Sampat @ Anr. vs State
2009 Latest Caselaw 3407 Del

R-35
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision: 27th August, 2009

+                            CRL.A. 162/2001

       SAMPAT & ANR.                                ..... Appellants
                Through:            Mr. M.L.Yadav, 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. A short question arises for consideration in the

instant appeal which lays a challenge to the judgment and

order dated 9.2.2001. The appellants have been convicted for

the offence of having poured kerosene oil on Smt.Rajni, wife of

Lokesh Kumar and thereafter setting her on fire. The resultant

burn injuries have admittedly resulted in the death of the

deceased, a finding so recorded in the post-mortem report

Ex.PW-11/E of the deceased.

2. The short question is: whether the statement

Ex.PW-4/A made by the deceased and recorded by

Sh.I.S.Dahiya PW-14, then working as the SDM Saraswati

Vihar, can safely be treated as the dying declaration of the

deceased and can it form the basis of the conviction of the

appellants?

3. Suffice would it be to note that Rajni was removed

to Jai Prakash Narayan Hospital by HC Ram Niwas and was

removed from the first floor from House No.M-57, Mangol Puri

and was admitted at the hospital at 3:50 PM on 9.7.1998, a

fact recorded in the MLC Ex.PW-15/A of the deceased.

4. Rajni was admitted in a burnt condition.

5. As deposed to by HC Ram Niwas PW-8, on 9.7.1998

i.e. the day when Rajni suffered burn injuries, he was in-charge

of the PCR van „26‟ and at 2:55 PM received information from

the police control room that the control room was informed

about a lady being burnt at House No.M-57, Mangol Puri. He

reached the said house and took Rajni to the hospital.

6. Information pertaining to a lady being burnt at M-

57, Mangol Puri was also conveyed by the police control room

to PS Mangol Puri, where the duty officer recorded the said

information vide DD No.14A, Ex.PW-4/D.

7. SI Ramanand PW-17 was handed over a copy of DD

No.14A and in the company of Const.Krishan Kumar, he

proceeded to House No.M-57, Mangol Puri to investigate the

matter and found that on the first floor of the house, in front of

a room, some burnt clothes, a stove, kerosene oil and

matchbox was lying. On inquiry he was informed that the

injured had been taken to a hospital.

8. Information of Rajni being admitted at JPN Hospital

was conveyed to the police station and was recorded by the

duty officer vide DD No.16A, Ex.PW-4/D, and was relayed to SI

Ramanand who, on receipt thereof, left Const.Krishan Lal at

the spot and proceeded to JPN Hospital where he found Rajni

admitted in the burns ward and her husband Lokesh was

present by her side. Making inquiries from Rajni‟s husband i.e.

Lokesh, he learnt that their marriage was solemnized 4-5 years

back and accordingly he informed the Sub-Divisional

Magistrate of the area to reach the hospital and record the

statement of Rajni.

9. Sh.I.S.Dahiya PW-14, as noted above, was the SDM

posted in the area. As deposed to by him, he reached the

hospital at 6:10 PM and contacted the doctor on duty, who

declared Rajni fit for statement at 6:45 PM. He recorded the

statement Ex.PW-4/A of Rajni and obtained her thumb

impression thereon and attested the same at point A and

thereafter directed the SHO to register a case as per law.

10. Before noting the contents of the statement Ex.PW-

4/A, it may be noted that on the MLC Ex.PW-15/A of Rajni, at

two points, marked B, signatures of Dr.Rohit with the date

9.7.1998 are to be found containing two endorsements just

above the signatures; the first endorsement records the time

6:45 PM and further mentions that the patient is conscious,

oriented and fit for statement. The second records, the time

7:10 PM and that the patient was fit till the statement was

taken. The signatures of Dr.Rohit at point(s) B on the MLC

have been proved by Rattan Singh PW-15, the record clerk of

JPN Hospital, who deposed that he was familiar with the writing

and signatures of Dr.Rohit and that the signatures at point(s) B

on the MLC Ex.PW-15/A are of Dr.Rohit. He also deposed that

the MLC was prepared by Dr.Deepa who had signed the same

at point A. As per his testimony, both doctors were no longer

in the service of JPN Hospital.

11. It is apparent that the fitness of Rajni and her

consciousness to make the statement and her continuous

consciousness during the time taken for recording the

statement stands authenticated and established in the form of

the two endorsements under the signatures of Dr.Rohit as

penned in the MLC Ex.PW-15/A of the deceased.

12. The statement Ex.PW-4/A of Rajni recorded by the

SDM is in question answer form and is in Devnagri script.

Briefly noted, as per the statement, Rajni disclosed that she

was married about 7 years back and was blessed with a child

(a son) aged 2 years and that she was an expectant mother,

having an unborn child in her womb. That today i.e. on

9.7.1998 she was resting on the first floor of her house and her

in-laws, Sampat and Shanti (the accused) who reside in the

same house on the ground floor came up with a 10 liter can

containing kerosene oil. Her mother-in-law caught her hand.

When she tried to yell, her mother-in-law stuffed a cloth piece

in her mouth. Her father-in-law sprinkled kerosene oil on her

and set her on fire. That in the morning she had a quarrel with

her mother-in-law at a water tap. Her husband was not

present in the house and had gone for work. On being set on

fire, she ran out and neighbours rescued her. Angoori a

neighbour, poured water on her to douse the fire. Her

husband reached after 15-20 minutes. Police was informed

over No.100 and she was removed to the hospital in a police

van. That her statement was given voluntarily and while she

was fully conscious.

13. The husband of the deceased; namely, Lokesh

appeared as PW-13 and deposed that on 9.7.1998 he was

away to work and returned home at 3:00 PM and saw a crowd

in their street outside his house and saw his wife lying burnt on

the roof. He enquired as to what had happened, to which she

replied that the accused had burnt her. He reported the

matter to the police. The police arrived and took his wife to

the hospital.

14. We may note that Rajni died on the 11th day of the

incident i.e. she died on 20.7.1998. In between, on 10.7.1998

i.e. next day of the unfortunate incident, a male child, who

could not survive, was born to her.

15. As per the impugned judgment, the learned Trial

Judge has convicted the appellants on the basis of the dying

declaration of the deceased i.e. her statement Ex.PW-4/A, for

the reason the learned Trial Judge has found no blemish in the

same and has rejected the defence that the deceased

committed suicide and falsely implicated the appellants.

16. The defence of the appellants is disclosed in their

answer to question No.12, which is the last question put to the

accused, being whether they had anything else to say. Both

responded in unison in the same words stating:-

"Rajni and Lokesh were residing at my house since six months as a tenant. They had stolen the ownership documents of my house No.M.57 Mangol Puri Delhi. On demanding the papers from them deceased Rajni and her husband Lokesh threatened me of dire consequences and to teach a lesson for life and to implicate in some false case. In order to grab my house the deceased Rajni and her husband

Lokesh conspired and deceased Rajni set herself on fire which was witnessed by some of the neighbourers. Lokesh has tutored the statement and at the instance of Lokesh police had falsely implicated me in this case. I am innocent. At the time of incident I was not present at my residence and later on I came to know about the incident that Rajni had set herself on fire."

17. It would be relevant to note that to prove the

defence that Rajni committed suicide, the appellants examined

Meena DW-1 who deposed that she resided at House No.M-40,

Mangol Puri and at around 2:30 PM heard noise and she came

out of her house. She saw Rajni in a burnt condition. Husband

of Rajni reached after 5-10 minutes. Police also came.

Accused Sampat reached at about 3:30 PM and that there

used to be a dispute between Lokesh who was a tenant of the

accused and the accused. The dispute pertained to the title of

the house. Lokesh used to threaten the accused that he would

teach them a lesson. That after the incident, Lokesh left the

house and having got remarried was residing elsewhere.

18. Kamla DW-2, deposed on the same lines as DW-1.

19. Prem DW-3, deposed that appellant Shanti had

come to her house on the day of the incident at 12:00 noon

and remained with her till 5-5:15 PM.

20. The appellants also sought to draw sustenance from

the testimony of Angoori Devi PW-2 about whom the deceased

had made a mention of, in her dying declaration; being the

lady who doused the flames on her burning body by pouring

water on her.

21. Angoori Devi PW-2, deposed that on the day of the

incident she was taking tea at the first floor of her House

No.39, Mangol Puri and saw Rajni set herself on fire. That after

setting herself on fire, Rajni sat in a tub of water lying nearby.

Rajni started crying and sought help. She went to the house of

Rajni and removed the clothes of Rajni. Lokesh, husband of

Rajni came after 10 minutes and rang up the police.

Thereafter, Rajni was removed to the hospital and Sampat

came in a rickshaw soon thereafter.

22. Angoori Devi was declared hostile and was cross

examined by the learned APP. She was confronted with her

statement recorded by the investigating officer under Section

161 Cr.P.C. wherein it was recorded that the deceased told her

that the appellants had poured kerosene oil on her and set her

on fire. But, she stuck to her version.

23. It is urged by learned counsel for the appellant that

the testimony of Angoori Devi establishes that Rajni

committed suicide. Counsel further urges that the testimony

of DW-1 and DW-2 prove the motive for Rajni to do what she

did. Motive being to cause injury to herself so that the

appellants are implicated and sent to jail to facilitate the

grabbing of the property of the appellants by Lokesh. Counsel

urges that Rajni has referred to the appellants as her in-laws, a

fact which is incorrect. Counsel submits that the fact of the

matter is that the appellants were the landlords of Lokesh, the

husband of Rajni and that Lokesh had stolen the title

documents of their property and was harassing the appellants

to give him a share in the property. Lastly, learned counsel

submits that pertaining to dying declarations, chapter 13A of

the Delhi High Court Rules contains rules applicable to dying

declarations and rule 3 thereof, requires the Magistrate who

records the dying declaration to certify the fitness of the

maker of the statement to make the statement.

24. A statement by a person who is dead or cannot be

found can be proved as a dying declaration if it relates to the

cause of his death as per the mandate of Section 32 of the

Evidence Act. The statement Ex.PW-4/A of Rajni, contents

whereof have been noted in para 12 above, is clearly a dying

declaration. It is settled law that a dying declaration needs no

corroboration. However, the rule of prudence has to be

followed. In that it is the duty of the Court to carefully look at

the dying declaration and the attendant circumstances to rule

out any suspicion or motivation or pressure brought upon the

maker of the statement and if any is found, unless

corroborated, not to return a finding of guilt on the sole

evidence of such dying declaration.

25. Pertaining to certifications by doctors qua the

fitness of the patient to make a dying declaration in the

context of proof thereof, in the decision reported as 1998 (VIII)

AD (SC) 426 Koli Chunilal Savji Vs. State of Gujarat it was held

that mere absence of an endorsement by a doctor that the

patient was fit, is not fatal to a dying declaration if otherwise

there is evidence on record that the patient was fit for

statement. The principle thereof can be extracted to deal with

the submission that Rule 3 of Chapter 13A of the Delhi High

Court Rules requires the Magistrate who has recorded the

dying declaration to certify the fitness of the maker of the

statement to make the statement. The rule is a salutary rule

intended to bring on record a contemporaneous fact i.e. the

fitness of the maker of the statement, which fact would be

used at a later stage. But, an error by the Magistrate to not so

record i.e. not penning down the fitness certificate, would not

mean that the Court cannot look to other evidence to satisfy

itself that the maker of the statement was fit when the

statement was recorded. In the instant case the fitness of the

maker of the statement stands proved through the testimony

of PW-15 who has identified the signatures of Dr.Rohit at

point(s) B on the MLC Ex.PW-15/A where, the fitness of Rajni

has been recorded twice. Firstly at 6:45 PM when she

commenced making her statement and secondly at 7:10 PM

when she concluded her statement. That apart, Sh.I.S.Dahiya

PW-14, the SDM who recorded the statement has categorically

deposed that Rajni was fit for making a statement and that he

had obtained the certificate of fitness from the doctor on duty.

In the decision reported as AIR 2003 SC 209 Shanmugam @

Kulandaivelu Vs. State of Tamilnadu it was held that merely

because the doctor concerned has not been examined to

prove the endorsement made by him certifying that the

patient was fit for statement, would not detract from the

credibility of the deposition of the SDM and the investigating

officer that they dutifully obtained the necessary certification

from the doctor and that the certifications made on the MLC of

the deceased to said effect were in their presence.

26. It is true that the appellants are not the in-laws of

Rajni. But in India, out of sheer respect for elders and

especially of people with a rural background, close associates

are referred to as parents, uncles, aunts, in-laws etc. Thus,

Rajni referring to the appellants as her saas and sasur does

not discredit her statement Ex.PW-4/A.

27. The theory of the appellants that Rajni committed

suicide to implicate the appellants so her husband could grab

their property stands disproved by the fact that when Lokesh,

husband of Rajni appeared as PW-13 on 10.7.2000 he

disclosed his address as resident of village Patla District

Ghaziabad UP. He deposed that on the day of the incident he

was residing at House No.M-57, Mangol Puri. Even DW-1

Meena, stated that after the incident, Lokesh left the house.

Truth has the uncanny habit of oozing out and revealing itself.

If Lokesh had wanted to grab the house of the appellants, what

better opportunity was available to him being that of the

appellants being taken into custody by the police and lodged

in judicial custody i.e. Tihar Jail. He did not do so. He left the

house. The reason is obvious. The memory of his wife would

have haunted him in the house. It proves that Lokesh and

Rajni did not have any evil eye on the house of the appellants.

28. The theory of Rajni committing suicide to falsely

implicate the appellants is ruled out from the fact that if this

was the desire and intention of Rajni, she would have yelled

and cried to the neighbours that the appellants have set her

on fire. As per the defence witnesses i.e. DW-1 and DW-2,

Rajni did nothing of that sort. Rajni only cried for rescue and

this attracted persons in the neighbourhood. By no means are

we believing the defence witnesses, but for the moment, we

only want to bring home the point that the contemporaneous

conduct of Rajni does not show a scheming mind.

29. DW-1 and DW-2 have spoken utter lies. If Rajni had

to commit suicide, she would not cry for help. Every person

desires to achieve the object towards which he acts. Every

person takes the precautions required to be taken to

accomplish the object of an act. A person who commits

suicide takes necessary precautions to achieve the desired

end i.e. death. A person who attempts to commit suicide

would not run helter-skelter crying for rescue.

30. The motive for the crime has been disclosed by

Rajni i.e. a tiff with appellant Shanti Devi in the morning. It

may sound most imprudent or unnatural for a person to set his

adversary on fire over a trifling matter. But, the over-crowded

city of Delhi has defied rational behaviour. Two out of three

incidents of homicide being dealt with by us have been

triggered over the most trivial issues such as the victim not

lending a paltry sum of Re.1/- to the accused or the victim

taking just a few seconds to remove his chair or stool from a

public street and the accused wanting to move further ahead

in the twinkle of the eye.

31. We see no reason why Sh.I.S.Dahiya would be

recording incorrect facts. We see no reason why the deceased

would tell a lie. It is not the case of the appellants that the

deceased suffered accidental burn injuries. They allege that

the deceased committed suicide. Why should she do so? In

her poverty, she was happy with her husband who was earning

enough to enable the two to live happily with their son. She

was an expectant mother. Her pregnancy was eight months

old. Only a compelling circumstance of extreme pain or

hardship would have compelled her to take not only her life

but even the life of the unborn child in her womb. No such

compelling circumstance of extreme pain or hardship has been

brought on record. None has seen the light of the day.

32. The dying declaration of Rajni is without any

blemish and needs no corroboration.

33. The appeal is dismissed.

34. The appellants have been admitted to bail pending

hearing of the appeal. The bail bond and surety bonds

furnished by them are cancelled. The appellants are directed

to surrender and suffer the remaining sentence.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 27, 2009 mm