Bal Kishan vs State
2009 Latest Caselaw 5300 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


                            Judgment reserved on: December 15, 2009
                            Judgment delivered on: December 18, 2009


+                     CRIMINAL APPEAL No.15/1997


          BAL KISHAN                          ..... Appellant
                                  Through:    Mr.Ujjal Singh and Mr.J.P.Singh
                                              Advocates with appellant in
                                              person.

                      Versus


          STATE                               ..... Respondent
                                  Through:    Mr.Pawan Sharma, APP.

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


1.        Whether Reporters of local papers may           Yes
          be allowed to see the judgment?

2.        To be referred to the Reporter or not ?         Yes

3.        Whether the judgment should be                  Yes
          reported in Digest ?


AJIT BHARIHOKE, J.

1. The instant appeal is directed against the impugned judgment

dated 23rd November 1996 in Sessions Case No.226/1993 arising

out of FIR No.177/1993, Police Station Nabi Karim convicting the

appellant Bal Kishan for the offence under Section 302 IPC as

also the order on sentence dated 27th November 1996 in terms of

which the appellant has been sentenced to undergo

imprisonment for life and also to pay a fine of Rs.2000/- and in

default of payment of fine to undergo rigorous imprisonment for

further period of two months.

2. Briefly stated, case of the prosecution is that

Ms.Sunita(hereinafter referred to as the `deceased') was married

to one Pinki Sharma s/o Ms.Gomti Devi on 14th May 1992. The

appellant Bal Kishan is the brother-in-law of the deceased. It is

stated that the married life of the deceased remained normal for

a short span of two months. Thereafter, when the deceased

visited her parents, she complained to her mother that her

husband used to beat her and he had raised a demand for a

motorcycle and a Godrej almirah. She also complained that her

mother-in-law and the appellant Bal Kishan also used to threaten

her with her life.

3. On 5th June 1993, deceased Sunita suffered burn injuries at her

in-laws house and was taken to JPN Hospital by her husband Pinki

Sharma. At about 1.40 pm, Dr.Prem Kumar (PW-17) examined

the deceased and prepared her MLC Ex.PW-15/A. The deceased

is stated to have told the doctor that her `jeth' Bal Kishan, the

appellant had set her on fire after pouring kerosene oil on her

and that her husband and mother-in-law were outside the room

at the time of the incident. This statement of the deceased

Ex.PW-17/A was incorporated by the doctor as alleged history of

burns in the MLC.

4. The intimation regarding admission of the deceased in JPN

Hospital was conveyed to the Police Station Nabi Karim by the

Duty Constable and DD No. 15A (Ex.PW-12/A) was recorded.

Copy of the DD entry was entrusted to ASI Shyam Singh for

inquiry, who along with Constable Yogesh Kumar went to the

hospital and collected the MLC of the deceased. As per the MLC,

the deceased had suffered 80-90 per cent burns.

5. The SDM was informed and Shri R.C. Meena, PW-7 visited the

hospital and recorded the statement of the deceased on the

same day i.e. 5th June 1993 between 5.30 pm to 5.50 pm. The

deceased, in the said statement Ex.PW-7/A, stated that she had

caught fire accidently and she had made a wrong statement

before the doctor.

6. Ms.Sunita succumbed to her injuries on 6th June 1993 at about

1.40 pm. The information was conveyed to the SDM. The SDM

Shri Virender Kumar PW-16 conducted the inquest proceedings

on 7th June 1993. He also recorded the statement of the mother

of the deceased Ex.PW-1/A wherein she made an allegation

against the appellant, his brother Pinki Sharma and mother

Smt.Gomti Devi, as referred to in Para 2 above. She expressed

her suspicion against them and added that Pinki Sharma had

once thrown a small container (dibiya) of kerosene oil on

Ms.Sunita and tried to set her on fire in his own house. The SDM,

vide his endorsement Ex.PW-16/A, referred the statement Ex.PW-

1/A to the police station and directed the SHO Nabi Karim to

register a case against the appellant Bal Kishan, Pinki Sharma

and Smt.Gomti Devi. Consequent to the said directions, FIR

No.177/1993 under Section 498A and 304B IPC read with 34 IPC

was registered on 7th June 1993.

7. Post mortem on the dead body of Ms.Sunita was conducted by

Dr.George Paul(PW-4) of Maulana Azad Medical College on 7th

June 1993 at 4.00 pm. He found superficial ante mortem

epidermal burns involving 76-78 per cent of the body. The

viscera was preserved and was sent to CFSL. As per the CFSL

report Ex.PW-14/B, the viscera tested negative for common

poisoning. After going through the CFSL report, Dr.Paul opined in

his deposition in the Court that the death was due to burns shock

from ante mortem burn injuries by fire.

8. After completion of the investigation, the appellant, his brother

Pinki Sharma and mother Smt.Gomti Devi were challaned under

Section 498A/304B/302/201 IPC.

9. Charges under Section 498A and 304B were framed against all

the three accused persons and an alternative charge under

Section 302 IPC was also framed against the appellant Bal

Kishan. All the accused pleaded not guilty and claimed trial.

10. The prosecution has examined 18 witnesses in support of its

case. The accused persons denied the prosecution case in their

statement under Section 313 Cr.P.C. The appellant Bal Kishan, in

his statement under Section 313 Cr.P.C., with a view to explain

the dying declaration Ex.PW-17/A took the plea that the

deceased was immediately taken to the hospital where, on

account of negligence of the doctor, she died. He had an

exchange of hot words with the doctors and even Sunita had

shouted at the doctor as to why she was not being immediately

attended to. Thereafter, he and his brother Pinki Sharma were

pushed out and after half-an-hour the deceased was transferred

to Burns Ward where also she abused the said doctors.

11. The prosecution, with a view to establish the charges under

Section 498A and 304B IPC, has relied upon the testimony of PW-

1 Smt.Lalya Devi, mother of the deceased, and PW-2 Hukam

Chand Sharma, father of the deceased. The learned Trial Court,

on appreciation of their testimonies in the background of the

testimony of PW-6 Mohd. Azad, found their version unreliable and

came to the conclusion that the prosecution has failed to

establish the above referred charges and acquitted all the three

accused including the appellant on the said counts. He, however,

relying upon the dying declaration Ex.PW-17/A made by the

deceased in the presence of Dr.Prem Kumar PW-17, convicted

the appellant under Section 302 IPC for having committed

murder of the deceased.

12. Learned counsel for the appellant has assailed the impugned

judgment on the ground that the prosecution case rests solely on

the dying declaration Ex.PW-17/A, which is not reliable. Learned

counsel contended that as per the prosecution case, the

deceased is stated to have made three dying declarations; first

being Ex.PW-17/A in which she has implicated the appellant and

the other two dying declarations are purported to have been

made by the deceased in the presence of Shri R.C.Meena, SDM

PW-7(Ex.PW-7/A) at 5.30 pm on 5th June 1993 and the dying

declaration purported to have been made in the presence of ASI

Shyam Singh PW-10 regarding which there is a reference in DD

No.25A, Ex.PW-14/G and in the said two subsequent dying

declarations, she has exonerated the appellant had stated that

she got burnt accidently as her saree caught fire from the stove.

Learned counsel has submitted that since the dying declarations

purported to have been made by the deceased are inconsistent

and contradictory, it is not safe to rely upon the dying declaration

Ex.PW-17/A, as the appellant had no means to test about the

correctness and veracity of the said dying declaration. Another

submission made on behalf of the appellant against the dying

declaration Ex.PW-17/A is that though PW-17 Dr.Prem Kumar, as

stated, recorded the history regarding cause of burns suffered by

the deceased as per her narration but he has not certified on

MLC that at that time the deceased was fit for making statement.

He has submitted that endorsement on the MLC Ex.PW-15/A that

the deceased was oriented does not mean that she was in fit

state of mind to make a dying declaration or to give clear and

concise version about the manner in which she had suffered

injury. Thus, learned counsel for the appellant has urged us to

abstain from placing reliance on the dying declaration Ex.PW-

17/A and acquit the appellant giving him the benefit of doubt.

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

the impugned judgment. He has submitted that the trial court

has rightly relied upon the dying declaration Ex.PW-17/A made by

the deceased in presence of Dr.Prem Kumar which was first in

time and was recorded immediately after the occurrence on the

arrival of the deceased in the hospital. By that time, no relative

of the deceased had met her and even her husband who had

taken her to the hospital was asked to go out of the room. Thus,

there could be no possibility of the dying declaration of the

deceased being the result of tutoring. Learned counsel further

contended that otherwise also there is nothing on record to

suggest any reason on the part Dr.Prem Kumar to falsely

implicate the appellant by fabricating the dying declaration.

Regarding the defence set up by the appellant, learned counsel

for the State has submitted that it is just an afterthought because

no such suggestion was given to Dr.Prem Kumar in his cross-

examination. Thus, he has urged us to dismiss the appeal.

14. We may note that the learned counsel for the State has not

controverted or challenged the finding of acquittal of the

appellant and his co-accused persons on charges under Section

498A IPC Section 304B IPC.

15. The prosecution case rests solely on the dying declaration Ex.PW-

17/A purported to have been made by the deceased in the

presence of PW-17 Dr.Prem Kumar. As per record, there are two

other dying declarations of the deceased; one having been made

in the presence of the SDM Shri R.C. Meena PW-7(Ex.PW-7/A) and

the other having been made in the presence of ASI Shyam Singh

which has not been proved on record, however, there is a

mention of said dying declaration in DD No.25A Ex. PW-14/G. On

perusal of the dying declaration Ex.PW-7/A, it transpires that in

the said dying declaration the deceased had claimed that she

had suffered burn injuries accidently as her saree caught fire

from the stove and she exonerated all the accused including the

appellant. The SDM Shri R.C. Meena was conscious of the earlier

dying declaration Ex.PW-17/A. Therefore, he confronted the

deceased with her earlier dying declaration wherein she had

implicated her jeth i.e. the appellant Bal Kishan for having set her

on fire after pouring kerosene oil. When confronted with the

earlier dying declaration, the deceased explained that the

aforesaid dying declaration was wrong and it was the result of

slip of tongue. Thus, it is apparent that the dying declaration

Ex.PW-17/A which has been relied upon by the trial court to

record the finding of conviction is inconsistent with the second

dying declaration Ex.PW-7/A recorded by the SDM. Even on

perusal of DD report Ex.PW-14/G, it transpires that the deceased

in her dying declaration made in the presence of ASI Shyam

Singh claimed to have suffered burn injuries accidently.

16. In the matter of Smt.Kamla v. State of Punjab AIR 1993

Supreme Court 374, a similar issue pertaining to inconsistent

dying declarations made by the deceased came up before the

Supreme Court and while dealing with the aforesaid issue, the

Supreme Court held thus:-

"It is well-settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests, (vide Khushal Rao v. The State of Bombay 1958CriLJ106 . The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.

17. On careful examination of the dying declaration Ex.PW-17/A

made to the doctor and the dying declaration Ex.PW-7/A made in

the presence of the SDM, we find that aforesaid dying

declarations are not only inconsistent but totally contradictory.

So far as third dying declaration which is mentioned in DD report

Ex.PW-14/G is concerned, it has not been placed on record,

therefore, we are deprived of the chance to examine that dying

declaration to come to a proper conclusion regarding the veracity

and reliability of the dying declaration Ex.PW-17/A. Otherwise

also, failure of the prosecution to place on record the said dying

declaration recorded by the Investigating Officer has definitely

caused prejudice to the appellant in his defence. If for a

moment, we ignore the dying declaration Ex.PW-7/A as also the

third dying declaration mentioned in the DD report, then as per

the dying declaration of the deceased Ex.PW-17/A, she was set

on fire by her jeth by pouring kerosene oil on her. If that was the

case, then some of the kerosene poured over the deceased must

have spilled on the floor. There is no evidence on record to show

that traces of spilled kerosene were found on the floor at the

place of occurrence. On the other hand, the Investigating Officer

S.I. Om Prakash, in his cross-examination, has stated that later in

the day at about 6.00 pm, SDM Shri R.C. Meena inspected the

spot of occurrence in his presence and the inspection report

Ex.PW-14/F was prepared. A perusal of the inspection report

reveals that on inspection, no smell of kerosene was there at the

site. This circumstance belies the theory of the deceased having

been set on fire after pouring kerosene oil over her. The learned

Trial Court in the impugned judgment has brushed aside the

absence of kerosene oil on the floor at the place of occurrence on

the ground that the incident had taken place prior to 1.40 pm.

The Investigating Officer S.I. Om Prakash accompanied by the

SDM reached at the place of occurrence only at 5.30 pm and

during the intervening period the spot of occurrence was not

protected. Therefore, the accused persons had sufficient time to

remove the traces of kerosene from the spot. The aforesaid

observation of learned Trial Court, in our considered view, is in

the nature of surmises and conjectures, which is not permissible

under law to make basis for conviction of the accused.

18. Applying the ratio of the case of Kamla v. State of Punjab

(supra), in view of there being two contradictory dying

declarations, one being in favour of the appellant, we do not find

it safe to sustain the conviction of the appellant on sole basis of

the dying declaration Ex.PW-17/A and we are of the view that the

appellant is entitled to benefit of doubt.

19. The learned Trial Court while placing reliance upon the dying

declaration Ex.PW-17/A had relied upon the judgment of the

Supreme Court in the matter of Mohan Lal Ganga Ram Gehani

v. State of Maharashtra AIR 1982 Supreme Court 839. In the

aforesaid case, it was held by the Supreme Court that the

statement made by a victim to the doctor at the time of

preparation of the MLC, being first in point of time, must be

preferred to any subsequent statement of the victim. In our

considered view, the ratio of the aforesaid case is not applicable

to the facts of this case because aforesaid judgment was given in

the context of appreciation of the testimony of an eye witness.

The issue for determination in the case in hand is as to which of

the dying declarations should be relied upon. In the instant case,

since the declarant has unfortunately died, the appellant is

deprived of an opportunity to cross examine the declarant with a

view to seek clarification of the facts. Therefore, under the

circumstances we are left with no option but to extend the

benefit of doubt to the appellant.

20. In view of the discussion above, the impugned judgment of

conviction and the consequent order on sentence are hereby set

aside and the appellant is acquitted of charge under Section 302

IPC giving him the benefit of doubt. The appeal is accordingly

accepted.

21. The appellant is on bail. His bail-cum-surety bond stand

discharged.

AJIT BHARIHOKE, J.

      DECEMBER 18, 2009                      SANJAY KISHAN KAUL, J.
      ks