State Of Nct Of Delhi vs Vijay Kr. Dhingra & Ors.
2009 Latest Caselaw 647 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                         Crl. L.P. No. 187/2008

%                          Date of Order : February 26, 2009

STATE OF NCT OF DELHI                  ..... Appellant
              Through : Mr. Vikas Pahwa, Additional
                        Standing Counsel with Mr. Piyush
                        Singh, Adv.

                               VERSUS


VIJAY KR. DHINGRA & ORS.                   .....Respondents

Through : Mr. K.B. Andley, Sr. Adv. with Mr. Ajit Bidhwi, Adv.

Mr. Mohit Mathur, Adv.

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 petitioner and the

respondents.

2. It is urged by learned counsel for the petitioner

that the reasoning of the learned trial judge to discard the

dying declaration Ex.PW-3/B made by the deceased to the

learned SDM are perverse.

3. Discussing the dying declaration Ex.PW-3/B, the

learned trial judge has opined as under:

"At this stage, it is pertinent to mention here that whenever opinion of doctor regarding fitness or otherwise to make a statement of a patient is to be obtained, an application is submitted either by the investigating officer or by the SDM. However, in this case, PW3 - the SDM did not submit any application to the doctor either at 2 p.m. or at 8.30 p.m. to obtain opinion of the doctor. The paper which bears dying declaration Ex. PW3/B has a format of a certificate at the beginning. This format reads as under:

CERTIFICATE

This is to certify that Mrs. Sonia, wife of Sh. Raj Kumar, resident of C-146, Hari Nagar, New Delhi, is medically fit to make statement.

Time: 2 p.m. Medical Officer/Doctor on Duty Place: Safdarjung Hospital Date: 28-04-98

This format has been exhibited as Ex.PW3/A. PW3 the SDM has admitted that this format of the certificate is in his handwriting. It is not duty of the SDM to prepare any such format and sent the same to the doctor before recording of statement of a patient. Doctors are well educated and very well known as to what is to be written while issuing such a certificate regarding fitness or otherwise of a patient to make statement. From the factum of drafting of this format, it appears as if the SDM was actually not present in the hospital at the time he drafted it for the doctor with time recorded in it as 2 p.m. PW19 SI M.D. Mehta deposed that the SDM reached the hospital at 02:30/3 p.m. It also appears that the SDM, by preparing the form of certificate expected that the doctor would toe his line and sign the certificate declaring the patient fit to make statement at 2 p.m. However, the doctor did not go by the format. The doctor declared vide his endorsement at 2 p.m. that the patient was unfit to make statement. All this creates doubt in the prosecution version.

Why opinion of the doctor was obtained twice

i.e. at 8.30 p.m and 9.10 p.m to the effect that Sonia was fit to make statement.

A perusal of portion above the portion from where statement of Sonia starts would reveal that for the first time at 8.30 p.m, Dr.Manoj Kumar declared Sonia fit to make statement. By the side of this endorsement is another endorsement in the shape of opinion of another doctor given at 9.10 p.m. that the patient was fit to make statement. There is no explanation as to why opinion of other doctor was obtained at 9.10 p.m. when Dr.Manoj Kumar had already declared Sonia fit to make statement at 8.30 p.m. Recording of statement Ex.PW3/B was complete at about 09.05 p.m. What was the significance of opinion of a doctor obtained at 9:10 p.m. regarding fitness of Sonia to make statement, also remains unexplained. This fact once again creates doubt in the version of prosecution."

4. Learned counsel for the petitioner draws our

attention to the fact that the doctor had certified the patient

fit for statement at 8.30 PM and hence urges that the finding

of fact recorded by the learned trial judge that the doctor did

not certify the patient fit for statement is incorrect.

5. We have perused Ex.PW-3/B and find that the

certification in question is not on a printed proforma. It is in

the handwriting of the learned SDM, a fact deposed to by the

learned SDM, when he appeared as a witness of the

prosecution.

6. Thus, it cannot be said that merely because the

learned SDM penned the certification in his own hand would

be fatal to the dying declaration. We further note that while

certifying that the patient is fit for statement, the doctor

concerned has so recorded in his own handwriting.

7. But, the question would still remain whether the

dying declaration Ex.PW-3/B inspires confidence.

8. Needless to state, a dying declaration is a piece of

evidence required to be considered at a criminal trial. Of

course, where a dying declaration inspires confidence the

same can be accepted without any corroboration. But, where

there is evidence which discredits statements of fact recorded

in a dying declaration, the same would cast a doubt on the

authenticity of the dying declaration or the voluntary

character thereof.

9. It is not in dispute that the first dying declaration

purportedly made by the deceased to the investigating officer

namely Ex.PW-19/A records that the daughter, Ritika, of the

deceased was playing with a generator at the house and

innocently picked up a matchbox and lit a matchstick. Some

kerosene/petrol which was spilled caught fire. The deceased,

as a mother would naturally do, instantly proceeded to rescue

the daughter and as a result thereof caught fire. In the said

statement, the deceased has clearly stated that the fire was

accidental and was the result of the attempt made by her to

save her daughter.

10. We notice that a purported second dying

declaration is an oral dying declaration claimed to be made to

PW-11, the brother of the deceased. As per this dying

declaration, as disclosed by her brother, the deceased told

her brother that she had made the first dying declaration

thinking about her child and had wrongly disclosed the facts;

that the true facts were that her brother-in-law Vijay Kumar

and wife of Vijay Kumar namely Rani had set her on fire.

11. We note that this is the statement of the deceased

recorded in Ex.PW3/B.

12. Harbans Singh PW-2, a neighbour, residing in

House No. C/147, Hari Nagar, New Delhi; the house where the

deceased caught fire being No. C/146 Hari Nagar, New Delhi;

deposed that on the day of the incident i.e. 28.4.1998 at

about 8.15 AM he was cleaning his Van near his house and at

that time the father-in-law of the deceased namely Sh.Om

Prakash Dhingra was standing near him. He saw Vijay Kumar

and Rani going to a temple and were having articles of

worship in their hands. He went on to depose that after 10-15

minutes thereafter from the house of Om Prakash he heard

cries: "Aag Lag Gai, Aag Lag Gai". On hearing the same, Om

Prakash Dhingra ran towards his house and he followed him.

On reaching the second floor of the house they found Sonia

on fire. Om Prakash Dhingra immediately put a blanket and

requested him i.e. PW-2 to make arrangements to take Sonia

to the hospital. One or two persons of the locality reached.

He i.e. PW-2, Om Prakash and a person from the locality

brought down Sonia in a bed sheet and removed to the

hospital in his Van. He deposed that Vinod Kumar Dhingra, a

son of Om Prakash Dhingra, accompanied them to the

hospital. He stated that on the way to the hospital Sonia told

that she caught fire while saving her daughter.

13. We note that the learned trial judge has

extensively dealt with the deposition of PW-2. With reference

thereto a finding has been returned that the accused Vijay

and Rani who purportedly did the ghastly act as disclosed in

Ex.PW-3/B were not present in the house when the

unfortunate incident took place.

14. It is not of no significance that before the

statement Ex.PW-3/B was made, the deceased had interacted

with her brother PW-11 and hence the possibility of the

deceased being tutored cannot be ruled out.

15. It is urged by the learned counsel for the State that

the generator which has been referred to in the statement Ex.

PW-19/A had not caught fire.

16. It is not stated by the deceased in the statement

Ex.PW-19/A that the generator caught fire at the time when

an inflammable liquid (may be kerosene or petrol) was being

filled in the tank of the generator. She had deposed that her

daughter was playing near the generator and innocently lit a

matchstick.

17. Anyone who has been using generators would be

conscious of the fact that while pouring the petrol or kerosene

in the tank of the generator, small droplets spill out, and if a

child accidently lights a matchstick near the generator, the oil

spills around the generator do inflame. The possibility of this

happening cannot be ruled out. This explains the generator

not catching fire. Be that as it may, what is relevant is the

fact that the unequivocal testimony of PW-2 clearly

establishes that Vijay Kumar and Rani were not in the house

when the deceased caught fire.

18. We need not pen down a lengthy judgment except

to note that everybody is presumed to be innocent and a

finding of acquittal returned by a Court of Sessions reinforces

the presumption of innocence. There would always be two

rival view points on an issue. Inherent in the task of judicial

administration is the acceptance of one out of the two rival

and competing view points.

19. So long as the view taken is a reasonable and a

probable view and so long as no piece of evidence or

circumstance is ignored and so long as no irrelevant evidence

or circumstances is taken note of in the discussion, the

appellate court would not interfere with the findings returned

by a learned trial judge.

20. Noting that the possibility of the deceased being

tutored cannot be ruled out; also noting the fact that the

testimony of PW-2 shows that Vijay Kumar and Rani were not

present in the house; further noting that the father-in-law and

Vinod, the younger brother-in-law of the deceased,

immediately responded to her cries; further noting that PW-2

deposed that he heard the shrieks "Aag Lag Gai, Aag Lag Gai"

and not "Aag Laga Di, Aag Laga Di", we see no reason to

interfere with the impugned decision.

21. No case is made out to grant leave to appeal. The

petition seeking leave to appeal is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE February 26, 2009 jk