Jitender Kumar vs State Nct Of Delhi
2009 Latest Caselaw 3 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. Appeal No. 120/2006

%                           Date of Order : January 06, 2009

JITENDER KUMAR                  ..... Appellant
             Through : Mr. Sumeet Verma, Advoate


                                VERSUS


STATE NCT OF DELHI                .....Respondent

through : Mr. M.N. Dudeja, 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. Poonam (the deceased) was married to Bhupender

on 14.2.2000. She suffered burn injuries in the kitchen of her

matrimonial home at around 8:00 P.M. on 10.4.2002. She

was rushed to Rao Tula Ram Memorial Hospital by her

husband and a neighbor Ms.Devi. She was attended to at the

hospital by Dr.A.S.Yadav who recorded her physical condition

in the MLC Ex.PW-6/2 to the effect that Poonam had burn

injuries on 70% of the body. No burn injuries were noted on

the legs. The burn injuries were on the torso. It was recorded

in the MLC that Poonam was conscious and oriented.

Bhupender, husband of Poonam had also suffered burn

injuries. He too was attended to by Dr.A.S.Yadav who noted

on the MLC of Bhupender, Ex.PW-6/1 that Bhupender had

suffered burn wounds on 6% of the body and that the burn

wounds were on his hands and arms.

2. Safdarjung hospital in Delhi specializes in the

treatment of burn wounds. Dr.A.S.Yadav referred Poonam to

Safdarjung hospital. Poonam remain admitted at said hospital

till she died on 12.5.2002.

3. When Poonam was brought to Rao Tula Ram

Hospital, the duty constable at the hospital, Const. Surender,

telephonically informed the duty officer at the police station

that Poonam wife of Bhupender was admitted at the hospital

having suffered burn injuries, which information was noted

vide DD No.26-A Ex.PW-12/A. FIR Ex.PW-1/A was recorded

under Section 307/498-A/34 IPC at 10:30 P.M. since Poonam

told the investigating officer S.I.Amrit Lal that her brother-in-

law, Jatinder, her mother-in-law and her minor sister-in-law

had set her on fire.

4. Since it was a case of a bride getting burned within

7 years of her marriage on the next day i.e. 11.4.2002, at

around 10.00AM, the Sub Divisional Magistrate of the area

Sh.Indu Shekhar Mishra, PW-13 recorded the statement of

Poonam, Ex. PW13/A.

5. As per Ex.PW-13/A i.e. the statement made to the

learned Sub Divisional Magistrate by Poonam she stated that

she had no complaint against her husband and that her

brother-in-law, Jitender Kumar, as also her mother-in-law and

her minor sister-in-law used to harass her for bringing

insufficient dowry. She stated that last night i.e. on 10.4.2002

at around 8.30 P.M. she wore the slippers of her sister-in-law

which resulted in a verbal duel. That her brother-in-law,

Jitender Kumar, and her mother-in-law joined issues with her

and taunted her for bringing less dowry. She stated that all of

a sudden her mother-in-law picked up a can containing

kerosene oil and poured the same over her body. She stated

that it was followed by her brother-in-law, Jitender Kumar,

picking up a match box; lighting the match-stick and setting

her on fire. She further stated that when the said act was

committed, her husband reached home from office and

attempted to extinguish the fire and that with the help of

neighbours rushed her to the hospital.

6. S.I.Amrit Lal also purportedly recorded a statement

of Poonam Ex. PW14/F in which she inculpated her mother-in-

law, her brother-in-law, Jitender Kumar and her minor sister-

in-law.

7. The clothes which were worn by Poonam at the

time of the unfortunate incident were taken possession of by

the doctor concerned and were seized by the Investigating

Officer who proceeded thereafter to the matrimonial home of

Poonam and seized one empty plastic can with two used

brushes, one matchbox with unused sticks from the kitchen of

the house.

8. The plastic can, the matchbox with unused sticks,

the used i.e. partially burnt match-sticks lifted from the

kitchen of the house as also the partially burnt clothes were

sent for forensic examination. Report of the forensic

examination of the said objects, Ex. PW14/A, reports that the

partially burnt clothes and the used match-sticks as also the

unused match-sticks and the match-box did not have any

trace of residual kerosene. The can was reported to be

having residue of kerosene.

9. The mother-in-law of Poonam could not be

apprehended. She was declared a proclaimed offender.

Bhupender absconded from the house and was arrested after

a few days. The sister-in-law being minor, was, as per the law

applicable, referred to the Juvenile Justice Board for trial.

Jitender, the brother-in-law, of Poonam was sent for trial.

10. Needless to state the charge framed against him

was of having committed murder of Poonam i.e. 302 IPC; he

was also charged under Section 304-B IPC as also under

Section 498-A IPC.

11. At the trial, the police officers who had received

various seized items as also the ones who had forwarded the

same to the forensic laboratory and the ones who were

concerned with the registration of the FIR were examined.

Unfortunately, the Investigating Officer S.I.Amrit Lal had died;

obviously he could not be examined. Pertaining to the record

of investigation recorded by him, PW-14, Inspector Heera Lal,

who claimed to be familiar with the handwriting and the

signatures of the Investigating Officer, was examined to prove

the same.

12. Father and the brother of Poonam namely, Jai

Swaroop and Sunil were examined as PW-3 and PW-4

respectively. Dr.Rajeev Kumar, who had recorded the death

summary of Poonam having left the hospital where she died,

namely Sufderjung Hospital, Dr. Prateek Arora, PW-5 was

examined who proved the death summary.

13. PW-7, Dr.Alexendar who conducted the

postmortem of Poonam proved the postmortem report Ex.PW-

7/A which recorded the cause of death of Poonam to be the

result of septicemia.

14. The case of the prosecution hinged upon Ex. PW-

13/A and PW-14/F, the statements made by Poonam, soon

after the incident, the first being before the Sub Divisional

Magistrate followed soon thereafter by her statement before

the Investigating Officer.

15. Vide impugned judgment dated 3.8.2005, learned

trial judge has held that the charge of murder and subjecting

Poonam to cruelty stood established. It was held that the

charge under Section 304-B was not established. The result is

Jitender being convicted for the offence under Section 302 IPC

i.e. having murdered Poonam. He has also been convicted

under Section 498-A IPC. The reasoning of the learned trial

judge for the findings returned is the acceptance to the

truthfulness of the dying declaration of Poonam recorded by

the learned SDM i.e. Ex.PW-13/A. Pertaining to the second

dying declaration, Ex. PW-14/F, we note that the learned trial

judge had certain doubts about proof thereof, for the reasons,

Inspector Amrit Lal who recorded the same was not

examined. (as noted above he died). Be that as it may, the

first dying declaration, Ex.PW-13/A recorded by the Sub

Divisional Magistrate has been opined to be worthy of

credence and acceptance.

16. The learned trial judge has found corroboration to

the dying declaration, with reference to the CFSL report

Ex.PW14-/A, which records that the empty plastic can lifted

from the place of occurrence had traces of kerosene.

17. At the hearing of the appeal today, learned counsel

for the appellant, inter alia, urges the following:-

A. Ex. PW-14/F, the statement allegedly made by

Poonam to the Investigating Officer cannot be looked into for

the reason neither in his examination under Section 313

Cr.P.C. statement was put to Jitender; nor the scribe of the

statement was examined.

B. The dying declaration Ex.PW-13/A, purportedly

recorded by the Sub Divisional Magistrate had to be ignored

for the reason the doctor who purportedly certified Poonam

being fit for statement had not been examined. Counsel

urges that from a perusal of the document it does not even

surface as to who the doctor is i.e. even the identity of the

doctor is not forth coming on record.

C. Conceding that a conviction can be sustained on a

dying declaration, counsel urges that the same is subject to

there being no evidence to discredit or cast a doubt on the

truthfulness of the dying declaration. Counsel urges that

where evidence on record casts a doubt on the truthfulness of

the dying declaration, it would be unsafe to sustain a

conviction on such dying declaration. Elaborating further,

learned counsel urges that the report Ex.PW-14/A by the

forensic science laboratory is categorical in its opinion that no

residue of kerosene was detected in the partially burnt

clothes which were worn by Poonam when the unfortunate

incident took place, this, coupled with the fact that no

kerosene was detected in the used and unused match-sticks

as also the matchbox negates any kerosene being thrown on

the person of Poonam or lying split on the floor. Counsel

further urges that the MLC of the deceased as also the

testimony of PW-5 and PW-6 suggest that the deceased

suffered burn injuries only on the torso region; counsel urges

that lack of any burn wounds on the part of the body below

the torso i.e. the thighs and the legs rule out the possibility of

somebody throwing or pouring kerosene on Poonam and

thereafter setting her on fire.

D. With reference to the MLC of the husband of the

deceased, counsel points out that as recorded therein, the

deceased and her husband had been accompanied by Devi to

the hospital; a fact stated by Poonam to the Sub-Divisional

Magistrate in her statement to the effect that neighbours had

brought her and her husband to the hospital. With reference

to the testimony of Devi, who was examined as PW-11,

counsel points out that the witness stated that she was

present in her house when she heard cries of Poonam and her

husband; that she reached their house and took both of them

to the hospital. She stated that before embarking on their

journey to the hospital she requested Poonam and her

husband that Poonam's mother-in-law should also be taken

along to which Poonam responded by saying that they could

not take her mother-in-law to the hospital as she had not

come back from duty. Counsel urges that this shows that

Poonam's mother-in-law was not present in the house when

Poonam suffered burn injuries.

E. With reference to the testimony of the father and

the brother of the deceased, namely PW-3 and PW-4, counsel

points out that the two had deposed about the appellant,

Jitender, harassing Poonam for bringing less dowry without

giving any particulars of the date of the harassment or the

nature thereof. Counsel urges that as per statement of

Poonam, Ex.PW-13/A, she had never disclosed the alleged

harassment caused to her to her parents. Pertaining to the

events of 14.2.2000, learned counsel points out that both

have stated that Poonam gave a telephonic call to her parents

intimating that she was being beaten and she was threatened

that she would be killed. Learned counsel points out that no

where in her statement, either to the Sub Divisional

Magistrate or the Investigating Officer did Poonam speak of

having rung up her parents. Counsel further points out that

the testimony of the brother and the father of the deceased is

ex-facie tutored and in any case does not inspire any

confidence for the reason it would be difficult to presume that

a person who was in the process of being beaten would be

simultaneously ringing up for rescue. Counsel points out that

PW-4 has categorically stated that when his sister contacted

him over the telephone she stated that she was being given a

beating.

18. Learned counsel for the State urges that there is

no reason to disbelieve the two dying declarations of Poonam

which counsel urges were recorded with promptitude.

Counsel further points out that the dying declaration recorded

by the Sub Divisional Magistrate at 10.00 A.M. the next day

was within 13 hours of the incident and that there is no

evidence that in the interregnum the parents or any family

member of Poonam had access to her; counsel urges that the

possibility of Poonam being tutored is ruled out. With

reference to Poonam's mother-in-law absconding and ever

Jitender absconding for a few days, counsel points out that

this conduct indicates the guilt of the two.

19. At the outset, it may be noted that while being

examined under Section 313 Cr.P.C, Jitender was not

questioned with reference to Ex.PW-14/F and for said reason

alone we are of the opinion that the purported statement

made by Poonam to the Investigating Officer i.e. Ex.PW-14/F

has to be ignored.

20. In any case, we note that the learned trial court

has not much relied upon Ex.PW-14/F; although there are

traces of a half-hearted use of the statement in the impugned

judgment.

21. It is apparent that the only incriminating evidence

which is surfacing against the appellant is Ex.PW-13/A, the

purported dying declaration recorded by the learned Sub

Divisional Magistrate at around 10.00 A.M. on 11.4.2002 as

also the conduct of the appellant absconding for a few days.

22. The act of absconding by itself is not a very

weighty circumstance to hold against the accused for the

reason many a times innocent persons run away fearing false

arrest. At best the circumstance of absconding would

reinforce, if otherwise established, the guilt of the accused.

23. It is true that no corroboration is required to a

dying declaration, but, to sustain a conviction on a dying

declaration, the Court has to record a satisfaction that the

same contains the nugget of truth.

24. Way back in the year 1958 in the decision reported

as AIR 1958 SC 22 Khushal Rao v. State of Bombay, the

Supreme Court spoke as under; pertaining to dying

declaration:-

"17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination.

But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."

25. Suffice would it be to state that a dying declaration

is a piece of evidence and has to be considered along with

other relevant and admissible evidence which is brought on

record.

26. Where evidence on record casts a doubt on a

factual aspects disclosed in a dying declaration, unless

explained satisfactorily to the Court, the same would be fatal

to a dying declaration.

27. In the instant case it is relevant to note that the

brother and father of the deceased as also the deceased

herself had made grievances against the mother-in-law, the

brother-in-law and minor sister-in-law of the deceased. The

possibility of the deceased falsely implicating the three is in

the realm of a probability. With regard to dying declarations

as held in the decision reported as 2006(2) SCALE 482 P. Mani

v. State of Tamil Nadu, while considering dying declarations

Courts have to be careful in weighing the fact whether the

deceased had been nurturing a grudge against the persons

accused by the maker of the dying declaration.

28. Now, Poonam is categoric in her statement that

her mother-in-law poured kerosene over her. The clothes

which she was wearing at the time when she sustained the

burn injuries (in partially burnt conditions) were taken

possession of by the Doctor at the hospital where Poonam

was admitted and duty fully handed over to the Investigating

Officer who seized the same vide seizure memo Ex.PW-2/1.

Lack of kerosene residues being detected in the clothes as

evidenced by Ex.PW-14/A casts a doubt whether any kerosene

was at all used. The used match-sticks, the unused match-

sticks and the match box which were lifted from the place of

occurrence i.e. the kitchen of the matrimonial house of

Poonam also showed no traces of kerosene residues. The

same is suggestive of no kerosene dropping on the floor. This

casts a serious doubt whether at all kerosene was used to

burn Poonam.

29. We also note that even in the MLC, Ex.PW-6/2, the

doctor has not recorded that he noted smell of kerosene from

the person of Poonam.

30. We also note that in the MLC it has not been

recorded, at the place where case history is recorded, that

Poonam told the Doctor that she was set on fire by her

mother-in-law, her brother-in-law and her sister-in-law.

31. We also note that PW-11, Devi, took Poonam and

her husband to the hospital for which independent

corroborative evidence is to be found in the MLC of

Bhupender, Ex.PW-6/1 which records that Devi had

accompanied Bhupender to the hospital. Thus, Devi's

presence at the site is not in doubt.

32. Devi has categorically stated that when she

responded to the cries of Poonam and her husband; finding

the two in a burnt condition, she arranged for a transport to

take them to a hospital and at that stage requested that it

would be better if Poonam's mother-in-law would accompany

them to the hospital to which Poonam responded that her

mother-in-law had not come back from duty. It thus becomes

doubtful whether Poonam's mother-in-law was at all in the

house. It is also of relevance to note that the independent

person to reach the site of the occurrence was Devi. It

assumes significance that Devi never stated that when she

reached the site, Poonam told her that her mother-in-law, her

brother-in-law and her sister-in-law had set her on fire.

33. Poonam's husband was examined as DW-1. He

has deposed in his testimony that on the day of the incident

his wife desired an immediate visit to her sister's house. He

told her that since his mother, his brother and his younger

sister were away from house being in Village Devar Khana,

Haryana, he would take her to her sister's house on 11.4.2002

more so said day being the birthday of the son of Poonam's

sister. That Poonam got very angry. He tried to reason it out

with her. At that point of time he went to the bathroom for

taking a bath and Poonam went to the kitchen. While he was

taking bath he heard cries of Poonam. She was crying

"Bachao Bachao". He responded to her calls and attempted

to extinguish the fire and as a result sustained burn injuries

on his hands. He stated that people from the neighbourhood

collected outside their house and a neighbor, Rajveer brought

a hired Van and that accompanied by PW-11 Devi, they went

to the hospital.

34. Though Bhupender may be labeled as an

interested witness but we note that the version given by

Bhupender has also to be kept in mind and if consistent with

the evidence on record, certainly would be a piece of

evidence worthy of consideration.

35. We have noted hereinabove that Poonam did not

suffer any burn injuries on her legs. The entire burn injuries

were on the torso. Absence of kerosene on her partially burnt

clothes which she was wearing at the time of the incident as

also absence of kerosene in the used and the unused match-

sticks as also the match box has been noted by us. We have

opined there from that use of kerosene to burn Poonam

stands ruled out and hence discredits the dying declaration of

Poonam's version as to how she got burnt. The nature of

burn injuries on Poonam are in harmony with the testimony of

her husband which shows that when Poonam went to the

kitchen she was in an agitated state of mind. The possibility

of Poonam, in a state of agitation, entering the kitchen and

proceeding to cook food and in the process suffering

accidental burn injuries cannot be ruled out.

36. It is unfortunate that the learned trial judge,

though has noted the report of the Forensic Science

Laboratory Ex.PW-14/A and has also noted the opinion

recorded therein pertaining to no trace of residual kerosene

being found on the clothes of Poonam as also the used and

unused match-sticks and the matchbox has totally ignored

the same while evaluating the evidence. A selective use of

Ex.PW-14/A, as noticed above, has been made with reference

to the can containing traces of kerosene oil.

37. We are of the opinion that considered in light of

the totality of the circumstances and in particular Ex.PW-14/A,

as also the version of the husband of the deceased and the

testimony of PW-11, it cannot be said that the prosecution

has established its case beyond doubt as required by law.

38. The charge under Section 302 IPC cannot stand.

39. Pertaining to the charge under Section 498-A IPC,

we note that except for blogged statements made by PW-3

and PW-4 without the date or the nature of dowry demand;

merely stating that there were dowry demands, no other

evidence being on record, charged under Section 498-A IPC

must also fail as the other evidence being the dying

declaration of Poonam has been doubted by us.

40. The appellant has been acquitted of the charge

under Section 304-B IPC. Even otherwise, for the reasons

noted hereinabove absolving the appellant of the charge

under Section 302 IPC as also Section 498-A IPC, the said

charge cannot sustain itself on the given evidence.

41. The appeal succeeds.

42. Impugned judgment dated 3.8.2005 is set aside.

The sentence imposed upon the appellant, vide order dated

8.8.2005 is set aside. Appellant, who is in custody, is directed

to be released forthwith, if not required in any other cases.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE January 06, 2009 Jk