Balram Singh vs State
2009 Latest Caselaw 2718 Del

*            HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment reserved on : 10.07.2009
                            Judgment delivered on: 20.07.2009

+                        Crl. Appeal No.54/2001


BALRAM SINGH                                 ..... Appellant
                    Through : Mr. Sumeet Verma, Advocate

                              VERSUS

STATE                                          .....Respondent
                    Through : Ms. Richa Kapoor, Advocate


CORAM :-
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

     (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.

1. The appellant was charged for the offence of having

murdered his wife by pouring kerosene oil over her at Jhuggi

No.86, Rajiv Gandhi Camp at around 5:00 PM on 25.12.1996

and thereafter setting her on fire resulting in her death.

2.           Vide    impugned     judgment   and     order     dated

23.10.2000 the appellant has been held guilty.         Vide order

dated    6.11.2000     he   has   been   sentenced    to     undergo

imprisonment for life.

3. Police was informed of the deceased being burnt at

her Jhuggi when DD No.22-A, Ex.PW-20/F was recorded at PS

Sarojini Nagar at 17:15 hours on 25.12.1996.

4. SI Ram Singh PW-10 was entrusted with the duty of

visiting the spot and conducting investigation. He reached the

spot and finding no eye-witness and upon learning that the

injured lady named Durgawati, wife of the appellant, had been

removed in a PCR Van to Safdarjung Hospital proceeded to the

hospital and found Durgawati admitted in the burns' ward in

an injured condition.

5. Inspector Shakuntala PW-18, then posted as SHO PS

Sarojini Nagar received information of Durgawati being burnt

when she was on patrolling duty. She reached Safdarjung

Hospital and immediately contacted Mr.Sharad Chauhan PW-1,

then posted as the Sub-Divisional Magistrate of the area, and

requested him to reach Safdarjung Hospital.

6. SI Ram Singh PW-10 penned an application, Ex.PW-

10/B, addressed to the Chief Medical Officer Safdarjung

Hospital, seeking permission to record the statement of the

injured lady, on which, as recorded thereon, the doctor on duty

recorded that the patient, Durgawati was fit for statement.

Under his signatures the doctor on duty wrote the time when

fitness was certified being 6:15 PM on 25.12.1996.

7. Sharad Chauhan PW-1, the SDM of the area, in a

question answer form, recorded the statement Ex.PW-1/A of

Durgawati in which she informed that for the last four years

she and her husband were having a fight because of his desire

to have sex with her and her resistance on account of the

presence of their daughter, aged 12 years in the Jhuggi. She

disclosed that in the evening, her husband poured kerosene oil

on her and set her on fire and while so doing, said that he was

ready to suffer imprisonment which would be maximum for six

months. As noted on the statement Ex.PW-1/A the same was

recorded by PW-1 at 6:50 PM.

8. SI Ram Singh PW-10 also recorded the statement

Ex.PW-10/C of Durgawati, which is substantially the same as

her statement Ex.PW-1/A recorded by the Magistrate. After

making the endorsement, Ex.PW-10/A, on Durgawati's

statement Ex.PW-10/C he forwarded the same for FIR to be

registered. As recorded on Ex.PW-10/A, the statement and the

endorsement was forwarded at 7:30 PM from Safdarjung

Hospital to the police station.

9. At the hospital the doctor on duty prepared the MLC

Ex.PW-7/A of Durgawati, noting there-in the history of the burn

injuries as told by the patient herself as being the result of her

husband pouring kerosene oil over her and setting her on fire.

It may be noted that the MLC notes the time of Durgawati

being admitted at the hospital at 6:45 PM.

10. Returning back to the jhuggi where Durgawati was

burnt, SI Ram Singh summoned the crime team as also the

photographer. Inspector Mir Singh PW-20 also reached the

jhuggi and took over further investigation.

11. Inspector Mir Singh PW-20 seized a kerosene oil

can, a matchbox and burnt matchsticks besides burnt clothes

from within the jhuggi, as recorded in the memo Ex.PW-16/A.

He prepared the rough site plan Ex.PW-20/A, recording therein

the spots where the can was lifted; the spot where matchbox

was lifted, the spot where partly burnt matchsticks were lifted

and the spot from where burnt clothes were lifted.

12. Sudesh Kumar PW-5, a photographer took

photographs Ex.PW-5/A1 to Ex.PW-5/A5. Needless to state, the

photographs pertained to Jhuggi No.86, Rajiv Gandhi Camp.

13. The appellant was apprehended and on noticing

that his hands had burn injuries, he was examined at

Safdarjung Hospital and as recorded in his MLC Ex.PW-17/A

was found with burn injuries over both hands.

14. So deep and life threatening were the burn injuries

suffered by Durgawati that she died the very next day. The

post-mortem report Ex.PW-6/A notes charring of the skin at

many places. The depth of the charring being deeper than the

skin tissue. It notes 100% burns i.e. save and except the sole

of the foot, the entire body was affected by the burns. Internal

examination revealed presence of soot particles in the larynx.

15. Unfortunately, the doctor who prepared the MLC of

the deceased had left service by the time evidence was

recorded and hence Dr.R.K.Srivastva PW-7 proved the MLC of

the deceased as he was a colleague of Dr.Manoj Gupta i.e. the

doctor who had recorded the MLC and with whose handwriting

Dr.R.K.Srivastva was familiar with.

16. Thus, the author of the MLC as also the doctor who

gave the fitness certificate on Ex.PW-10/B could not be

personally examined.

17. It would be evident to a reader of the decision that

the case of the prosecution hinged on the three dying

declarations of the deceased; being the dying declaration

recorded on the MLC Ex.PW-7/A, the dying declaration Ex.PW-

1/A recorded by the SDM and the dying declaration Ex.PW-

10/C recorded by the investigating officer. All the three are

inculpatory of the appellant.

18. Holding that there was no reason for the deceased

to be telling a lie about the cause of her death and that the

dying declaration recorded by the SDM was in question-answer

form and inspired confidence for the reason the SDM

concerned who was examined as PW-1, deposed that at

around 6:30 PM on receiving information from the SHO that

one Durgawati wife of appellant had been admitted in the

burns ward of Safdarjung Hospital he reached there by 6:45

PM and after ascertaining from the doctor that the patient was

fit for statement, recorded the statement Ex.PW-1/A in his own

hand and in a question-answer form. He deposed that he

obtained the toe impression of the left foot of Durgawati at the

point Mark 'B' on the statement.

19. As noted hereinabove, the MLC of the deceased

records that she was admitted at the hospital at 6:45 PM. As

noted above, Ex.PW-10/B containing the certification by the

doctor that Durgawati was fit for statement, notes the timing

6:15 PM. Picking on the discrepancy of time Shri Sumeet

Verma, learned counsel for the appellant vehemently urged

that if the deceased was brought to the hospital, as recorded

in the MLC Ex.PW-7/A at 6:45 PM, where was the occasion for

the deceased to be certified fit for statement at 6:15 PM.

Thus, counsel urged, that the certificate of fitness is a suspect

document. Counsel urged that since the doctor concerned was

not examined as a witness, the possibility of the IO fabricating

the fitness certificate cannot be ruled out.

20. The second submission urged by learned counsel

was that the deceased had a motive to falsely implicate the

appellant, for the reason, she stated, as recorded in her

statement Ex.PW-1/A, that the appellant and she were having

a quarrel for the last four years. Thus, learned counsel urged

that there is every possibility of the deceased, who committed

suicide, falsely implicating the appellant.

21. Thirdly, counsel urged that by not examining the

doctor who gave the fitness certificate as claimed by the

prosecution, it would unsafe to assume that the deceased was

fit for statement, for the reason as recorded in her MLC, the

deceased was badly burnt; having 100% burns. With

reference to the post-mortem report of the deceased, learned

counsel urged that the same evidences third degree burns

sustained by the deceased. Counsel urged that under the

circumstances it is highly improbable that the deceased would

be in a fit condition to make any statement.

22. Lastly, counsel urged that the fact of the appellant

having burns on his hands was proof of the fact that the

deceased set herself on fire, as stated by the appellant in his

statement under Section 313 Cr.P.C., and that the appellant

sustained burn injuries on his hands while attempting to save

his wife.

23. We propose to deal together with the first and the

third submission of the learned counsel, for the reason, though

apparently not interlinked, as would be evident from our

discussion, the two submissions some what overlap each

other.

24. It is no doubt true that the MLC of the deceased

records that she was admitted at the hospital at 6:45 PM. It is

equally true that the certification by the doctor on Ex.PW-10/B,

pertaining to the fitness of Durgawati records the time as 6:15

PM. At first blush, anyone would come to the conclusion that

how could the doctor certify a patient fit for statement 30

minutes prior to the patient being admitted in the hospital.

But, human beings commit errors. Therefore, it needs to be

considered whether the time 6:15 PM on the certification is an

error or the time 6:45 PM on the MLC is an error. If any one of

the two is an erroneous recording of time, said fact would rule

out either one of the two being a created or a fabricated

document. Only if the conclusion reached is that neither

timing recorded is erroneous, only then one would have to

conclude that either one of the two is a fabricated or an

interpolated document.

25. As noted in para 4 above, when SI Ram Singh PW-

10 reached the spot where the deceased was burnt i.e. her

jhuggi at Rajiv Gandhi Camp, pursuant to DD No.22-A recorded

at 5:15 PM, he learnt that the lady i.e. Durgawati who was

burnt had been removed in a PCR Van to Safdarjung Hospital.

The person who removed her to the hospital was ASI Hari

Chand PW-2 who deposed that on 25.12.1995 he was posted

as a driver of a PCR vehicle and at 5:10 PM received

information that a woman had set herself on fire at the Rajiv

Gandhi Camp and that he reached the place within 2 or 3

minutes. He stated that his van was stationed at Safdarjung

Enclave. SI Ram Singh PW-10 has deposed that the jhuggi

cluster at Rajiv Gandhi Camp is near Delhi Police Public School.

The said school is in Safdarjung Enclave on Ch.Jhandu Singh

Marg. The distance between the slum cluster and Safdarjung

Hospital is hardly 2 kilo-meters. As per ASI Hari Chand, the

PCR van reached the jhuggi cluster in 2 or 3 minutes. Same

would be the time for the van to reach Safdarjung Hospital. At

the most, 5 to 10 minutes would be needed to place the

injured on a stretcher and carry her to the van from the jhuggi.

It is apparent that the deceased was brought to Safdarjung

Hospital around 5:30 PM or latest by 5:35 PM. This would be

the place where the van was stationed outside the casualty of

the hospital. The patient had to be removed from the van and

carried to the burns ward inside the casualty of the hospital.

This would take another 3 to 5 minutes. The doctor on duty

had to be informed to attend to the patient. Safdarjung

Hospital is a government hospital and even the casualty is

always over-crowded. The interns present at the casualty

attend immediately to the patient and experience shows that

the senior resident doctor or the doctor on duty does take

anything between 5 to 10 minutes to attend to the patient.

The senior resident or the doctor on duty does not sit down to

write the MLC, but proceeds to examine the patient and

prescribe the immediate medical treatment which has to be

given, and thereafter starts writing the MLC. Thus, the actual

time when an MLC is scribed normally happens to be 30 to 45

minutes after a patient is admitted at the casualty. It quite

happens, that while filling the column pertaining to the time on

the MLC, the doctor looks up the time, either on his/her wrist

watch or in the wall clock in the casualty. Little realizing that

the patient was actually brought 30 to 45 minutes earlier, the

time which gets recorded is the one noted by the doctor while

scribing the MLC.

26. This appears to have happened in the instant case.

This explains for the discrepancy in the time as recorded in the

MLC and on the application seeking fitness of the patient for

recording her statement.

27. In the decision reported as AIR 2003 SC 209

Shanmugam vs. State of Tamil Nadu it was held that omission

to examine a doctor who has certified a patient fit for

statement is not fatal and that as long as the magistrate

recording the dying declaration has recorded that he had

obtained the fitness certificate from the doctor it would be safe

to believe the testimony of the magistrate that the patient was

certified fit for statement to be recorded. The said decision

held that the contrary view taken in the decision reported as

AIR 1999 SC 3455 Rosamma vs. State of A.P. was no longer

good law in view of the decision reported as AIR 2002 SC 2973

Laxman vs. State. The same view has been reiterated in the

decision reported as 2008 Crl.L.J. 2062 Sher Singh & Anr. vs.

State of Punjab.

28. It is apparent that since the SDM had reached the

hospital soon after the IO reached the hospital the fitness

certification given by the doctor on the application Ex.PW-10/B

was treated by the SDM as good evidence of the patient being

fit for statement, besides the self observation by the SDM that,

indeed, Durgawati was in a fit condition to make a statement.

29. That the patient had suffered 100% burns and the

burns were third degree burn do not by itself show that the

patient was not fit for making any statement. The MLC Ex.PW-

7/A does not record that the patient was delirious or

unconscious. It does not record that the blood pressure was

too high or too low. Medical Jurisprudence guides us that a

patient suffering from burns starts losing consciousness when

bilateral crepts start occurring due to loss of fluid in the blood.

The MLC of the deceased does not record the onset of bilateral

crepts.

30. We see no reason why the doctor on duty, the Sub-

Divisional Magistrate of the area and the investigating officer

would all collude to independently record the same fact i.e. the

deceased telling them at different points of time that she had

been set on fire by her husband.

31. The post-mortem of the deceased shows presence

of soot in the larynx. It evidences that the deceased inhaled

sufficient quantity of smoke containing heavy particles of

carbon. Kerosene oil is a hydro-carbon i.e. is rich in carbon.

Smell of kerosene was detected from the scalp hair. The

extent of the heat generated by the fire stands exposed in the

MLC which notes that at many places the skin had charred. It

is apparent that a large quantity of kerosene was poured on

the body of Durgawati.

32. Well, she could have poured sufficient quantity of

kerosene oil on herself. But if this was so we wonder what

would have happened when, after dousing herself with

kerosene, Durgawati picked up the matchbox and lit the first

match-stick. We visualize Durgawati being engulfed in a ball

of fire. Kerosene is a very volatile liquid and is highly

combustible. The inevitable consequence of such event

happening would be the match-box flaring in the hand of the

deceased and the burnt match-stick with which she ignited

herself, perishing at the very instance of the fire.

33. But, the burnt match-stick and the match-box used

have survived. The photographs Ex.PW-5/A-1 to A-5 and in

particular the photograph Ex.PW-5/A-1 shows the match-box

lying on the floor adjacent to the can containing kerosene oil

as also the presence of burnt match-sticks around the ashes

on the floor, which ashes have to be the result of the clothes of

Durgawati being burnt.

34. The site plan Ex.PW-12/A i.e. the site plan to scale

which conforms to the rough site plan Ex.PW-20/A shows that

the burnt match-sticks and the used match-box were found

lying on the floor at a safe distance from the spot where

Durgawati was burnt and where ash of her clothes had fallen.

35. Whenever a husband sets his wife on fire and the

wife so speaks, there obviously has to be something in the

mind of the husband which has motivated him to do so. The

two most frequent motives for husbands to set their wives on

fire, as stand recorded in various judicial opinions are either

the greed for dowry or the anger of the husband towards the

wife on account of some reason. For, if everything is fine

between a married couple, we see no reason why a husband

would set his wife on fire. Thus, when Durgawati told the

reason why her husband used to quarrel with her and set her

on fire, it does not lead to the conclusion that Durgawati had a

motive to falsely implicate her husband.

36. That the appellant had burn injuries on his hands

does not establish his innocence. There could be two reasons

to explain the burn injuries on the hands of the appellant. It

has to be noted that the burn injuries are superficial. The

same could be the result of preventing Durgawati whose

instincts would compel her to rush outside the jhuggi when she

was set on fire. Upon the appellant so doing, his hands would

obviously suffer superficial burn injuries. The second could be

the fact, as happens very often: self-realization at the spur

immediately after committing a ghastly act; the self-realization

being 'O my God, what have I done' accompanied by an

instant action by way of reaction to attempt to undo the

wrong. By which time, unfortunately, the damage has been

done and the situation would be of crying over spilt milk.

37. We find truth and credibility in the dying declaration

of Durgawati and find no embellishment therein. We concur

with the view taken by the learned Trial Judge. Thus, we

dismiss the appeal.

38. The appellant is on bail. His bail bond and surety

bond are cancelled. The appellant is directed to surrender and

suffer the remaining sentence.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE July 20, 2009 mm