Dalip Kumar vs The State (N.C.T.) Of Delhi
2007 Latest Caselaw 1402 Del

JUDGMENT

R.S. Sodhi, J.

Page 2424

1. Criminal Appeal No.946 of 2002 is directed against the judgment and order of the Additional Sessions Judge, New Delhi in Sessions Case No.86 of 2000, arising out of F.I.R. No.156 of 2000, registered at Police Station Sangam Vihar, whereby learned judge vide his judgment dated 30.10.2002 has held the appellant, Dalip Kumar, guilty for offence under Sections 302/34 IPC while acquitting Sanjay Kumar, co-accused, of the said offence. Further vide his separate order dated 31.10.2002, he has sentenced the appellant to undergo imprisonment for life together with fine of Rs.2,000/- and in default of payment of fine, simple imprisonment for three months.

2. Brief facts of the case as have been noted by the learned Additional Sessions Judge in his judgment under challenge are as follows:

...that the deceased Shabnam was housewife and on 24.4.00, she had an altercation with Deepu and one more boy aged about 13 years and both of them had threatened her that they would not spare her life. At about 11 p.m., she was waiting outside for arrival of her husband in a gali as her husband became late. At the same time, that other boy caught hold of her and Deepu took a bottle of kerosene oil out of his pocket and poured the oil over her and other person ignited fire with match stick and both of them ran away. She cried a lot and fell down. After sometime, her husband and son also came there. PCR personnel took her and admitted her in the hospital. Both the aforesaid persons had acted in the aforesaid manner with intention to kill her. She requested to take action against them. She put her right hand impression on her statement. On the basis of the above Page 2425 statement, a case under Section 307 read with Section 34 IPC was got registered against both the accused. Later on victim succumbed to injuries and the offence was converted from Section 307 to Section 302 IPC. On completion of investigation, challan under Section 302 read with Section 34 IPC was laid in the court against the accused persons.

3. Prosecution in order to bring home its case, examined as many as 15 witnesses. The trial court has analyzed the witnesses as follows:

PW-1, Dr. Alxender, Safdarjung Hospital, New Delhi deposed to have conducted postmortem on the body of the deceased Smt. Sabnam on 27.4.2000 and proved his report Ex. PW1/A opining that the death in this case was due to shock caused by ante-mortem thermal burn injuries. PW-2, Smt. Laxmi and PW-3, Budh Ram, are the neighbourers of the deceased as well as of the accused but denied to have any knowledge about this case. They did not support the case of the prosecution and were cross-examined by the prosecution. PW-4, Shakeel Ahmed, brother of the deceased identified and received the dead body of the deceased vide Ex. PW 4/A. PW-5, Shabir, husband of the deceased deposed to have taken the injured to the hospital and showed his ignorance about the incident. He too did not support the case of the prosecution and was cross-examined. PW-6, Chhotu, son of the deceased is a child witness. His statement was recorded in question and answer from. His intelligence was attested by my ld. predecessor by questioning him and on the basis of his opinion that PW-6 did not understand the sanctity of oath. Statement was recorded without oath. He stated that when his mummy was alive, he found a purse containing a sum of Rs.400/- and he along with his companion spent that money. He thereafter came to his house. Sanjay and Deepu came outside his house and levelled allegation of theft against him. He identified both the accused persons - Sanjay and Deepu and he further stated that both of them had settled the matter with him and he did not know whether his mummy had quarrel with Sanjay or Deepu or whether accused Sanjay or Deepu had threatened to kill his mummy. He was cross-examined by addl. PP for the State but nothing material came out during his cross-examination. PW-7, HC Ram Rattan deposed to have recorded FIR, the copy of which is Ex. PW 7/B on the basis of rukka Ex. PW 7/A received from Const. Kishore on 26.4.2000 at about 2.40 a.m. PW-8, SI Mahesh Kumar, draftsman deposed to have prepared scaled site plan Ex. PW 8/A on the basis of rough notes and measurements taken on 13.6.2000. PW-9, Yad Ram, neighbourer and resident of the locality showed ignorance about the facts of this case and was cross-examined. He denied to have seen the accused in darkness or saw the accused running when Sabnam was in flames. PW-10, ASI Shanti deposed to have recorded DD No.6A on receipt of information from Safdarjung Hospital about death of Sabnam and proved the copy thereof as Ex. PW 6/A and DD entry Ex. PW 10/B. PW-11, Const. Kishore Singh, deposed that he visited the spot along with IO Page 2426 Girish Kumar in intervening night of 25th and 26th April, 2000 and a lady in a burnt condition was found and she was sent to Safdarjung Hospital in PCR Van. IO is stated to have recorded the statement of the injured and thereafter he took rukka to the police station and got this case registered and brought the copy of the FIR to the spot. Thereafter, they came back to the police station and recorded the statement of the witnesses. PW-12, Dr. Aditya Aggarwal, deposed to have medically examined Sabnam on 26.4.2000 at about 1.20 a.m. and found that she had suffered deep burns over whole of her body amounting to almost 100 % thermal burns and the burns were dangerous in nature leading to loss of life and proved his report Ex. PW 12/A. He also deposed that according to the patient she suffered burns when a person called Deepu and another person, name not known, poured kerosene oil over her and set her on fire. He recorded statement of the patient himself by way of alleged history in MLC Ex. PW 12/A. PW-14, Dr. Rajat Dev, the then Jr. Resident doctor, Safdarjung Hospital, deposed to have given his endorsement Ex. PW 14/A that he found patient Sabnam fit for recording of statement upon an application moved by the IO. In his cross-examination, he admitted that he had not prepared any record with regard to mental and physical condition of the patient Shabnam. His duty was just to assist the senior doctors in the hospital. He was not at all concerned with the treatment being given to the deceased Shabnam. He admitted that on Ex. PW 14/A, he had not mentioned the exact time at which he had made the endorsement that the patient is fit for giving statement. He further admitted in his cross-examination that her statement was not recorded in his presence or that he had not attested any statement which would have been recorded by the IO in this case. PW-15, SI Girish Kumar, is the IO who supported the prosecution case in entirety and proved documents Ex. PW 15/A, application for recording the statement of the injured, Ex. PW 15/B, her statement, Ex. PW 15/3 rukka, Ex. PW 15/D site plan, inquest proceedings Ex. PW 15/E and F, application Ex. PW 15/G for conducting postmortem, arrest memos Ex. PW 11/A and B and the personal search memos Ex. PW 11/C and D. He also recorded the statements of the witnesses and got conducted the postmortem on the dead body which was handed over to the husband and brother of the deceased. He arrested the accused persons. On completion of investigation, he prepared the challan against the accused person and laid the same through SHO in the court.

4. The trial court based its conviction primarily on the statement recorded in the MLC Exhibit PW 12/A to the effect that the history of the incident had been noted as 'sustaining burn injuries when a person called Deepu and another person (name not known by victim) poured kerosene oil over her and set her on fire'. The trial court held that this statement of the deceased is a dying declaration which gets substantiated by another statement made to the Investigating Officer to the same effect and was treated as the F.I.R. The trial court, however, found that the charge framed against Sajay Kumar, the co-accused, was not proved and thereby Page 2427 acquitted him but went on to hold the appellant, Dalip Kumar, guilty of the offence under Section 302/34 IPC.

5. It is contended by learned Counsel for the appellant that the appellant could not be held guilty under Section 302 IPC with the aid of 34 IPC since the common intention as also the act attributed to him have not been substantiated and also that the co-accused stands acquitted of the charge. Learned Counsel also contends that the alleged history in the MLC cannot be stated to be that of the victim since she was brought to the hospital in 100 per cent burnt condition and also after approximately two hours and twenty minutes from the time of the incident and admittedly her condition was precarious. He contends that even in the MLC, the doctor has not stated that the patient was fit to make a statement even though, she was conscious and oriented. Learned Counsel also submits that this statement cannot be relied upon for the purpose of sustaining the conviction under Section 302 IPC.

6. Learned Counsel for the State contends that the statement of the victim in the MLC ought to be taken as the dying declaration and that the same implicates Dalip Kumar as the person who poured kerosene oil over the victim. She contends that the acquittal of the co-accused will have no consequence since it may be assumed that the second person is unknown.

7. We have heard counsel for the parties and with their assistance have carefully gone through the record of the case. We do not think it necessary to set down elaborately testimony of each and every witness. Suffices it to say that case of the prosecution is that the appellant as also Sanjay Kumar both, in furtherance of their common intention, caused the burns, by Dalip Kumar pouring kerosene and Sanjay Kumar lighting the match. With Sanjay Kumar being acquitted, the case of the prosecution cannot be sustained in respect of Dalip Kumar specially in view of the fact that Exhibit PW 12/A, the so-called alleged history recorded in the MLC, appears to be not worthy of credence as the same does not carry a certificate to the effect that the victim was fit to make statement. This is coupled with the fact that the victim had suffered 100 per cent thermal burns and was brought to the hospital after 2 1/4 hours during which time she did not make any such statement to any other person including her husband.

8. A purported statement Exhibit PW 15/B of the deceased, recorded by the Investigating Officer was accepted by the learned trial Judge as second dying declaration corroborating the first one (Exhibit PW 12/A). However, once said first dying declaration is left out of consideration for the reasons set out herein above, the second dying declaration cannot seek sustenance there from and has to stand at its own strength. No doubt the Investigating Officer had on his application Exhibit PW 15/A obtained a certificate vide memo Exhibit PW 14/A that the deceased was fit to make her statement, there is no indication as to at what time on 26.4.2000 said application was made and at what time, according to the doctor concerned, the deceased was found fit to make her statement. The statement Exhibit PW 15/B does not carry an attestation by this doctor concerned which could have lent assurance to the belief that the same was correctly recorded.

Page 2428

9. In this view of the matter, we feel it would be highly dangerous to rely upon Exhibit PW 12/A and Exhibit PW 15/B to convict the appellant, once the trial court itself has not believed the presence of Sanjay Kumar at the scene of incident. We may also point out that the acquittal of Sanjay Kumar has not been challenged.

10. In the facts and circumstances of this case, we set aside the judgment dated 30.10.2002 and order on sentence dated 31.10.2002 under appeal and acquit the appellant. Criminal Appeal No.946 of 2002 is allowed Appellant, Dalip Kumar, who is on bail, his bail bond and sureties stand discharged.