Amar Singh & Anr. vs State
2009 Latest Caselaw 788 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                                Crl. A. No. 375/2003

%                                  Date of Order : March 12, 2009

AMAR SINGH & ANR.                 ..... Appellants
              Through : Mr. Randhir Jain, Adv.
                        Mr. Deepak Agarwal, Adv.
                        Mr. Dhananjai Jain, Adv.

                                          VERSUS


THE STATE                                           .....Respondent

                         Through :        Ms. Richa Kapoor, APP

                                           And

+                                Crl. A. No. 484/2003


SANJAY & ANR.                                       ..... Appellants
                         Through : Mr. Randhir Jain, Adv.
                                   Mr. Deepak Agarwal, Adv.
                                   Mr. Dhananjai Jain, Adv.

                                          VERSUS


STATE (NCT OF DELHI)                                     .....Respondent
              Through :                   Ms. Richa Kapoor, 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?

(3) Whether the judgment should be reported in the Digest ?

PRADEEP NANDRAJOG, J.(Oral)

1. Heard learned counsel for the appellants and the

respondent.

2. Appellant Sanjay is the husband of deceased

Bhavna. Amar Singh is the elder brother of Sanjay. Nand

Kishore is the younger brother of Sanjay. Kanta is the wife of

Amar Singh.

3. All have been convicted for the offence of

murdering Bhavna.

4. A perusal of the impugned judgment and order

dated 20.5.2003 shows that the learned Trial Judge has

convicted the appellants noting seven incriminating

circumstances.

5. Circumstance No. 1, as discussed in para 29 of the

impugned decision, is the dying declaration, Ex.PW-5/C, made

by Bhavna to the learned SDM; held to be inspiring

confidence and explaining the earlier two dying declarations

made by Bhavna namely Ex.PW-5/A (recorded by the learned

SDM) and the dying declaration Ex.PW-10/DA recorded by the

investigating officer. Learned Trial Judge has held that the

third dying declaration, gave a justification as to why the first

two dying declarations should be ignored. In the said third

dying declaration, Bhavna has named the four accused as the

ones who set her on fire.

6. Circumstance No.2 as discussed in paras 30 to 32

of the decision, pertains to the defence taken by the accused,

barring the husband of Bhavna, that they were not present in

the house when Bhavna caught fire. Holding that the said

fact was belied from the testimony of the witnesses and in

particular the MLC Ex.PW-11/A of the deceased which records

that Bhavna was brought to the hospital by her Jeth i.e. Amar

Singh, the learned Trial Judge has held that a false defence

was projected wherefrom an inference of guilt could be

gathered.

7. Circumstance No.3 held established by the learned

Trial Judge as per findings returned in paras 33 and 34 of the

impugned decision; to the effect that the accused persons did

not inform the parents of the deceased immediately after

Bhavna had suffered burn injuries has been held to be

indicative of their guilt.

8. Circumstance No.4 held established by the learned

Trial Judge is that Bhavna did not implicate her mother-in-law;

wherefrom the learned Trial Judge has opined that it shows

that Bhavna was having no ill-will against any person;

meaning thereby Bhavna spoke the truth in the statement

Ex.PW-5/C.

9. Circumstance No.5, qua the husband of the

deceased is the stated unnatural conduct; being of not

attempting to cover the body of his wife which had been

rendered naked as her clothes had caught fire and permitting

PW-4 to cover her naked body with a sheet. Learned Trial

Judge has held that if the husband had not set the wife on fire

and had the wife suffered an accidental burn, the natural

conduct of the husband would be, to at least, hide the shame

i.e. cover the naked burnt body of his wife with a sheet.

10. Circumstance No.6 held incriminating is the report,

Ex.PW-10/J, of the expert, which shows that the stove which

was seized by the police had no leakage or blockage. We

note that pertaining to the report of the expert, the learned

Trial Judge has added his personal opinion that considering

that the stove was operated due to air pressure by pumping

air into the tank of the stove, it was not possible that from the

stove in question, huge quantity of kerosene oil could be

sprayed. Learned Trial Judge has held that at best a little

spray could ensue through the stove in question.

11. Lastly, noting that Bhavna received burns covering

80% of the total body surface, the learned Trial Judge, in para

35 of the impugned decision, has opined that the chance of

kerosene falling upon the saree of Bhavna appeared to be

bleak.

12. We note that it is not in dispute that Bhavna

suffered burn injuries in her house at around 11.00 PM on

6.8.2001. She was rushed to the hospital by accused Amar

Singh, her brother-in-law, who resides in the same building

but on the floor above where Bhavna was residing with her

husband Sanjay.

13. Information was given to the police of Bhavna

receiving burn injuries when DD No.18A, Ex.PW-7/B, was

recorded by HC Bijender Singh PW-7, at around 12.45 in the

intervening night of 6th and 7th August, 2001.

14. SI Sanjay Kumar PW-10, along with Const.Samay

Singh PW-8, reached GTB hospital where Bhavna was

admitted. SI Sanjay Kumar recorded Bhavna's statement,

Ex.PW-10/DA, in which she informed him that she got up at

around 12.00 in the night to warm milk for her son aged nine

months and when she was lighting the stove, all of a sudden,

oil sprayed out, resulting in her clothes catching fire. She

further informed that she was married two years back and

that nobody was to be blamed for the incident.

15. Since it was a case of a married woman catching

fire within less than seven years of her marriage, the

investigating officer thought it prudent to summon the Sub-

Divisional Magistrate of the area and have statement of

Bhavna got recorded before the SDM.

16. The SDM of the area Mohd. Abid PW-5, came to the

hospital on being summoned by the IO and at 5.35 PM on

7.8.2001, after getting the necessary certification from the

doctor that Bhavna was fit for statement, recorded her

statement Ex.PW-5/A in a question answer form. As per the

said statement, Bhavna told the Sub-Divisional Magistrate the

same facts as were narrated by her and as recorded in her

statement Ex.PW-10/DA.

17. Thereafter, Bhawna desired a further statement to

be made. The SDM was re-summoned. At around 8.00 PM on

8.8.2001, he recorded the revised/second statement Ex.PW-

5/C of Bhavna, as per which she told the learned SDM that her

previous statement made to him was under threat given to

her by her two brothers-in-law, her mother-in-law and the wife

of her elder brother-in-law, who had threatened harm to her

child if she spoke the truth. She went on to state that she

had now learnt that her son had been taken by her parents to

their house and that she no longer feared for the safety of her

child. That her husband was quarrelling with her for a long

time. That on the day of the incident, at 10.30 PM, her elder

brother-in-law and his wife rebuked her saying that she used

to speak too much. Her younger brother-in-law also started

shouting at her. That her elder brother-in-law stuffed a cloth

in her mouth to muffle her. The wife of her elder brother-in-

law caught her hand. Her younger brother-in-law sprinkled

kerosene oil on her. She attempted to yell. They prevented

her from yelling. Somebody set her on fire. That the main

door was closed. That when she was set on fire, she yelled

and her cries attracted the residents of the locality, then her

in-laws extinguished the flames.

18. We note that even the second dying declaration

recorded by the learned SDM is in question answer form.

19. It is true that Bhavna has given a justification for

departing from her earlier two dying declarations; namely

that, she feared for the safety of her child and hence was

compelled to not disclose the true facts. But, since Bhavna

has made three dying declarations, the first two being

exculpatory of the appellants and the third being inculpatory

of them, the issue requires a deeper consideration.

20. It is not in dispute that Natho Devi PW-1, and

Mahesh Kumar PW-4, are the neighbours and had reached the

house where Bhavna suffered burn injuries. As noted

hereinabove, the learned Trial Judge has referred to the

unnatural conduct of the husband of Bhavna when Mahesh

Kumar PW-4, entered the house and on seeing Bhavna naked

and in a burnt condition, to hide her shame, covered her body

with a sheet.

21. Mahesh Kumar deposed that on 6.8.2001 at about

11.00 PM, when he was present at the second floor of his

house, he saw flames in the house of the accused persons,

which house was in front of his house. He heard cries of

Bachao Bachao. He ran towards the house. He met accused

Sanjay and enquired from him as to what was the cause of

the fire. He saw Bhavna naked and in a burnt condition. He

put a cloth on her. Crucial for the purposes of the present

case is to note that he went on to depose: "On my enquiry,

she replied that while she was boiling the milk she catch fire

from stoves and she received burn injuries." (We have

reproduced the statement of Mahesh Kumar verbatim and

hence the grammatical mistakes.)

22. Natho Devi PW-1, deposed on the same line as

Mahesh Kumar. She stated that on 6.8.2001 she was present

in her house and at around 10-11 PM heard Bhavna

screaming. She came out and enquired from Bhavna as to

what had happened. We quote from the testimony of Natho

Devi: "I asked her and she replied that she was lighting a

stove and the oil came over her and she lit the match stick

and burnt herself."

23. We also note that Natho Devi, on being cross-

examined, had clarified that she had gone inside the room

and had seen a stove as also a milk bhagona (utensil) lying

there.

24. It is unfortunate that the learned Trial Judge has

not even referred to the testimony of PW-1 and PW-4, the

witnesses of the prosecution on said aspect i.e. what was told

to them by Bhavna in her house.

25. If we read the testimony of PW-1 and PW-4 it

dawns upon us that soon after she suffered the burn injuries,

in the house itself, Bhavna told the people who had gathered

there that she had suffered an accidental burn injury.

26. Where was the time for the mother-in-law, the two

brothers-in-law and the wife of the elder brother-in-law to

threaten Bhavna in the interregnum?

27. Had the learned Trial Judge posed this question,

the answer would have emerged, that the contemporaneous

statement of Bhavna made immediately after she caught fire

was that she had caught fire accidently. This statement is

obviously without any threat, coercion and influence.

28. Under the circumstances, it becomes doubtful

whether the third statement made by Bhavna to the learned

SDM after nearly 48 hours of the incident has to be accepted.

29. It is not out of place to note that in the

interregnum i.e. after the first two dying declarations were

made by Bhavna, her parents met her in the hospital and the

possibility of being tutored by her parents cannot be ruled

out.

30. That the accused took a false defence becomes

relevant as a circumstance only when the prosecution has

been able to prove its case. A false defence can be used as a

link evidence to complete the chain of circumstances. Under

no circumstances, can at a criminal trial, the prosecution be

relieved of the burden of proving its case by cogent and clear

evidence. That Amar Singh took a false defence of not being

present in the house is thus neither here nor there.

31. Pertaining to the conduct of the husband of the

deceased in not attempting to cover Bhavna's naked body

with a sheet and the conduct of not informing the parents of

Bhavna cannot assume disproportionate weightage to be

given while evaluating the evidence.

32. We need not cite judgments, except to record that

different persons react differently in given hostile

circumstances. There cannot be a uniform rule to evaluate

the conduct of a person who faces a hostile circumstance. A

husband may get perplexed on seeing his wife burnt and his

faculties deserting him is always a possibility. That while

rushing an injured to the hospital, somebody or all forget to

inform a near and dear one is not conduct of a kind which is

highly incriminating.

33. That Bhavna did not inculpate her mother-in-law in

the third dying declaration and hence the same is suggestive

of truth is nothing but surmises and conjectures.

34. That the stove did not have a leakage and there

was no sign of a blast, as an incriminating evidence used by

the learned Trial Judge ignores the fact that the stove pump

was operated on the principle that where air is pumped into a

tank containing kerosene oil, the resultant pressure ejects the

oil at the head of the burner in the form of a fine spray. The

kerosene oil evaporates and if struck with a matchstick,

results in a flame being created. The nozzle where from the

oil sprays is the place where the flame is lit and carbon

accumulates resulting in the nozzle getting choked. A pin is

normally used to remove the carbon. The pin is attached at

one corner of a stick like object. When the pin is inserted in

the nozzle, the spray of the kerosene oil is disrupted. The

flame dies. But, when the needle is removed, the possibility

of oil spraying and suddenly catching fire cannot be ruled out.

In fact, the learned Trial Judge has himself not ruled out the

said possibility.

35. The post-mortem report does not record; much

less the doctor who conducted the post-mortem has deposed

that from the nature of burns suffered by Bhavna it was

highly improbable that the cause of fire was accidental.

36. The finding returned by the learned Trial Judge is

nothing but his perception and understanding of the post-

mortem report. No medical text has been cited by the

learned Trial Judge to form the opinion so formed by him.

37. Before concluding, we may only note that all other

circumstances are nothing, but add on circumstances, and

that the fate of the case of the prosecution hinged upon the

dying declaration of Bhavna made to the learned SDM at the

second instance. If found truthful, the same would have been

inculpatory of the appellants. If not found truthful, the first

two dying declarations being exculpatory of the appellants,

would have pointed towards their innocence.

38. It becomes the duty of a court to carefully

scrutinize the dying declarations if there are more than one.

39. In the instant case, the deposition of Natho Devi

PW-1, and Mahesh Kumar PW-4, shows that both of them

reached the house immediately when the deceased caught

fire. What was told to them by the deceased virtually forms a

part of the same transaction. So close and proximate is the

time of the statement of Bhavna as heard by the two

witnesses, to the point of time when she caught fire, it rules

out the possibility of anyone threatening Bhavna to state

incorrect facts.

40. The appeals are allowed. Impugned judgment and

order dated 20.5.2003 convicting the appellants is set aside.

The sentence imposed upon the appellants vide order dated

21.5.2003 is set aside. The appellants are acquitted of the

charge of having murdered Bhavna.

41. All appellants except Sanjay are on bail. The bail

bonds and surety bonds are discharged. Sanjay is directed to

be set free, if not required in custody in any other case.

42. Dasti.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE March 12, 2009 jk