Satya Narain & Anr. vs State
2009 Latest Caselaw 663 Del

*                     IN THE HIGH COURT OF DELHI


%                                  Date of Decision: February 26, 2009


+                                    CRL.A.114/2001


       SATYA NARAIN & ANR.                      ..... Appellants
                 Through:  Dr.L.S.Chaudhary, Advocate.

                                           versus
       STATE                                            ..... Respondent
                      Through:       Mr.Pawan Sharma, Advocate.


                                       CRL.A.132/2001

       KAMAL KISHORE                                      ..... Appellant
                 Through:            Dr.L.S.Chaudhary, Advocate.

                                           versus
       STATE                                            ..... Respondent
                      Through:       Mr.Pawan Sharma, Advocate.

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

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

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

3. Whether judgment should be reported in Digest?                  Yes

: PRADEEP NANDRAJOG, J. (ORAL)

1. Appellant Kamal Kishore has been convicted for the

offences punishable under Section 302 and Section 498-A IPC.

He has been sentenced to imprisonment for life and pay a fine in

sum of Rs.5,000/-; in default of payment of fine to undergo

simple imprisonment for six months for the offence of murder.

He has been sentenced to imprisonment for three years and pay

a fine in sum of Rs.2,000/-; to undergo simple imprisonment for

three months in default of payment of fine for the offence

punishable under Section 498-A IPC. His parents i.e. the

appellants of Crl.Appeal No.114/2001 have been convicted for

the offence punishable under Section 498-A IPC and have been

sentenced to undergo rigorous imprisonment for two years and

pay a fine of Rs.2,000/-; in default to undergo simple

imprisonment for three months. The sentences imposed upon

appellant Kamal Kishore have been directed to run concurrently.

2. Learned counsel for the appellants and the State

submit that pertaining to the charge of murder, the fate of

appellant Kamal Kishore has to be decided with reference to the

three dying declarations made by the deceased Sanjana W/o

Kamal Kishore. Whether the convictions of the appellants for

the offence punishable under Section 498-A IPC can be

sustained would depend upon the second and the third dying

declaration made by Sanjana and the testimonies of her father

PW-5 and her brothers PW-4 and PW-6.

3. The reason being that the learned Trial Judge has

held that the first dying declaration made by the deceased to

Dr.Porag Neog PW-7, which finds a reflection in the MLC Ex.PW-

7/A was not voluntarily made by Sanjana and that her dying

declaration Ex.PW-22/A made to the investigating officer SI

K.P.Malik PW-22, as well as the third dying declaration Ex.PW-

10/A made to the Sub-Divisional Magistrate Shri S.K.Singh PW-

10 inspired confidence and since the latter two dying

declarations inculpated appellant Kamal Kishore as the offender;

having poured kerosene oil on Sanjana and set her on fire, it has

been held that the charge against Kamal Kishore for having

murdered his wife stands established. Pertaining to the charge

for the offence punishable under Section 498-A IPC, the learned

Trial Judge has held that the dying declarations Ex.PW-10/A and

Ex.PW-22/A as also the deposition of the father and brothers of

the deceased evidenced that the deceased was treated with

cruelty, both mental and physical due to the fact that the

appellants were aggrieved by the dowry brought by the

deceased and were desiring more dowry to be given by her

parents.

4. It is not in dispute that Sanjana suffered burn injuries

in her house at around 9.30 AM on 1.6.1998. At 9.35 AM vide

Ex.PW-19/A lady Const.Prabha PW-19, then posted in the police

control room recorded the information that an informant had

informed on the number 100 that a girl named Sanjana W/o

Kamal Kishore had caught fire while cooking food on a stove.

5. Kirori Mal PW-3, a neighbour rushed Sanjana to

Safdarjung Hospital where she was admitted, as recorded in the

MLC at 10.45 AM on 1.6.1998. Dr.Porag Neog PW-7 attended to

her and in the MLC Ex.PW-7/A noted the history of the burns

suffered by Sanjana, in the following words: Alleged H/o

sustaining burn injury when the patient was cooking food over a

kerosene oil stove when her clothes caught fire. While deposing

as PW-7, Dr.Porag Neog stated that he had recorded the history

of how Sanjana had sustained the burn injury as per information

given to him by the patient herself. In the MLC it has been

recorded that Kirori Mal PW-3 had brought Sanjana and got her

admitted in the hospital.

6. The parents of Sanjana were informed of Sanjana

suffering burn injuries and being admitted in the hospital.

Shyam Sunder PW-4, reached the hospital and met her at 10.30

AM on 1.6.1998, as admitted by him in his deposition in Court.

7. Sub Inspector K.P.Malik PW-22 reached Safdarjung

Hospital at around 11.00 AM, the time disclosed by him in his

deposition in Court, and found Sanjana admitted in the hospital.

He moved an application for recording the statement of Sanjana

who was declared fit to make a statement. At around 11.30 AM

he recorded the statement Ex.PW-22/A made by Sanjana. The

same reads as under:-

"Statement of Smt.Sanjana W/o Kamal R/o S-74/36 Harijan Camp, Khanpur, New Delhi aged 20 years.

I reside at the above-noted address. 5 years back I got married to Kamal S/o Sat Narain. After my marriage everyone in the house used to harass me for not bringing sufficient dowry. I have a daughter aged 2½ years. My husband, my father-in-law Sat Narain, my mother-in-law Smt. Kesari and my sisters-in-law Prem and Rekha used to taunt me and leveling allegations used to beat me to pressurize me to bring household articles saying that "at the time of marriage your mother and father did not give anything and whatever was given was worthless". Yesterday night my husband had beaten me on the instigation of my father-in-law and mother-in-law. Today morning around 9.30 am, when I was sitting in the house, my husband poured kerosene oil on me; set me ablaze and then fled away. At that time my mother-in-law

was in the house, but she made no efforts to save me. I was brought to the hospital by a neighbour Kirori Mal. Action should be taken against my husband, mother- in-law, father-in-law and both my sisters-in-law."

8. The Sub Divisional Magistrate of the area viz. Shri

S.K.Singh PW-10 was informed about Sanjana being admitted at

Safdarjung Hospital and he was requested to reach the hospital

and record the statement of Sanjana. He reached the hospital

at around 1.00 PM and after obtaining the certification from the

doctor that Sanjana was fit for making a statement, recorded

Sanjana‟s statement Ex.PW-10/A; translated version whereof is

as under:-

"Statement of Smt.Sanjana W/o Kamal R/o S-74/36 Harijan Camp, Khanpur, New Delhi.

       Is it day or night?         :   This is day time.

       What is your name?          :   Sanjana

       Name of your husband        :   Kamal

       Name of your mother         :   Revati and Kishori
       and father

       How and when did you        :   At around 9 O‟clock. My
       catch fire?                     husband poured kerosene
                                       oil on me, set me on fire
                                       and then fled from there.

       Who brought you to the      :   My mother in law and a

        hospital?                       neighbour brought me.

       Did you have a fight with :     Yes.
       your husband?

       Since how many years        :   5 years.
       you have been married.

       Did you have fights with    :   Yes. On the instigation of
       your husband on earlier         my mother-in-law.
       occasions as well?

       For what reasons both of    :   Everyone in the house used
       you used to fight.              to taunt me that my
                                       parents had given me
                                       nothing. My husband,
                                       father-in-law and mother-
                                       in-law used to demand
                                       dowry.

       Where is your husband?      :   He is absconding. Father-
                                       in-law is also not here.

       Who all were present at     :   Only my husband. Nobody
       the house when you              else was there. My sister-
       caught fire?                    in-law was in the
                                       neighbouring house. On
                                       catching fire I rushed out of
                                       the house. The neighbours
                                       were present. One of them
                                       and my mother-in-law
                                       brought me here.

       Do you have a child?        :   Yes. I have a daughter
                                       aged 2 years.

       Where is she?               :   With her paternal
                                       grandmother."

9. Sanjana died in the hospital on 10.6.1998.

10. Kirori Mal PW-3 deposed that at around 9.00 AM on

1.6.1998 he was returning to his house and saw Sanjana in

flames running out of her house. 5/6 persons of the locality

extinguished the fire by pouring water on Sanjana. She fell

down. That mother-in-law of Sanjana returned with his wife

after purchasing medicine and that he and the mother-in-law of

Sanjana took her to the hospital.

11. Relevant would it be to note that Sanjana‟s mother-

in-law viz. Kesar Devi, appellant No.2 in Crl.A.No.114/2001 was

present with Sanjana when she was removed to the hospital and

was with Sanjana even in the hospital. We are so noting

because the first dying declaration of Sanjana as recorded in the

MLC has been attacked by learned counsel for the State on the

ground that either Sanjana was intimidated by her mother-in-law

to speak a lie or under fear of her mother-in-law who was

present by her side, Sanjana told a lie to the doctor.

12. Shyam Sunder PW-4, the brother of Sanjana deposed

that on hearing about his sister being burnt he reached the

hospital at 10.30 AM on 1.6.1998. He met his sister Sanjana in

the hospital who told him that her husband Kamal Kishore had

set her on fire after pouring kerosene oil on her. That she told

him that Kamal Kishore used to beat her accusing her of not

bringing anything from her parents. That she told him that even

her parents-in-law used to instigate her husband. They used to

tell her that neither at the time of marriage nor at the time of

gauna (a custom in certain communities in north India of

sending the bride after a few years to her matrimonial home)

anything worthwhile was given by her parents. That Sanjana

told him that her in-laws used to tell her that she had not

brought any dowry. They used to remind that she should bring

dowry from her parents.

13. We note that Shyam Sunder did not divulge the

details or the particulars of any demands towards dowry. The

learned Public Prosecutor made a request to cross-examine

Shyam Sunder. The request was allowed. Cross-examining

Shyam Sunder and confronting him with his statement recorded

by the police under Section 161 Cr.P.C., the learned Public

Prosecutor questioned Shyam Sunder whether the facts

disclosed by him to the police and as recorded in his statement

under Section 161 Cr.P.C. were correct. Shyam Sunder gave

evasive replies and to many questions just kept mum. On

22.5.1999, when he was under cross-examination by the learned

Public Prosecutor, vide an order of even date, Shyam Sunder

was sent to judicial custody for four days inasmuch as the

learned Trial Judge opined that he should exercise his power

under Section 349 Cr.P.C.

14. Deviating a little, we are pained at the conduct of the

learned Trial Judge who has ignored the procedure to be

followed and as contemplated by Section 349 Cr.P.C. The said

provision reads as under:-

"349. Imprisonment or committal of person refusing to answer or produce document. - If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such question as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal he may be dealt with according to the provisions of section 345 of section

346."

15. Needless to state, power of committing a witness to

the custody of an officer of the Court for any term not exceeding

seven days can be exercised under Section 349 Cr.P.C. only

after giving a reasonable opportunity to a witness to enable him

to state reasons as to why he was not answering a question and

if no reasonable excuse is found by the Court for not answering

the questions, after recording reasons as to why the witness

should be committed to the custody of an officer of the Court,

the witness can be committed to the custody of an officer of the

Court. The procedure aforesaid has not been followed. Poor

Shyam Sunder had to spend four days in jail.

16. Produced from jail in Court on 26.5.1999 and further

cross-examined by the learned Public Prosecutor, he denied that

it was incorrect that the accused had demanded a gold chain

and a ring. He denied that what was recorded by the police

under Section 161 Cr.P.C. was as disclosed by him to the police.

17. Kishori Lal PW-5, the father of Sanjana deposed that

he had got his daughter married about 8/9 years ago and that

after 5 years of the marriage Sanjana was sent to her

matrimonial house. He deposed that the behavior of the

appellants with Sanjana was cordial and that his daughter was

ill-tempered. The witness deposed in Hindi. We note his

deposition in his own words: Sanjana ke sath mulzaman ka

vayavahar theek tha. Ladki ka vayavahar kharab tha. Sanjana

jab aati thi to kehti thi yeh na diya vah na diya. Yeh pahele

ladka kehta tha baad mein saas sasur kehne lage. Kisi cheej ka

naam na bataya yan na diya. Sanjana marne se pehle chait ke

maah mein gaon mein mela lagta hai us mele mein aayi thi.

Kuch shikayat na kari. The witness was declared hostile and on

cross-examination refuted the suggestion made by the Public

Prosecutor that the in-laws of Sanjana were not happy with the

dowry given by him. To quote he deposed: Yeh galat hai ki

shaadi mein jo daan dahej diya us par mulzaman khush na they.

Us samay khush thai. Yeh galat hai ladki mere paas raksha

bandhan par aayi. Yeh galat hai ladki raksha bandhan par aayi

aur usne dahej maangney ki baat batayi. However, to further

questions whether his daughter was troubled by his in-laws, he

replied in the affirmative. When questioned as to what was the

cause of troubling his daughter, he responded that because he

was a poor man.

18. Mahendra Kumar PW-6, the brother of Sanjana

deposed that Sanjana was his sister and that she died on

10.6.1998. He did not depose about any harassment to his

sister at the hands of her in-laws or any dowry demands being

raised by them.

19. This then is the evidence which needs to be analyzed

and discussed.

20. Sanjana was blessed with a daughter who was aged

about 2 years when Sanjana died. Her mother in law had just

returned to the house after Sanjana had suffered the burn

injuries and along with Kirori Mal PW-3 had removed her to the

hospital. She was presumably by her side, urges learned counsel

for the State, when PW-7 recorded the MLC of Sanjana. Counsel

urges that Sanjana was intimidated by her mother-in-law, who

fearing for her daughter, spoke a lie to the doctor and wrongly

told him that she had sustained the injury when her clothes

accidentally caught fire while cooking food. Learned counsel

urges that the cooking stove was in a perfect condition and had

no leakage and thus where was the possibility of kerosene

spilling on to the clothes of Sanjana.

21. Now, it is nobody‟s case that kerosene oil got spilled

from the stove. This is not the defence projected. The question

is whether, while cooking food on the kerosene oil stove,

Sanjana got burnt accidentally or her husband Kamal Kishore,

after dousing her with kerosene oil set her on fire.

22. The MLC of the deceased does not record that smell

of kerosene oil was noticed by the doctor.

23. It is normally expected that where smell of kerosene

oil is sniffed by the doctor who is attending a burn patient, in the

MLC said fact is recorded. The absence of said fact being

recorded in the MLC Ex.PW-7/A has thus to be kept in mind. By

no means are we intending to convey that this fact concludes

the controversy for the reason there may be cases where the

kerosene oil, accidentally spilled or deliberately thrown on the

victim is of negligible volume and got inflamed when the victim

was set on fire and thus smell of kerosene could not be detected

by a doctor.

24. Ordinarily, as held in the decision reported as AIR

1982 SC 839 Mohan Lal Ganga Ram Gehani vs. State of

Maharashtra where two contradictory statements are made by a

victim who no longer survives to depose in Court, in the absence

of proof of being threatened or there being nothing to impinge

upon the veracity of the first statement, the statement made

first in point of time has to be preferred over the subsequent

statement.

25. As held in the decision reported as 2007 (3) JCC 2355

Mehiboobsab Abbasabi Nadaf vs. State of Karnantaka, where

there are more than one dying declarations made by the

deceased, extra care has to be taken to see as to which dying

declaration inspires confidence. The one which inspires

confidence has to be accepted. If none inspires confidence,

each has to be discarded.

26. The dying declaration Ex.PW-22/A records that apart

from the husband, father-in-law and mother-in-law even the

sisters-in-law viz. Prem and Rekha used to harass Sanjana for

bringing inadequate dowry. The statement Ex.PW-7/A does not

refer to Rekha or Prem. The second difference is that in Ex.PW-

22/A the deceased has referred to her husband beating her last

night on the instigation of his parents; no such fact has been

disclosed in the second dying declaration Ex.PW-7/A. The third

discrepancy is that in the statement Ex.PW-22/A, Sanjana has

stated that her mother-in-law was in the house when she caught

fire and made no effort to save her, but in the statement Ex.PW-

7/A she has stated that only her husband was present in the

house when she was set on fire.

27. The testimony of Kirori Mal shows that the mother-in-

law of the deceased had just returned after buying medicines

when Sanjana was on the road and was seen in flames by the

residents.

28. Discrepant or mutually contradictory statements in

successive dying declarations have always roused the suspicion

of the Courts. In the decision in Mehiboobsab's case (supra) the

Supreme Court held (para 7) that consistency in the dying

declaration is a relevant factor for placing full reliance there

upon. It was held that where the deceased had taken

contradictory and inconsistent stand in different dying

declarations, none could be safely relied upon.

29. No doubt, the mother-in-law of the deceased was

present when she made the statement to the doctor as noted in

the MLC Ex.PW-7/A, but at the same time it cannot be ignored

that when she changed her version and as disclosed in the

second and the third dying declaration viz. Ex.PW-10/A and

Ex.PW-22/A, her brother had met her. As noted above, her

brother met Sanjana at around 10.30 AM. The two statements

were recorded at around 11.30 AM and 1.00 PM. The possibility

of Sanjana being prompted or tutored by her brother cannot also

be ruled out.

30. Thus, the submission of learned counsel for the State

pertaining to the circumstance under which Sanjana made the

statement before the doctor is neither here nor there. Be that

as it may, we prefer to follow the rule of prudence and note the

changed versions as to the facts disclosed by Sanjana in Ex.PW-

10/A and Ex.PW-22/A and take guidance from the law laid down

in Mehiboobsab's case (supra).

31. It would not be out of place to mention that Ex.PW-

19/A i.e. the PCR form filled up by PW-19 records that an

informant has informed that Sanjana had suffered burns while

cooking food on a stove. Though the evidentiary value and

weightage of said information is small, but in the instant case

becomes significant for the reason Kirori Mal PW-3, a resident in

the neighbourhood who had removed Sanjana to the hospital

has not stated that Sanjana told him that her husband had set

her on fire. Kirori Mal is an independent person and would have

been the best witness to said fact. We further note that the

prosecution has led no evidence to show that the appellant fled

his house at around 9.00 - 9.30 AM. There is a ring of truth in

the statement of the appellant Kamal Kishore when he was

examined under Section 313 Cr.P.C. that he had already left for

his work when his wife caught fire.

32. We accordingly hold that the charge against Kamal

Kishore of having poured kerosene oil on Sanjana and thereafter

set her on fire is not proved on the evidence brought on record.

33. Pertaining to the offence punishable under Section

498-A IPC; to sustain such a charge it is essential that clear and

cogent evidence must be brought on record by the prosecution

to prove that the husband or the relative of a woman subjected

her to such cruelty which fulfills the requirement of Explanation

„a‟ or „b‟ of Section 498-A i.e. the willful conduct of the husband

or the relatives was of a nature as would likely to drive the

woman to commit suicide or cause grave injury or danger to life,

limb or health (mental or physical) of the woman or the woman

was harassed with a view to coerce her or any person related to

her to meet any unlawful demand for any property or valuable

security.

34. From the evidence sought to be brought on record, it

is apparent that the prosecution sought to bring the case within

the ambit of Explanation „b‟ to Section 498-A IPC.

35. We have rejected the dying declarations Ex.PW-10/A

and Ex.PW-22/A which even otherwise do not throw much light

on the issue pertaining to cruelty; there being general reference

to the husband beating Sanjana and his parents instigating him.

No particulars of a demand have been disclosed therein. PW-6

has thrown no light on the issue. The other brother and the

father of the deceased viz. PW-4 and PW-5 have half-heartedly

deposed to the acts of cruelty against Sanjana. The hesitant

nature of the deposition of both the witnesses is evident from

their depositions. No particulars of the nature of the demand,

the date of the demand and the manner in which the same were

raised have been disclosed. In fact, the father of the deceased

appears to have disclosed the truth evidenced by his statement

that Sanjana was a little ill-tempered and that it was Sanjana

who had a grievance that her parents had not given her enough

dowry.

36. Poverty appears to be the problem. The young girl

thought that her parents could have done more for her. She

conveyed her feelings to her father, as disclosed by the father in

the following words: Sanjana jab aati thi to kehti thi yeh na diya

vah na diya. Evidence suggests that Sanjana was the one who

wanted her parents to give her more.

37. The evidence pertaining to cruelty is shaky and does

not measure up to the required standards which have to be

achieved at a criminal trial.

38. The appeals are allowed. Impugned judgment and

order dated 01.02.2001 is set aside. The appellants are

acquitted of the charges framed against them. Their conviction

and the sentences imposed are set aside. The appellants are on

bail. Their bail bonds and surety bonds are discharged.

39. Copy of the order be sent to Superintendent, Central

Jail, Tihar for compliance.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 26, 2009 Dharmender