurrently.

2. The facts of the case are somewhat peculiar in as much as the investigation has left many gaps which we are unable to come to terms with.

3. Geeta was married to one Tej Bahadur but it appears that their marriage broke up sometime in June, 1993. She had two children from the wedlock. Both the children were less than two years of age.

4. According to the Appellant, Geeta had some fascination for him and lived with him for sometime after her marriage had broken up. According to the Appellant, he was not married to Geeta although the prosecution version is that the Appellant and Geeta were married.

5. The Appellant has a mother who is a Railway employee and lives in the Railway Colony, Punjabi Bagh. Geeta has a father Tula Ram and step-mother Amar Mala. The Appellant and Geeta were living together in rented accommodadtion in Rani Bagh along with a six month child of Geeta from her marriage with Tej Bahadur. Their landlady was Smt. Bhaga Devi.

6. The records placed before us show that on the night of 25th September, 1994, Geeta was very badly burnt. She went to her landlady Bhaga Devi in that condition and told her that she was burnt (main jal gayee hun). It appears that the landlady and other neighbours informed the police who then took her to LNJPN Hospital. The doctor who examined her, Dr. Ashish Rohtagi noted that she had 80% burns. He immediately wrote a letter Exhibit PW-18/A to the SHO, Saraswati Vihar, to the following effect:

Sir,

The patient Geeta was admitted today at 12.05 a.m with 80% burns. She is in a critical condition and there are no attendants present. The case is a MLC as it is an attempted homicide as alleged by the patient. She, the patient also has a six months old male child and 6% burns. Kindly do needful for child, if patient expires.

Unfortunately, Geeta succumbed to the burns and died on 26th September, 1994. The medical evidence shows that she was unfit to make a statement and from the record it appears that the only information she gave about the incident was to her landlady Smt. Bhaga Devi and to Dr. Ashish Rohtagi.

7. After Geeta's death, PW-9 Virender Kumar who was then the SDM at Punjabi Bagh conducted inquest proceedings. He recorded the statement of Tula Ram (father of Geeta) and Smt. Bhaga Devi (inadvertently mentioned as Agya Devi). They have wrongly been described as being the parents of Geeta, the admitted position being that Tula Ram was the father of Geeta while Smt. Bhaga Devi was her landlady in Rani Bagh.

8. The English translation of the statement given by Tula Ram before PW-9 reads as follows:

I reside at the aforesaid address Along with my family. My family comprises my wife and my children I am employed in the 'Railways' as 'Daftari' I had performed the marriage of my middle daughter Geeta with Sh. Teg Bahadur s/o Lohaveer r/o Punjabi Bagh, Delhi in the year 1982. Geeta was living with her husband reasonably but there arose some dispute between them and they got a divorce in June, 1993. Thereafter, within some days Geeta married with her own wish with one Virender r/o WZ-185, Rani Bagh, Rishi Nagar, Delhi. I came to know about this fact about a month after this marriage.

Thereafter Geeta used to come to meet me rarely. However, she used to look happy and she never made any complaint.

On 25.9.94, I got a news at my house (through police) that Geeta has got burnt and is admitted in J.P.N. Hospital. My wife went to the hospital and brought Geeta's child, aged about one year with her. He (the child) is also slightly burnt. Geeta has died in the hospital itself.

I do not have any knowledge about this incident as to how Geeta got burnt. But Geeta was living happily with her husband Virender. I do not have any suspicion over her death. I do not want any legal action.

I have heard the statement and the same is correct.

9. The English translation of the statement given by Smt. Bhaga Devi in the inquest proceedings reads as follows: -

I reside at the aforesaid address. My husband lives in the village. I have rented out some portion of my house and this is the only source of my income. Smt. Geeta w/o Virender had lived in my house as a tenant for about five six months. Geeta and her husband Virender had been living very happily. I never noticed any quarrel taking place between them. Geeta's relatives often used to visit her - they also never made any complaint.

In the night of 24/25-9-94 when I was sleeping in my room, that at about 11.30 P.M. Geeta got me woke up. After waking up, I saw that Geeta was standing at the Gate in a very badly burnt condition. When I asked her as to what had happened, she told me that she has burnt. I made some neighbour wake up. They made a telephonic call to the police and going up side in the room of Geeta, they put out the fire also. Police came there and took Geeta to the hospital. I do not know anything as to how Geeta got burnt.

I have heard the statement and the same is correct.

10. A perusal of the above statements would show that when Geeta met her landlady Smt. Bhaga Devi, she did not blame the Appellant for her condition nor did she hint in that direction. In so far as Geeta's father is concerned, he also did not give any indication that there were any problems between Geeta and the Appellant. On the contrary, he says that she was living happily with the Appellant.

11. For reasons that we are not able to fathom, neither Tula Ram nor Smt. Bhaga Devi were cited as witnesses although their statement in the inquest proceedings is of considerable importance.

12. Geeta's step-mother, Amar Mala entered the witness box as PW-14. She stated that Geeta used to complain that the Appellant would quarrel with her and that he had threatened to kill her after pouring kerosene oil on her. However, this witness admitted that she did not lodge any complaint with the police. She stated that she had informed the police (perhaps during investigations) that Geeta had told her that the Appellant had threatened to kill her after pouring kerosene oil on her, but this witness also said that the police did not record her statement. Nevertheless, little later in the cross-examination, she said that on the day after Geeta's death, the police had recorded her statement and that her statement was read over to her by the police outside the court. Her testimony is conflicting in some places and does not have a ring of truth.

13. Even otherwise, the testimony of PW-14 Amar Mala suggests, at best, that there were some problems in the relationship between Geeta and the Appellant but the mere fact that there were some unspecified problems cannot lead to any conclusion that the Appellant had in fact poured kerosene oil on Geeta and set her on fire. This is all the more so, if it is recalled that Geeta herself did not say so to her landlady Smt. Bhaga Devi. Geeta's father Tula Ram also does not suggest that there were any problems between Geeta and the Appellant. On the contrary, he says that they were living quite happily. The latter observation was confirmed by Smt. Bhaga Devi as well.

14. The only other incriminating evidence in the case is the letter sent by Dr. Ashish Rohtagi to the concerned SHO. Unfortunately, this doctor could not be called to the witness box since he had left India. To make matters worse for the prosecution, his handwriting and signature could not be identified by PW-13 Dr. Vikas Rampal, Senior Medical Officer at LNJPN Hospital. This witness identified the handwriting and signature of another doctor, Reina Jindal, who had recorded that Geeta was unfit to make a statement but not that of Dr. Ashish Rohtagi.

15. That the handwriting and signature on Exhibit PW-18/A were of Dr. Ashish Rohtagi was certified by PW-18 L.R. Chauhan, who was a Record Clerk in LNJPN Hospital. We are of the view that the identification by PW-18 L.R. Chauhan is inadequate considering the fact that there would certainly be some doctor in the hospital who would have known Dr. Ashish Rohtagi and who could have identified his handwriting and signature. We are not prepared to place full reliance on the testimony of a witness who was not closely associated with Dr. Ashish Rohtagi in a matter as serious as the present, more particularly in view of the gaps that we have pointed out and the admitted medical evidence that Geeta was unfit to make a statement as noted in the MLC.

16. As noted above, the only inculpatory evidence that we have is the letter written by Dr. Ashish Rohtagi who unfortunately did not enter the witness box and the evidence of PW-14 Amar Mala, the step-mother of Geeta whose testimony appears to be extremely doubtful in the face of the statement given by Geeta's father Tula Ram and by Geeta's landlady Smt. Bhaga Devi. We are unable to uphold the conviction of the Appellant on such scanty material.

17. Another intriguing and troublesome aspect of the case is that according to the Appellant he was not living in Rani Bagh at the time of the incident. In his statement under Section 313 of the Code of Criminal Procedure the Appellant said that he often found Geeta away from the place where they lived. He had reprimanded her because of this, but she paid no heed and about a week before the incident, he left the home in Rani Bagh to live with his mother in Railway Colony. In other words, he was not even present in Rani Bagh when Geeta got burnt. The investigation does not suggest anything one way or the other regarding the whereabouts of the Appellant on the day of the incident. There is absolutely no evidence before us to suggest that the Appellant was living in Rani Bagh on the day of the incident or that he was not with his mother in Railway Colony. If the Appellant was living with his mother in Railway Colony, as claimed by him, the entire prosecution case falls to the ground. This aspect has not at all been considered during investigations, apart from various others gaps that we have pointed out above.

18. In view of the deficiency in the evidence before us, we find it unsafe to uphold the conviction of the Appellant. Under the circumstances, we set aside the impugned judgment and order dated 27th March, 1997. We direct the release of the Appellant forthwith unless he is required in some other case.