Delhi High Court
Geeta And Another vs State on 13 August, 2009
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.08.2009
+ CRL. A 79/1994
GEETA AND ANOTHER ... Appellants
- versus -
STATE ... Respondent
Advocates who appeared in this case:
For the Appellants : Mr Rajesh Harnal with Mr Ranjan Kumar Rai
For the Respondent : Mr M. N. Dudeja, APP
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE P. K. BHASIN
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J
1. The present appeal on behalf of the appellants Geeta and Dropti,
who are daughter and mother respectively, is directed against the
judgment dated 14.09.1993 delivered by the learned Additional
Sessions Judge, Delhi whereby the appellant Dropti has been found
guilty of having committed the offence of murder of her son-in-law
Madan Lal, punishable under Section 302 IPC and appellant Geeta was
found guilty for the offence punishable under Section 302 read with
Section 109 IPC for having assisted her mother, appellant Dropti and
another Ghanshyam (who has been declared to be a proclaimed
offender), in the said murder of her husband Madan Lal. They were
both convicted primarily on the basis of Exhibit PW10/A which was
accepted by the learned Additional Sessions Judge as the true and
correct dying declaration made by the deceased Madan Lal. By a
separate order dated 27.09.1993 passed by the learned Additional
Sessions Judge, Delhi, the appellants were sentenced to undergo
imprisonment for life and also to pay a fine of Rs 5,000/- each and, in
default thereof, they were required to undergo further rigorous
imprisonment for three months each. The appellants are aggrieved by
the impugned judgment and order on sentence and have preferred this
appeal.
2. At the outset, it may be pointed out that initially there were three
accused, namely, Geeta (wife of the deceased Madan Lal), Smt. Dropti
(mother-in-law of the deceased) and one Ghanshyam, who is said to
have arranged the marriage between Geeta and Madan Lal and also to
have participated in the murder of Madan Lal on 28.12.1987 at about
10:30 am at Durga Temple, C-Block, Vikas Puri, Delhi. However, the
impugned judgment and order on sentence relates only to the appellants
Geeta and Dropti inasmuch as Ghanshyam had gone missing after
having been granted bail during the trial and consequently, he had been
declared to be a proclaimed offender.
3. The police machinery was brought into action on receipt of DD
No. 9-A (Exhibit PW 3/A) recorded at Police Station Vikas Puri on
28.12.1987 at about 11:53 am. A copy of the said DD No. 9-A (Exhibit
PW3/A) was handed over to Sub-Inspector Raj Singh, who, along with
Constable Surinder, reached Durga Temple, Vikas Puri where they
came across Constable Daya Nand, who told them that the injured
Madan Lal, son of Lal Chand and resident of the said Durga Mandir
had been taken to Deen Dayal Upadhaya Hospital (DDU Hospital).
Sub-Inspector Raj Singh left Constable Surinder to guard the scene of
occurrence and proceeded to the said hospital. There, he obtained the
MLC No. E-18096 (Exhibit PW13/A) in respect of the injured Madan
Lal. The endorsement made at 12:45pm in the MLC indicates that
Madan Lal was unfit to give his statement at that point of time.
However, the doctor on duty handed over Exhibit PW10/A, which
purported to be a statement given by Madan Lal and which had
allegedly been attested by Dr Ravi Mahajan and Dr Ashwani Gupta.
The said statement had allegedly been recorded by Constable Satbir
Singh immediately after the injured Madan Lal had been admitted to
the said hospital. The said statement is as under:-
The transliterated portion of Mark A to A of the purported dying
declaration Exhibit PW10/A reads as under:-
"Mai Pata Bala Par Rehta Hoo Aur Aaj Dinank 28.12.87
Ke Subah, 10 ½ Baje Karib Aaj Meri Saas Ne Mere Ko Tel
Chhirak Kar Aag Laga Di. Meri Saas Ke Saath Ghanshyam
Koshi Wala Tha Jis Ne Mere Ko Pakar Liya Aur Meri Saas
Jiska Naam Dropti Hai, Usne Mere Mein Aag Laga Di. Yeh
Ghanshyam Meri Shaadi Ka Bichola Hai. Meri Shaadi
Dinank 13.11.86 Ko Shastri Nagar Dilli Me Hooi Thi. Aur
Meri Patni Ka Naam Gita Rani Hai. Meri Patni Ne Bhi
Mere Ko Jalane Me Madad Ki Hai. Aur Kahane Lagi Ki
Aapke Marne Ke Baad Mai Raand (Vidhwa) Ho Kar Koi
Nokri Kar Loongi. Aur Mere Mata Pita Ka Koi Dosh Nahi
Hai. Yeh Ghansham Keshi Kala Bus Stand Ke Pichhe
Thane Ke Paas U.P. Me Rehta Hai."
The English translation of the above as given in the impugned
judgment is set out herein below:-
"I have been residing at the above said address and today
dated 28-12-87 in the morning at about 10-30 A. M., my
mother-in-law poured oil on me and set on fire. My
mother-in-law was accompanied by Ghanshyam
Koshiwala, who caught held of me and my mother-in-law
whose name is Dropti set me on fire. This Ghanshyam is
the intervener (Bicholia) of my marriage. My marriage had
taken place on 13.11.86 at Shastri Nagar, Delhi and name
of my wife is Geeta Rani. My wife has also helped in
burning me and had been saying that after killing me she
would do some job being a widow. My parents have
nothing to be blamed. This Ghanshyam has been living
behind Keshi Kalan Bus Stand near Police Station in U. P."
4. On the basis of the said statement Exhibit PW10/A, Sub-
Inspector Raj Singh got a case registered under Section 307 read with
Section 34 IPC, through Constable Satbir Singh at Vikas Puri Police
Station vide FIR No. 350 dated 28.12.1987 at 1:40 pm. On the same
day, at about 1:30 pm, Sub-Inspector Raj Singh got the scene of
occurrence photographed and prepared a rough site plan.
Subsequently, a site plan to scale was also prepared through a
draughtsman. However, on 28.12.1987, Sub-Inspector Raj Singh took
into his possession, from the scene of occurrence, one dented plastic
can of five litres capacity, containing some kerosene oil in it. He also
took into his possession one match box having a few match sticks and
two burnt sticks, a few pieces of burnt clothing, one cotton mattress
(gadda) and one bed sheet, both of which were slightly burnt, some
sand smelling of kerosene oil and one brass lock of „Harrison‟ make,
which indicated that attempts of breaking it had been made on it. The
said lock was in an unlocked condition.
5. Injured Madan Lal was referred to Ram Manohar Lohia Hospital
(RML Hospital) by the doctor at DDU Hospital for further treatment.
However, Madan Lal‟s condition did not improve and he succumbed to
his injuries on 29.12.1987. Information of his death was given on
telephone by Constable Ombir Singh and DD No. 9-A (Exhibit
PW 17/C) dated 29.12.1987 was recorded.
6. Sub-Inspector Raj Singh conducted inquest proceedings and sent
the dead body of Madan Lal for post mortem examination. Death was
declared to be due to burning. Consequently, the offence recorded in
the said FIR was converted from Section 307/34 to 302/34 IPC.
Apparently, statements of witnesses were recorded and as per the
prosecution, Geeta and Dropti were arrested on 29.12.1987. It is
further alleged by the prosecution that upon personal search being
conducted on the appellant Geeta, a key exhibit P-8 of „Harrison‟ make
bearing No. 272 was recovered. Sub-Inspector Raj Singh also sent the
pieces of burnt clothing and the sand to the Central Forensic Science
Laboratory for testing and examination. By its report Exhibit PW17/H,
CFSL was of the opinion that the contents of the burnt pieces of clothes
and the sand received by the CFSL did not contain kerosene oil.
7. Initially, the other accused, Ghanshyam, was not available for
arrest. Proceedings under Section 82/83 Cr. P.C had been undertaken.
However, later on, he was arrested and, consequently, a challan was
filed against him on 05.04.1988. The challan in respect of the
appellants Geeta and Dropti had already been filed. The charge was
framed against all the three accused on 19.09.1988 for having
committed the offence punishable under Section 302 read with Section
34 IPC. All the accused pleaded not guilty and claimed trial.
However, as indicated above, in the course of trial, Ghanshyam went
missing while on bail and, by an order dated 22.05.1989, he was
declared to be a proclaimed offender and the case proceeded against the
appellants Geeta and Dropti.
8. The prosecution examined as many as 17 witnesses. The
important witnesses being PW6 Smt. Phool Wati, who is the mother of
the deceased Madan Lal and PW2 Satya Prakash, who is a public
witness. Apart from this, the testimonies of some of the police officials
including the Investigating Officer PW17 Sub-Inspector Raj Singh and
the two doctors PW10 Dr Ashwani Gupta and PW13 Dr Ravi Mahajan,
who attested the purported dying declaration Exhibit PW10/A, are
important. After considering the entire evidence on record as also the
explanations given by the appellants in their Section 313 Cr. P.C
statements, the learned Additional Sessions Judge returned a finding of
guilt in respect of both the appellants. However, while appellant Dropti
was found guilty of having committed the offence punishable under
Section 302 IPC, appellant Geeta was found guilty for the offence
punishable under Section 302 read with Section 109 IPC. According to
the learned Additional Sessions Judge, the entire prosecution case
rested solely on the statement Exhibit PW10/A, which had allegedly
been recorded by PW11 Constable Suresh in the presence of PW10 Dr
Ashwani Gupta and PW13 Dr Ravi Mahajan, immediately after the
injured Madan Lal was brought to DDU Hospital on 28.12.1987. The
Trial Court also took the view that apart from the dying declaration
Exhibit PW10/A, the testimony of PW6 Smt. Phool Wati, the mother of
the deceased Madan Lal, although it suffered from embellishments and
improvements, could not be rejected in its entirety. The Trial Court,
believing Exhibit PW10/A to be the true and correct dying declaration
of the deceased Madan Lal, held that the prosecution had been able to
establish and prove its case that Dropti sprinkled kerosene oil on
Madan Lal and set him ablaze and that the appellant Geeta also assisted
her mother Dropti and the other person, namely, Ghanshyam, in the
said incident.
9. The learned counsel for the appellants broadly submitted that the
testimony of PW6 Smt. Phool Wati cannot be relied upon at all
inasmuch as it contains far too many contradictions. He submitted that
if the testimony of PW6 Smt. Phool Wati is put aside, there is no
evidence whatsoever against the appellants, apart from the purported
dying declaration Exhibit PW10/A. It was contended that the said
dying declaration does not bear any signature or thumb impression of
the deceased Madan Lal. Apart from this, even the manner in which
Exhibit PW10/A has been written indicates that it could not have been
a statement made by Madan Lal. He further submitted that Exhibit
PW10/A was not the statement of the deceased Madan Lal and even if
it is assumed that it was the statement made by the deceased Madan
Lal, it was certainly not a truthful statement and, therefore, no reliance
can be placed upon it for returning a finding of guilt insofar as the
appellants Geeta and Dropti are concerned. The learned counsel
submitted that if the statement of PW6 Smt. Phool Wati and the
purported dying declaration Exhibit PW10/A are rejected, there
remains nothing in the prosecution case which could lead to the
conviction of the appellants. He also submitted that Exhibit PW10/A
would itself indicate that there were manipulations and that there were
additions made to the statement. Two instances pointed out by the
learned counsel were that „10‟ was made „10-½‟ by adding „½‟
subsequently. Similarly, the words „mere ko‟ were added later. There
is also a great deal of controversy as regards the portions marked B to
B and C to C in Exhibit PW10/A. It was the suggestion of the learned
counsel for the appellants that Exhibit PW10/A was not the statement
of Madan Lal at all but that of his father Lal Chand, who was present in
the hospital though, the prosecution has tried to bring out an entirely
different story.
10. On the other hand, Mr Dudeja, appearing on behalf of the State,
submitted that the present case is based on two dying declarations.
The first dying declaration is an oral declaration made by Madan Lal to
his mother PW6 Smt. Phool Wati, as indicated in her testimony. The
second dying declaration is the one recorded by PW11 Constable
Suresh Kumar between 12:10 pm and 12:15 pm, immediately upon
Madan Lal‟s arrival at DDU Hospital on 28.12.1987. He submitted
that Exhibit PW10/A was recorded on the pages of the hospital diary.
This indicates that the statement was recorded urgently and whatever
writing material was available, was pressed into service. This itself
indicates that it was authentic and not cooked up. Furthermore, he
submitted that Exhibit PW10/A was recorded in the presence of two
government doctors who had no personal interest in the matter and they
have fully supported the prosecution case. He further submitted that the
testimony of PW6 Smt. Phool Wati cannot be rejected. She did say
that after her return, she found her son Madan Lal in a burnt condition,
lying outside the room. It is thereafter that he is said to have given his
oral dying declaration to his mother PW6 Smt. Phool Wati. Mr Dudeja
also submitted that a five-litre can containing kerosene as well as two
used match sticks and a match box were also recovered from the scene
of occurrence. He submitted that there is no denying the fact that
Madan Lal did die of burn injuries. Mr Dudeja submitted that taking
into account all the circumstances, it is a clear-cut case which leads to
only one conclusion and that is the guilt of the appellants.
Consequently, he submitted that the impugned judgment and order on
sentence ought not to be disturbed and the appeal be dismissed.
11. From the above resume of facts it becomes immediately clear that
two things are of vital importance for deciding this appeal. The first is
the testimony of PW6 Smt. Phool Wati and the second is the statement
Exhibit PW10/A and the supporting testimonies of the two doctors and
PW11 Constable Suresh Kumar, who is said to have scribed the said
statement as given by Madan Lal. We shall first examine the testimony
of PW6 Smt. Phool Wati. In her examination-in-chief she stated that
her son Madan Lal was married to the appellant Geeta and the
matrimonial alliance was settled through Ghanshyam. She further
stated that after their marriage, Geeta used to pick up quarrels with
Madan Lal and used to say that she would not allow her (Smt. Phool
Wati), her husband (Lal Chand) and her other son in her house. PW6
Smt. Phool Wati also stated that Geeta used to say that she would get
Madan Lal killed and spend her remaining life as a widow. She also
stated that at the time of the occurrence, Madan Lal was living in a
room in the temple at Vikas Puri. On that day, that is, on 28.12.1987 at
about 10 am she is stated to have been with Madan Lal in the temple
when the appellants Dropti and Geeta along with Ghanshyam came
there. According to her, they enquired from her as to where her
husband (Lal Chand) was. She told them that he had left for Hathras.
Thereafter, all the three are said to have gone inside the room and asked
her to call her relatives as they wanted to have talks with regard to
Geeta. It is then stated by her that she went to call her relatives but
nobody was available. She returned to the temple after about 30
minutes and there she saw her son Madan Lal lying in a burnt condition
outside the room. The room was locked. According to her, Madan Lal
told her that Ghanshyam caught his legs while Geeta had caught his
hands and kerosene oil was sprinkled by Dropti, who also set him
ablaze. All the three accused left the place by the time she reached
there. She stated that the public had taken Madan Lal to Deen Dayal
Upadhaya Hospital and the police had visited the spot and seized one
plastic can of five litres, two used match sticks, one match box and
burnt clothes including gadda and bed sheet. A lock was also taken
into possession by the police. She stated that at the mortuary, she later
identified the dead body of Madan Lal.
12. In her cross-examination, amongst other things, she admitted that
the appellant Geeta had left for her parental house two months prior to
the date of occurrence. She stated that since inception of the marriage,
Geeta was pressurizing Madan Lal that she (PW6 Smt. Phool Wati)
should not stay with him and despite that she continued to stay with
Madan Lal. At the same time, Geeta also continued to stay with Madan
Lal, despite her protest. She admitted that Geeta left for her parental
house on the day of Bhaiya Duj and did not return till the fateful day,
i.e., 28.12.1987. She, of course, stated that she was not aware that the
appellant Geeta had given birth in the meanwhile to a male child on
18.11.1987. She denied that she was informed about the birth of the
child and that despite such information, she had not even visited the
parental house of the appellant Geeta. She also stated that after 2-3
days of the marriage, the appellant Geeta had told Madan Lal that she
would get him killed and would be spending her remaining life as a
widow. According to PW6 Smt. Phool Wati, Geeta used to repeat this
time and again, twice every month, whenever there was an altercation.
13. From the above testimony it is clear that there was no love lost
between PW6 Smt. Phool Wati and her daughter-in-law, Geeta. At
least, from PW6 Smt. Phool Wati‟s side there was clear animosity
between the two. This circumstance, therefore, indicates that PW6
Smt. Phool Wati could be an interested witness and her testimony has
to be scrutinized with great care.
14. In her cross-examination PW6 Smt. Phool Wati further stated that
she had gone to call only one relative of hers, who was not available at
his house. She did not know the name of that relative. She did not
have any other relative in Delhi. Even that person, whom she went to
fetch, was a distant relation and was a behnoi (sister‟s husband). She
did not even recollect the name of the sister who was married to him.
She then stated that the said relative resided in the temple in B-Block.
She stated that no number was allotted to that temple. She further
stated that the relative was working as a pujari in that temple.
However, she stated that Block B was at some distance from Vikas Puri
and that it was not actually in Vikas Puri. She further stated that she
did not know the name of the area where that B Block was located.
15. From the above answers elicited in cross-examination, it is
apparent that PW6 Smt. Phool Wati has conjured up the story that she
went to call a relative and it took her 30 minutes to return empty
handed. She did not even know the name of the relative. She stated
that the relative was her sister‟s husband but was distantly related. She
did not even know the name of her sister whose husband the said
relative was. She was unable to identify the place of his residence. In
other words, the existence of the relative as also the fact that she had
gone to call the said relative is not established.
16. She stated that when she returned to the temple, a large crowd
had gathered there and Madan Lal was crying „Maiya Ma‟. She stated
that at that point of time she did not see any police constable and the
police reached the spot later on. At this juncture, it would be relevant
to notice as to what PW8 Constable Daya Nand has to say. We must
remember that PW6 Smt. Phool Wati‟s story is that the appellant along
with Ghanshyam arrived at the temple at about 10 am. After a few
minutes she had left the temple to go and call her relative and returned
only after 30 minutes. That means that according to her own statement
she was absent from the temple between 10 to 10:30 am. Now, let us
see what PW8 Constable Daya Nand has stated in his examination-in-
chief. He stated that on 28.12.1987, he was posted at Police Station
Vikas Puri as a beat constable of beat No. 1. At about 10:30 am, when
he reached Durga Mandir in C Block he noticed a crowd. According to
him "by that time pujari in burnt condition had been taken away to the
hospital". He further stated that Sub-Inspector Raj Singh and
Constable Surinder also reached the temple. People had told them that
Madan Lal was burnt. In cross-examination this witness stated that at
about 10:45/ 11 am he did not see Madan Lal‟s mother and nobody told
him that she was in the crowd. This witness denied that when he
reached the temple Madan Lal was lying outside in a burnt condition.
He also denied that Madan Lal was removed to the hospital in his
presence. PW8 Constable Daya Nand further admitted, in his cross-
examination, that he saw Madan Lal‟s mother after about one hour of
his reaching the spot and in his presence she had no talks with her son
Madan Lal. He also admitted that Madan Lal had been taken out of the
room by breaking open the door of the room. According to him this
fact was disclosed to him by the persons standing there.
17. Now, comparing the testimonies of PW6 Smt. Phool Wati and
PW8 Constable Daya Nand, it is apparent that there are clear
contradictions. According to PW6 Smt. Phool Wati, when she returned
at about 10:30 am, she found that a large number of people had
gathered at the temple and also found Madan Lal in a burnt condition
lying outside his room. On the other hand, PW8 Constable Daya Nand
has stated that he arrived at the temple around 10:30 am. He found a
gathering but by that time Madan Lal had already been removed to
DDU Hospital. He also stated that he did not see Madan Lal‟s mother
at the temple till after one hour of his arrival. That would mean that
PW8 Daya Nand did not notice or meet Madan Lal‟s mother PW6 Smt.
Phool Wati till 11:30 am. Again, PW6 Smt. Phool Wati stated that
when she reached the temple at about 10:30 am, she did not see any
police constable there and that the police reached the spot later on. But,
according to PW8 Constable Daya Nand he was at the spot at
10:30 am. So, on the one hand, we have PW6 Smt. Phool Wati, who
says that she was at the temple at 10:30 am but there was no police
man, on the other we have PW8 Constable Daya Nand who says that he
was at the spot at 10:30 am but PW6 Smt. Phool Wati was not there. If
PW8 Constable Daya Nand is to be believed, then it is obvious that
Madan Lal had already been removed to the hospital before Smt. Phool
Wati arrived at the temple. Consequently, there is no possibility of
PW6 Smt. Phool Wati having had any conversation with her son
Madan Lal and, therefore, her statement that Madan Lal told her that
Ghanshyam caught his legs while Geeta had caught his hands and
kerosene oil was sprinkled by Dropti, who also put him ablaze, cannot
be believed.
18. There are other problems with the testimony of PW6. She stated
that her husband Lal Chand had left for Hathras in the morning of
28.12.987. In other words, Lal Chand was not present in Delhi at the
time of the occurrence or at any point subsequent thereto. This is so
because no witness has said that Lal Chand had left for Hathras in the
morning but had returned in the meanwhile. There is no reference to
the return of Lal Chand on that date after his alleged departure in the
morning. In this backdrop, let us now examine what PW17 Sub-
Inspector Raj Singh has stated. We may recall that PW17 Sub-
Inspector Raj Singh, who is the Investigating Officer, went to the spot
on receipt of DD No. 9-A (Exhibit PW3/A) along with Constable
Surinder. There they found PW8 Constable Daya Nand to be present
and he had informed them that the injured had been removed to DDU
Hospital. In cross-examination, PW17 Sub-Inspector Raj Singh stated
that on reaching the hospital, he had come to know that Madan Lal had
been admitted in the hospital by Som Dutt. Incidentally, Som Dutt is
appellant Geeta‟s brother. PW17 further stated that he asked Som Dutt
to give his statement but he refused. More importantly, PW17 Sub-
Inspector Raj Singh stated that "similarly, Lal Chand also refused to
give his statement". This clearly implies that Lal Chand was present in
the hospital when PW17 Sub-Inspector Raj Singh arrived there. The
presence of Lal Chand in the hospital means that he was present in
Delhi and, therefore, negates the statement made by PW6 Smt. Phool
Wati that he had left for Hathras. PW17 Sub-Inspector Raj Singh
categorically stated that:-
"I reached DDU Hospital at about 12-15 pm. In the
hospital, I met Som Dutt and Lal Chand, brother of
Geeta accused and father of Madan Lal, respectively. I
found them outside the hospital, but within the premises
of the hospital. I did not see mother of Madan Lal Phool
Wati in the hospital so long as I remained there. I
remained in the hospital till 1-10 pm."
It is thus clear from the testimony of PW17 Sub-Inspector Raj Singh
that Lal Chand was present in the hospital at about 12:15 pm. This
completely contradicts the story of PW6 Smt. Phool Wati, who stated
that her husband Lal Chand had left for Hathras in the morning.
19. The absence / presence of Lal Chand in Delhi is a key factor in
the prosecution case, which is built up entirely on the testimony of
PW6 Smt. Phool Wati and Exhibit PW10/A. Insofar as PW6 Smt.
Phool Wati is concerned, the very reason for her allegedly leaving the
temple in search of some relative for the purposes of discussion with
the appellants and Ghanshyam, was the absence of her husband Lal
Chand who, according to PW6 Smt. Phool Wati, had gone away to
Hathras. The presence of Lal Chand in Delhi, as indicated by the
testimony of PW17 Sub-Inspector Raj Singh, knocks out the foundation
of PW6 Smt. Phool Wati‟s story completely.
20. There are several other contradictions in the testimony of PW6
Smt. Phool Wati when compared to the other evidence on record. For
example, there is a contradiction with regard to her statement being
recorded. In her cross-examination she stated that at the time her
statement was recorded by the Investigating Officer, the material
exhibits had also been taken into possession. More importantly, she
stated that her statement had been recorded and the material exhibits
had been taken into possession by the Investigating Officer by 11 am
and that the proceedings had completed by that time. On the other
hand, PW 17 Sub-Inspector Raj Singh, who is the Investigating Officer,
stated that when he arrived at the scene for the first time he stayed there
for half an hour but did not record the statement of any of the persons
present there. He categorically stated:-
"I did not record statement of Phool Wati at that time".
21. From the above discussion, it becomes absolutely clear that no
reliance whatsoever can be placed on the testimony of PW6 Smt. Phool
Wati. In any event, the entire story appears to be farfetched. If her
version is to be believed, then one would have to imagine that the
appellants Geeta and Dropti and Ghanshyam left their residence and
came to the room in which Madan Lal was residing in the temple with
the object of committing his murder. They came unarmed without any
murder weapon. They did not know that Madan Lal‟s father or any
other male members would not be present when they would arrive at
the temple. They did not know how they would commit the murder.
Would it be by stabbing? Would it be by strangulation? Would it be
by burning? And, if it was to be by burning Madan Lal, how could
they be sure that they would find any inflammable substance, such as
kerosene oil, available at the scene? How could they be sure that there
would be no other persons in the temple, particularly when it was 10
O‟clock in the morning? All these questions arise in our minds and
indicate the unlikeliness of the story conjured up by PW6 Smt. Phool
Wati.
22. We now come to the second and more important aspect of the
case and that is consideration of the so-called dying declaration Exhibit
PW10/A. The top portion which comprises of the portion marked B to
B and C to C is as under:-
B Madan Lal S/o Lal Chand Master
R/o C Lal Chand Master Mohalla Sri Nagar B
Hathras Zila Aligarh, U. P C.
It was contended by the learned counsel for the appellant that the
statement was actually that of Lal Chand, which only comprises of the
portion marked C to C which indicated "Lal Chand Master Mohalla Sri
Nagar Hathras Zila Aligarh, U. P". He submitted that the top portion:-
"Madan Lal S/o Lal Chand Master R/o" was added subsequently and
the statement given by Lal Chand Master was converted into one as
having been given by Madan Lal.
23. PW10 Dr Ashwani Gupta stated that the statement Exhibit
PW10/A was recorded by PW11 Constable Suresh Kumar in his
presence and that of Dr Ravi Mahajan. He also stated that he attested
the statement Exhibit PW10/A by appending his signatures thereupon.
According to him, the statement Exhibit PW10/A was recorded at
12:15 pm on 28.12.1987 and whatever Madan Lal had stated to the
duty constable, was recorded by him in his presence. In cross-
examination, PW10 Dr Ashwani Gupta explained that the portion
marked A to A, which is the body of the statement Exhibit PW10/A,
was recorded initially and that the portion marked B to B was recorded
later on. He, however, denied the suggestion that the portion marked C
to C of Exhibit PW10/A was recorded initially and that the words
"Madan Lal son of Lal Chand Master R/o" were recorded afterwards.
He, of course, admitted that neither the signature nor the thumb mark of
Madan Lal appears on Exhibit PW10/A. The testimony of PW13 Dr
Ravi Mahajan is to the same effect, the only difference being that this
witness, i.e., PW13 Dr Ravi Mahajan, stated that the statement Exhibit
PW10/A started from the point B to B and continued till its conclusion.
The learned counsel for the appellants had made an attempt to raise
serious doubts with regard to Exhibit PW10/A as being the statement of
the deceased Madan Lal. As pointed out earlier, his contention was
that the portion marked B to B and C to C were written after the portion
marked A to A. It was his contention that it was actually the statement
of Lal Chand, which had been recorded by the duty constable PW11
Suresh Kumar, and later on it was shown to have been made by the
deceased Madan Lal by adding the portions marked B to B and C to C.
If we look at the portion marked A to A, it does not appear to have been
made by Lal Chand at all because there is clear reference to the mother-
in-law of the maker of the statement. The mother-in-law being Dropti.
There is also a clear reference to the wife of the maker of the statement
and the name of the wife has been given as Geeta. It is obvious that the
maker of the statement purported to be Madan Lal and could by no
stretch of imagination be considered to be his father Lal Chand. But
that does not in any manner advance the prosecution case. It only
enables us to repel the argument of the learned counsel for the
appellants that the entire statement was that of Lal Chand Master and
subsequently it was converted into a statement alleged to have been
made by the deceased Madan Lal.
24. The law with regard to dying declarations is quite well settled. It
is an established principle that a conviction can be based solely upon a
dying declaration. But, before this can be done, the dying declaration
must be established to be authentic and correct as well as truthful.
Insofar as the authenticity and correctness of the dying declaration is
concerned, the prosecution has to establish that the dying declaration in
question was, in fact, made by the person who lost his life. Even where
it can be established that the statement, which purports to be the dying
declaration of the deceased, was in fact made by the deceased, the
prosecution has also to establish that the statement was truthful. Of
course, it is normally presumed that a dying person in his last moments
does not utter any falsehood. But that does not rule out the possibility
that in some cases this may not be the position. There may be instances
where out of hate or spite a person may falsely implicate his enemy,
even in his dying moments. It is also quite possible that the person
making the dying declaration is under the influence or control of
someone else and out of fear or other reasons, he may make a false
statement prior to his death. There is also a possibility that a person, in
order to save his honour and the honour of his family, who would
survive him, may make statements which are not entirely correct or
truthful. There is also a possibility that the person making the dying
declaration is under some medication or because of his precarious
condition is suffering from hallucinations and, therefore, the statements
he makes at that point of time may be far removed from the truth. It is
only when all these circumstances are ruled out and the court is of the
belief and opinion that what the dying declaration states is truthful, can
a conviction be based upon it without seeking corroboration. A dying
declaration must always pass the scrutiny by the Court because, after
all, it is merely hearsay evidence and it is admissible and relevant only
because the person who made the declaration is no longer alive and
cannot be produced before Court for testifying. At the same time, the
courts need to exercise caution in relying upon dying declarations
because the maker of the statement is not before it and nor does the
defence have an opportunity to cross-examine him. Thus, while there
is no rule of law which suggests that a conviction cannot be based
solely upon a dying declaration, the courts, as a rule of prudence, look
for other corroborative material. If the dying declaration is of such a
stellar and unimpeachable quality that it fully inspires confidence of the
Court, there is nothing to prevent the Court from relying solely on such
a dying declaration and on basing a conviction thereupon. But, the
emphasis must be on the quality of the dying declaration. If the dying
declaration is suspicious or suffers from some infirmity, then it should
not be acted upon without any corroborative evidence.
25. In Khushal Rao v. State of Bombay: AIR 1958 SC 22, the
Supreme Court summarized the principles with regard to dying
declarations as under:-
"16...(1) that it cannot be laid down as an absolute rule of
law that a dying declaration cannot form the sole basis of
conviction unless it is corroborated; (2) that each case must
be determined on its own facts keeping in view the
circumstances in which the dying declaration was made; (3)
that it cannot be laid down as a general proposition that a
dying declaration is a weaker kind of evidence than other
pieces of evidence; (4) that a dying declaration stands on
the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with
reference to the principles governing the weighing of
evidence; (5) that a dying declaration which has been
recorded by a competent Magistrate in the proper manner,
that is to say, in the form of questions and answers, and, as
far as practicable, in the words of the maker of the
declaration, stands on a much higher footing than a dying
declaration which depends upon oral testimony which may
suffer from all the infirmities of human memory and human
character, and (6) that in order to test the reliability of a
dying declaration, the court has to keep in view, the
circumstances like the opportunity of the dying man for
observation, for example, whether there was sufficient
light if the crime was committed at night; whether the
capacity of the man to remember the facts stated, had not
been impaired at the time he was making the statement, by
circumstances beyond his control; that the statement has
been consistent throughout if he had several opportunities
of making a dying declaration apart from the official record
of it; and that the statement had been made at the earliest
opportunity and was not the result of tutoring by interested
parties."
After referring to various decisions of the Supreme Court, which had
been rendered after the decision in the case of Khushal Rao (supra),
the Supreme Court in Paniben v. State of Gujarat : (1992) 2 SCC 474
summed up the principles as under:-
"18. (i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration.
(ii) If the court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration.
(iii) This Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had opportunity to observe and identify the assailants and
was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with regard
to it is to be rejected.
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
(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.
(ix) Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the
eyewitness has said that the deceased was in a fit and
conscious state to make this dying declaration, the medical
opinion cannot prevail.
(x) Where the prosecution version differs from the
versions as given in the dying declaration, the said
declaration cannot be acted upon."
The same position has been reiterated in subsequent decisions of the
Supreme Court including that of Vikas v. State of Maharashtra:
(2008) 2 SCC 516.
26. In the present case, we have to examine Exhibit PW10/A in the
light of the above principles. For this purpose, let us first assume that
Exhibit PW10/A was truthfully recorded and is the authentic and
genuine statement of the deceased Madan Lal. Even if we assume this,
we have to go a step further before a conviction can be based upon
Exhibit PW10/A. The further step is to satisfy ourselves as to whether
the statement is truthful. As pointed out in Khushal Rao (supra), in
order to base the reliability on a dying declaration, the Court has to
keep in view several circumstances such as the opportunity of the dying
man for observation, for example, whether there was sufficient light if
the crime was committed at night. This clearly indicates that in order
to ascertain the truthfulness of a dying declaration the Court may look
at surrounding circumstances.
27. In the present case, we find that the prosecution version stands on
two pillars. One pillar is the testimony of PW6 Smt. Phool Wati and
the other pillar is that of Exhibit PW10/A. If the testimony of PW6
Smt. Phool Wati is removed from the purview, the edifice of the
prosecution case would come crashing down inasmuch as it cannot
survive on Exhibit PW10/A alone. This will become clear by recalling
that it is as per the testimony of PW6 Smt. Phool Wati that the presence
of the appellants Geeta and Dropti are sought to be explained. It is an
admitted position that Geeta was not residing with her husband Madan
Lal in his room in the said temple for some time. It is also admitted
that she had stopped residing with her husband since the day of Bhaiya
Duj. If that be the case, her presence at the room in the temple would
not be natural or normal. The presence of her mother Dropti and that of
Ghanshyam would also be quite unnatural. It is another matter that the
reasons for Geeta leaving her matrimonial home are different, but, both,
the prosecution as well as the defence, are agreed on one point and that
is that Geeta was not residing in her matrimonial home for some time
prior to the incident. The explanation which is sought to be provided
by PW6 Smt. Phool Wati is that the two appellants and Ghanshyam had
come to the room in the temple to discuss about Geeta, meaning
thereby, that the topic of discussion would be with regard to the
relations between Madan Lal and Geeta. It is in this backdrop that the
Exhibit PW10/A becomes natural because it must be remembered that
Madan Lal received the burn injuries in his home and not in the
paternal home of his wife Geeta. As per Exhibit PW10/A, Madan Lal‟s
mother-in-law poured oil over him and set him on fire. Ghanshyam is
said to have caught hold of Madan Lal while his mother-in-law Dropti
poured oil on him and set him ablaze. It is also stated that his wife also
assisted in setting him on fire. According to him, she also stated that
after killing him she would become a widow and would take up some
job. This statement, out of the blue, would be quite unbelievable
because neither his wife nor his mother-in-law nor Ghanshyam resided
with him or nearby. There was no occasion for any of them to have
been present at the temple at around 10:30 am. What we are saying is
that the statement Exhibit PW10/A cannot by itself support the
prosecution case unless and until it is buttressed by the testimony of
PW6 Smt. Phool Wati which seeks to explain the circumstance and
presence of the accused. We have already held that no reliance
whatsoever can be placed on the testimony of PW6. Consequently, the
prosecution case cannot be made out solely on the basis of Exhibit
PW10/A, even assuming it to be the statement of the deceased Madan
Lal, truthfully recorded.
28. Exhibit PW10/A does not state as to how and why the accused
were present in his house. It may be argued that he had very little time
and, therefore, there was no possibility of giving details. Yet, the
statement Exhibit PW10/A goes into great detail to explain as to who
Ghanshyam Koshiwala was and where he resided.
29. We also note that in the statement Exhibit PW10/A the time „10‟
has been altered to read „10-½‟ by subsequently adding „½‟. We do not
know at whose instance this was done. It is obvious that if the incident
occurred at 10:30 am, then the testimony of PW8 Constable Daya Nand
would contradict it. PW8 Constable Daya Nand, as noted above, stated
that he arrived at the scene at about 10:30 am and by that time a crowd
had gathered and the injured Madan Lal had already been removed to
hospital. So, this factor also adds some element of doubt with regard to
the truthfulness of the statement as recorded in Exhibit PW10/A.
Another aspect which goes to indicate that the portion marked A to A
in Exhibit PW10/A are not the exact words as spoken by the deceased
Madan Lal, is the expression "Mai Pata Bala Par Rehta Hoo (I live in
the abovementioned address)". Since the deceased Madan Lal was not
writing the statement in his own hand and he did not know as to what
was written above in portion marked B to B and C to C, he could not
have said that he resided at the abovementioned address. He could
have said that he resides at such and such address and that would have
been the natural statement on his part. If we assume that these words
were altered by the scribe in order to save him from writing the address
all over again, then, can we say with certainty that none of the other
words contained in the statement were not altered by the scribe PW11
Suresh Kumar ?
30. It has come on record vide Exhibit PW13/A, which is the MLC
drawn up at DDU Hospital, that Madan Lal was brought to the hospital
in an injured condition at 12:10 pm. Exhibit PW10/A indicates that it
was recorded at 12:15 pm. In other words, if the timings given above
are to be believed, within five minutes of the arrival of Madan Lal in an
injured condition having about 90% burns, the patient was examined by
the doctors, given treatment, the duty constable was called, PW11
Suresh Kumar sat along with the injured Madan Lal and wrote down
the statement, as indicated in Exhibit PW10/A. All, within five
minutes. Both the doctors, PW10 Dr Ashwani Gupta and PW13 Dr
Ravi Mahajan stated that the moment a patient is brought to the
hospital, the immediate concern for the doctors is to check up the
patient and provide treatment and it is only thereafter that the
formalities of drawing up the MLC etc. are done. If that be the case,
the doubt raised by the learned counsel for the appellants, that it was
not possible for Exhibit PW10/A to have been recorded and completed
by 12:15 pm as recorded thereupon, within five minutes of the arrival
of Madan Lal in the hospital doesn‟t get removed. It is also of
significance to note that the said doctors indicated that pathedine was
administered upon the patient. There was, of course, a suggestion that,
because of this, Madan Lal may not have been in a fit state of mind
inasmuch as pathedine was not only a pain killer but also a strong
sedative with side effects. This argument of the learned counsel for the
appellants does not cut much ice inasmuch as the statement Exhibit
PW10/A is said to have been recorded within five minutes of the arrival
of Madan Lal in the hospital. Thus, if pathedine was administered
upon Madan Lal within those five minutes, it was not enough time for
it to have taken effect. It is also recorded in the MLC Exhibit PW13/A
that he was unfit to make a statement at 12:45 pm. So, the only critical
period of time is the five-minute duration between 12:10 and 12:15 pm
during which the said statement Exhibit PW10/A is said to have been
made. Considering the sequence of events which take place when an
injured patient is brought to hospital, the possibility cannot be ruled out
that there was not enough time for having recorded the statement
Exhibit PW10/A within those five minutes.
31. For all these reasons, we are unable to regard Exhibit PW10/A as
a dying declaration, if at all, of such a stellar and unimpeachable
quality that a conviction can solely be based upon it without requiring
any corroboration. And, when we look for corroboration, there is none.
This is because the testimony of PW6 Smt. Phool Wati is highly
unreliable, as already indicated above.
32. There is another aspect of the matter which needs to be
highlighted. In answer to question No. 13 put to the appellant Geeta in
the course of her examination under Section 313 Cr. P.C, she stated that
her marriage with Madan Lal took place on 13.11.1986 and thereafter
they went to Hathras and lived there with her parents for a month. She
stated that soon after their marriage, her mother-in-law and other family
members started demanding more dowry articles like colour TV, fridge,
washing machine, scooter and gold ornaments and even cash of
Rs 10,000/-. She stated that she was unable to meet the demands.
After a month of their marriage, they returned to Delhi where her
husband Madan Lal was employed as a pujari in Durga Mandir, Vikas
Puri and they started living together in his room in the temple. After a
few days, Phool Wati also joined them. Om Prakash and Dinesh
Kumar, who are the brothers of Madan Lal, also used to live with
Madan Lal. She stated that her father-in-law, who was a teacher at
Hathras, used to visit, on occasion. She further stated that sometime in
August-September, 1987, her husband Madan Lal had been removed
from the post of Pujari of Durga Temple by Vikaspuri Sanathan
Dharam Sabha, which managed that temple and he was being pressed
by that Sabha to vacate that room immediately. She stated that her
husband had very little income and his brothers Om Prakash and
Dinesh had no income. Consequently, her husband had to support not
only himself as well as his wife Geeta but also his mother and his two
brothers. She stated that it was not her, but Madan Lal who used to
fight with his mother and his brothers for economic and financial
reasons. According to her, after he was removed from the post of
Pujari, he became very frustrated and as he had been asked to vacate
the room, he was very disturbed, disgusted and worried. She stated that
his mother and two brothers used to instigate him against her and
wanted that either she should bring cash and other articles from her
parents or otherwise she should be turned out of that room. She further
stated that on the day of Bhai Duj in 1987, her younger brother Khushi
Ram and younger sister Rukmani Rani came to meet her but Om
Prakash, Dinesh, Smt. Phool Wati and her husband Madan Lal
misbehaved with them and even beat them and forced them to go back.
When she protested, she was also beaten by them. She stated that at
that point she was pregnant. She left her matrimonial home along with
her brother and sister and went to her paternal house at Shastri Nagar,
New Delhi and continued to stay there till the time of her arrest in the
afternoon of 28.12.1987. She stated that neither her husband nor any
member of his family ever visited her during the said period and even
when she gave birth to a male child on 18.11.1987, although they had
been informed, neither Madan Lal nor his mother came to see her or
her son. She further stated that she and her mother had been falsely
implicated in this case at the instance of Smt. Phool Wati, Lal Chand
and others and that they had not even gone to Durga Mandir, Vikas
Puri at any time on 28.12.1987.
33. This is her explanation of the sequence of events and her
relationship with her husband Madan Lal. It suggests an alternative
theory. The theory being that Madan Lal had become so disturbed and
frustrated that he committed suicide. In order to implicate the
appellants Geeta and her mother Dropti, the whole story against them
was concocted by PW6 Smt. Phool Wati. Even the statement Exhibit
PW10/A was at the instance of Madan Lal‟s father Lal Chand.
34. We may also note that the defence also led evidence and
produced two witnesses. The first is DW1 Jagdish Vashisth, who is the
record clerk of DDU Hospital, who merely brought the casualty /
emergency register pertaining to the date 28.12.1987 of DDU Hospital,
Hari Nagar. He indicated that the time of arrival and departure of the
patient from casualty was not recorded in the said register. DW2 Som
Dutt is an important witness. He is appellant Geeta‟s brother. Even as
per the prosecution case it is he (Som Dutt) who brought Madan Lal to
the DDU Hospital in an injured condition. In his testimony DW2 Som
Dutt stated that Geeta was his sister and Dropti was his mother. He
stated that while he was on his bicycle near the hospital, he saw a taxi
coming in the opposite direction. One Narender, who was sitting in the
front seat of the taxi, told him to come inside the hospital as Madan Lal
had got burnt. According to DW2 this incident was at about 12:20 pm.
He stated that he followed the taxi and parked his bicycle at the stand
and went to the taxi. There, he saw Madan Lal lying in a burnt
condition, on the back seat of the taxi. Thereafter, he, Narender and
two other persons, who were with him, lifted Madan Lal and took him
inside the hospital. The doctor inside the hospital enquired from him
about the name and age of Madan Lal which was recorded by the
doctor in a register. He stated that then a police constable came and
recorded his name, parentage and address in a register. He stated that
the constable enquired from him as to how Madan got burnt and he
replied that he did not know anything about it. This witness also stated
that in the meanwhile Sub-Inspector Raj Singh also arrived. He also
saw Madan Lal‟s father Lal Chand arriving in the hospital compound.
He stated that he told the constable that Lal Chand was the father of
Madan Lal. In the meanwhile, Sub-Inspector Raj Singh also arrived.
He is said to have asked DW2 Som Dutt as to what happened and he
replied that he had no knowledge. Sub-Inspector Raj Singh then
enquired from Lal Chand but, Lal Chand took Sub-Inspector Raj Singh
and the police constable to one corner at a distance of 10-12 paces from
him and he could not hear what transpired between them. DW2 further
stated that he tried to talk to Madan Lal but he was not in a position to
speak. Thereafter, he left the hospital and went to his father in Maya
Puri but could not find him there. He went back to his house, which he
reached at about 2:30 pm where his younger brother and sister were
crying. On asking them, they told him that the police had apprehended
Geeta and their mother Dropti and taken them along with them. In
cross-examination also this witness stated that he had met Madan Lal‟s
father in the compound of the hospital at about 12:45 noon. He also
denied the suggestion that Madan was in a position to speak.
35. The testimony of DW2 Som Dutt, whose presence in the hospital
is admitted, also casts some doubt on the prosecution case. First of all,
as per his testimony, Madan Lal was brought to the hospital by him
around 12:30 pm. This would mean that the statement Exhibit
PW10/A, which was purportedly recorded at 12:15 pm, could not have
been so recorded. Secondly, DW2 Som Dutt also stated that he saw
and met Madan Lal‟s father Lal Chand in the hospital, who also spoke
with PW17 Sub-Inspector Raj Singh. This fact also indicates that
contrary to the prosecution case, founded upon PW6 Smt. Phool Wati‟s
testimony, Madan Lal‟s father, Lal Chand, was throughout in Delhi on
that date and had not gone to Hathras at all. Thirdly, as per DW2 Som
Dutt, he tried to speak with Madan Lal but he (Madan Lal) was not in a
position to do so. In any event, shortly thereafter, at 12:45 pm, he was
declared unfit for making any statement. These are the circumstances
which also cast a shadow of doubt on the so-called dying declaration
Exhibit PW10/A.
36. Considering all these factors, we feel that apart from the
statement Exhibit PW10/A, there is no evidence beyond the realm of
doubt to suggest that the appellants were guilty of the aforesaid crime.
And, Exhibit PW10/A does not fall in the category of unimpeachable
dying declarations which would not require any corroboration. Thus,
Exhibit PW10/A cannot be made the sole basis for convicting the
appellants. The prosecution has not been able to establish its case
beyond reasonable doubt and, therefore, the appellants would be
entitled to an order of acquittal.
37. Before parting with this case, we may also point out another
aspect which pertains only to appellant Geeta. We may recall that
appellant Geeta was convicted under Section 302 read with Section
109 IPC. This must be considered in the backdrop of the fact that
originally she had been charged under Section 302/34 IPC. Thus, it is
apparent that her conviction is different from what she was charged
with. Normally, when a person is charged with a higher offence and
convicted for a lesser offence, no grievance can be made in respect
thereof, particularly in view of Section 222 Cr. P.C. However, where
the offence for which a person is convicted is a substantive offence and
is different from the species of the other offence, the situation is
different. Section 109 IPC has been regarded as an offence by itself by
various decisions of the Supreme Court. In such an eventuality, since
no charge was framed under Section 109 IPC, the appellant Geeta
ought not to have been convicted under Section 302 read with Section
109 IPC. If Section 109 IPC is removed, insofar the appellant Geeta is
concerned, conviction under Section 302 IPC could not be possible
because even as per the statement Exhibit PW10/A, no specific role has
been ascribed to the appellant Geeta and the only allegation is that she
also assisted her mother Dropti and Ghanshyam. It is clear that even if
the statement Exhibit PW10/A were to be regarded as the authentic and
truthful dying declaration of Madan Lal, the appellant Geeta cannot be
convicted under Section 302 IPC simplicter. She could not have been
convicted under Section 302 IPC read with Section 109 IPC because no
charge under Section 109 had been framed against her. This
proposition is clear from the following decisions of the Supreme
Court:-
(1) Kishori Lal v. State of M. P: (2007) 10 SCC 797;
(2) Wakil Yadav and Anr. v. State of Bihar: (2000) 10
SCC 500; and
(3) Joseph Kurian Philip Jose v. State of Kerala:
(1994) 6 SCC 535.
It is, therefore, clear that in any event, insofar as the appellant Geeta is
concerned in spite of the statement Exhibit PW10/A, she could not
have been convicted under Section 302 read with Section 109 IPC.
38. The result of this discussion is that the appellants are acquitted of
all charges against them. The impugned judgment and order on
sentence are set aside. Since the appellants are on bail, their bail bonds
stand cancelled and the sureties stand discharged. The appeal is
allowed.
BADAR DURREZ AHMED, J
P. K. BHASIN, J
August 13, 2009
SR
