Bhanwar Pal Singh vs The State, Govt. Of Nct Of Delhi
2009 Latest Caselaw 3175 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Reserved on: 06.08.2009
%                                                     Date of decision: 13.08.2009


+                               CRL. A. No.156 of 1997


BHANWAR PAL SINGH                                            ...APPELLANT
                                Through:        Mr. P.R. Thakur &
                                                Mr. R.K. Ahluwalia, Advocates.


                                          Versus


THE STATE, GOVT. OF NCT OF DELHI         ...RESPONDENT
                     Through: Mr. M.N. Dudeja, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.        To be referred to Reporter or not?                    Yes

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

SANJAY KISHAN KAUL, J.

1. The appellant, Bhanwar Pal Singh, has been convicted

under Section 302 of the Indian Penal Code for the murder

of his wife, Shrimati Gayatri Devi, solely on the basis of the

last dying declaration.

2. It is the case of the prosecution that the appellant brought

one Har Prasad, co-accused, to his house at P-2/322, Sultan

Puri, Delhi and after both the accused had consumed liquor,

the appellant also forced his wife to consume liquor. The

appellant is alleged to have left the co-accused in the room

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with his wife and went out and bolted the door from

outside. Har Prasad is alleged to have outraged the

modesty of the deceased Shrimati Gayatri Devi but on her

refusal to have sexual intercourse with him, went out of the

room after the door was opened by the appellant. The

appellant is alleged to have got enraged and thrashed his

wife with a danda whereafter he poured kerosene oil on the

deceased and set her on fire. This incident is stated to

have occurred on 16.7.1990 at about 4:30 p.m. and FIR

No.160/1990 was registered at P.S. Sultanpuri, Delhi under

Section 307 of the IPC against the appellant while the co-

accused, Har Prasad, was charged under Section 354 of the

IPC. The reason for the conduct of the appellant in

attempting to oblige Har Prasad was stated to be the fact

that the appellant wanted to get his property papers

released from the co-accused, which property had been

mortgaged by the appellant with the co-accused. The cries

of the deceased attracted the landlady living downstairs

and the appellant is stated to have extinguished the fire by

pouring water on the deceased wife whereafter he rushed

her in a three-wheeler scooter to the Ram Manohar Lohia

Hospital. The deceased was admitted at 6:15 p.m. with 65

per cent burns as per the MLC (Exhibit P-18/B). The MLC

records the alleged history of the burns as having occurred

accidentally while food was being cooked on the stove.

3. The case of the appellant is that this should be really

construed as the first dying declaration as the deceased

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was stated to have been brought in a conscious state as per

the MLC and the cause of burns, thus, must be treated to

be having disclosed by the deceased herself. A dying

declaration was made by the deceased before the SDM on

17.7.1990 at 3:30 p.m., which is Exhibit PW-17/A. The

appellant claims this to be the second dying declaration.

The said statement records that the deceased and the

appellant were living happily and on 16.7.1990 at 4:30 p.m.

while she was cooking meat on the stove, when she

pumped the stove, which was a kerosene stove, lot of oil

oozed out of the burner and when she lit the matchstick her

clothes caught fire. The appellant is stated to have come to

her aid and poured water on her from a bucket and

extinguished the fire. She was categorical that she had no

quarrel with her husband and that there was no demand of

dowry and that no one was guilty since the burning was the

result of her clothes catching fire accidentally.

4. The last dying declaration which is the basis of the

conviction is stated to have been recorded by the same

SDM on 19.7.1990 at 10:15 p.m. (Exhibit PW-17/C). This

dying declaration is recorded by the SDM in hand running

into four (4) pages where the deceased has given a detailed

narration and details which implicated the appellant and

the co-accused in the commission of the offences. It is this

statement which resulted in the SDM directing the police to

register an FIR, which was registered on 20.7.1990 at 1:25

a.m.

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5. It may be noticed that the IO, SI Dham Singh (PW-26) is also

stated to have recorded the statement of the deceased

(Exhibit PW-26/D) in the night intervening 19/20 July 1990.

This statement is also in the same terms as Exhibit PW-

17/C. The deceased passed away on 21.7.1990 at 6:15

a.m. The post-mortem report records the extent of burn

injuries at 80 per cent. After the death of the victim, the

offence was changed from one under Section 307 of IPC to

one under Section 302 of IPC.

6. The testimony of PW-26 shows that on 16.7.1990 he visited

the place of incident/occurrence and got the place

photographed. The IO directed the landlord to lock the

premises and preserve the place of incident/occurrence.

The IO went to the place of occurrence again after

recording the statement in the night intervening 19/20 July

1990 when he found that the room was open and not

locked. The landlord of the premises informed the IO that

the appellant had come in his absence, had opened the

lock, removed the articles and cleaned the premises. It is

not in dispute that the stove which is alleged to be the

cause of accident was not taken into possession at any

stage.

7. Learned counsel for the appellant has contended:

i. the allegation in the last dying declaration of a danda

being used and inserted in the stomach of the

deceased is not borne out by the evidence as no

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injuries have been found at the stage of recording of

the MLC or at the stage of post-mortem.

ii. The allegation of forcibly liquor being given to the

deceased is not borne out by the evidence as there is

no indication of intoxication or presence of liquor in

the deceased and if it had been so it would have been

recorded in the MLC.

iii. The conduct of the appellant in extinguishing the fire,

taking the deceased to the hospital and remaining in

the hospital till the evening of 18.7.1990 itself shows

the prompt care taken by the appellant. Not only that

the appellant informed the parents of the deceased

promptly and left on the evening of 18.7.1990 only to

arrange for funds so that the treatment of his wife

could be done in a private hospital.

iv. The site plan shows that there was a stove which was

never taken into possession by the IO. The premises

were locked by the landlady at the request of the IO

and the IO came only two (2) days later by which time

the place had been cleaned up. There is no allegation

of destruction of evidence by the appellant. There

has been no recovery of any liquor bottle or glasses

in which such liquor was consumed from the place of

occurrence.

v. The deceased made a truthful disclosure when she

was rushed to the hospital and the MLC was recorded

and again when her dying declaration was recorded

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by the SDM. It is only when the parents of the

deceased got time to influence her, the last dying

declaration implicating the appellant was made.

There is no reason why the parents of the deceased

did not inform the IO if the information was given to

them by the deceased at the earlier stage. The

testimonies of PW-11,Chandrawati (the neighbour of

the parents of the deceased), PW-12, Brij Raj Singh

(the father of the deceased) and PW-15, Shrimati Raj

Rani (mother of the deceased) are alleged to be

unreliable since they had visited the deceased in the

hospital on 17.7.1990 when the deceased is alleged

to have orally told them about the conduct of the

appellant. Yet the facts implicating the appellant as

told to these witnesses were not informed to the

police nor had these witnesses narrated the incidents

as such in their statements recorded under Section

161 Cr.P.C.

vi. The prosecution has failed to establish any motive on

the part of the appellant in forcing the co-accused on

the deceased. The co-accused has been acquitted as

his identity in the commission of the offence under

Section 354 IPC was not established during trial and

no evidence has been led to substantiate the story of

the property being mortgaged with the person who is

alleged to have forced himself on the deceased.

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8. Learned counsel for the respondent did not dispute that

there was no recording of any injuries in the MLC or the

post-mortem report but pleaded that when 80 per cent

burns are caused, it is quite possible that these injuries are

not visible. Learned counsel also could not seriously

dispute the fact that the IO owed a duty to have secured

the site and ought to have taken into possession the stove.

The initial dying declaration imputing the occurrence as an

accident arising out of the stove or the subsequent dying

declaration that the stove had nothing to do with the

deceased being burnt could have been best dealt with if

this evidence had been secured. Learned counsel also did

not have any answer to a query posed by us that on

application of the IO the scalp hair had been sent for

chemical examination yet no report was made available on

the record. It is, thus, not known as to whether any report

was received and if so what was the nature of the report.

9. We may note that, in our considered view, this was an

extremely material evidence which has been withheld. The

scalp hair sample would have thrown light on the manner in

which the deceased was burnt, i.e. kerosene oil was poured

over her head which would have occurred if the last dying

declaration is to be believed. On the other hand, absence

of kerosene oil on the scalp in view of the story as narrated

in the last dying declaration would have been belied if no

such traces were found and it would have given credence

to the earlier dying declaration of the accident being

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caused by the stove. To say the least, the IO has been

extremely negligent in his investigation.

10. It is also not disputed that the story of whisky being

consumed is not supported by any recovery of glasses or

bottle nor is the condition of the door examined to verify

whether it could be locked from outside or whether it was

broken down at any time.

11. The legal principles to be kept in mind in case of multiple

dying declarations have been enunciated in various

judgements including of the Apex Court. In Smt. Kamla Vs.

State of Punjab AIR 1993 SC 374 it was observed that if

there are more than one dying declarations with

inconsistencies noticed between them, the court has to

examine the nature of the inconsistencies, namely whether

they are material or not. An important aspect is that while

a dying declaration can form the basis of conviction, due

care has to be taken keeping in mind that the accused gets

no opportunity of cross-examining the deponent. In State

of Gujarat Vs. Khumansingh Karsan Singh & Ors. AIR 1994

SC 1641 conviction was held not sustainable on the basis of

inconsistent dying declaration where there was possibility

of tutoring and false involvement.

12. A conviction based on the appreciation of two dying

declarations with material contradictions was held not

sustainable by the Supreme Court in Dandu Lakshmi Reddy

Vs. State of A.P. (1999) 7 SCC 69. In one dying declaration

it had been stated that the deceased was set on fire by her

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husband and mother-in-law when she was lighting a stove

for preparing coffee while in the other dying declaration the

deceased stated that when she was sweeping, her husband

and mother-in-law poured kerosene oil on her, lit the

matchstick and set her on fire.

13. Learned counsel for the appellant sought to emphasize that

in the facts of the present case there was recording of 65

per cent burns in the MLC and 80 per cent burns in the

post-mortem report. The dying declaration relied upon

gives details to an extent that cast doubt on the dying

declaration itself running into four (4) hand written pages.

This is so since in such a condition, the deceased would not

be able to recall the graphic details. Learned counsel

referred to the judgement in Chacko Vs. State of Kerala JT

2002 (9) SC 425 where a 70 years old lady suffered 80 per

cent burns, made a dying declaration after about 8-9 hours

giving even the minutest particulars of the motive and

manner in which she suffered injuries which itself was said

to create a doubt as to the genuineness of the declaration.

14. Another aspect sought to be emphasized by learned

counsel for the appellant is that it is a matter of common

knowledge that such patients are given morphene or

phenargan (tranquilizer) in order to reduce their suffering

and these medicines affect the mental thought process and

render the patient incapable of making a coherent

statement. Such observations have been made by this

Court in Ram Singh Vs. The State 1996 JCC 584. Thus,

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absence of signatures of any doctor or nurse on the

statement recorded by the IO was held to throw a doubt on

the statement. The third dying declaration made before an

Executive Magistrate in this case was also not relied upon

since there was no endorsement from any doctor that the

patient was fit to make a statement and no doctor had been

examined by the prosecution in support of the fitness of the

deceased to make the statement. In the present case

under appeal also no doctor has been examined but only a

Record Clerk appeared as prosecution witness.

15. Learned counsel for the appellant emphasized that a person

could not be convicted merely because there were no

sound reasons for his false implication by contending that

such a plea had been negated in para 21 of the judgement

in Ten Singh Vs. State (Delhi Admn.) 1996 (1) Crimes 192

(HC) by the Division Bench of this Court as to why the wife

would seek to implicate the husband if the terms were

hunky-dory. In Shankarlal Gyarasilal Dixit Vs. State of

Maharashtra 1981 SCC (Cri) 315 the Apex Court observed

as under:

"33. Our judgement will raise a legitimate query: if the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the appellant's house and, instinctively, everyone drew the inference that the appellant must have committed the crime.

No one would pause to consider why the appellant _____________________________________________________________________________________________

would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinarayan Sharma. No one would even care to consider why the appellant's name was not mentioned to the police until quite late. These are questions for the court to consider."

16. Learned counsel for the respondent, on the other hand,

referred to the observations in P.V. Radhakrishnan Vs. State

of Karnataka AIR 2003 SC 2859 to contend that the

admission of a dying declaration is based on the principle in

the legal maxim "nemo moriturus proesumitur mentiri", i.e.

A man will not meet his maker with a lie in his mouth".

Thus, even though the accused is deprived of an

opportunity to cross-examine the deponent, a dying

declaration can be the sole basis of a conviction though the

court has to be on guard that the declaration was true and

voluntary. The absence of a certification as to the state of

mind of the declarant was held not to be vital when the

police officials recorded the statement of a deceased in the

presence of a doctor. Similarly the percentage of burns

suffered by the deceased were not alone the determinative

factor for the state of mind. Learned counsel referred to

the judgment in State of Karnataka Vs. Shariff AIR 2003 SC

1074 to contend that the statement recorded by police

personnel cannot be discarded on that ground alone and it

was observed that there was no law that required that the

dying declaration must necessarily be made to a

Magistrate. Lastly, learned counsel referred to the

judgement in N.V. Satyanandam Vs. Public Prosecutor, High _____________________________________________________________________________________________

Court of A.P. AIR 2004 SC 1708 to contend that in case of

multiple dying declarations each has to be considered

independently on its own merits as per its own evidentiary

value and one cannot be rejected on the contents of the

other.

17. If the aforesaid principles are applied to the facts of the

present case it would show that the stage when the MLC

was recorded or the first dying declaration recorded

thereafter by the SDM there was no whisper of the

appellant being implicated. The deceased categorically

stated that it was an accident. The parents of the deceased

also initially did not implicate the appellant in the

statement recorded under Section 161 Cr.P.C. It is only

later on when the second dying declaration was recorded

before the SDM that the appellant was sought to be

implicated. The testimony of witnesses thus, show

including of the parents of the deceased that they

impressed upon the deceased to state what they claim had

been told to them earlier. As to why they did not inform the

IO about what they told to them earlier has not been

explained. The second dying declaration recorded before

the SDM is a detailed one running into four (4) hand written

pages by the SDM and the post-mortem report shows that

the appellant had suffered 80 per cent burns. In the

interregnum period of the appellant leaving the hospital

and the deceased being under the care of her parents, the

possibility of pressure asserted by the parents cannot be

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obviated. We are faced with a situation where there are

multiple dying declarations completely inconsistent and

contrary to each other. The accused has had no

opportunity to cross-examine the deponent as in the case

of every dying declaration. Thus, given the circumstances

in which the second dying declaration was recorded by the

SDM, something more was required to substantiate the

same. If the IO had done his job and collected the relevant

evidence, the contents of second dying declaration could

easily have been verified.

18. It has already been observed by us before that the

investigation has been shoddy, as the IO had failed to

secure the site of occurrence. The most important clue

could have come from the pump-type kerosene stove itself

which was never taken possession of for the reasons best

known to the IO. The other material evidence of the report

of chemical examination of the scalp hair has also not been

placed on record. The prosecution has, thus, failed to

produce on record the best evidence. If the prosecution

withholds the best evidence available, the benefit of doubt

certainly goes to the accused.

19. The second dying declaration before the SDM is based on

the allegation of there being some commercial transaction

between the appellant and co-accused relating to the

mortgage of property which has resulted in the appellant

attempting to oblige the co-accused. The co-accused was

never identified. It has been mentioned that the person

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who was locked in the room with the deceased was the

husband of the niece of the accused and yet no endeavour

was made by the IO to carry out any further investigations

in this direction. Thus, the sub-stratum of the second dying

declaration has not been established and this is coupled

with the best evidence being withheld.

20. We, thus, find it difficult to sustain the impugned judgement

convicting the appellant of an offence under Section 302

IPC as the benefit of doubt must go to the appellant.

21. The consequence is that the appeal is allowed, the

impugned judgement is set aside and the appellant is

acquitted giving him the benefit of doubt. The bail bond

and surety consequently stand discharged.

SANJAY KISHAN KAUL, J.

AUGUST 13, 2009                                              AJIT BHARIHOKE, J.
b'nesh

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