Jaswant Singh @Babloo vs State
2009 Latest Caselaw 5274 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on : December 10, 2009
                  Judgment Pronounced on: December 17, 2009

+                             CRL.APPEAL No.307/2005

       JASWANT SINGH @BABLOO           ...Appellant
                Through: Ms.Rakhi Dubey, Advocate.

                                      versus

       STATE                                    ..... Respondent
                         Through:     Ms.Richa Kapoor, A.P.P.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     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.

1. The appellant stands convicted for having

murdered Bir Singh, his brother-in-law.

2. The conviction of the appellant has been

rendered on the basis of a dying declaration made to ASI

Ram Nath PW-18, the first person to rescue the deceased.

3. As per ASI Ram Nath, he was posted as In-Charge

of PCR Van „Commander 98‟ which was stationed at

Makarba Chowk, Jahangirpuri in the intervening night of 1 st

and 2nd April 2003 and around midnight received wireless

information of an accident near GT Karnal Road Depot. On

reaching the spot he found a person badly injured on the

pavement of the road who was shouting that his name is Bir

Singh and he resided at A-105 Jahangirpuri and that his

Saala Babloo had burnt him. The appellant is none other

than Babloo, the „Saala‟ i.e. the brother-in-law of Bir Singh.

4. Mukesh Chand PW-5, the in-charge of the

ambulance van attached to the Centralized Accident

Trauma Centre of Babu Jagjiwan Ram Hospital received

information from the police control room that an accident

had taken place at GT Karnal Road Depot at around

midnight of the intervening night of 1st and 2nd April 2003.

He rushed to the spot where he found Bir Singh whom he

rushed to the hospital where the duty constable informed

the local police station.

5. At Babu Jagjiwan Ram Hospital the MLC Ex.PW-

6/A prepared by Dr.Chaman Gupta PW-6 recorded that the

patient Bir Singh was brought to the hospital by Mukesh PW-

5 and that the patient was son of Leela Dhar and was a

resident of A-105 Jahangirpuri. The time recorded is 12:45

in the night. Noting the history of the burn injuries, it is

recorded that the burn injuries were the result of being set

on fire by brother-in-law after pouring petrol on Bir Singh.

6. The investigating officer could not record the

statement of Bir Singh who was rendered incapacitated

from making a statement as per endorsement on the MLC

recorded at 2:15 AM.

7. Bir Singh could not survive the injuries suffered

by him and died on 2.4.2003 itself. The post-mortem report

Ex.PW-8/A notes that death was on account of extensive

burn injuries resulting in 100% burns.

8. A perusal of the record of the learned Trial Judge

and the impugned judgment shows that the case of the

prosecution against the appellant was that his sister Anita

was married to Bir Singh who used to remain unwell

because of ulcers. Anita left him and bore a child, paternity

whereof was doubted by Bir Singh. A reproachment was

attempted to be worked out. Anita was brought to the

house of the elder brother of Bir Singh and in the evening of

1st April 2003 the appellant and his friends had visited the

house of the elder brother of Bir Singh. After the appellant

and his friends left, Bir Singh came to the house and

requested Anita to accompany him to their house. Anita

refused. Bir Singh left and was burnt in the night at the

pavement near his house. As per the prosecution not only

was a dying declaration made by Bir Singh to ASI Ram Nath

but even to Mukesh Chand PW-5 as also to Dr.Chaman

Prakash PW-6 and Dr.F.Ahmed PW-12 and Dr.Priyanka

Vashisht PW-9 who were present at the hospital when Bir

Singh was admitted. The prosecution heavily relied upon

the MLC Ex.PW-6/A prepared in the handwriting of

Dr.F.Ahmed which records that Bir Singh had sustained the

injuries after petrol was thrown on him by his brother-in-law.

But, for the reason Mukesh Chand turned hostile and

disclaimed having heard any dying declaration by Bir Singh

and also having disclaimed ever told the investigating

officer that Bir Singh made any dying declaration to him and

for the reason neither doctor, examined when the MLC

Ex.PW-6/A was drawn up, i.e. Dr.Chaman Prakash PW-6,

Dr.F.Ahmed PW-12 and Dr.Priyanka Vashisht PW-9 could

state as to on whose statement it was recorded that the

patient had sustained the burn injuries after his brother-in-

law threw petrol on him, with reference to the testimony of

ASI Ram Nath PW-18, who stood his ground, the learned

Trial Judge has returned a verdict of guilt. Through the

testimony of Meena Devi PW-1 and Leela Wati PW-2, the two

elder sisters-in-law of Bir Singh, the prosecution has

successfully established the matrimonial discord between

Bir Singh and his wife Anita.

9. The fate of the appellant turns upon the

testimony of ASI Ram Nath and though not used by the

learned Trial Judge the MLC Ex.PW-6/A as also the testimony

of the three doctors who had treated Bir Singh, as also the

testimony of Mukesh Chand PW-5. We note that primacy of

evidence has to be to the testimony of ASI Ram Nath.

10. ASI Ram Nath deposed as under:-

"In the night intervening 1-2 April 2003, I was posted as in charge of PCR Van Commander 98 and was present at Makarba Chowk, Jahangir Puri. At about 12 midnight, I received call of an accident near GTK Depot, Karnal Road. When I reached the spot I saw one person with burn injuries was lying near patri on the road. That person was shouting loudly that his name is Bir Singh and that he was resident of A Block 105, Jahangir Puri. He was also shouting that "Sala" Bablu had burnt me while bringing him here. In the meantime CATS Alpha Ambulance reached the spot on which Mukesh was driver. Bir Singh was put in that ambulance and was taken to hospital and I on my van went to inform persons at the address disclosed by Bir Singh. At his residence mother and wife of Bir Singh was informed about occurrence. His brother was also there and then I reached the spot. Local police was already there. I pointed out the place of occurrence to local police. From the spot two match box, one cap, one pair of shoes in which socks were kept were lifted by the local police. Crime team was also summoned."

11. Questioning the conduct of ASI Ram Nath and

hence casting a doubt whether at all he had reached the

spot and heard anything from Bir Singh, learned counsel for

the appellant urged that the conduct of ASI Ram Nath is

unnatural because he was expected to rush Bir Singh to the

hospital and not leave him on the pavement and go about

informing Bir Singh‟s family members that Bir Singh had

suffered burn injuries. With reference to the MLC Ex.PW-6/A

of Bir Singh, it was urged that the same shows that Bir Singh

was declared unfit for statement at 2:15 AM in the night,

wherefrom, counsel urged that it could be inferred that Bir

Singh was not fit to make any statement. Drawing

sustenance from the testimony of Mukesh Chand PW-5 who

deposed that he heard not a word from the mouth of Bir

Singh, counsel submitted that it was an obvious case where

ASI Ram Nath was not speaking the truth. In any case,

urged the counsel, that benefit of doubt had to be given to

the appellant.

12. ASI Ram Nath reaching the spot as claimed by

him stands corroborated by the testimony of Meena Devi

PW-1 and Leela Wati PW-2, both of whom have deposed that

at around 12:00 midnight police came to their house and

informed that Bir Singh was found burnt on the pavement.

Now, no other police officer except ASI Ram Nath has

claimed to have visited the house where Meena Devi and

Leela Wati were residing with their husbands. The house

bears municipal No.A-105 Jahangirpuri, Delhi.

13. Aforesaid fact throws light on another very

important fact. How did ASI Ram Nath know that Bir Singh

was residing at House No.A-105 Jahangirpuri, Delhi? The

answer has to be: through the mouth of Bir Singh. We note

that no suggestion has been given to ASI Ram Nath that he

learnt about the residential house of Bir Singh through

somebody else. This means that Bir Singh was in a position

to speak when ASI Ram Nath met him.

14. The submission that the conduct of ASI Ram Nath

of not taking Bir Singh in the PCR van to the hospital and

instead going to his house is unnatural conduct ignores the

testimony of ASI Ram Nath that soon after he reached the

spot where Bir Singh was lying injured the CATS ambulance

reached and took Bir Singh to the hospital. It is apparent

that an ambulance having reached the spot, ASI Ram Nath

took the correct decision to send the victim to the hospital

in the ambulance and not the PCR van and he proceeding to

the house of Bir Singh in the PCR van. That Bir Singh was

declared unfit for statement at 2:15 in the night when the

investigating officer reached the hospital is no ground to

infer that soon after he was burnt, Bir Singh was not fit to

make a statement. Medical jurisprudence guides us that

there is a time gap between a person suffering burn injuries

and being rendered unfit to make a statement even in cases

of 100% burns.

15. Why should ASI Ram Nath make a false

statement? He had no animosity against the accused. He

had no axe to grind. We note that the statement of ASI Ram

Nath was recorded by the investigating officer on the day of

the incident itself which rules out ASI Ram Nath being

manipulated by the investigating officer.

16.           Mukesh        PW-5        the   in-charge    of     the        CATS

ambulance        van      has     not    supported   the    case        of     the

prosecution and neither could Dr.Chaman Prakash PW-6,

Dr.Priyanka Vashisht PW-9 and Dr.F.Ahmed PW-12, throw

light on whose information it was recorded on the MLC

Ex.PW-6/A which is in the handwriting of Dr.F.Ahmed that Bir

Singh had sustained burn injuries when his brother-in-law

poured petrol on him. But, the fact of the matter is that the

MLC Ex.PW-6/A does record the said fact.

17. It is obvious that somebody told Dr.F.Ahmed of

said fact and that is why he recorded the same on the MLC.

18. Now, only two persons could have stated said

fact. The first is Bir Singh himself i.e. the patient himself or

Mahesh Chand PW-5 the in-charge of the CATS ambulance

whose name has been recorded in the MLC as the person

who had brought Bir Singh to the hospital. Interestingly, in

the MLC the name of Bir Singh‟s father i.e. Leela Dhar, his

age being 20 years and he being a resident of A-105

Jahangirpuri, Delhi has been recorded. Wherefrom said

information came to the knowledge of Dr.F.Ahmed? It had

to be Bir Singh informing them said particulars or Bir Singh

having given information of said particulars to Mahesh

Chand on the way to the hospital and Mahesh Chand, in turn

giving the said information to the duty doctor i.e.

Dr.F.Ahmed when he recorded the MLC Ex.PW-6/A. It is in

the aforesaid circumstance we have noted herein above the

relevance of the MLC Ex.PW-6/A as a corroborative evidence

to the testimony of ASI Ram Nath.

19. It was urged that in Northern India the word

„Saala‟ is also used an abuse and thus it is possible that Bir

Singh‟s utterances „Saala mujh ko petrol daal kar jala diya

hai‟ heard by ASI Ram Nath could be an abuse to the person

who committed the dastardly act and that since the

appellant happened to be the „Saala‟ i.e. the brother-in-law

of Bir Singh, the police roped him in the crime. Lastly, it

was urged that there is no evidence that the appellant is

also called Babloo.

20. To appreciate the two submissions it may be

highlighted that as per ASI Ram Nath, Bir Singh was

shouting that „Saala Babloo had burnt him‟. Thus, it is not a

case where the deceased had said that „Saala had burnt

him‟. The word „Saala‟ has been used an abuse and not

with reference to the relationship while giving the name of

the assailant being Babloo.

21. Thus, the first of the two submissions noted in

the one but preceding para is without any factual basis. As

per ASI Ram Nath the deceased Bir Singh was saying that

„Babloo had burnt him‟. The use of the word „Saala‟ before

the word „Babloo‟ clearly shows that it was used as an

abuse.

22. That the appellant is nick-named Babloo stands

established by the testimony of Meena Devi PW-1 who has

referred to the accused „Babloo‟ as also „Jaswant Singh‟.

Her first reference to the accused in her statement is in the

following words: 'On a Tuesday the date was First (1st), I do

not know the month, about 10 months ago accused Babloo

(Jaswant Singh) present in Court came to our house'. It is

apparent that appellant Jaswant Singh is also known as

Babloo. We note that Meena Devi has not been cross-

examined on her statement that appellant Jaswant Singh

was also called „Babloo‟.

23. We concur with the view taken by the learned

Trial Judge that the testimony of ASI Ram Nath is credible

and proves the dying declaration made by Bir Singh

pertaining to the cause of his death to ASI Ram Nath. We

have found additional corroboration to the truthfulness

thereof with reference to the MLC of the deceased.

24. The post-mortem report of the deceased

establishes that Bir Singh was burnt to death after an

inflammable substance was thrown on him and thereafter

he was set on fire evidenced by the fact that his trachea

contained soot mixed with mucus.

25. The appeal is dismissed.

26. Since the appellant is in jail, a copy of this

judgment be sent to the Superintendent, Central Jail, Tihar

to be made available to the appellant.

PRADEEP NANDRAJOG, J.

DECEMBER 17, 2009                      SURESH KAIT, J.
Dharmender