Sanjiv Kumar vs The State
2009 Latest Caselaw 5246 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on: December 10, 2009
                           Judgment delivered on: December 16, 2009


+       CRIMINAL APPEAL NO.66/1997

        SANJIV KUMAR                              ..... Appellant
                                  Through:        Mr.Sarojanand Jha with
                                                  Mr.Abhishek Prasad,
                                                  Advocates

                      Versus

        THE STATE                                      ..... Respondent
                                  Through:        Mr.Sunil Sharma, APP

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


1.      Whether Reporters of local papers may be allowed to see
        the judgment?                                           Yes
2.      To be referred to the Reporter or not ?                    Yes
3.      Whether the judgment should be reported in Digest ?        Yes


AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

09.01.1997 in terms of which the appellant has been convicted for the

offence punishable under Section 302 IPC and also the order on sentence

dated 10.01.1997 in terms of which the appellant has been sentenced to

undergo imprisonment for life and to pay a fine of Rs.3,000/- in default of

payment of which to undergo RI for further period of six months.

2. Briefly put the case of the prosecution is that on 10.04.1993 at around

10.30 a.m. at 184, Widow Colony, Punjabi Bagh, the appellant set

Ms.Krishna (deceased) ablaze after pouring kerosene oil on her and fled

away. Constable Y. Mohan Rao, PW12 was passing through the place of

occurrence. On hearing the cries of the deceased, he rushed to the spot and

found her in a badly burnt condition. He immediately took the deceased to

ESI Hospital, Raja Garden in a TSR, where she was examined by Dr.H.M.

Sidharth, PW17, who is stated to have prepared her MLC Ex.PW17/A. The

deceased is stated to have told the doctor while giving her history that she

was set on fire by her husband Sanjiv Kumar. On examination, the deceased

was found to be conscious and she had sustained 100% superficial to deep

burns. Thus, she was referred to Dr.P. Senapati, who referred her for

admission to Surgical Casualty Ward for further treatment.

3. Constable Nahar Singh, PW6 was on duty at the hospital and he

conveyed the information about the admission of the deceased in ESI

Hospital to the police station Punjabi Bagh. The information was recorded as

DD No.6A(Ex.PW11/A) at the police station and entrusted to ASI Rajinder

Singh, PW11 for further action, who along with home guard constable Raj

Kumar left for the place of occurrence. The information was also conveyed

to Sub Inspector Ranbir Singh. They all reached at ESI Hospital. SI Ranbir

Singh, PW18 collected the MLC Ex.PW17/A of Ms.Krishna, who was

declared fit for making statement. The area SDM was informed and

requested to come to the hospital for recording the dying declaration of the

injured. SI Ranbir Singh waited till 1.45 p.m. and when the SDM did not

turn up, he recorded the statement of the deceased Ex.PW1/A in Hindi in the

presence of Dr.Ashok Kumar, PW1, who also countersigned the statement of

the deceased. After endorsing said statement, SI Ranbir Singh sent it to the

police station through ASI Rajinder Singh for registration of formal FIR and

on the basis of the said statement, formal FIR No.247/93 was recorded under

Section 307 IPC. Ms.Krishna ultimately succumbed to her injuries on

11.4.1993 and the receipt of information of her death, the offence was

converted from 307 IPC to 302 IPC.

4. The ACP, Inspector Surender Kumar, SHO-PW16 and Inspector

Harpal Singh-PW15 also reached at the hospital. Inspector Harpal Singh

had on an earlier date arrested the appellant in a case FIR No.64/93 under

Section 408 IPC of P.S. Punjabi Bagh with the assistance of deceased

Krishna. He identified the deceased in the hospital and informed that she

was Krishna, wife of Sanjiv (appellant) who was arrested by him in the

earlier case.

5. SI Ranbir Singh then proceeded to the spot of occurrence and got it

photographed. He also prepared the rough site plan. He found some burnt

pieces of clothes lying near the door as well as the central room of the house

from where the odour of kerosene oil was emanating. He also found 15

burnt and unburnt match sticks besides some burnt pieces of bidi at the spot.

Those articles were taken into possession. The Investigating Officer also

collected the sample earth from the spot. He also found one plastic

container smelling of kerosene oil at the spot of occurrence which was

seized after converting it into a sealed packet.

6. Father of the deceased Bhule Ram and her cousin Zile Singh PW10

identified the body of the deceased in the mortuary. Dr.L.K. Barua, PW13

conducted the post mortem examination on the body of the deceased on

15.4.1993 and in his report, he opined that the deceased had sustained 100%

superficial to deep burns caused by fire flame and according to him, the

cause of death was shock due to 100% superficial to deep burns. Scalp hair

of the deceased were preserved, sealed and handed over to the police. As

per the CFSL report, the residue of kerosene oil was found on the scalp hair,

burnt pieces of clothes, empty plastic can and the earth control samples

seized from the spot. The appellant was arrested by SI Ranbir Singh from

Village Gulawati, District Bulandshehar, U.P. and was identified by

Inspector Harpal Singh.

7. On completion of the investigation, the appellant was sent for trial for

the murder of Ms.Krishna. He was charged under Section 302 IPC. The

appellant pleaded innocence and claimed to be tried.

8. In order to bring home the guilt of the accused, prosecution has

examined 18 witnesses. None of them however, is an eye witness to the

occurrence and the prosecution case rests mainly on two dying declarations

purported to have been made by the deceased Smt.Krishna and the physical

identification of the appellant Sanjiv by Inspector Harpal Singh, PW15 as

the husband of the deceased referred to in her dying declarations.

9. The first dying declaration Ex.PW17/A relied upon by the prosecution

is purported to have been made by the deceased in presence of Dr.H.M.

Sidharth, PW17, who recorded it in the form of the alleged history given by

the patient in the following words "alleged h/o being burnt by pouring

kerosene oil & setting her on fire by her husband". PW17, Dr.H.M.Sidharth

in his statement in the Court confirmed the above referred dying declaration

having been made by the deceased.

10. The second dying declaration relied upon by the prosecution is the

statement Ex.PW1/A of the deceased Krishna, stated to have been made to

SI Ranbir Singh. It has been proved by SI Ranbir Singh, PW18. PW1,

Dr.Ashok Kumar in his evidence stated that the above referred dying

declaration Ex.PW1/A was recorded by SI Ranbir Singh in his presence and

he appended his signatures as a witness to the dying declaration. He also

stated that when the said dying declaration was recorded, the witness was in

a fit state of mind and was able to give rational answers to the questions put

to her.

11. The appellant was examined under Section 313 Cr.P.C to provide an

opportunity to explain the incriminating circumstances appearing in

evidence against him. The appellant denied having married or ever resided

with the deceased and claimed that he has been falsely implicated in this

case. According to him, on the day of the occurrence he was not in Delhi

but at his native place, Village Gulawati, District Bulandshehar. He

examined DW1 Jitender, Son of Sukhbir Singh in his defence.

12. On conclusion of trial, the learned trial Court, relying upon the dying

declarations made by the deceased, found the appellant guilty of setting the

deceased on fire after pouring kerosene on her and convicted him under

Section 302 IPC in terms of the impugned judgment.

13. Learned counsel for the appellant has assailed the impugned judgment

on two counts. He has contended that in the instant case, the conviction of

the appellant rests solely on the purported dying declarations Ex.PW17/A

and Ex.PW1/A made by the deceased in presence of PW 17, Dr.H.M.

Sidharth and SI Ranbir Singh, PW18 respectively. It is submitted that

neither of the said two dying declarations are reliable and their authenticity

is highly doubtful. The second submission on behalf of the appellant is that

even if the dying declarations are taken to be authentic and reliable, then

also the dying declarations only say that it was one Sanjiv, husband of the

deceased, who had set her on fire after pouring kerosene oil on her. In order

to succeed in the case, the prosecution was required to establish the physical

identity of the appellant as the Sanjiv Kumar referred to in the dying

declarations, which the prosecution has failed to establish. Thus, learned

counsel has urged us to set aside the impugned conviction under Section 302

IPC.

14. Learned counsel for the State, on the other hand, has defended the

impugned judgment. He has contended that the dying declarations of the

deceased Ex.PW17/A and Ex.PW1/A have been proved by PW17, Dr.H.M.

Sidharth and PW18, SI Ranbir Singh respectively and there is no reason

whatsoever, as to why said two witnesses, who are public servants, would go

out of the way to falsely implicate the appellant. There is no evidence on

record to suggest that either of the witnesses had any motive to falsely

implicate the appellant, therefore, there is no reason to suspect the reliability

of the dying declaration. Learned counsel for the State has further submitted

that even the identity of the appellant as the husband of the deceased referred

to in the dying declaration is established by the testimony of Inspector

Harpal Singh, PW15, who had no motive to depose falsely against the

appellant.

15. Coming to the first dying declaration Ex.PW17/A, which is stated to

have been made by the deceased in presence of PW17 Dr.H.M. Sidharth at

the time of preparation of her MLC Ex.PW17/A. While giving the history of

cause of having suffered burns, PW17, Dr.H.M. Sidharth was categoric in

his statement made to the Court that Constable Y. Mohan Rao had brought

the deceased to ESI Hospital on 10.4.1993 at 11.00 a.m. in burnt condition

and the deceased herself gave him the history of being burnt by pouring

kerosene oil and set on fire by her husband whose name she had disclosed as

Sanjiv. Aforesaid version of PW17 finds corroboration from the MLC

Ex.PW17/A contemporaneously recorded by him. In the MLC, Dr.Sidharth

has recorded "alleged h/o being burnt by pouring kerosene oil and setting

her on fire by her husband". Indeed the name of the husband does not find

mention in the history recorded by Dr.H.M. Sidharth, PW17 but at the top of

MLC against the name of the deceased Krishna, doctor has recorded in his

own hand writing, wife of Sanjiv, which corroborates the version of PW17

that the deceased had given the name of her husband to the doctor. There is

no reason to suspect the correctness of version of PW17, who is a public

servant and who obviously had no reason or motive to make false averment

regarding the history given by the patient in the MLC. Analyzing the

situation from the other angle, it is seen that the deceased was taken to the

hospital by Constable Y. Mohan Rao, PW12, who admittedly is not an eye

witness of the occurrence. Therefore, the only person who could have given

the history to PW17 Dr. Sidharth could be the deceased Krishna. Thus, we

have no hesitation in concluding that the prosecution has been able to

establish the dying declaration Ex.PW17/A made by the deceased in the

presence of Dr.H.M. Sidharth.

16. Coming to the second dying declaration, Ex.PW1/A which is

purported to have been made by the deceased Krishna in presence of SI

Ranbir Singh, PW18. Aforesaid dying declaration Ex.PW1/A was recorded

in Hindi and its translated version in English reads as under:-

"I reside at the aforesaid address. About two years back, I was married to Sanjeev resident of Gulawathi, Bullandshahar, U.P. No child is born so far. MY husband was in service with some Mr. Aggarwal in Punjabi Bagh as driver. Some times before, my husband fled from there having stolen Rs.1,80,000/- (one lac and eighty thousand only) from him (Mr.Aggarwal). Later he was arrested by the police and the stolen cash was recovered from him. Mr.Aggarwal had terminated his services and after releasing on bail, he was not doing any job now a days. Whenever he came to the house, I advised him to do some gainful job with honesty whereon he used to pick up quarrel with me and beat me. Today at 10.30 A.M. in the morning when he came to the house, I advised him to do some gainful job whereupon he immediately got enraged and he having sprinkled kerosene on me, put me on fire immediately and fled from the place of occurrence. On my raising alarm, some persons including one policeman reached there and he (policeman) got me admitted here in the hospital. My husband Sanjeev having sprinkled kerosene on me, put me on fire with an intention to murder me. Legal action may please be taken against him.

I have heard the statement and the same is correct."

17. Learned counsel for the appellant has contended that a bare perusal of

the dying declaration Ex.PW1/A would show that it is prolific and it

contains the details about an earlier criminal case pertaining to theft of

Rs.1,80,000/- by the appellant from his employer Mr.Aggarwal and his

arrest in the said case as also the recovery of cash from him. He has argued

that given the fact that the deceased had suffered 100% superficial to deep

burns and her face was fully burnt, it is highly improbable that she could

have given such a prolific statement to the Investigating Officer and a

possibility cannot be ruled out that the aforesaid facts relating to the

employment of the appellant with one Mr.Aggarwal and his arrest in a theft

case involving Rs.1,80,000/- has been introduced by the Investigating

Officer on his own with a view to implicate the appellant with the help of the

testimony of Inspector Harpal Singh, PW15, who, as per the prosecution

case was the Investigating Officer of the above referred case mentioned in

the dying declaration.

18. We find force in the contention of learned counsel for the appellant.

The appellant, as per the MLC, Ex.PW17/A and the post mortem report had

suffered 100% superficial to deep burns with her face totally burnt and

blackened. Therefore, it is apparent that the appellant must have been under

severe pain and trauma and since her face was burnt as stated by Dr.L.K.

Barua, PW13, who conducted the post mortem, obviously she must be

feeling difficulty in speaking also. Therefore, it is highly improbable that the

deceased might have given the details of the theft case against Sanjiv in her

dying declaration Ex.PW1/A. Thus, we are not inclined to rely upon at least

that part of the dying declaration which is doubtful. However, there can be

no doubt against the correctness of dying declaration Ex.PW17/A, therefore,

as such we conclude that prosecution has been able to establish that the

deceased made a dying declaration in presence of the doctor implicating her

husband Sanjiv as the person who had set her on fire.

19. The dying declaration helps the prosecution only to the extent that it

establishes the identity of the culprit as one Sanjiv, who was the husband of

the deceased. However, in order to bring home the guilt of the deceased, the

prosecution was also required to fix the physical identity of the appellant as

the same Sanjiv who was the husband of the deceased. The prosecution, in

order to prove the physical identify of the appellant, has relied only on the

testimony of Inspector Harpal Singh, PW15. No documentary evidence like

photographs, ration card and voter card etc. has been proved on record.

PW15, Inspector Harpal Singh has stated in his evidence that he had arrested

the appellant in the above referred theft case pertaining to theft of

Rs.1,80,000/- from 330, J.J. Colony, Madipur. No witness from 184,

Widow Colony, Punjabi Bagh or from the neighbourhood of 330, J.J.

Colony, Madipur has been examined by the prosecution to establish that the

appellant and the deceased had ever lived together at either of the addresses

as husband and wife or in any other capacity. This circumstance casts a

doubt upon the fairness of investigation. We are thus, left with the sole

testimony of Inspector Harpal Singh to establish the identity of the appellant

as the culprit referred to in the dying declaration. His version is also not

reliable, firstly, because as per the prosecution case, there was no occasion

for him to reach at the hospital along with the SHO. Secondly, the case of

the prosecution is that Inspector Harpal Singh on reaching the hospital along

with SHO, identified the deceased as Krishna, who had helped him in

getting her husband Sanjiv Kumar (appellant) arrested in a case under

Section 408 IPC, P.S. Punjabi Bagh, involving a sum of Rs.1,80,000/-.

Otherwise, Inspector Harpal Singh has no connection whatsoever with the

deceased. It is the case of the prosecution that PW12, Constable Y. Mohan

Rao took the deceased to the hospital from the spot of occurrence.

Constable Y. Mohan Rao is categoric in his assertion that the face of the

deceased was burnt to the extent that it was unidentifiable. Even the post

mortem Dr.L.K. Barua, PW13 has stated that the whole face and the neck of

the deceased had suffered first degree burns and the face was partly black.

Under those circumstances, we find it hard to believe that Inspector Harpal

Singh, PW15 could have identified the deceased. Not only this, prosecution

has also examined Zile Singh, PW10, a cousin of the deceased, who stated in

the cross-examination that the face of the deceased was totally burnt and her

dead body was identified by her father and he believed him. This implies

that even the cousin of the deceased was unable to identify the dead body of

the deceased from her face, which strengthens doubt against the correctness

of the testimony of PW15, Inspector Harpal Singh. Under these

circumstances, we are of the view that the prosecution has failed to prove the

identity of the deceased as the person who has been referred to by the

deceased in her dying declaration as her husband Sanjiv. Therefore, he is

entitled to at least the benefit of doubt.

20. We may note that, from the discussion above, the facts relating to the

case of embezzlement registered against the appellant and his arrest by

Inspector Harpal Singh in that case with the help of the deceased has been

introduced in the dying declaration Ex.PW1/A with a view to provide a

motive for killing and also to prove some sort of corroboration to the

testimony of PW15, Inspector Harpal Singh. The least expected by the

Investigating Officer in this case was to examine the independent witnesses

from the neighbourhood of the place of occurrence at 330, J.J. Colony,

Madipur to find out if the appellant actually was the husband of the deceased

or he was living with the deceased in a live in relationship. The

Investigating Officer did not even try to get the appellant identified from the

father and cousin of the deceased during investigation either at the police

station or by moving the Court for holding the Test Identification Parade.

This reflects upon the shoddy manner in which the investigation of the case

has been conducted and benefit of the lacunas in the investigation must go to

the appellant.

21. The result of the aforesaid discussion is that the prosecution has failed

to establish the guilt of accused beyond doubt, therefore, the impugned

judgment of conviction cannot be sustained. It is accordingly set aside and

the appellant is acquitted, giving him benefit of doubt.

22. Appellant is on bail. His bail and surety bond are discharged.

AJIT BHARIHOKE, J.

December 16, 2009                        SANJAY KISHAN KAUL, J.
gm