Shivani & Anr. vs State
2009 Latest Caselaw 3194 Del

R-70
*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: 17th August, 2009

+                                CRL.A. 30/2001

       SHIVANI & ANR.                               ..... Appellants
                 Through:            Ms.Neelam Grover, Advocate

                                     versus

       STATE                                       ..... Respondent
                      Through:       Mr. Pawan Sharma, Advocate

                                 CRL.A. 133/2001

       SATISH KUMAR & ANR.              ..... Appellants
                Through: Ms.Neelam Grover, Advocate

                                     versus

       STATE                                      ..... Respondent
                           Through:     Mr. Pawan Sharma, Advocate

       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

PRADEEP NANDRAJOG, J. (ORAL)

1. Vide impugned judgment and order dated

23.12.2000, the learned Additional Sessions Judge has

acquitted co-accused Nahar Singh and Vinod Kumar i.e. the

father-in-law and the husband of the deceased Ms.Vimlesh of

the charges under Section 302/34 IPC and Section 498-A/34

IPC. Appellants Shivani, the sister-in-law of deceased,

Premwati, the mother-in-law of the deceased, Satish Kumar

and Ashok Kumar, the two brothers-in-law of the deceased

have been convicted for the offence punishable under Section

302/34 IPC. They have been acquitted of the charge for the

offence punishable under Section 498-A/34 IPC.

2. The reason for acquitting the husband and the

father-in-law of the deceased and convicting the appellants for

the offence of murder is that the two dying declarations made

by the deceased did not implicate Nahar Singh, the father-in-

law of the deceased for the offence punishable under Section

302/34 IPC. Qua Vinod, the husband of the deceased, in one

dying declaration he was accused of being a by-stander and in

the other dying declaration he was assigned the role of a

saviour. While acquitting all the accused of the offence

punishable under Section 498-A/34 IPC, the learned Trial Judge

has noted material improvements by the relatives of the

deceased on the issue of dowry demands. The learned

Additional Sessions Judge has held that the testimony of Nepal

Singh PW-2, the brother of the deceased and Chinranji Devi

PW-4, the mother of the deceased do not inspire confidence

and hence has acquitted all the accused persons i.e. Nepal

Singh, Vinod, Premwati, Shivani, Ashok and Satish of the

charge framed under section 498-A/34 IPC. Relying upon the

two dying declarations Ex.PW-21/A and Ex.PW-10/A made by

the deceased to Inspector Niranjan Singh PW-21 and Mr.S.N.

Sahai PW-10, the then SDM, respectively, the learned Trial

Judge has convicted Premwati, the mother-in-law of the

deceased, Satish Kumar and Ashok Kumar, brothers-in-law of

the deceased and Shivani, the sister-in-law of the deceased for

the offences punishable under section 302/34.

3. We note that during the pendency of the appeals

Premwati died as recorded in the order dated 20.5.2002.

Hence, Crl.Appeal No.30/2001, insofar it relates to the

challenge by Premwati stands abated.

4. Since the appellants have been convicted on the

strength of the dying declarations made by the deceased, we

may briefly note the facts relevant for our decision. Since the

State has not filed any appeal pertaining to the acquittal of all

the accused for the offence punishable under Section 498-A/34

IPC or the acquittal of the father-in-law and the husband of the

deceased for the offence punishable under Section 302/34 IPC,

we need not note the evidence pertaining to the alleged dowry

demand.

5. As recorded in the MLC Ex.PW-14/A of Vimlesh, she

was admitted in a burnt condition at JPN Hospital at 7:00 PM

on 2.8.1989. As recorded in the MLC, Vimlesh was brought to

the hospital by her husband i.e. Vinod. Vimlesh was semi

conscious and was not responding to the verbal commands, a

fact recorded in the MLC Ex.PW-14/A. Her husband i.e. Vinod

told the doctor on duty, as recorded in the MLC, that Vimlesh

had poured kerosene oil on herself and set herself on fire.

6. On receipt of information that a lady had been

burnt at House No.53-B/8 Chhoti Mor Sarai, i.e. the

matrimonial house of deceased Vimlesh, Inspector Jagdish

Prasad PW-15, reached the house and proceeded to JPN

Hospital as he was informed that the lady who was burnt was

removed to the said hospital. Vimlesh was not fit for making a

statement. Prem Chand, the brother of Vimlesh, who had

reached the hospital on receiving information that his sister

was burnt, met the investigating officer and made a statement

Ex.PW-15/A informing that his sister was harassed for dowry

and he suspected that her in-laws had burnt her. Making an

endorsement Ex.PW-15/B on the statement Ex.PW-15/A,

Inspector Jagdish Prasad forwarded the same for FIR to be

registered. Const. Pradeep Kumar PW-3 who had accompanied

Inspector Jagdish Prasad from the police station took the

statement and the endorsement to the police station where

the FIR in question was registered.

7. Proceeding back to the house of the deceased,

which was a flat on the first floor, Inspector Jagdish Prasad

prepared the site plan Ex.PW-15/C and penned the marginal

notes thereon. A plastic can, a match box, some burnt match-

sticks, pieces of burnt clothes were lifted from the spot as

recorded in the seizure memo Ex.PW-2/A. A letter Ex.P-A and

a note-book (un-exhibited at the trial) was recovered from

under a pillow of the bed stated to be that of Vimlesh. The two

were seized as recorded in the seizure memo Ex.PW-2/B.

8. The letter Ex.P-A is claimed by the appellants to be

in the handwriting of the deceased and it is the claim of the

appellants that the same shows that the deceased had

decided to commit suicide and falsely implicate her mother-in-

law and her sister-in-law as the perpetrators of the crime.

9. The letter Ex.P-A records that Vimlesh was troubled

by her mother-in-law and her sister-in-law. It also records that

the two had poured kerosene oil on Vimlesh and set her on

fire.

10. The MLC Ex.PW-14/A of Vimlesh shows that she was

extensively burnt. 90% of her body was burnt. Even the two

dying declarations Ex.PW-21/A and Ex.PW-10/A bear the left

toe impression of the foot of the deceased and as disclosed by

the SDM Shri S.N.Sahai PW-10, he did so because both hands

of the deceased were burnt. It is thus obvious that Vimlesh

could not have written Ex.P-A after she was burnt.

11. It is possible that she wrote Ex.P-A before she died.

But to hold so would require proof that Ex.P-A is in the

handwriting of the deceased.

12. The relevance of said exercise would be this: If

Vimlesh has written the document which contains a statement

that her mother-in-law and sister-in-law have set her on fire, it

is obvious that Vimlesh has written said fact before she was

set on fire. How could she ever think of that her mother-in-law

and sister-in-law would set her on fire? The inference would be

that thinking that said letter would implicate her mother-in-law

and sister-in-law, Vimlesh wrote the letter and thereafter set

herself on fire.

13. The learned Trial Judge has held that Ex.P-A is not

in the hand of the deceased for the reason the prosecution has

led no evidence pertaining to the handwriting of the deceased

and there was no evidence that the writing on the notebook

recovered along with Ex.P-A was in the hand of the deceased

i.e. there was no sample/admitted writing of the deceased

before the Court.

14. Learned counsel for the appellants and the

State concede that nothing turns on Ex.P-A and therefore it

may be ignored.

15. As recorded in the MLC Ex.PW-14/A, Vimlesh was

declared fit for statement vide endorsement Ex.PW-14/D at

10:30 AM on 3.8.1989. Immediately, Inspector Niranajan

Singh PW-21 recorded her statement Ex.PW-21/A on 3.8.1989

at around 10:40 AM. The statement is recorded in Devnagri

script. Translated, it reads as under:-

"My name is Vimlesh. The name of my husband is Vinod. I got married 3 years prior to February 1990. I have two children named (illegible) and Meenakshi. Since the time of my marriage my mother-in-law Shriveni @ Premwati, my husband Vinod, my sister-in- law Shivani and Ashok and Satish my brothers-in-law kept harassing me. One day my husband had given me beatings and when my family came to visit me he pushed them out of the house saying that he would deal with the police and the court. My husband kept asking me to get money from my parents and to arrange for a separate house for us. Time and again I informed my parents about the demands of my husband and his family. Yesterday morning my father- in-law Nahar Singh, my mother-in-law, sister-in-law Shivani quarreled with me and after putting on the VCR at a very loud volume so that no one could hear my screams, my mother-in-law, sister-in-law Shivani and brothers-in-law Ashok and Satish dragged me towards the balcony where my mother-in-law poured kerosene oil on my head and set me on fire. My husband was also present there but he did not try to save me despite my crying for help. What will happen to my children? I was not even given food for the last two days. I am feeling very thirsty and hungry. After burning me, they said that the police could do nothing."

16. In view of the fact that Vimlesh implicated four

family members directly and her husband of being a passive

by-stander, Inspector Niranjan Singh PW-21 informed the area

Sub Divisional Magistrate Shri S.N.Sahai PW-10, who

immediately reached the hospital and recorded the statement

Ex.PW-10/A at about 1:10 PM the same day. The statement is

in Devnagri script. Translated, it reads as under:-

       "Q.     What is your name?
       A.      Vimlesh.

       Q.    What is the name of your husband and where do
       you reside?
       A.    My husband is named Vinod Kumar and I reside

in House No.53-B/8, Chotti More Sarai, Near Kodia Pul, Delhi.

       Q.    How did you catch fire?
       A.    Yesterday evening at around 5 or 6 PM my

mother-in-law, my sister-in-law Shivani and my brothers-in-law Ashok and Satish caught hold of me and set me on fire. While my brothers-in-law Ashok and Satish and my sister-in-law Shivani were holding me, my mother-in-law poured kerosene oil on me and by lighting a match stick, set me on fire. I was crying for help but no one could hear me outside as at that time a VCR (taken on rent) was being played at a very loud volume. On catching fire, I ran out from my room towards the kitchen where my husband poured water on me to douse the fire and then took me to the hospital.

       Q.    Why were you burnt?
       A.    Since the time of my marriage the members of

my husband's family were demanding Rs.1,00,000/- for dowry which demand could not be fulfilled by my brothers and for this reason my mother-in-law, sister- in-law, brothers-in-law and my husband used to beat me. On 5.6.1989, tired of the tortures inflicted on me, I went to my brother, who, however refused to keep me in the house and so I returned back. For this reason my in-laws were agitated and started beating me even more. For the past one week the quarrels had considerably increased and since day before yesterday I was not given food and water. Yesterday evening they attempted to kill me.

       Q.      When did you get married?



        A.    I got married according to the Hindu Rites and
       Rituals on 20.2.1987.

Q. Where were your husband and children when you were being set ablaze?

A. They were outside in the lawn."

17. As held in the decision reported as 2007 (3) JCC

2355 Mehiboobsaab Abbasabi Nadaf vs. State of Karnataka,

where there are more than one dying declarations made by

the deceased, extra care has to be taken to see as to which

dying declaration inspires confidence. The one which inspires

confidence has to be accepted. If none inspires confidence,

each has to be discarded.

18. In a decision dated 12.5.2009 disposing of

Crl.Appeal No.228/2001 Gokul vs. State, a Division Bench of

this Court, of which one of us, namely, Pradeep Nandrajog, J.

was a member of, rules of caution for acceptance of dying

declarations were enumerated as under:-

"32. The admissibility of a dying declaration as a piece of evidence is an exception to the general rule of exclusion of hearsay evidence. 'A person will not meet his Maker with a lie in his mouth' is the philosophy underlying admissibility of dying declaration as a piece of evidence. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eye witness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. The judicially evolved rules of

caution for acceptance of dying declaration are being enumerated herein under:-

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where a 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 said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted.

(xii) The law does not provide that a dying declaration should be made in any prescribed manner or should be in the form of questions and answers. Only because a dying declaration was not recorded by a Magistrate, is no ground to disbelieve a dying declaration."

19. As held in the decision reported as 2008 (1)

SCALE 653 Shaikh Rafiq & Anr. vs. State of Maharashtra,

where any doubt is cast on a dying declaration, it is unsafe

to sustain a conviction on the dying declaration of the

maker thereof.

20. A perusal of the two statements Ex.PW-10/A and

Ex.PW-21/A, which were recorded with a time interval of about

two hours, show substantial discrepancies inter-se the two

statements. In Ex.PW-21/A which was recorded first at around

10:40 AM Vimlesh has stated that it all started when her

father-in-law Nahar Singh, her mother-in-law Premwati and

sister-in-law Shivani quarreled with her. Followed by her

mother-in-law, sister-in-law and the two brothers-in-law

dragging her towards the balcony where her mother-in-law

poured kerosene oil on her and set her on fire. She alleges the

role of a passive by-stander to her husband, who, according to

the statement, remained unmoved in spite of her crying as to

what would happen to her children. In the second dying

declaration, Vimlesh does not speak about any quarrel

involving her father-in-law, mother-in-law or sister-in-law. She

commences the narrative by saying that in the evening, her

sister-in-law and brothers-in-law caught her and her mother-in-

law poured kerosene oil on her and set her on fire. She states

that on catching fire, she ran out from the room towards the

kitchen where her husband poured water on her to douse the

fire. To the last question put to her by PW-10 as to where

were her husband and children when she was set ablaze, she

replied that they were in the lawn.

21. So different are the two versions narrated by

Vimlesh that it is just not possible to reconcile the two. From

inculpating her husband as a by-stander, she changes her

version of ascribing a role of a saviour to her husband. From

partly inculpating her father-in-law of being a part of the troika

who quarreled with her immediately preceding the act of

setting her on fire, she omits to speak anything about a

quarrel preceding the act of setting her on fire. The place

where she was burnt, as per the first statement, is the balcony

of the house to which she claimed being dragged towards by

her sister-in-law and her brothers-in-law. The second

statement speaks nothing of anyone dragging her towards the

balcony. As per the first statement, she was burnt in the

balcony. Her statement that on catching fire she ran out from

her room towards the kitchen, which is a part of her second

statement i.e. Ex.PW-21/A, shows the place where she was

burnt was her room. Thus, even the place where she was

burnt has been changed by Vimlesh. In her second statement,

Vimlesh has categorically stated that when she was set on fire,

her husband was in the lawn.

22. The learned Trial Judge has acquitted the father-in-

law and the husband of Vimlesh on account of the afore-noted

inconsistencies. We may note a clarification here. Qua the

father-in-law of the deceased, the learned Trial Judge has held

that no role whatsoever has been attributed to him in both the

statements.

23. It appears that the learned Trial Judge has been

swayed by the fact that in both the statements the deceased

implicated her two brothers-in-law, her sister-in-law and her

mother-in-law. The learned Trial Judge has ignored the fact

that Vimlesh had completely changed the version as to where

and under what circumstances she was set on fire. The

learned Trial Judge has ignored the changed versions as noted

by us in the preceding paras.

24. The two mutually contradictory narratives i.e.

irreconcilable versions narrated by Vimlesh compels us to hold

that neither dying declaration inspires confidence and there

are traces of Vimlesh having a grudge against the appellants

and hence being motivated not to speak the truth. The grudge

against the appellants is evidenced by the fact that in the two

completely different narratives of the same event, the only

commonality is to implicate the appellants. Thus, the

appellants are entitled to a benefit of doubt.

25. It being wholly irrelevant for our decision, we have

not included a fact while considering the evidence, but note

the same, as insisted to by learned counsel for the appellants.

The said fact is that the widowed elder sister of Vimlesh

subsequently has got married to Vinod i.e. the husband of

Vimlesh. Learned counsel for the appellants has wanted to

urge that this shows the confidence of the parents of Vimlesh

in the family of Vinod. Counsel wanted us to draw an

inference that Vimlesh set herself on fire due to some cause

which has died with her. We feel that said subsequent event is

wholly irrelevant.

26. The appeals are allowed. The conviction of the

appellants of the offence punishable under Section 302/34 IPC

is set aside. The appellants are acquitted of the charge

framed against them of murdering Vimlesh.

27. Since the appellants are on bail, their bail bonds

and surety bonds are discharged.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 17, 2009 dharmender