Bhupinder Singh vs The State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 2948 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on: July 24, 2009

                              Judgment delivered on: July 31, 2009

+       CRIMINAL APPEAL NO. 241/1995



BHUPINDER SINGH                                      .....Appellant
                   Through:         Mr. K.B. Andley, Sr. Advocate with
                                    Mr. M.L. Yadav, Advocate, Mr.
                                    Shamibh & Mr. Mohit Mathur,
                                    Advocates.
                   Versus


THE STATE (GOVT. OF N.C.T. OF DELHI)                 .....Respondent

Through: Mr. Sunil Sharma, Advocate.

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

AJIT BHARIHOKE, J

1. The appellant has been convicted under Section 302 IPC and

sentenced to undergo imprisonment for life for having committed

murder of his wife Smt. Sheela and daughter Kumari Veena by

setting them on fire after pouring kerosene on them.

2. Briefly stated, case of the prosecution is that on 5 th October

1992 at about 6.30 AM, the appellant got admitted Smt. Sheela and

Kumari Veena in RML Hospital with alleged history of substantial

burns by pouring kerosene oil. On examination, Kumari Veena was

declared `brought dead' and Smt. Sheela was found to have

suffered ihundred per cent burns.

3. On 5th October 1992 at about 4.50 AM, on the receipt of an

information about a fire incident at House No.T-121, Indira Colony,

Narela, DD No.17A was recorded at the Police Station Narela.

Pursuant to the DD report, SHO Inspector Ramesh Malik and other

police officers visited said house. They were informed that the fire

tender had already left after extinguishing the fire. Inspector

Ramesh Malik also came to know that Smt. Sheela and Kumari

Veena, who had suffered burn injuries had been removed to RML

Hospital, New Delhi. He left Constable Attar Singh at the spot of

occurrence and reached the hospital. He collected MLCs of Kumari

Veena and Smt. Sheela who was declared fit for statement. The

Investigating Officer called the SDM Kingsway Camp to the hospital

who recorded the statement of Smt. Sheela Ex.PW-5/B. Smt. Sheela

narrated in her statement that her husband had set her on fire after

pouring kerosene on her. On the basis of said statement, formal FIR

was registered. After completing the necessary formalities of

investigation, appellant Bhupinder Singh was sent for trial for the

offence punishable under Section 302 IPC. He pleaded not guilty

and sought to be tried.

4. The learned Additional Sessions Judge, on conclusion of trial,

placed reliance upon the dying declaration made by Smt.Sheela

(Ex.PW-5/B) convicted the appellant under Section 302 IPC for

murder of Smt.Sheela and Kumari Veena and sentenced him

accordingly.

5. The learned counsel for the appellant has submitted that in

the instant case there is no eye witness account to establish the

culpability of the appellant or to show that there was any motive on

the part of the appellant to kill the deceased. Despite of that, the

learned trial court has routinely relied upon the dying declaration of

Smt. Sheela Ex.PW5/B ignoring the conduct of the appellant in

taking both the deceased to the hospital for treatment which points

towards his innocence. He has submitted that it is highly doubtful if

at all the dying declaration was recorded by the SDM PW5 Mrs.

Nandita Sehgal and even if it was recorded it is doubtful that the

deceased could have been in a fit state of mind to give the

statement, therefore, the learned Trial Court ought to have

extended the benefit of doubt to the accused.

6. Expanding on the argument, he has submitted that perusal of

the endorsement Ex.PW5/A on the MLC of the deceased Sheela

Ex.PW14/A would show that as per this endorsement, the patient

was declared fit for statement at 7.40 PM, whereas as per the

testimony of PW5, Mrs. Nandita Sehgal, SDM on the receipt of a call

from the police, she reached at the RML Hospital at 7.30 AM and

went to the burns ward where Sheela was admitted. Thereafter, she

called the Doctor to ascertain whether she was fit for making

statement and after getting clearance from the Doctor, she

recorded her statement in the morning at 7.40 AM. The learned

counsel for the appellant submitted that if the patient was declared

fit for making statement at 7.40 in the evening, it is highly

impossible that Mrs. Nandita Sehgal could have recorded the dying

declaration Ex.PW5/B at 7.40 AM. He has also drawn our attention

to the dying declaration Ex.PW5/B and submitted this precisely was

the reason that SDM Mrs. Nandita Sehgal while certifying that she

has recorded the statement of Smt. Sheela at 8.40 AM has not

mentioned the date of recording the dying declaration.

7. We are not convinced with this argument because perusal of

Ex.PW5/B would reveal that this statement was endorsed by the

SHO Inspector Ramesh Malik vide his endorsement Ex.PW16/A and

sent to the Police Station for registration of the case. Perusal of the

Rukka Ex.PW16/A/Ex.PW5/A reveal that it was forwarded to the

Police Station at 10.30 AM on 05.10.1992 for the registration of the

case. This fact finds corroboration from the statement of PW9 Head

Constable Raj Kumar who recorded formal FIR as also PW16 SHO

Ramesh Malik. The fact that endorsement on the statement

Ex.PW5/B was made by the SHO in the morning at around 10.30 AM

clearly show that dying declaration of Smt. Sheela Ex.PW5/B was

recorded in the morning between 7.40 to 8.40 as deposed by the

SDM Mrs. Nandita Sehgal and it appears that the word 7.40 PM

occurring on the endorsement Ex.PW5/A of the Doctor is nothing but

a clerical error.

8. It is further argued by the learned counsel for the appellant

that there is nothing on the record to suggest that the Investigating

Officer had any stage of time moved an application to the Doctor

concerned seeking permission for recording of statement of patient

Sheela (since deceased). Only endorsement on the MLC of

deceased Sheela certifying her to be fit for statement is timed as

7.40 PM (should be AM). He has submitted that if this was so, where

was the occasion for the Investigating Officer to call the SDM for her

statement. Thus, he has submitted that it is highly doubtful that

Mrs. Nandita Sehgal was at all called to Hospital for recording

statement of Smt. Sheela and a possibility cannot be ruled out that

the dying declaration is a sham document.

9. We do not find merit in this contention. PW16, SHO Ramesh

Malik in his examination-in-chief has stated that the Doctor had

declared Smt. Sheela fit for statement and, therefore, he had called

SDM Kingsway Camp for recording of her statement. No cross-

examination on this aspect of testimony was done by the

appellant/accused. Therefore, the aforesaid version is deemed to

have been admitted. Otherwise also, PW5 Mrs. Nandita Sehgal,

SDM as also PW16 Inspector Ramesh Malik, SHO are responsible

public servants. There is nothing on the record to suggest that they

were under any pressure from any corner to falsely implicate the

appellant or that they had motive or animosity against the accused.

Therefore, it is inconceivable that they might have fabricated the

document Ex.PW5/B to falsely implicate the appellant.

10. The learned counsel for the appellant has further argued that

it is settled law that before placing reliance upon on dying

declaration, the court must be satisfied that it is true and voluntary

and it is not the result of tutoring, prompting or imagination and

that the deceased had opportunity to see the assailant. He has

submitted that in this case, it is highly doubtful that the deceased

was in a fit state of mind. He has pointed out that the prosecution

had left a serious lacuna in this case by not producing the Doctor

who allegedly certified the patient fit for statement before her

statement was recorded by the SDM and this has deprived the

appellant of his valuable right to cross-examine the Doctor

concerned to find out whether or not the deceased was actually in

fit state of mind to make the dying declaration. Therefore, the

appellant is entitled to benefit of doubt.

11. We are unable to agree with the contention of learned counsel

for the appellant. It would have been better if the Doctor had been

produced as a witness but, to our mind, his non-production cannot

be made basis for rejecting the testimony of PW5 Mrs. Nandita

Sehgal, SDM who is a responsible government servant, which is

found to be reliable. There are other ways of finding whether or not

the patient was in fit state of mind. Perusal of the dying declaration

of the deceased Ex.PW5/B would reveal that deceased Sheela in her

dying declaration has given a clean chit to her in-laws by saying

that they had never harassed her. She has also stated that there

was no issue of dowry but, her husband was a short-tempered

person and he used to lose self-control on minor issues. She has

stated that a day before the occurrence, she had slapped her child

and on this her husband lost temper and gave severe beating to

her. She has also stated that on the fateful night also, they had a

fight and her husband poured kerosene over her and set her on fire.

The statement has a ring of truth around it and it appears to have

been made by a person with a clear mind. Therefore, we have no

hesitation in concluding that the learned Trial Court has rightly

relied upon the dying declaration.

12. The learned counsel for the appellant has also submitted that

as per the case of prosecution, the appellant had set on fire not only

Smt. Sheela but also her daughter Veena. Despite that, there is no

whisper of setting Veena on fire in the dying declaration Ex.PW5/B

of the deceased Sheela. He has submitted from this it is apparent

that Smt. Sheela was not in a fit state of mind to make dying

declaration at the relevant time otherwise she would have also

mentioned about her daughter.

13. We are not convinced with the aforesaid submission. On

perusal of the dying declaration Ex.PW5/B, it transpires that Smt.

Sheela has stated to the SDM that on the fateful night, she had fight

with her husband and thereafter her husband poured kerosene on

her and set her on fire and she lost consciousness. It is quite

possible that at the time of incident, before losing consciousness

she might not have noticed that in the process her daughter Veena

had also suffered burn injuries. From the MLC Ex.PW14/A, it

transpires that when Smt. Sheela reached the hospital, she was

unconscious and she was declared fit for statement only in the

morning at 7.40 AM when the SDM recorded her statement.

Therefore, from the time of admission in the hospital till recording of

her statement, she being unconscious could not come to know that

her daughter Veena has also suffered burn injuries resulting in her

death.

14. There also are other aspects to this case. PW2 Smt. Vidya

Devi, the mother of the accused, has stated that on the fateful night

at about 3.30 AM on hearing the noise, she got up and went to the

room of her son Bhupinder Singh and there she saw that the sari of

the Sheela was in flames and at that time she was breast-feeding

her daughter. In the cross-examination by the learned APP, she has

admitted the suggestion that her son and daughter-in-law were

sleeping in that room. From the aforesaid statement, it is apparent

that when the occurrence took place the appellant was present in

the room. Thus, he had an opportunity to set the deceased on fire.

Since the appellant was only person present in the room at the

relevant time, it was within his knowledge as to what had

transpired, despite that he had not given any explanation

whatsoever about the manner in which the incident took place. This

casts a strong suspicion about the involvement of the appellant in

the incident and corroborates the dying declaration. We may point

out that on perusal of MLC Ex.PW14/A, it transpires that the

appellant took the deceased Sheela to the Hospital and the alleged

history mentioned in the MLC is "substantially burnt by pouring

kerosene". As per the MLC, patient Sheela was unconscious at that

time. That being the case, the alleged history must have been

given by the husband Bhupinder Singh. While giving the history to

the Doctor, the appellant has stopped short of mentioning who

poured kerosene and how the deceased got burnt. If the appellant

had not played any role in the deceased being burnt, nothing

prevented him from telling the Doctor if the deceased persons

caught fire due to accident or it was a case of suicide. This

circumstance also points towards the guilt of the appellant and

corroborates the dying declaration Ex.PW5/B.

15. In view of our discussion above, there is no iota of doubt in our

mind that the appellant is guilty of having committed of murder of

his wife Smt. Sheela and daughter Veena by setting them on fire

after pouring kerosene. Thus, we do not find any infirmity in the

impugned judgment.

16. The appeal is devoid of merit. It is, accordingly, dismissed.

17. The appellant Bhupinder Singh is on bail. His bail-cum-surety

bond is, accordingly, cancelled. He is ordered to be taken into

custody to undergo the remaining sentence as awarded by the

learned Additional Sessions Judge.

AJIT BHARIHOKE, J.

JULY 31, 2009                              SANJAY KISHAN KAUL, J.
Ks/pst