State (Delhi Admn.) vs Udham Singh And Ors.
2006 Latest Caselaw 1581 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal No. 151 of 1985 has been filed by the State challenging the acquittal of the respondents by the Additional Sessions Judge, Delhi vide his judgment dated 28.11.1984.

2. Brief facts of the case, as have been noted by the learned Additional Sessions Judge, are:

That on 15.2.1983 at 5. AM D.D. No. 5 was recorded at P.S. Tilak Nagar by the duty officer there. On information received by him from the Police Control Room about an occurrence at B-III, A-12, Shan Nagar. The duty officer, after recording that D.D., handed over a copy thereof to S.I. Bachan Singh for enquiry. The said S.I. Bachan Singh proceeded to the spot but was told that the incident had actually taken place at B-III/37 Vishnu Garden. Consequently he went to that house at Vishnu Garden. There he was told that one lady in a burnt condition had already been removed to the Willingdon Hospital by her husband and other members of his family. Meanwhile at 5.15 A.M. the duty officer P.S.Tilak Nagar received another information from the Willingdon Hospital about the admission of Shanni Kaur W/o accused Udham Singh in the said hospital in burnt condition. On that information D.D. No. 6-A was recorded and a copy thereof was given to S.I. Ram Kishan for enquiry. Consequently S.I. Ram Kishan also reached H. No. B-III/37 Vishnu Garden. There S.I. Bachan Singh left ASI Ram Kishan to guard the spot and himself proceeded to Willingdon Hospital. Meanwhile MLC of injured Shanni Kaur was prepared by one Dr. N. Sarmah C.M.O. of the said hospital. While preparing that MLC the said doctor also recorded history of the said patient regarding the incident in which she was injured. Thereafter S.I. Bachan Singh, obtained report from the said doctor about the condition of injured Shanni Kaur for making a statement. Since the said injured was declared fit for making a statement, S.I. Bachan Singh himself recorded statement of the said injured Shanni Kaur. S.I. Bachan Singh then made his own endorsement below that statement of Shanni Kaur and sent the same for the registration of the case. On the basis of that statement FIR No. 60/83 was registered under Section 307/34 IPC. From the hospital the said S.I. reached the scene of occurrence and lifted one stove, one plastic cane, one semi burnt quilt and a match box. Since in her statement recorded by the S.I. injured Shanni actually had named her husband, her mother- in-law and her sister-in-law as responsible for burning, they were all arrested in the case. Pant and shirt of accused Udham Singh which he was wearing at that time were taken into possession by the police. Photographs of the scene of occurrence were taken. Meanwhile Shri Ajit Srivastava, S.D.M. Punjabi Bagh was also deputed to record the statement of Shanni Kaur. The said S.D.M. reached the hospital and recorded the statement of Shanni Kaur without any loss of time. There also the said Shanni Kaur, implicated her husband, father-in-law and her sister-in-law for her burning. Consequently, on 17.2.1983 Shanni Kaur died in the hospital of the burn injuries. Postmortem on her dead body was performed and the case was converted into one Under Section 302/34 IPC. Statements of witnesses were recorded. The different seized articles including the clothes of accused Udham Singh were sent for Chemical examination to the CFSL after receipt of report from the CFSL and after completion of investigation all the three accused were sent up under a charge-sheet to the court of concerned Metropolitan Magistrate on 13.5.1983.

3. The Prosecution, in order to establish its case, examined as many as 26 witnesses. The trial court, however, has primarily based its decision on three dying declarations, namely, the MLC, Ex. PW-6/A, Ex. PW-25/A and Ex. PW-8/B. The first of these was recorded in the MLC by Dr. N. Sarmah to the following effect:

patient gives history of burn which occurred following pouring kerosene oil on her and and set on flame by her husband, Udham Singh, mother-in-law and sister- in-law. Patient is conscious, she gives history of : she is married 2 years back and having 1 year old son, she was misbehaved and quarrels were there since after her marriage with the husband and family members. In the morning she was called by her husband outside her room and set fire on her and warned her not to disclose anything in the hospital regarding the intentional burn by husband and family members. Burn all over the body affecting all parts.

Pt. conscious. Inj. T.T. 0.5 ml

Pulse 100/m. Volume low. Referred to Surgery.

4. Counsel for the State contended that the trial court was wrong in discarding the statement of the deceased made to the Doctor and that the reasoning is perfunctory. He submitted that the statement has been discarded only on the ground that the Doctor recorded the statement without ascertaining that the patient was fit to make a statement.

5. The second dying declaration, Ex. PW-25/A, is recorded by SI Bachan Singh after obtaining endorsement 'fit for statement' from the Doctor, the English translation of which reads as follows:

Smt. Shanni Kaur W/o Udham Singh aged about 25 years R/o B-47, Vishnu Garden made the following statement:

I reside with my husband at the aforesaid address. My marriage was solemnized with Udham Singh about 2 years back. I have a one year old son. My husband, mother-in-law, Sister-in-law (husband's Sister) and father-in-law used to harass me for dowry since my marriage. Today, at about 4.00 a.m., when I was asleep, my husband took me outside the room and poured Kerosene on me whereas my sister- in-law and my mother-in-law caught hold of me. My husband set me on fire with the help of match-stick. Thereupon, I screamed and fell down. My husband placed the stove outside and asked me not to reveal anybody in the hospital that they had set me on fire.... My husband in collusion with his mother-in-law and Sister-in-law (husband's Sister) had set me on fire with an intention to eliminate me. Legal action may be taken against my mother-in-law, Sister-in-law (husband's Sister) and husband.

I have heard the statement and the same is correct.

Sd/- Bachan Singh

(in English)

S.I. Bachan Singh,

P.S. Tilak Nagar.

6. Counsel submits that this statement of the deceased has also been discarded on flimsy ground, namely, that the Doctor who certified the patient to be fit to make statement has not been examined and also on the ground that the statement recorded by the Investigating Officer has always to be viewed with suspicion. He contended that SI Bachan Singh in his statement has stated that the Doctor had certified Shanni Kaur to be in a fit condition to make statement and it was thereafter that the statement of Shanni Kaur was recorded, read over to her and thumb marked by Shanni Kaur in token of its correctness. The trial court was, therefore, wrong in discarding the statement of the deceased Ex. PW25/A.

7. The next statement of the deceased is Ex. PW-8/B, the English translation of which reads as follows:

Statement of Smt. Shanni Kaur W/o Sh. Udham Singh

Q. How you got burnt ?

A. My sister-in-law brought 5 litre oil (kerosene) in the evening. My husband has set me on fire at about 03.45 a.m.... It was he who poured Kerosene on me.

Q. What happened then ?

A. They raised an alarm after 10-15 minutes after setting me on fire and my father-in-law poured water on me.

Q. Why they did so ?

A. My marriage was solemnized 2-3 years back. They used to give beatings to me even on petty matters. He used to demand a sum of Rs. 10,000/- for going abroad.

Q. Who used to say that ?

A. My husband used to say like that.

Q. Who were present at the house when you were set on fire ?

A. My husband, brother-in-law (husband's brother), Sister-in-law (Husband's sister) and her children were present at that time.

Q. Who were involved in setting you on fire ?

A. My husband set me on fire. Before to that, in the night, they also tried to set me on fire at about 10.00 p.m. but I ran outside that time but they dragged me inside. My mother-in-law and Deepo (sister-in-law) had threatened me that they would eliminate her.

Q. Before that had any quarrel took place in the house which was witnessed by any outsider ?

A. Quarrel often took place.

RTI of Shanni

Attested by

Sd/- Ajit Srivistava

(in English)

Recorded by me personally

Attested by

Sd/- Ajit Srivistava

(in English)

SDM

10.15 a.m. / 15.02.1983

8. Counsel for the appellant submitted that this statement of the deceased has also been wrongly discarded on the ground that there was no certificate of fitness affixed by the Doctor and that though the same is in the form of questions and answers, the relevant question to ascertain whether Shanni Kaur was in a fit condition to make a statement has not been put to her. Counsel also submitted that the trial court wrongly held that the Prosecution has not been able to establish motive to the crime when there is evidence on record to show that the family life of the deceased and her husband was not a happy one and that complaints had been made to this effect which required a Panchayat to meet and settle the issues besides ocular evidence of the parents of the deceased to the effect that husband of the deceased ill treated his wife and demanded money.

9. Counsel for the respondent has adopted the reasoning of the trial court to be his arguments in support of the judgment. He submitted that he has nothing further to add to justify the judgment.

10. We have carefully gone through the judgment under challenge as also the material on record. We find that there is no fault found with the procedural aspect of the investigation, but what has weighed heavily with the trial court while dismissing the case of the Prosecution is the veracity of the three statements made by the deceased. On a re-appreciation of the material regarding Ex. PW-6/A, we find that the Doctor who was examining Shanni Kaur noted that she was conscious and recorded the statement of Shanni Kaur as to how she sustained burn injuries. His recording of the statement does not show that Shanni Kuar was, in any manner, delirious, disoriented or incapacitated to make a statement. To fault the Doctor with having not first examined Shanni Kuar before recording her statement is hardly a reasonable criticism of the actions of the Doctor. The Doctor is the expert, he is aware of the condition of the patient and has recored his observations as to her physical condition which do not indicate that Shanni Kaur was not in a position to make a statement.

11. Dr. N. Sarmah, CMO, Ram Manohar Lohia Hospital has appeared as PW-6. He has deposed that on 15.2.1983 while he was working as CMO in the Ram Manohar Lohia Hospital, New Delhi, Shanni Kaur, wife of Udam Singh, was brought to the Hospital by her husband, Udham Singh, and her father-in-law, Bahadur Singh, in a burnt condition at about 5.10 a.m. The patient was conscious and gave the history of burn which occurred following pouring of kerosene oil on her and setting her on fire by her husband, Udham Singh, and her mother-in-law and sister-in-law. The patient further gave the history that about two years back she was married and had a son one-and-half years old. She complained of her husband and his family members misbehaving with her soon after her marriage and that in the morning of the fateful day she was called by her husband outside her room and set ablaze. She was further warned by her husband not to disclose anything in the Hospital in this regard. He further deposed that on examination the patient was found to be conscious, the pulse was 100 p.m., volume low, de- hydration was present, burns were all over the body effecting all parts and the burns burns were 100 per cent. He administered tetness injunction to the patient and referred her to the Surgical Ward.

12. In cross-examination, the Doctor has stated that in the case of Shanni Kaur, she was not in great pain or shock although she was crying with pain when examined. He also states that Shanni Kaur could speak properly at the time when she was examined. She was speaking in a low voice.

13. An analysis of the statement of the Doctor as also the contemporary action taken by him of recording the statement of Shanni Kaur in the MLC, gives an impression that Shanni Kaur, though suffering from 100 per cent burns, was conscious and fit to make a statement. The narration of events, as stated by Shanni Kaur, were noted by the Doctor. In any event, the Doctor himself has stated in his examination-in-chief as also in the cross-examination that Shanni Kaur was fit to make a statement and the statement made by her was recorded in the MLC. We see no reason to doubt the capability of the Doctor in handling the case and/or his recording of the statement of Shanni Kaur. The trial court was not right in discarding this statement merely because the Doctor had not first examined Shanni Kuar before recording her statement. The medical examination of Shanni Kaur and the Doctor talking to her was a simultaneous act which cannot be comparmentalised, as has been done by the learned trial Judge.

14. Coming to the statement, Ex. PW-25/A, recorded by the Investigating Officer, SI Bachan Singh, he has appeared as PW-25. He has stated that on 15.2.1983 at about 5.00 a.m. he received a copy of DD No. 5A, Ex. PW-5/A, from the Duty Officer, Police Station, Tilak Nagar, for inquiry. On this he proceeded to the scene of occurrence from where he went to Ram Manohar Lohia Hospital. At the Hospital he obtained MLC of Shanni Kaur from the Doctor who had examined her and also obtained permission from the said Doctor to examine the injured, Shanni Kaur. The Doctor recorded on the MLC that Shanni Kaur had 100 per cent burns but was in a fit condition to make a statement. Thereafter, he recorded the statement of Shanni Kaur. It was read over to her and thumb marked in token of its correctness. He further goes on to say that at the time of recording of statement of Shanni Kaur, only the Doctor who was giving treatment to Shanni Kaur was present.

15. In cross-examination, the witness has stated that after collecting MLC, Ex. PW-6/A, he went to the Doctor who was sitting in the Ward examining the patient and handed over the MLC to him. That Doctor immediately wrote on the MLC that Shanni Kaur was fit for making statement.

16. From an examination of the deposition of PW-25, we find that the endorsement made by the Doctor to the effect that Shanni Kaur was fit to make a statement was made in the presence of this witness. In that event, it was not incumbent upon the Prosecution to have examined the Doctor who gave a certificate of fitness. It would have been desirable to examine the Doctor, but failure to do so would not render the statement in admissible nor discarded as not proved. Further, the trial court has discarded the statement, Ex. PW-6/A, on the ground that the statement has been recorded by the Investigating Officer. Such recording must be viewed with suspicion as the Investigating Officers are keenly interested in achieving the fruits of their efforts. This reasoning, with great respect, is not a correct approach to the evaluation of material collected since an Investigating Officer per se cannot be doubted unless the record shows otherwise. In the present case, the statement recorded by the Doctor and the statement recorded by the Investigating Officer, more or less, speak in the same tone.

17. Yet another statement of the deceased is Ex. PW-8/B which was recorded by SDM, Punjabi Bagh, Shri Ajit Srivastava, PW-8, who reched the spot on receiving an application, Ex. PW-8/A, to record the statement of Shanni Kaur. He deposes to the effect that on 15.2.1983 he was working as SDM, Punjabi Bagh, on which day he received an application, Ex. PW-8/A, to record the statement of Shani Kaur, wife of Udham Singh, at RML Hospital. This witness accordingly went to the Hospital and found Shanni Kaur with burn injuries in the Hospital. He recorded her statement. This witness satisfied himself that Shanni Kaur was in a fit condition to make a statement and accordingly recorded the statement in the form of questions and answers. The statement, Ex. PW- 8/B, is in his handwriting and bears his signatures. This statement was read over to Shanni Kuar who thumb marked the same in token of its correctness.

18. In cross-examination, this witness states that Nurses and Doctors were present in the Ward where Shanni Kaur was lying and that he called the Doctor on duty there, but he did not ask the Doctor to remain present during the time when he was recording the statement. He further goes on to state that he himself ensured at that time that the patient was fit to make statement. However, the witness admits that he did not obtain written certificate from the Doctor on the application, PW-8/A, or on the statement, Ex. PW-8/B.

19. From a careful analysis of the material on record, we find that the trial court has erred in rejecting the statements of the deceased made to the Doctor, the Investigating Officer as also the SDM, soon prior to her death. The lacunas, if at all in the recording of the statement, would require the court to carefully analyze the statements and, if necessary, separate the wheat from the chaff. The trial court's reasoning that the statements were result of tutoring, will be stretching the matter too far. No witness says that any of the relatives of the deceased was present at the time of recording of the statement. There is also nothing on record to show that prior to her having been admitted in the Hospital, the relatives of the deceased met or interacted with the deceased. In the absence of positive evidence, it would not be correct to load the judicial mind with suspicion.

20. Having held that the statements of the deceased made to various authorities are admissible, we may now proceed to analyze the statements made by the deceased soon prior to her death. Except in the statement, Ex.PW-25/A, recorded by SI Bachan Singh, the ladies of the house have not been assigned any specific role. On the contrary, in Ex. PW-8/B, she categorically states that my husband set me on fire at about 3.45 a.m. It was he who poured kerosene on me?. Further, in the same statement she states that my husband set me on fire. Before that, in the night, they also tried to set me on fire at about 10.00 p.m. but I ran outside that time but they dragged me inside. My mother-in-law and sister-in-law, Deepo, had threatened me that they would eliminate me. From the above, it can be safely concluded that the mother-in-law and the sister-in-law, though may not have enjoyed the best of relations, had no hand in the pouring of kerosene oil or setting ablaze the deceased. They seem to have been roped in due to animus. There is sufficient evidence on record to show that the respondent No. 1, Udham Singh, husband of the deceased, was instrumental in bringing about the death of the deceased by pouring kerosene oil on her and setting her ablaze. The factum of death by burn injuries stands established by the medical evidence. There is no denying that Udham Singh and the deceased were present in the house at the time the deceased received burn injuries. There is also evidence on record to show that Udham Singh poured kerosene oil and set ablaze the deceased.

21. In that view of the matter, we find that the trial court has gone wrong in acquitting Udham Singh by giving him benefit of doubt. On a reappraisal of the entire record, we hold that the Prosecution has been able to prove the guilt of Udham Singh beyond shadow of doubt. We, consequently hold Udham Singh guilty for an offence under Section 302 IPC and sentence him to life imprisonment and also to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo six months simple imprisonment. He shall be taken into custody forthwith to serve out remaining portion of the sentence. He shall be entitled to the benefit of Section 428 Cr.P.C.

22. As regards Smt. Harbans Kaur, wife Shri Bahadur Singh, and Smt. Kuldip Kaur, wife of Shri Jagir Singh, we find that the Prosecution has not been able to prove their case qua them. Consequently, the appeal against them is dismissed.

23. Criminal Appeal No. 151 of 1985 stands disposed of as aforesaid.