Govardhan Dass vs The State (G. N.C.T. Of Delhi)
2009 Latest Caselaw 575 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. Appeal No. 357/2004

%                           Date of Order : February 17, 2009

GOVARDHAN DASS                        ..... Appellant
            Through : Mr. Mukesh Jain, Advocate

                                VERSUS

THE STATE (G. N.C.T. OF DELHI)          .....Respondent

Through : Mr. Pawan Sharma, APP

CORAM :-

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper 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. Heard learned counsel for the parties.

2. The question which arises for consideration in the

instant appeal is, whether the learned trial judge was justified

in convicting the appellant on the basis of two statements

made by the deceased Meera Devi (wife of the appellant),

being Ex.PW-27/B recorded by the Investigating Officer and

Ex.PW-28/A recorded by Sh.Kamlesh Kumar, Metropolitan

Magistrate, Delhi.

3. We note that it is not in dispute that Meera Devi,

wife of the appellant, was admitted in a burnt condition at

Deen Dayal Upadhaya Hospital at 6.25 AM on 8.4.1993. She

was brought by the personnel of the fire services Govt. of NCT

of Delhi. In the MLC, Ex.PW22/A, while recording the history

of the burns it has been recorded "Smell of kerosene oil

present". We note that the appellant died the next day i.e.

on 9.4.1993 at around 1.30 PM.

4. On the MLC, at the place Mark-C, an endorsement

has been made by Dr.Amardeep Singh that the patient was fit

for statement. We note that after obtaining said certification

from Dr.Amardeep Singh, the investigating officer SI Ram

Singh PW-27, has recorded the statement of the deceased, as

per which she informed him that she had not taken food since

night and that her husband, Govardhan, asked her at about

5.00 AM why was she not responding to him in spite of his

overtures. That he threatened her that he would implicate

her family. That her husband set her on fire after pouring

kerosene oil on her. At the first instance, he poured kerosene

oil on her feet. That she had four children and was married

17-18 years ago. That her elder daughter was aged 15 years.

That under influence of alcohol, her husband used to abuse

her and used to beat her. That her husband poured kerosene

oil on her and set her on fire to kill her.

5. On the said statement, vide Ex.PW-21/A, Dr.Tarun

Dubey has made an endorsement certifying that the patient

Meera Devi is fit for statement.

6. The statement Ex.PW-28/A is in a question answer

form and is preceded by a note in the form of a recital by

Sh.Kamlesh Kumar of his having reached the hospital where

Meera Devi was found admitted in Ward No. 2 and was lying

in bed No. 24. That Dr.Tarun Dubey was present and certified

the patient fit for statement. That Dr.Dubey talked to the

patient before certifying her fit for statement. That

Sh.Kamlesh Kumar had asked certain questions to Meera Devi

as to who brought her to the hospital and who all had

remained in attendance. It has been recorded that Meera

Devi told Sh.Kamlesh Kumar that her Phoofa (uncle) and her

mother-in-law remained with her as attendants. Satisfying

himself that Meera Devi was understanding what was being

talked to her, Sh.Kamlesh Kumar, Metropolitan Magistrate,

Delhi has proceeded to record the statement in question

answer form.

7. Briefly noted, to the question as to what had

happened, Meera Devi responded that yesterday at around

5.00 in the morning she and her husband had a quarrel. To

the question as to when did the quarrel commence she

responded that the quarrel commenced at 1 in the night.

When questioned as to what triggered the quarrel, she

responded that her husband told her to sleep with him and

she told him that their daughters had grown up and were

awake. She went on to state that the entire night her

husband kept on evidencing a desire to sleep with her and

she refused to do so and at 5 AM in the morning he picked up

a can containing kerosene oil and poured the same on her

and set her on fire. She went on to state that thereafter,

when she raised a hue and cry, the family members awoke

and at that time, her husband made an attempt to stamp out

the fire. To a question, whether quarreling was a usual

activity in the house, she responded that everyday

Govardhan used to drink and fight with her.

8. After the statement of Meera Devi was recorded,

the thumb impression of her right thumb was obtained and an

endorsement Ex.PW-28/B was made by Sh.Kamlesh Kumar

certifying that what he had recorded was a true and complete

account of the statement made by Meera Devi who was

identified by the Investigating Officer SI Ram Singh and that

Meera Devi was certified fit for statement by Dr. Tarun Dubey.

9. The daughters of the appellant and the other

family members deposed in court that Govardhan was

sleeping in the room of his mother and not with his wife. That

Meera Devi was sleeping in a room with her daughters and

that Meera Devi attempted to commit suicide by pouring

kerosene oil on herself and thereafter set herself on fire.

10. The learned trial judge has disbelieved the version

of the family members and has held that there was no reason

not to believe the dying declaration of the deceased;

specifically noting that the dying declaration was recorded

before the Metropolitan Magistrate.

11. We note that Sh.Kamlesh Kumar, Metropolitan

Magistrate, who recorded the dying declaration Ex. PW-28/A

of the deceased appeared as PW-28 and deposed of having

visited the hospital and having obtained a certification from

the doctor on duty i.e. Dr. Tarun Dubey that Meera Devi was

fit for making a statement. He deposed that he truthfully

recorded the questions and the answers thereto as per

Ex.PW-28/A. He deposed that the certification by the doctor

Ex.PW-28/B was in his presence.

12. In cross-examination he deposed that he went to

the hospital on receiving telephonic instructions. He deposed

that he did not go through the medical record case sheet of

the injured to satisfy himself regarding fitness of the patient.

He clarified that he did not do so because doctor had certified

the patient as being fit for statement. He denied the

suggestion that the patient was not fit for statement.

13. When examined under Section 313 Cr.P.C. the

appellant stated that his wife was working as a domestic help

and had wanted her daughters to accompany her when she

went to work as a domestic help. He had objected to the

same. That his wife was of quarrelsome nature and she

picked up a quarrel and threatened that she would destroy

him and his children and thereafter poured kerosene on

herself and ended her life.

14. At the hearing today, learned counsel for the

appellant draws our attention to the MLC Ex.PW-22/A of the

deceased wherein the doctor on duty has recorded that the

pulse was not recordable. The patient was dehydrated and

was irritable. Further, the patient had burns all over the body

except scalp. Learned counsel urges that the same shows

that Meera Devi, whose pulse was not recordable and was not

oriented could not be fit for making a statement. Counsel

urges that the fact that the patient died the next day at

around 1.45 PM shows that Meera Devi was neither fit for

making a statement to the Investigating Officer nor to the

Metropolitan Magistrate. Learned counsel highlights, that as

recorded in Ex.PW-28/A, the learned Metropolitan Magistrate

recorded the statement of Meera Devi at 12.10 in the

afternoon and within an hour thereof Meera Devi died.

15. With reference to the submissions made pertaining

to the MLC Ex.PW-22/A of the deceased suffice would it be to

record that reference made by the learned counsel for the

appellant pertains to what has been recorded by Dr. Jitender

Singh, under the Heading „surgery note‟. We note that the

patient i.e. Meera Devi was initially examined by Dr.

Amandeep Singh who recorded the MLC and that later on Dr.

Jitender Singh recorded further condition as aforenoted much

after Meera Devi was admitted. We further note that when

the Investigating Officer submitted the application for

recording the statement of the patient, Dr. Amardeep Singh

has made an endorsement on the MLC that the patient was fit

for statement. Meaning thereby, that the condition of the

patient deteriorated sometimes after she was admitted to the

hospital, for the reason at the time she was admitted and

examined the doctor has recorded that the patient was

conscious and was responding to verbal commands.

16. We are satisfied that when the Investigating Officer

recorded the statement of the deceased, she was fit for

statement.

17. Pertaining to the issue whether the patient was fit

for statement at 12.10 noon the next date when Sh.Kamlesh

Kumar recorded her statement Ex. PW-28/A; as noted above,

Sh.Kamlesh Kumar was working as a Metropolitan Magistrate

in Delhi. He was fully conscious of the procedures to be

followed. Dr.Tarun Dubey, the doctor on duty on 9.4.1993

has made an endorsement Ex.PW-21/A on the sheet in which

Sh.Kamlesh Kumar has recorded the statement of Meera

Devi; endorsement being to the effect that the patient Meera

Devi is fit for statement.

18. We see no reason why Sh.Kamlesh Kumar would

collude with Dr.Tarun Dubey to obtain a false certification that

Meera Devi was fit for statement. We see no reason for

Sh.Kamlesh Kumar, the learned Metropolitan Magistrate, to

cook up a false statement made by Meera Devi.

19. It is true that Meera Devi died within an hour of her

statement Ex.PW-28/A being recorded, but that by itself

would not mean that an hour prior, she was not fit for making

a statement.

20. With the advancement in medical sciences; life

saving drugs being discovered, it is an everyday state of

affairs seen by us that patients are in a position to understand

and speak till their very last moment of life.

21. From the questions answered by Meera Devi as

recorded in Ex.PW-28/A it is apparent that Meera Devi

comprehended what was being put to her and was answering

the same coherently.

22. What triggered the incident, is to be found in the

statement of Meera Devi which shows the truth of what

happened and conforms with human behaviour.

23. As noted above, she had stated that her husband

was wanting to sleep with her. It is obvious that she was

telling that her husband wanting to enjoy her body. That she

told him that the daughters were grown up and awake. It is

obvious that she was telling her husband not to indulge in the

usual activities when the daughters were awake. The carnal

instinct of the appellant kept him awake the whole night. He

kept on persuading his wife, till the frustration reached a

crescendo at 5.00 AM in the morning. To teach his wife a

lesson, he poured kerosene oil on her and set her on fire.

24. It is not possible for us to believe that the appellant

was sleeping in a different room where his mother was

sleeping. It is unnatural for a husband to be sleeping with

her mother instead of his wife. The natural conduct would be

for the children to be sleeping with their grandmother.

25. Besides, if Meera Devi had to commit suicide, 5 AM

in the morning when everybody was present in the house,

would be a most inopportune moment for Meera Devi to

succeed in her mission. We note that apart from the

daughters of the appellant, his mother and his brother and

the family members of the brother were also living in the

same house. If Meera Devi had wanted to commit suicide,

she would have taken the precaution to be alone in a room in

a house, could be the toilet, where nobody could rescue her

and she would succeed in her mission. The fact that Meera

Devi has been burnt in the living room in the house, which we

note also was doubling as the kitchen of the house, shows

that it was not Meera Devi who poured kerosene on herself

and then set herself on fire.

26. We see no reason to hold that Meera Devi was

influenced by anybody to make the statements as noted

above.

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

even the hands of the appellant received burn injuries and

this justifies his defence that he went to rescue his wife when

he saw that she had set herself on fire. Learned counsel

draws our attention to the statement of the appellant to this

effect when he was examined under Section 313 Cr.P.C.

28. The answer is to be found in a question to Meera

Devi by the learned Metropolitan Magistrate and her answer

thereto. After Meera Devi told the Metropolitan Magistrate

that the appellant picked up a can containing kerosene and

after spraying the same on her, set her on fire; to the next

question, as to what happened thereafter, she responded that

she screamed; family members got up, her Devar (brother of

the appellant), her mother-in-law and her children came. To

the next question as to what happened thereafter, she

responded "Phir Govardhan Aag Bujhane Laga". It is

apparent that the superficial burn injuries on the hands of the

appellant were a result of events as disclosed by Meera Devi

in her statement Ex.PW-28/A.

29. Some case law is cited and needs to be dealt with.

30. Learned counsel for the appellant has cited a

decision of the Supreme Court reported as JT 2007 (9) SC 342

Shaikah Bakshu and Ors. v. State of Maharashtra. Learned

counsel urges that the said decision shows that the deceased

Rubina married about 8 days prior to the alleged incident was

found to be tutored, evidenced by the nature of her dying

declaration. Drawing a parallel, learned counsel states that in

the instant case, the Phoofa of Meera Devi, as told by her to

Sh.Kamlesh Kumar the learned Metropolitan Magistrate, was

with her and thus there is every possibility that her Phoofa

had tutored her.

31. In Shaikah Bakshu case (supra) it has been noted

that the deceased had incorrectly described the place of the

occurrence and with reference to the testimony of the police

inspector and the place of the occurrence, the Supreme Court

found that there were glaring discrepancies in the dying

declaration of the deceased vis-a-vis the place of occurrence.

Thus, the Supreme Court held that it was not safe to rely

upon such a dying declaration.

32. Another decision cited is reported as JT 2007 (3) SC

602 Mohan Lal and Ors. v. State of Haryana. The said

decision shows that the deceased had imputed the motive for

her in laws to burn her by disclosing in her dying declaration

that she had a boil under her armpit and because of the same

she was not in a position to do household work and that her

father-in-law had got enraged and wanted her to show the

place of the boil on her body and when she did not do so, she

was set on fire. The Supreme Court noted that the post-

mortem report of the deceased did not show the presence of

any boil or pustule in the armpit of the deceased as told by

her. Thus, the Supreme Court discarded the dying declaration

vis-a-vis the cause which triggered the act as disclosed by the

deceased as the same was not found to be true.

33. The third decision cited is report as (2006) 3 SCC

161 P.Mani v. State of Tamilnadu.

34. Suffice would it be to state that the said decision

clarifies the law, that to be acted upon, a dying declaration

must be wholly reliable and in case of suspicion, the court

should seek corroboration. It was held that if the dying

declaration is not wholly true, it can be treated only as a

piece of evidence, but unless corroborated in material

particulars, a conviction cannot be based solely upon it.

35. The law relating to a dying declaration may be

stated thus: a dying declaration is a piece of evidence. Its

worth has to be considered as any other evidence. It stands

on a slightly higher footing because law believes that he/she

who is going to meet the Almighty would not be telling a lie.

But, if there is evidence which discredits statements made in

a dying declaration or casts a doubt on the authenticity of the

statements made in the dying declaration or where there is

evidence that the maker of the dying declaration has a

motive to falsely implicate the person against whom

accusations are made or that the maker of the dying

declaration was tutored, in said circumstances alone the court

would look into other evidence to corroborate a dying

declaration.

36. Each case has its own story to tell. No decision can

thus be a precedent to be followed.

37. In the instant case what has triggered the act of

the appellant has been disclosed by the deceased. Indeed,

we find a nugget of truth in the statement of the deceased.

The dying declaration is in question answer form which has

been recorded by a Metropolitan Magistrate.

38. The theory of the deceased having committed

suicide has been discarded by us on the reasoning

hereinabove given. We need not reiterate.

39. Suffice would it be to record that the post-mortem

report shows that the cause of death was a direct result of the

deceased suffering hundred percent burn injuries.

40. We find no merit in the appeal. The appeal is

dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE February 17, 2009 jk