Mohan Lal vs State (N.C.T. Of Delhi)
2006 Latest Caselaw 2281 Del

JUDGMENT

Aruna Suresh, J.

1. Appellant Mohan Lal has preferred this Appeal against the judgment dated 14th February, 2003 and order on sentence dated 18th February, 2003 convicting him under Section 302 of the Indian Penal Code (hereinafter referred to as 'IPC') for having committed murder of his wife Sangeeta and was sentenced to imprisonment for life and to pay fine of Rs. 5,000/- and in default to undergo Rigorous Imprisonment for one year.

2. Appellant Mohan Lal was married to deceased Sangeeta in November, 1984. It seems that after few months of the marriage Appellant started harassing and torturing the deceased for money. Two sons were born out of the wedlock. Deceased used to find it difficult to meet day to day household requirements from the income of the Appellant and had been taking money from her parents from time to time, probably at the behest of the Appellant. There was a quarrel between the Appellant and his wife Sangeeta on 30.09.1986 and Appellant was detained under Section 107/151 Code of Criminal Procedure. With the intervention of the biradari people the matter was compromised and the Appellant was released. Thereafter, Sangeeta went to her matrimonial home and started living with her husband. On 31.07.1987, at about 3.00 PM Appellant is stated to have poured kerosene oil on his wife Sangeeta and set her on fire. She was removed to Ram Manohar Lohia Hospital at about 4.25 PM in burnt condition where she succumbed to her injuries at about 11.00 PM on the same night.

3. Charge sheet was filed against Mohan Lal implicating him for an offence punishable under Section 304-B/498-A IPC. Vide order dated 11.01.1988, Learned Sessions Judge was of the opinion that prima facie an offence under Section 302 IPC was made out against Mohan Lal as he had committed murder of his wife Sangeeta by pouring kerosene oil and setting her on fire. Following charge was accordingly framed against Mohan Lal on 11.01.1988:

CHARGE

I, P.S. Sharma, Addl. Sessions Judge Delhi do hereby charge you Mohan Lal the above named accused as under:

On 31.7.1987 at 3.00 P.M. at H. No. 9117, Gali No. 3 Multani Dhanda Pahar Ganj, Delhi you intentionally or knowingly committed the murder of your wife Sangeeta and thereby committed an offence punishable under Section 302 IPC and within the cognizance of this Court;

And I hereby direct that you be tried by this Court on the above said charge.

ASJ/11.1.1988

Appellant pleaded not guilty and claimed trail.

4. Prosecution has examined as many as 22 witnesses. Smt. Chaman Devi (PW-4) mother of deceased Sangeeta, Mukandi Lal (PW-5) father of deceased and Bhim Sain (PW8) have not deposed anything as to how Sangeeta caught fire. All the three witnesses happened to reach the hospital after Sangeeta had sucumbed to her injuries. Their testimony is relevant only to the extent that Appellant Mohan Lal used to harass and maltreat his wife Sangeeta for money as he was not earning sufficiently to meet the day to day requirements of the family and she used to go and have some money from her parents. Appellant Mohan Lal also used to torture her physically. He was once arrested in a case under Section 107/151 Code of Criminal Procedure for quarreling with his wife which matter was compromised about ten months prior to the incident in question. Though, Vidya Devi (PW7) and Ram Kishan (PW18) have been examined as prosecution witnesses, but they have not supported the prosecution case.

5. We do not find testimony of any of the above said witnesses of any help to us to find out the cause of death of deceased Sangeeta. The entire case of the prosecution revolves around the dying declaration. Two dying declarations were made by deceased Sangeeta. First to Naresh Kumar (PW6), her cousin brother, who reached the hospital on coming to know, from some children, about the incident. He had accompanied her from casualty to the ward and asked her how she had received burn injuries. She told him that her husband had burnt her by pouring kerosene oil on her and pushing her down under his knee at about 3.00 PM. From the hospital, he went to the house of the convict, where he joined the investigation like recovery of burnt pieces of clothes belonging to the deceased, kerosene container, match box etc. vide memo Ex.PW6/A.

6. Second dying declaration was made by Sangeeta in the hospital, which was recorded at the behest and in the presence of SDM Sanjay P. Singh (PW9) at about 6.00 PM by the Investigating Officer, Sub Inspector Jagjit Singh (PW21), which was also witnessed by Dr. Pankaj Aggarwal.

7. Learned Counsel for the Appellant has emphasized during the course of arguments that it was a case of suicide as the Appellant was not able to satisfy the economical needs of Sangeeta and her two sons. She used to complain to her parents that she was married to a poor man and since she was depressed, she committed suicide. These submissions of the Learned Counsel for the Appellant can be straightaway rejected as it was never the defense of the Appellant that Sangeeta had committed suicide. Rather the defense, which the Appellant took in his statement under Section 313 of Code of Criminal Procedure (henceforth referred to as Cr.P.C.), was that Sangeeta had caught fire accidentally and he tried to put off the fire and in this process he also burnt his hands.

8. Learned Counsel for the Appellant has submitted that no reliance can be placed on any of the dying declarations. Naresh Kumar (PW6) was never found by the Investigating Officer at the hospital when he reached there. His statement was recorded only at the spot, after the Investigating Officer had recorded the statement of the deceased. The evidence on record and circumstances surrounding the dying declaration indicate that the said dying declaration may not be correct and therefore it is of no help to the prosecution case. It is further submitted that the dying declaration Ex.PW9/A is also not worthy of reliance, SDM himself did not record the dying declaration but only made an endorsement that it was recorded in his presence, the SDM did not get the certificate of the doctor to the fact that Sangeeta was fit for statement, Dr. Pankaj Aggarwal has not been examined and Dr. P.K. Gupta did not know if there was any Doctor by the name of Pankaj Aggarwal in the hospital. Learned Counsel has further pointed out that as per the postmortem report there was no smell of kerosene oil from the hair of Sangeeta and there were burns all over the body and therefore her thumb impression could not have been taken on the said statement Ex.PW9/A. Learned Counsel has placed reliance on Arjun Prajapati v. State of Bihar and Ors. 2001 Supreme Court Cases (Cri) 1573. This is a short order which has only dealt with the factual aspects of the case before the Court and is of no help to the Appellant's case.

9. Before we proceed further to analyze the submissions of the Learned Counsel for the Appellant, it is relevant to take into consideration the relevant provisions of the Indian Evidence Act, 1872 (in short the `Evidence Act). The general rule is that all oral evidence must be direct. This rule is incorporated in Section 60 of the Evidence Act. The oral evidence is said to be direct, if it refers to a fact which could be seen, if it refers to a fact which could be heard, if it refers to a fact which could be perceived by any other sense or in any other manner and it must be the evidence of a witness who has seen it, heard it or perceived it by that sense or in that manner. This also stands true that oral evidence refers to an opinion or the ground on which that opinion is held, should be of the person who holds that opinion on those grounds.

10. Section 32 of the Evidence Act, which deals with cases in which the statement of relevant fact by person, who is dead or cannot be found, etc., is relevant. This Section contains 8 Clauses, which are exceptions to the general rule against hearsay. Clause 1 of the Section 32 makes relevant, the statement made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of death comes into question. Such statements, are relevant whether the person who made them was or was not at the time when they were made, under expectation of death, and whatever may be the nature of proceedings in which the cause of his death comes into question.

Other Clauses of this Section are not relevant to the present case.

11. In Sham Shankar Kankaria v. State of Maharashtra 2006 (8) Scale 760 while interpreting Section 32 of the Indian Evidence Act and Section 60 of the said Act it was laid down by the Supreme Court as follows:

At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are; firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations 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 mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. These aspects have been eloquently stated by Lyre LCR in R.V. Wood Cock (1789) 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain:

Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'against the fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth? (See King John Act 5 Section 4)

The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri a man will not meet his maker with a lie in his mouth.

12. The Court, further culled out the principles governing dying declarations as laid down in several judgments as follows:

(i)"There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja and Anr. v. The State of Madhya Pradesh ].

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. and Ramavati Devi v. State of Bihar

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor ].

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh .

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P. 1981 (Supp) SCC 25.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. ]

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu ]

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar 1980 Supp (1) SCC 769].

(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 said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh 1988 Supp (1) SCC 152].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. ].

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra ]

13. In Laxman v. State of Maharashtra 2002 (5) Scale 418, the Constitution Bench of the Supreme Court while settling down the contrary opinions expressed by two different benches of the said Court in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh and Koli Chunilal Savji and Anr. v. State of Gujarat laid down the principle of admissibility of dying declaration in evidence against the accused in the following terms:

The justice theory regarding acceptability of a dying 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 requirements of oath and cross-examination are 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 promoting 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 eyewitnesses 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 method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made 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 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.

(The Learned Sessions Judge has also referred to this proposition of law while considering the two dying declarations made by the deceased).

14. Coming to the facts and circumstances of this case as narrated earlier, Sangeeta was burnt on 31.07.1987 at about 3.00 PM. She was removed to Ram Manohar Lohia Hospital at about 4.25 P.M. by her husband, the present Appellant. On her admission in the hospital the Constable on duty Daya Nand (PW14), immediately informed Police Station Nabi Karim regarding the admission of Sangeeta in burnt condition. Soon thereafter, Investigating Officer of this case, Sub Inspector Jagjit Singh (PW21) went to the hospital. Since doctor declared her fit for statement, he informed Additional Commissioner of Police (hereinafter referred as 'ACP'), Station House Officer (hereinafter referred as 'SHO') and the Sub Divisional Magistrate (hereinafter referred as 'SDM'). SDM Sanjay P. Singh (PW9) reached the hospital at about 5.00 PM. He got recorded the statement of Sangeeta in his presence by the Investigating Officer. At that time Dr. Pankaj Aggarwal was also present. The said dying declaration is Ex.PW9/A before us. It finds endorsement of SDM Sanjay P.Singh as "Recorded in my presence" duly signed and that of doctor Pankaj Aggarwal as "Taken in my presence verified". This dying declaration is the basis of the registration of the FIR in the present case. This dying declaration is the second dying declaration made by Smt. Sangeeta (since deceased).

15. Before we consider this dying declaration it is appropriate that first dying declaration of Smt. Sangeeta made to PW Naresh Kumar (PW6) is considered. Naresh Kumar (PW6) reached the hospital immediately when he came to know from some children that Sangeeta had been admitted in the Ram Manohar Lohia Hospital. He accompanied her from the Surgical Casualty to the Ward and it was to his question as to how she got burnt, that Sangeeta had replied that her husband had burnt her by pouring kerosene oil on her by pushing her down under his knee at 3.00 PM on that day. In the cross-examination he admitted that Appellant Mohan Lal was also present there but police officials were not there and also that Appellant had brought Sangeeta to the hospital.

16. Second dying declaration recorded by the Investigating Officer on the dictation of the SDM Shri Sanjay P. Singh Ex.PW9/A is consistent with the first dying declaration made orally to Naresh Kumar (PW6).

17. The verdict of the trial court has been challenged on the plea that the second dying declaration implicating Appellant is unreliable. In the first place, it is not recorded by the SDM in his own hand and does not bear the thumb mark of the deceased. In the Second place, the certificate of the doctor declaring her fit for statement was not obtained by the SDM and she was burnt all over the body, therefore her thumb impression could not have been taken.

18. It is necessary for us to have a close look to the second oral dying declaration which has been reduced into writing, as the first dying declaration is only oral as narrated by Naresh Kumar (PW6). Before the statement Ex.PW9/A was recorded, Doctor P.K. Gupta (PW17) had declared deceased Sangeeta fit for statement in his own hand and under his signatures at 5.30 PM. As per the MLC Ex.PW10/A, the patient was conscious, speaking with difficulty and oriented. The second dying declaration translated into English reads as under:

Statement of Smt. Sangeeta, w/o Mohan Lal, Resident of 9117, Gali No. 3, Multani Dhanda, Pahar Ganj, Delhi, Aged 23 years.

It is stated that I Along with my family is residing at the above said address. My husband is in private service at Pragati Maidan. I have two small children. My husband keeps on telling me to bring money from my parents, on my refusal he keeps on physically beating me. Earlier also I had lodged a complaint in the police station about eight-nine months back. Today also at about 3.00 PM my husband came home and asked me to bring money from anywhere and give it to him. But on my refusal he first quarreled with me and then gave me severe beatings. I wept and screamed a lot but immediately my husband picked up a kerosene oil can, which was lying in the room, and poured kerosene oil on me and set me on fire with the match stick. Then, on seeing me burning he started putting off the fire, at that time there was no one in the house except the children. Thereafter, he brought me to the hospital in burnt condition. My husband himself tried to kill me by burning. Legal proceedings should be conducted against him. Heard the statement. It is correct.

Below this dying declaration there is thumb impression of the victim. Below this thumb impression SDM has given endorsement:

Recorded in my presence "

sd/

Sanjay P.Singh

6.00PM

31.07.1987.

On the left side of this dying declaration there is an endorsement in the hands of Dr. Pankaj Aggarwal which reads as follows:

"Taken in my presence,"

verified.

sd/

31.07.1987

(Dr. Pankaj Aggarwal).

Doctor Pankaj Aggarwal is the concerned doctor who was present at the time when the dying declaration was recorded.

19. Shri Sanjay P.Singh (PW9), the then SDM is very specific in his statement when he said that he got recorded the statement of Smt. Sangeeta in his presence and in the presence of Dr. Pankaj Aggarwal. He also made an endorsement in his hand to the effect "Recorded in my presence" and thereafter he signed it. He emphasized that he had got recorded statement correctly which was of her narration and nothing was added or subtracted. Sangeeta had also put her thumb impression on the said statement in his presence. Dr. Pankaj Aggarwal also made endorsement in his presence. He did admit that there was an overwriting at Point D on the Ex.PW9/A, but he volunteered that he had corrected the time by seeing the watch. Dr. Pankaj Aggarwal could not be examined by the prosecution as his whereabouts were not known. However, prosecution examined Shri Din Dayal, Record Clerk of Ram Manohar Lohia Hospital as PW21 (Sub Inspector Jagjit Singh is also PW21 therefore, this witness may be renumbered as (PW21A). Shri Din Dayal (PW21A) identified the handwriting and signature of Doctor Pankaj Aggarwal on dying declaration Ex.PW9/A as he had seen him writing and signing.

20. Learned Counsel for the Appellant has pointed out that on the thumb impression it is not mentioned if it is the thumb impression of Sangeeta or it is the left thumb impression or the right thumb impression. The Investigating Officer Sub Inspector Jagjit Singh (PW21) in his cross examination has testified that he had mentioned that he had taken left thumb impression of the deceased Sangeeta on her statement. He denied the suggestion that no thumb impression of Sangeeta was obtained as both the thumbs of Sangeeta were burnt and she was unable to affix any thumb impression on Ex.PW9/A. It is pertinent to mention here that it was this dying declaration of Sangeeta which led to the registration of the First Information Report against the present Appellant Mohan Lal. The Investigating Officer had made an endorsement on the back of this statement and sent it to the Police Station for registration of the case.

21. Doctor L.T. Ramani (PW2), who conducted the postmortem on the body of deceased Sangeeta found burns present all around and both upper limbs and lower limbs. Superficial skin was blackened and peeled off. Scalp hair partly burnt. Finger and toe nails were not burnt. Blisters were present on the lower part of the abdomen. No other external injury was seen but he has nowhere stated that her thumbs were also burnt. There is no cross-examination of Doctor L.T. Ramani (PW2) and no suggestion has been put to him that Sangeeta could not have put her thumb impression on her statement Ex.PW9/A because her thumbs were burnt. Therefore, from this postmortem report it can't be inferred that Sangeeta was not in a position to put her thumb impression on her dying declaration. SDM Sanjay P.Singh (PW9) and Doctor Pankaj Aggarwal are dis-interested witnesses and there is no animosity shown on their behalf to falsely implicate the Appellant in this case.

22. In our view, the SDM had complied with all the instructions and the guidelines for recording of dying declaration made before him by deceased Sangeeta. He also got her thumb impression on her statement in his presence. There is no legal requirement that SDM should record the statement of the victim in his own hand. It is not necessary that the Doctor should certify on a separate application or on the statement itself that the victim is fit for statement. As already observed above, Dr. P.K. Gupta had given a declaration that patient Sangeeta was fit for statement. It was only thereafter that the statement of Sangeeta was got recorded by the SDM from the Investigating Officer.

23. Learned Counsel for the Appellant has emphasized that it was the Appellant who had taken the deceased to the hospital when she caught fire and therefore it is not believable that Sangeeta had made a dying declaration ExPW9/A or any other dying declaration to Naresh Kumar (PW6). Simply because the Appellant Mohan Lal had taken his wife Sangeeta to the hospital when he found her burning, does not indicate that he had not picked up a quarrel with Sangeeta for money and on her refusal, gave her beatings and poured kerosene oil on her and set her on fire. May be that, when he saw her burning, he removed her to the hospital. By that time she had already sustained 90 per cent burns. She succumbed to burn injuries within seven hours. When she made the dying declaration she knew that she was dying. There was no reason for her to make a false statement against her own husband.

24. This dying declaration of Sangeeta also finds corroboration from the Central Forensic Science Laboratory Report Ex.PW21/G-1, G-2 and G-3. The physico -Chemical method of analysis was adopted by Mr. K.S. Chhabra, Senior Scientific Officer, Central Forensic Science Laboratory, CGO Complex, New Delhi. On analysis he found the plastic container containing kerosene. He also found the partly burnt cloth pieces, recovered by the Investigating Officer from the spot, having presence of kerosene residue. The physico-Chemical method of analysis of scalp hair, which was collected and preserved by Doctor L.T. Ramani at the time of conducting postmortem under the seal of the hospital, also showed the presence of kerosene residue.

25. Learned Counsel for the Appellant has made an half hearted attempt to say that since Dr. L.T. Ramani as per the postmortem report did not find any smell of kerosene oil in scalp hair, it can't be said that Appellant had poured kerosene oil on his wife Sangeeta and burnt her. These submissions are devoid of any merit. Kerosene oil evaporates with the lapse of time. Postmortem was conducted on 1st August, 1987 at about 1.45 P.M. that is, after about 22 hours of the incident of burning. She was also admitted in the hospital where she was given medical treatment. It was natural that Dr. L.T. Ramani did not find any smell of kerosene oil in scalp hair. It was the physico-Chemical method of analysis, which revealed the presence of kerosene residue in the scalp hair and the burnt clothes of the deceased.

26. The above analysis and the evidence on record leads us to the inevitable conclusion that the Appellant Mohan Lal had poured kerosene oil on the deceased and killed her by burning. The Additional Sessions Judge was therefore, perfectly justified in reaching the conclusion that he did. The Appeal, therefore, has no merits and the same is accordingly dismissed.