Davinder vs State
2009 Latest Caselaw 3253 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 19th August, 2009

+                             CRL.APPEAL NO.390/2001

       DAVINDER                                    ..... Appellant
                      Through:    Mr.Rajpal Singh, Advocate.

                                  versus

       STATE                                    ..... Respondent
                      Through:    Mr. Pawan Sharma, A.P.P.

                              CRL.APPEAL NO.549/2001

       SHEELA DEVI                                 ..... Appellant
                Through:          Mr.Rajpal Singh, Advocate.

                                  versus

       STATE                                    ..... Respondent
                      Through:    Mr. Pawan Sharma, A.P.P.



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. We note the submissions urged by learned

counsel for the appellants. It is firstly urged that PW-9 has

admitted during cross examination that his statement under

Section 161 Cr.P.C. was recorded on 13.9.1998; the offence

being committed in the intervening night of 12 th and 13th

July 1998, it was obvious, is the submission made, that

there is an unexplained delay by the investigating officer in

recording the statement of PW-9 under Section 161 Cr.P.C.

Hence, counsel urges that the testimony of PW-9 who

claims to be the recipient of an oral dying declaration made

by the deceased has to be ignored. The second submission

is that the MLC Ex.PW-2/A of the deceased and the post-

mortem report Ex.PW-1/A do not record that smell of

kerosene oil was detected from the body of the deceased.

Thus, counsel urges that it can safely be assumed that

kerosene oil was not thrown on the deceased. The third

submission made is that the various exhibits seized by the

investigating officer from the house of the deceased, as

noted in the memo Ex.PW-14/A were not sent for forensic

examination and as a result a valuable right of the accused

has been taken away. Counsel submits that the memo

Ex.PW-14/A shows that cuttings from the bed on which the

deceased was burnt have been lifted by the investigating

officer and since the deceased claimed that she was

sleeping when appellant Davinder threw kerosene oil on her

before setting her on fire, had the cuttings from the bed

tested negative for the presence of kerosene oil, the same

would have discredited the dying declaration made by the

deceased to the Sub Divisional Magistrate. Lastly, counsel

urges that Gaura, the daughter of the deceased who was

present in the house of the deceased has deliberately not

been examined by the prosecution for the reason the

deceased had set fire to herself to teach a lesson to the

appellants and as deposed to by the defence witnesses

Gaura had instigated her mother to name the appellants as

the perpetrators of the crime. Counsel urged that had

Gaura stepped into the witness box, the prosecution feared

that truth would have emerged by cross-examining Gaura.

2. We may note that the only challenge to the

statement Ex.PW-13/A recorded by the Sub Divisional

Magistrate and as made by the deceased is on the plea

pertaining to not sending the bed cuttings for forensic

analysis.

3. Let us briefly note the facts. As recorded in the

MLC Ex.PW-2/A of Kirpa Devi, the deceased, she was

brought to the casualty of GTB Hospital at 3:55 AM on

13.7.1998. Information pertaining to the deceased being on

fire was received in the police station and entered vide DD

No.80-B, Ex.PW-5/A at 3:20 AM.

4. SI Sanjeev Sharma PW-18 accompanied by

Const. Atma Ram went to the house of the deceased and

there from to the hospital. He called Shri Kuldeep Gangar

PW-13, the SDM. The SDM reached the hospital by around

7:00 AM. On the MLC of the deceased at the portion

encircled Ex.PW-20/A, Dr.Praveen Chandra PW-20, made an

endorsement certifying that the patient was fit for

statement. Kuldeep Singh Gangar immediately recorded

her statement Ex.PW-13/A and obtained her thumb

impression at point Mark 'A' on the statement.

5. In her statement Ex.PW-13/A, which is in

question-answer form, Kirpa Devi informed that her

landlord, Davinder and his wife Sheela had sprinkled

kerosene oil on her and set her on fire. She gave a reason

for the act, being that her son Ashok was in love with Renu

the daughter of the Davinder and Sheela and that for the

last 15 days Renu was missing and even her son was

missing for the last one week. Due to this her landlord and

his wife used to quarrel with her. That she was sleeping in

her house. Her sleep was disturbed when kerosene oil was

sprinkled on her. Davinder was sprinkling kerosene oil on

her and his wife Sheela lit a match stick and set her on fire.

6. The MLC of the deceased shows that she has

been brought to the hospital in a PCR van by ASI Inder

Singh PW-9. The MLC records a fact as disclosed by the

patient herself that she was set on fire by the appellants

who poured kerosene oil on her. As per ASI Inder Singh PW-

9, when he was removing the deceased to the hospital on

the way she told him that the appellants had poured

kerosene oil on her and set her on fire. Thus, as per the

prosecution, the first dying declaration of the deceased is

an oral dying declaration made to ASI Inder Singh

immediately after the incident.

7. The second dying declaration made by the

deceased is to the doctor who prepared the MLC Ex.PW-2/A

i.e. Dr.Adarsh PW-2, who proved the MLC. The third dying

declaration is Ex.PW-13/A recorded by the SDM Shri Kuldeep

Singh Gangar PW-13 who proved the same. The last is the

oral dying declaration made by the deceased to her son-in-

law Sriniwas PW-4 who was in the house of his in-laws and

went to the hospital and deposed that when he was in the

hospital his mother-in-law told him that the appellants had

set her on fire.

8. We may note at the outset that SI Amar Singh

PW-8 has deposed that FIR No.379/98 under Section 363 IPC

was registered against Ashok, son of Kirpa Devi the

deceased at the instance of appellant Davinder Kumar.

Ashok and Kirpa Devi were tenants under Davinder. It is

thus apparent that the appellants were nursing a grievance

against the deceased and her son Ashok and hence had a

motive.

9. Before discussing the submission made by

learned counsel for the appellants we may note that Kirpa

Devi died a few hours after her statement was recorded by

the learned SDM.

10. It is settled law that defective investigation or

lapses by the investigating officer are not sufficient to throw

out the case of the prosecution, if it is otherwise established

by cogent evidence. Thus, the lapse of the investigating

officer in belatedly recording the statement of PW-9 under

Section 161 Cr.P.C. and in not sending for forensic

examination the various exhibits seized from the place of

occurrence of the crime have to be ignored, if otherwise the

prosecution has successfully proved the case. Yes, if doubts

arise in the judicial mind, said lapses have to be put in the

weighing scales in favour of the accused.

11. PW-9 ASI Inder Singh is the first person to have

met the deceased because he responded to the distress call

being in charge of the nearest PCR van. He has no motive

to tell lies. Thus, notwithstanding the lapse committed by

the investigating officer in belatedly recording the

statement of PW-9 under Section 161 Cr.P.C., his testimony

qua the dying declaration made by the deceased has to be

accepted for the reason he has successfully withstood the

test of cross-examination.

12. Even if we ignore the testimony of PW-9, we

have on record the second dying declaration of the

deceased recorded on the MLC Ex.PW-2/A by Dr.Adarsh PW-

2. We note that PW-2 has proved the MLC Ex.PW-2/A and

has deposed that the same is in his hand. Except for a bald

suggestion that the patient did not state to him the history

of how she was burnt, PW-2 has not been cross-examined

with respect to the mental and physical condition of the

deceased and her capacity to coherently state. PW-2 is a

doctor in government service. He has no animosity towards

the accused. Why should he be lying? We hold that the

testimony of PW-2 is credible and so is the MLC Ex.PW-2/A

prepared by him.

13. The statement Ex.PW-13/A recorded by the SDM

Shri Kuldeep Singh Gangar PW-13 is preceded by a

certification Ex.PW-20/A by doctor Praveen Chandra PW-20

duly certifying that the deceased was fit for statement. The

statement Ex.PW-13/A has been duly proved by PW-13 to

whom it has not even been suggested that the deceased

was not in a position to make the statement. A bald

suggestion has been made to him that he has incorrectly

recorded the statement. Why should PW-13 do so? He has

no animosity towards the appellants.

14. We may ignore the oral dying declaration

claimed to have been made by the deceased to him as

deposed to by Sriniwas PW-4.

15. We have independent evidence of the truth of

the dying declaration. The same is through the testimony

of Ramwati DW-1 and Om Prakash DW-2, the neighbours

who have deposed in favour of the accused, but have

ignored the fact that while introducing themselves as

witnesses both have deposed that the cries of help by the

deceased awoke them from their slumber at the break of

dawn on 13.7.1998. Both claimed that the cries of help of

the deceased led them to her house which was the ground

floor of the building on the first floor whereof resided the

appellants. Both of them claimed that Gaura, the daughter

of the deceased told her in their presence to name the

appellants as the ones who had set her on fire. If this be so,

the obvious conclusion would be that the deceased set

herself on fire. It means that either she was attempting a

suicide, in which case, she would not call for help. Or so

over powered with hate against the appellants was she, that

she was prepared to inflict a life threatening injury on self

and falsely implicate the appellants. If this was so, she

needed no instigation by her daughter.

16. We concur with the view taken by the learned

Trial Judge that the prosecution has successfully proved a

motive of the appellants to commit the crime. The

prosecution has successfully proved the commission of the

crime by the appellants by proving the dying declarations of

the deceased through PW-2 and PW-13.

17. That Gaura, the daughter of the deceased was

not examined as a witness by no stretch of imagination can

be attributed to the desire of the investigating officer to

hold back a material witness.

18. We find no merit in the appeals. The appeals are

dismissed.

19. The appellants are on bail. The bails bonds and

surety bonds furnished by them are cancelled.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 19, 2009 dharmender