Ram Kalan vs The State
2009 Latest Caselaw 2848 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                           Date of decision: 27.07.2009


+                            CRL. A. No.207 of 1996


RAM KALAN                                             ...APPELLANT

                             Through:   MS.CHARU VERMA, ADV.


                                   Versus

THE STATE                                             ...RESPONDENT

                             Through:   Mr.M.N.DUDEJA, ADV.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?             No

2.        To be referred to Reporter or not?              No

3.        Whether the judgment should be
          reported in the Digest?                         No

SANJAY KISHAN KAUL, J. (Oral)

1. The appellant has been convicted under Section 302 of

IPC and sentenced to suffer life imprisonment for

committing murder of his wife Smt. Chandra. The

conviction is based solely on the dying declaration of

Smt.Chandra.

2. On 15.11.1993, on being informed that Smt. Chandra had

been admitted in the Burns Ward of Safderjung Hospital,

DD No.45-B PS Ambedkar Nagar was recorded and a

copy thereof was handed over to SI Mukesh Kumar for

verification. SI Mukesh Kumar and Const.Aslam had gone

to the site of occurrence, but found no one there and

thereafter visited the hospital The MLC of the deceased

shows that at the stage of admission of Smt.Chandra in

the hospital she was alleged to have sustained burn

injuries to the extent of 85 per cent allegedly on account

of her husband pouring kerosene oil over her and setting

her on fire. SI Mukesh Kumar thereafter made an

application at 7.10 PM on 15.11.1993 itself for permission

to record her statement and Dr.Rohit Nayyar declared

her fit for statement.

3. The statement made by Ms.Chandra is to the effect that

her husband had given a loan of Rs, 2,000/- to her

brother's son Zile Singh. However, Zile Singh did not

return the loan back to her husband resulting in acrimony

between the husband and wife. The deceased had

alleged that the appellant used to beat her up and even

on 14.11.1993 gave her a beating. The deceased

claimed to have left for her daughter Savitri's house and

returned at about 5 a.m. at which stage there was again

a quarrel and her husband gave a danda blow on her

waist and poured kerosene oil on her and set her on fire

with a matchstick. The deceased alleged that the

appellant fled from the place of occurrence, but her son

Rajender (PW-4) and her son-in-law (PW-3) attended to

her and after dousing the fire rushed her for medical

treatment to Safderjung Hospital. The deceased alleged

that the appellant had set her on fire with the intention to

kill her and action be taken against him. The deceased

subsequently passed away.

4. A perusal of the record shows that statement under

Section 161 of Code of Criminal Procedure, 1973 ('the

said Code' for short) was recorded of PW3 Suraj Bhan and

PW4 Rajender on 16.11.1993 and of daughter Savitri on

03.01.1994. The version given by all these three persons

is that the deceased had committed suicide and at that

time, the appellant was with them partaking tea. The

same stand was taken by these three witnesses when

they entered the witness box though they were declared

hostile by the prosecution and cross-examined by the

prosecutor. The statements also show that the stand

taken by the witnesses is that the deceased wanted to

teach a lesson to the appellant and was short-tempered.

The factum of loan being taken from the appellant has

been substantiated though there is some discrepancy

inasmuch as Zile Singh, who appeared in the witness box

as PW1, stated that he had already repaid the loan much

before the death of the deceased. The learned

Addl.Sessions Judge in terms of the impugned judgment

dated 22.11.1995 convicted the appellant solely on the

basis of the dying declaration. The plea advanced on

behalf of the defence that dying declaration having been

made to a police officer ought to be rejected, has not

been accepted especially in view of the fact that a similar

dying declaration was made by the deceased before the

doctor at the time of her admission prior to the recording

of her statement for purposes of recording of FIR by the

IO of the case. The learned Addl.Sessions Judge has also

found that the statements of PW2, PW3 and PW4 cannot

be relied upon as all of them are interested witnesses

who wanted to save the appellant and there are

contradictions and discrepancies to the effect that while

one version is of the deceased having set herself ablaze

on the first floor, the other version is that she came down

the stairs in flames where the fire was extinguished.

Since the appellant was not found on the spot, the

learned Addl.Sessions Judge found that the statement of

the deceased that the appellant had run away and was

absconding could be said to be corroborated.

5. We have gone through the Trial Court Record and the

impugned judgment. We have had the benefit of

submissions of both the learned counsel for the parties.

6. Insofar as acceptance of dying declaration is concerned,

the law is well settled. Learned counsel for the appellant

has referred to the judgment in P.Mani v. State of Tamil

Nadu; 2006 (2) SCALE 482 where also the question which

arose was whether the deceased had committed suicide

or was set on fire. It was found that the dying

declaration could not be relied upon as the sole basis for

conviction as there were surrounding circumstances of

the deceased having a belief that the appellant was

having an affair with another lady. The son and daughter

of the deceased did not support the case of the

prosecution.

7. Learned counsel for the respondent-State further submits

by reference to the judgments in State of Karnataka v.

Shariff; (2003) 2 SCC 473 and Sasikumar v. The State of

Tamil Nadu; 2009 (7) SCALE 444 that once a dying

declaration is of such a nature as to inspire full

confidence of the Court in its correctness, the same can

be the basis of conviction. We may, however, note that

simultaneously it has been observed that though a dying

declaration is entitled to great weight, the appellant has

no power of cross examination which is normally

essential for eliciting truth. The Court must satisfy itself

that not only was the deceased in a fit state of mind after

a clear opportunity to observe and identify the assailant,

the declaration should be true and voluntary and not a

figment of imagination of the deceased. The dying

declaration is really a piece of evidence and has to be

considered along with other relevant and admissible

evidence brought on record. It is in view thereof that in

Jitender Kumar v. State of NCT of Delhi; 2009 (1) JCC 491,

a Division Bench of this Court had observed that where

evidence on record casts a doubt on a factual aspect

disclosed in a dying declaration, unless explained

satisfactorily to the Court, the same would be fatal to a

dying declaration. If we apply the aforesaid well settled

principles to the present case, we find that a common

thread runs through the depositions of PW-2 to PW-4 who

were present at the time of the incident in the house.

They are undoubtedly closely related to the deceased

being the son, son-in-law and daughter of the deceased

and the appellant. The statements of the son (PW-

4/Rajender) and son-in-law (PW-3/Suraj Bhan) of the

deceased were recorded under Section 161 of the said

Code on the next date of the incident i.e.16.11.1993

though the statement of the daughter of the deceased

(PW2/Smt.Savitri) was recorded subsequently on

03.01.1994. All the three persons have taken a

consistent stand that they were staying with the accused

and were having tea together when they heard shrieks

and found that the deceased was on fire. There is some

discrepancy as to whether they rushed to douse the fire

on the first floor or she came downstairs in flames, but

that itself cannot result in rejection of the depositions of

these three witnesses which is in fact consistent with

their statements under Section 161 of the said Code.

There is a background to the incident inasmuch as a loan

was given by the appellant to the nephew of the

deceased (PW-1 Zile Singh). Whether the loan had been

returned prior to the incident is a moot point. All the

three witnesses have stated that the deceased was a

lady of short temper and on account of some differences

had set herself on fire whereafter she had claimed that

she would teach the appellant a lesson by implicating

him as a perpetrator of the crime. This evidence

certainly casts a doubt on the dying declaration made by

the deceased. Once there is a doubt in the mind in

respect of the possibility of the deceased having made a

dying declaration to teach the appellant a lesson, which

is corroborated by the testimony of PW-2 to PW-4, it

would not be appropriate to convict the appellant solely

on the basis of the dying declaration of the deceased.

8. We are thus of the view that the appellant is entitled to

the benefit of doubt. The appeal is accordingly allowed

and the impugned judgment dated 22.11.1995 of the

learned Addl.Sessions Judge is set aside. Bail-cum-surety

bonds of the appellant are discharged.

SANJAY KISHAN KAUL, J.

JULY 27, 2009                                     AJIT BHARIHOKE, J.
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