Maqbool vs The State
2009 Latest Caselaw 2892 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                              Date of decision: July 29, 2009


+      CRIMINAL APPEAL NO.142/1997


       MAQBOOL                                  ..... Appellant
                        Through:    Mr.R.M. Tuffail, Advocate.

                   Versus



       THE STATE                                ..... Respondent

Through: Mr.Sunil Sharma, APP.

CORAM:

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

1. Whether Reporters of local papers may be allowed to see

the judgment? No

2. To be referred to the Reporter or not ? No

3. Whether the judgment should be reported in 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 having committed the

murder of Smt.Angoori Devi by setting her on fire after pouring

kerosene. The conviction is based solely on the dying declaration of

the deceased.

2. On 26th March, 1993 at about 1.15 a.m. on the receipt of

information from Duty Constable Naterpal about the admission of

Smt.Angoori Devi in RML Hospital with alleged history of burns, DD

No.6-A was recorded at the Police Station Nabi Karim and copy

thereof was handed over to ASI Abhay Ram for investigation. ASI

Abhay Ram along with Constable Jai Singh reached RML Hospital and

collected MLC of Smt.Angoori Devi. She, however, was unfit for

statement. ASI Abhay Ram waited at the hospital and when

Smt.Angoori Devi was declared fit for statement, at 9.00 a.m., ASI

Abhay Ram recorded a statement purportedly in presence of one

Om Parkash and her husband Mittan Lal. Smt.Angoori Devi disclosed

in her statement that on the night intervening 25 th and 26th March,

1993 at about 12.30 a.m., while she was urinating in drain outside

the toilet of her house no. BB-101, Subash Basti, Nabi Karim, her

tenant Maqbool (appellant) came downstairs along with his brother

Mahmood Ali and other tenant Mohd. Israil. They poured kerosene

oil on her and set her on fire. When she raised alarm, all of them ran

away. Her husband and neighbour put off fire and thereafter her

husband removed her to the hospital. On the basis of the aforesaid

statement of Smt.Angoori Devi (deceased), a formal FIR was

registered under Section 307/34 IPC. Smt.Angoori Devi expired at

about 10.15 a.m. because of the burn injuries, as such Section

302/34 IPC was substituted in the FIR. As per the MLC also, the

patient had given the history to the doctor that she was set on fire

by the appellant Maqbool. After completion of necessary formalities

of the investigation, accused Maqbool along with his brother

Mahmood Ali and tenant Mohd. Israil were sent for trial for the

offence punishable under Section 302/34 IPC.

3. The learned Sessions Judge on appreciation of evidence did

not find the alleged dying declaration of Smt.Angoori Devi recorded

by the Investigating Officer reliable as such he acquitted accused

Mahmood Ali and Mohd. Israil. He, however, treated the

endorsement made by the doctor on the MLC as dying declaration of

the deceased and relying upon the same, convicted the appellant

Maqbool for the offence punishable under Section 302 IPC for

committing the murder of the deceased.

4. Learned counsel for the appellant has submitted that

conviction in the instant case is based solely on the so called dying

declaration, of the deceased, made to the attending doctor naming

the appellant as culprit while giving the history of cause for the burn

injuries suffered by her. He has drawn our attention to the MLC

Ex.PW-12/A of the deceased and pointed out that there are two

different endorsements on the MLC, one is "alleged history of

being burnt by Maqbool" and the other endorsement is "history

from patient" which is not in continuity with the former

endorsement, therefore, a possibility cannot be ruled out that the

second endorsement (history from patient) was made subsequently

on the MLC with a view to book the appellant in this case. He has

further pointed out that even in the former endorsement, the name

of Maqbool is written in the second line below the words "alleged

history of being burnt by" which creates a strong doubt that the

name of Maqbool has also been subsequently introduced in the MLC.

According to the learned counsel for the appellant, Dr.S. Johri who

purportedly prepared the MLC and appended those remarks has not

been produced in evidence by the prosecution to clarify the

aforesaid confusion, whose non-production as witness has caused a

grave prejudice to the appellant and deprived him of an opportunity

to cross-examine the doctor and bring on record as to under what

circumstances and when the second endorsement "history from

patient" came to be mentioned on the MLC. Thus according to the

learned counsel for the appellant, it is highly doubtful if the

deceased made a dying declaration to the doctor concerned.

Expanding on the argument, he has submitted that the aforesaid

doubt is further strengthened by the fact that a second dying

declaration was allegedly recorded by the Investigating Officer

wherein the deceased had implicated Mahmood Ali and Mohd. Israil

besides the appellant as the persons who had set her on fire. The

aforesaid dying declaration was disbelieved by the learned trial

Court and as a result, Mahmood Ali and Mohd. Israil were acquitted.

Learned counsel for the appellant has pointed out that the

prosecution has not filed any appeal against the acquittal of

Mahmood Ali and Mohd. Israil, therefore, that part of judgment is

deemed to have been accepted by the prosecution. That being so,

according to the appellant, this is a case of unfair investigation

where the Investigating Officer has tried to create evidence against

the appellant and others. Therefore, the learned trial Court ought to

have concluded that the story of dying declaration made by the

deceased to the attending doctor is not reliable.

5. Learned counsel for the State has responded to the argument

advanced by the appellant by submitting that the name of Maqbool

is mentioned in the endorsement pertaining to alleged history and

this fact is sufficient to draw an inference that the appellant Maqbool

was named as culprit by the deceased Angoori Devi in the first

instance when she gave history to the doctor concerned. He has

submitted that non-production of Dr.S. Johri as a witness was not

deliberate. He could not be examined because he had left the

service of RML Hospital and this fact is borne out from the testimony

of PW-12 Dr.Vasanti Rames who has proved the MLC Ex.PW-12/A.

6. The issue for determination which emerges from the aforesaid

submission is whether or not the history of being burnt by Maqbool

was given to the doctor concerned by the deceased Angoori Devi or

by someone else. It is apparent that there is disconnect between

the two endorsements namely "alleged h/o being burnt by

Maqbool" and "history from patient" as the second endorsement

is not in continuity with the first endorsement. This creates a

confusion as to at what time the words "history from patient"

were written on the MLC. This confusion could have been clarified

only by Dr.S. Johri who had allegedly recorded these remarks. He,

however, has not been produced as a witness. The explanation

given by the learned counsel for the State is that Dr.S. Johri could

not be produced as he had left the service of RML Hospital. The

explanation to our mind is not acceptable because admittedly RML

Hospital, New Delhi is a government hospital, where the record of all

the employees, past and present, is maintained. With little effort, the

Investigating Officer could have examined the service record of Dr.S.

Johri and found out his permanent address or even his forwarding

address. No effort, however, in that direction was made and instead

the prosecution produced one Dr.Rajiv Kumar Johri as PW-10, who as

per his version was not working in RML Hospital at the relevant time.

Thereafter prosecution produced Dr.Vasanti Rames to prove the MLC

by identifying the hand writing of Dr.S. Johri.

7. In our considered view, since the instant case was based

solely upon the alleged dying declaration of the deceased, the

prosecution was required to prove the dying declaration by primary

evidence i.e., by producing the author of the MLC Ex.PW-12/A

because the concerned doctor Dr.S. Johri was only the person who

could have explained as to whether the alleged history was given by

the deceased herself or someone else. His non-production as a

witness has left a serious lacuna in this case and has deprived the

appellant of his valuable right to cross-examine the witness to bring

out the real facts on record. We also cannot lose sight of the fact

that the dying declaration recorded by the Investigating Officer has

been disbelieved. It is only these two dying declarations which were

forming the basis of the case of the prosecution. The allegation of

the learned counsel for the appellant that it is a case of unfair

investigation since the dying declaration recorded by the SI has

been disbelieved has substance in the trial Court disbelieving the

said dying declaration has been accepted by the prosecution in not

challenging the said finding which forms the basis of acquittal of the

two co-accused.

8. It is highly doubtful that the dying declaration as alleged by

the prosecution was made by the deceased Angoori Devi to the

doctor at the time of preparation of her MLC. The only witness who

could have thrown light on this aspect and cleared the confusion is

Dr.S. Johri who has been withheld by the prosecution without any

justifiable reasons. The benefit of this lapse on the part of the

prosecution has to go in favour of the appellant. Since the

conviction of the appellant is based solely upon the dying

declaration, we, in view of the aforesaid discussion, do not find it

possible to uphold the conviction.

9. In view of the discussion above, the appeal is allowed. The

impugned judgment of conviction and order on sentence are

accordingly set aside and the appellant is acquitted.

10. The appellant Maqbool is on bail. His bail-cum-surety bond is

accordingly cancelled and discharged.

SANJAY KISHAN KAUL, J.

JULY 29, 2009                      AJIT BHARIHOKE, J.
gm