Vijay Pal vs State
2009 Latest Caselaw 3452 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision : August 31, 2009

+                         CRL.A. 417/2001

         VIJAY PAL                        ..... Appellant
                      Through:   Mr. Sumeet Verma, Advocate

                                 versus

         THE STATE (GNCT) OF DELHI   ..... Respondent
                  Through: Mr. M.N.Dudeja, 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 judgment and order dated 17.1.2001, appellant

Vijay Pal has been convicted for the offence of having

intentionally poured kerosene oil on his wife Savitri and setting

her on fire resulting in Savitri's death i.e. the offence of

murder.

2. The learned Trial Judge has convicted the appellant

on the basis of the testimony of her brother Satish PW-1 who

deposed that his sister i.e. the deceased made a dying

declaration to him when he went to her house. She cried on

seeing him: 'bhaiya - bhaiya tera jeeja ne mere par mitti ka tel

dal kar aag laga di hai'.

3. It is not in dispute that Neelam was removed to the

hospital by her brother Satish (PW-1). The said fact is recorded

in the MLC Ex.PW-6/B. The MLC records that Savitri was got

admitted at Safdarjung Hospital on 3.11.1997. Unfortunately,

the time of admission has not been recorded thereon.

4. The fact that Savitri was admitted at the hospital at

1:30 PM is evidenced by DD No.3B dated 3.11.1997, Ex.PW-

19/A wherein the Duty Constable at PS Mangol Puri recorded

the information that the Duty Officer at Safdarjung Hospital has

intimated that a lady who resided in House No.F-456, Mangol

Puri was admitted in a burnt condition at the hospital.

5. The only apparent evidence against the appellant is

the testimony of Satish PW-1 whose presence with his sister,

soon after she suffered burn injuries is not in doubt, evidenced

by the fact that he took his sister to the hospital and as

deposed to by him he resided at a distance of about half

kilometer from the matrimonial house of his sister i.e. was

residing at House No.F-878, Mangol Puri.

6. The problem which needs to be addressed is the

effect of the testimony of PW-8 Sh.Shiv Charan, the father of

Savitri, who also used to reside in the same house in which PW-

1 was residing and the impact of the testimony of Kumari

Seema PW-3, the daughter of the deceased and the appellant.

7. Seema PW-3, the daughter of the deceased and the

appellant, resiled from her statement recorded by the

investigating officer on 3.11.1997 itself in which she had

inculpated her father as the one who burnt her mother. While

deposing in Court she stated that when her mother was

cooking food, the oil in the tank of the kerosene stove got

consumed and when her mother poured kerosene oil into the

tank, it started springing out from the nozzle and all of a

sudden ignited resulting in her mother catching fire. In other

words, according to the testimony of Seema, her mother got

accidentally burnt. We note that Seema denied having told the

police that when her mother was burnt she went to the house

of her maternal grandfather and told her maternal grandfather

and her maternal uncle that her father had set her mother on

fire and that thereafter her maternal grandfather and maternal

uncle came to her house.

8. Satish PW-1, the brother of the deceased deposed

that he was residing at a distance of half kilometer from the

matrimonial house of his sister and that on 3.11.1997 he went

to his sister's house after his niece Seema aged about 10 years

came running to his house and informed that her father was

threatening to burn her mother. He reached the matrimonial

house of his sister and was followed by his father. When he

entered the house, his sister cried: 'bhaiya - bhaiya tera jeeja

ne mere par mitti ka tel dal kar aag laga di hai'. He took his

sister to the hospital and thereafter the police came and

inspected the scene of the crime, lifted a matchbox, a

matchstick, burnt clothes and a plastic can from the spot as

recorded in the memo Ex.PW-1/A. Burnt clothes and other

articles were seized vide Ex.PW-1/B. During cross examination

he stated that nobody was present in the house where his

sister was burnt when he reached the house.

9. Shiv Charan PW-8, the father of the deceased

deposed that he was present in his house on 2.11.1997 (the

date appears to be a typographic error) when Seema, the

daughter of his daughter, came crying and informed that her

father had set her mother on fire. He and his son Satish

immediately went to the matrimonial house of Savitri i.e. his

daughter and found her speechless and grievously burnt. The

appellant was sitting in the house. He and his son removed

Savitri to the hospital.

10. Learned counsel for the appellant has urged that

Shiv Charan has categorically deposed that Savitri was lying

speechless. In any case, counsel urges, that Shiv Charan Singh

has not said that on seeing Satish, Savitri cried out that her

husband had set her on fire. Counsel further urges that as per

Satish, nobody was present in the house, but as per Shiv

Charan, the appellant was present in the house. Learned

counsel has drawn our attention to the testimony of Seema

who has stated that when her mother caught fire, her father

was not in the house. Counsel concludes the submission by

referring to the testimony of Shyamwati DW-1, the sister of the

appellant, who has stated that 3.11.1997 was Bhaiya Dooj and

her brother was in her house in the afternoon when his wife

suffered accidental burns.

11. Submissions made by learned counsel for the

appellant, at the first instance and at the first blush appear

very convincing, for the reason to sustain the conviction of an

accused on the solitary evidence of a dying declaration

requires the dying declaration to be of an impeccable

character, untainted by any blemish and inspiring full

confidence. The reason is that the maker of the statement is

not available for being cross examined. Law of evidence has

recognized cross examination as a strong and an effective tool

in favour of the defence for many a times, effective cross

examination can totally demolish, what otherwise appears to

be a very convincing version disclosed to the Court by a

witness. But, dying declarations have to be treated as

admissible evidence due to the necessity of making it so

admissible for the reason, what can the prosecution do, if the

maker of the statement does not survive. The view in favour of

not only making admissible but even acting upon dying

declarations is premised on the principle that just before

departing from the world to meet the maker i.e. God, a human

being would not tell lies and such statements are serene and

solemn.

12. Circumstances surrounding an event throw light on

the event and whenever Judges have encountered grey areas

or the penumbral areas, with reference to the surrounding

circumstances, Courts have found illumination and light.

13. Satish, the brother of the deceased and Shiv Charan

her father, reside at a distance of about half kilometer from the

matrimonial house of the deceased. Both claim to have gone

to the house of the deceased on being summoned by Seema.

Seema has categorically deposed that she has not gone to call

her maternal uncle. We find truth in the statement of Satish

and Shiv Charan for the reason how else could they know that

Savitri was burnt. No suggestion has been given to the two

during cross examination that some third person informed

them that Savitri was burnt. Seema was aged 10 years when

her mother got burnt. Her maternal grandfather resides in the

same colony in which Seema resided with her parents. The

distance between the two houses was half kilometer. It was

natural for Seema to rush to her maternal grandfather's house

and summon a rescue for her mother. It is apparent that

Seema has tried to save her father and has been influenced by

him.

14. No doubt, Shiv Charan has said that his daughter

was lying speechless when he reached her house. Shiv Charan

has deposed on 13.10.1998 and as disclosed in his statement

was aged 65 years as on 13.10.1998. He deposed after nearly

a year of the incident. Parts of his memory failing him are in

the realm of a possibility.

15. We have stated hereinabove that Courts have

looked to circumstances and enwombing facts for guidance

and to look with clarity in areas where shadows fall and appear

to be in darkness. As the saying goes: men may lie but

circumstances seldom do.

16. Who says that dead bodies do not speak! They do.

Savitri's body has spoken. What has been uttered is recorded

in the post mortem report Ex.PW-5/A, proved through the

testimony of Dr.G.K.Chaubey PW-5, the doctor who conducted

the post-mortem. He not only proved the post-mortem report

Ex.PW-5/A, on being cross examined he stated that the burn

injuries were not possibly the result of accidental burns. He

justified his opinion by stating that the burns noted by him on

the body of Savitri were superficial to deep and covered 90% of

the body; the deep burns could not be the result, if a little

kerosene oil fell on the body of Savitri. He stated that the

same evidenced much more than a little quantity of oil falling

on Savitri. The post-mortem report has a very telling fact

recorded therein being smell of kerosene oil on the scalp hair

and soot particles present in the larynx. Kerosene oil is a

hydrocarbon. It is apparent that the body of Savitri was

wrenched with a large quantity of kerosene oil, for had it not

been so, soot particles would not be found present in the

larynx of Savitri.

17. After the post-mortem of Savitri skin tissue and

scalp hair remnants were handed over to the investigating

officer for forensic evaluation and as per FSL Report Ex.PW-

20/B, analyzed by gas liquid chromatography, kerosene oil

residues were found on the scalp hair of the deceased.

18. This i.e. presence of kerosene oil on the scalp hair of

the deceased and presence of soot particles in the larynx of

the deceased categorically and unequivocally tells the Court

that kerosene oil was poured on the skull of Savitri which could

not have happened if what Seema deposed in Court was

correct. The said telling evidence rules out a case of kerosene

oil accidentally spilling on the body of Savitri. We note that the

accidental spilling as claimed to have been seen by Seema is

when the kerosene oil sprayed out from the nozzle of the stove

when her mother was cooking. This is just not possible keeping

in view the post-mortem report of the deceased and the FSL

Report.

19. It is not the case of the appellant that his wife

committed suicide.

20. It has to be noted that as per Satish he reached first

and was soon followed by his father. There is truth in his

statement. Both, Satish and his father, were present in their

house when Seema informed to her mother being burnt. The

natural reaction of both father and son would be to run to the

house of Savitri. Being younger in age, Satish would obviously

outpace his father and would run the half kilometer distance to

his sister's house before his father could do so. Thus, Satish

hearing the words of his sister and his father not hearing the

same is explainable.

21. We are guided, in the instant case, by the

circumstances aforenoted i.e. what is recorded in the post-

mortem report of the deceased and the FSL Report to break

the deadlock, which resolves in favour of the prosecution and

against the accused.

22. Since precedents are the ammunition in forensic

legal battles fought by lawyers in Courts we note only one

decision where the deposition of prosecution witnesses who

gave false evidence to support the accused was rejected on

the issue of an oral dying declaration on the basis of

documentary evidence. The decision is reported as 2008 (1)

SCC Cri. (486) Vikas & Ors. Vs. State of Maharashtra.

23. Before concluding we may highlight that in the

instant case there is not one, but two pieces of incriminating

evidence against the appellant. The first is the oral dying

declaration of the deceased which has been proved through

the testimony of her brother and the second is the post-

mortem report of the deceased and the testimony of PW-5 as

also the FSL Report. The two documentary evidences and the

testimony of PW-5 categorically rule out the burn injuries being

accidental. It is thus not a case of the dying declaration alone

being the material available with the Court. Thus, the

authorities which relate to the law pertaining to whether should

convictions be sustained when the dying declaration is the only

evidence are not applicable in the facts of the instant case.

24. The appeal is dismissed.

25. The appellant has been admitted to bail. The bail

bond and the surety bond furnished by the appellant are

cancelled. The appellant shall surrender and suffer the

remaining sentence.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE AUGUST 31, 2009 mm