State vs Girish Kumar Bhasin
2009 Latest Caselaw 3170 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment :13th August, 2009

+                              CRL.A.298/2001


        STATE                                           ...Appellant
                                   Through: Mr. Pawan Sharma, APP.

                              versus

        GIRISH KUMAR BHASIN                           ...Respondent

                                   Through:    Mr. Jitendra Sethi &
                                               Mr.Amit Yadav, Advts.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

INDERMEET KAUR, J (ORAL)

1. The State has preferred this appeal against the

impugned judgment dated 21.2.2000, vide which the respondent

Girish Kumar Bhasin has been acquitted of the charge under Section

302 as also under Section 498A IPC.

2. The deceased Jyoti was the unfortunate wife of the

appellant. The parties had been married in the year 1986 and they

had two children out of the wedlock. In the intervening night of 11-

12.5.1991, Jyoti received burn injuries in her matrimonial home at

house no.2829, Ashok Gali, Ram Bazaar, Mori Gate, Delhi. Time of

the incident was around midnight. Victim Jyoti was admitted to

R.M.L. Hospital by her mother-in-law Smt.Kamlesh Bhasin PW-7.

Her MLC Ex.PW-1/A recorded at 1.15AM on 12.5.1991, shows that

patient had been admitted with 75% burns but she was otherwise

conscious and well-oriented. The victim had finally succumbed to

her injuries on 15.5.1991, at about 4.45PM.

3. The version of the prosecution is hinged on two dying

declarations given by the deceased.

4. The first dying declaration Ex.PW-10/A was recorded on

12.5.1991, at 4.15AM by the S.D.M. Shri Dharmender Sharma PW-

10. As per this version the appellant had been exonerated. In this

dying declaration Jyoti had stated that when she had gone to the

kitchen to prepare tea, she had pumped the stove after pouring

kerosene oil in it and as soon as she lit the match her nylon suit

caught fire; pursuant to which she got burnt; her husband Girish

was sleeping with the children outside; on hearing her cries he

came in the kitchen and put a blanket on her and in this process his

hands also got burnt.

5. The second dying declaration Ex.PW-10/B of the

deceased was recorded on 15.5.1991, at 4.30PM by the same

S.D.M. PW-10. He has on oath stated that on 15.5.1991, he was

informed by the Police that relatives of Jyoti had informed them that

Jyoti wanted to make another statement. PW-10 went to the R.M.L.

Hospital and after confirming from the doctor that Jyoti was fit to

make statement, he recorded this statement of Jyoti which bore his

signatures at point `A'. It was in this second dying declaration that

the role of the appellant had surfaced and Jyoti had allegedly told

the S.D.M. that on the fateful night when she was in the house her

husband Girish had asked her for a glass of water and in the course

of arguments he abused her and after pushing her, he opened the

lid of the stove which contained kerosene oil and after sprinkling it

upon her he burnt her by lighting a match. Ex.PW-10/B does not

bear the signature of Jyoti and neither has the same been thumb

marked. In this document there is also no evidence that the

certification of fitness had been obtained from the doctor.

6. Perusal of the MLC Ex.PW-1/A of the victim however

shows that on 15.5.1991, there is an endorsement by one

Dr.Kailash Shekhar that the "patient is fit for statement at 4.30 PM

on 15.5.1991". Dr.Kailash Shekhar has not been examined as a

witness. PW-10 has admitted in his cross-examination that there is

a cutting and an overwriting on the time which has been mentioned

in this fitness certificate i.e. an overwriting at 4.30 PM; whether it

should be read as 4.30 PM or 4.50 PM is not clearly decipherable.

This timing becomes relevant in view of the version of the

prosecution that the patient had finally succumbed to her death at

4.45 PM on 15.5.1991.

7. Shri.Yogh Raj PW-4 is the father of the victim. He was

admittedly not present in the hospital when the first dying

declaration was given by his daughter to the S.D.M. He was

however present at the time when the second dying declaration was

made by her. In his cross-examination PW-4 has stated that his

daughter had died after 15 minutes of her statement having been

recorded by the S.D.M.; at that time she was not even able to

speak; the witness again stated that she was able to speak very

slowly. PW-4 further stated that doctor was present at that time

when the S.D.M. recorded this statement; this is however not in

conformity with the version of PW-10 who has stated that he cannot

say if the doctor was present at that time or not.

8. There is no dispute to the proposition that conviction

can be recorded on the basis of a dying declaration alone but

provided that this dying declaration is fully reliable.

9. In the instant case there are two dying declarations; the

first has exonerated the appellant and the second has implicated

him. In these circumstances, the second document has to be

scrutinised with greater care and caution. This dying declaration

had been recorded by the S.D.M. just about 15 minutes prior to her

death and this is presuming that the dying declaration was recorded

forthwith at 4.30 PM itself, when she had allegedly been declared fit

for making statement; she had died at 4.45 PM; S.D.M. must also

have taken some time to record the statement even presuming that

he had commenced it at 4.30 PM itself. There is also an overwriting

on the time when the fitness had been given by the said doctor; the

doctor has not come into the witness box to clarify this position.

PW-4 father of the victim had admitted that at that time his

daughter was hardly able to speak. All these cumulative factors

had weighed in the mind of the trial Judge when he had disbelieved

this second dying declaration.

10. The site plan Ex.PW-3/A at point `A' shows the place

where the stove was kept and point `E' is the place where the can

containing kerosene oil had been kept; both of which are at a

distance apart. This is a normal circumstance as kerosene being an

inflammable material would in routine be kept outside the precincts

of the house. The CFSL report had detected kerosene only in the

can and the stove; the hair of the victim which had been sent for

examination has not noted any kerosene content. Perusal of the

photographs and the recovery memo Ex.PW-11/A also show that at

the time when the stove had been seized from the spot the lid was

intact and not in an open condition; this is contrary to the version

given in the dying declaration where Jyoti had allegedly stated that

Girish had after opening the lid of the stove sprinkled kerosene

upon her; no kerosene stains had also been picked up from the

place of occurrence.

11. The consistent stand of the appellant is that his wife had

caught fire while she was making tea in the kitchen; he had gone to

save her and in doing so he had sustained burn injuries. This was

also the version given by Jyoti in her first dying declaration Ex.PW-

10/A. Smt.Kamlesh Bhasin PW-7 mother-in-law of the victim had

also deposed that on the fateful night when she heard cries from

room on the first floor where Jyoti and Girish used to sleep she

found that her son was extinguishing the fire and Jyoti was in

flames. To the same effect is the version of the neighbour Sanjeev

Gupta examined as PW-9; he has also deposed that when he went

to the room after hearing cries of Jyoti he saw that Girish was

extinguishing the fire and Jyoti was in flames. Ex.PW-19/DA and

Ex.PW-19/DB are the MLCs of the respondent Girish showing burn

injuries on his hands.

12. The conclusion of the trial Judge in disbelieving the

second dying declaration in view of the aforenoted discrepancies as

also the possibility of the second dying declaration being a tutored

one, having been made under the influence of the parents of the

victim, is in our opinion not an unreasonable view. We do not find

any infirmity in the said reasoning.

13. In K. Ramachandra Reddy & Anr. vs. The Public

Prosecutor 1976 3 SCC 618 the Supreme Court while noting the

discrepancy vis-à-vis the magistrate who had recorded the dying

declaration and the medical evidence had held that the prosecution

not having been able to put up a foolproof case, benefit of doubt

had to be given to the accused.

14. The Trial Judge in our view has also not faltered in

drawing the conclusion that no case under Section 498A IPC is also

made out.

15. In this context the version of the parents of the victim

Yog Raj PW-4 and Smt. Chandrakanta PW-5 have been noted. PW-4

had on oath stated that his daughter was living happily for about six

to seven months after marriage but thereafter her husband started

mal-treating her; he made a demand of Rs.20,000/- which was

fulfilled; he made another demand of Rs.7000/- which was again

paid up; thereafter another demand of Rs. 20,000/- was again made

after one and half month which PW-4 was unable to meet. In his

cross-examination when confronted with his earlier statement

Ex.PW-4/DA he admitted that there is no mention of the latter

demand of Rs.20,000/-; the other improvements in the version of

PW-4 has also been taken note of. To the same effect is the version

of PW-5 and the improvements made in her statement have also

been perused. PW-5 had admitted that the appellant Girish had not

made any demand on any occasion. Even in the second dying

declaration Ex.PW-10/B Jyoti has not mentioned that her husband

ever harassed her or made any dowry demand on her; this would

have been a natural narration by her if this was the cause of the

initiation of disputes between them.

16. It is settled position in law that an Appellate Court while

hearing an appeal against acquittal must bear in mind that there is

double presumption in favour of the accused; firstly a presumption

of innocence available to him under the fundamental principle of

criminal jurisprudence that every person shall be presumed

innocence unless proved guilty; secondly, the accused having

secured his acquittal, the presumption of his innocence is further

reinforced. It is also a settled position in law that if two reasonable

conclusions are possible on the basis of evidence on record the

Appellate Court should not disturb the finding of acquittal recorded

by the trial Court.

17. In our view the judgment of trial Judge suffers from no

infirmity and calls for no interference. Appeal being without any

merit, is dismissed.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE August 13, 2009 nandan