Gokal vs State
2009 Latest Caselaw 1984 Del

*                       IN THE HIGH COURT OF DELHI

%                       Judgment Reserved on      : 30th April, 2009

                        Judgment pronounced on : 12th May, 2009

+                                  CRL.A.228/2001

        GOKAL                                      ..... Appellant
                        Through:   Ms. Ritu Gauba, Advocate

                                   versus

        STATE                                    ..... Respondent
                        Through:   Mr. Pawan Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?           Yes

3. Whether judgment should be reported in Digest?                   Yes

: PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 22.03.2001,

the appellant has been convicted for the offence of having

murdered Rekha (herein after referred to as the "Deceased").

2. Case of the prosecution is that the appellant and the

deceased were residing as husband and wife, as tenants, in a

single room on the second floor in a building owned by Shashi

PW-1 who lived on the ground floor of the building and that on

13.11.1998, the appellant poured kerosene oil on the

deceased and set her on fire. Shashi heard voices that the

deceased had been burnt and she moved upstairs. She saw

the appellant coming down. On seeing Shashi, the appellant

stopped his forward movement and returned upstairs. The

deceased was found on the floor in a burnt condition. Shashi

and the appellant removed the deceased to G.T.B.Hospital

where Dr.R.Dayal PW-10 recorded her MLC Ex.PW-10/A on

which he noted the history of the alleged burn as under:-

"Alleged H/o being burnt by husband Gokul by pouring kerosene oil Informant self.

O/E Conscious Oriented ............

Fit for statement 100% burns superficial to deep in nature........"

The deceased died as a result of burn injuries. On being

apprehended and interrogated, the appellant had made a

confessional statement admitting his guilt and disclosed to the

police that he had kept the match box, match sticks and the

can of kerosene oil used by him for setting the deceased on

fire in the room where the deceased was found burnt. That

thereafter he led the police to the said room and got recovered

the match box, match sticks and a can of kerosene oil from the

said room.

3. To put it in a nutshell, the incriminating evidence sought

to be proved by the prosecution, to bring home the guilt of the

appellant, was:-

I Dying declaration of the deceased as recorded by

Dr.R.Dayal on the MLC Ex.PW-10/A, which if proved, would

have directly implicated the appellant.

II Evidence of Shashi PW-1 to the effect she had seen the

appellant descend from the second floor at the time the

deceased was found burnt i.e. appellant being present in his

matrimonial house along with the deceased and his attempting

to flee.

III Recovery of articles; namely, match box, match sticks

and can of kerosene oil at the instance of the appellant.

4. Vide impugned judgment and order dated 22.03.01,

convicting the appellant, the learned Trial Judge has held that

the testimony of Dr.R.Dayal PW-10, that the deceased had

informed him that the appellant had poured kerosene oil on

her and thereafter set her on fire is trustworthy; that the

evidence of Shashi PW-1 to the effect she had seen the

appellant descend from the floor where the room where the

deceased was found burnt was situated, soon after the

occurrence, is a circumstance which strongly points towards

the guilt of the appellant.

5. Machinery of law was put into motion when Const.

Rishipal PW-17, duty constable at GTB Hospital, informed the

duty officer at police post Mandawli that a lady named Rekha

has been admitted in the hospital in a burnt condition by her

husband Gokul, based whereon, SI Keir Singh recorded DD

No.22, Ex.PW-18/A at 12.15 P.M. on 13.11.98; noting the said

information.

6. Taking along a copy of the afore-noted DD Entry, SI Vijay

Pal PW-16, accompanied with Const. Narayan Singh PW-14,

went to GTB hospital where they were informed that the

deceased is fit for making a statement. No eye witness was

found present at the hospital. SI Vijay Pal telephonically

contacted Mr.Ravi Dhadich PW-3, Sub-Divisional Magistrate,

and requested him to come to the hospital for recording the

statement of the deceased, whereupon Ravi Dhadich reached

the hospital and started recording the statement Ex.PW-3/A of

the deceased. However, the deceased was not able to make a

complete statement and the same i.e. Ex.PW-3/A remains an

inchoate statement.

7. Thereafter SI Vijay Pal PW-16 and Const. Narayan Singh

PW-14, proceeded to the spot where Rekha was burnt. From

the place of the occurrence, SI Vijay Pal, made an

endorsement Ex.PW-16/A on copy of the DD Entry Ex.PW-18/A

and handed over the same to Const. Narayan Singh PW-14, for

registration of an FIR. Const. Narayan Singh took Ex.PW-16/A

to police station Trilok Puri where HC Brahm Singh PW-5,

recorded FIR No.944/98, Ex.PW-5/A at 6.05 P.M. on 13.11.98.

SI Vijay Pal prepared the rough site plan Ex.PW-16/B of the

place of the occurrence at the instance of Shashi PW-1, the

landlady of the house; in which statement, Shashi informed SI

Vijay Pal that when she heard of the deceased being burnt, as

she was going up she saw the accused coming down, but at

her instance he went up with her and at her instance took the

deceased to the hospital.

8. Since the conduct of the appellant was suspicious, SI

Vijay Pal returned to the hospital and arrested the appellant.

9. The deceased succumbed to her injuries the same day

i.e. on 13.11.1998 at around 11:30 PM. Constable Rishipal PW-

17, informed HC Brahm Singh PW-5, about the said fact, on

receipt whereof HC Brahm Singh recorded DD No.25, Ex.PW-

5/C, noting the said information.

10. On the next day i.e. 14.11.1998 the appellant was

interrogated by SI Vijay Pal PW-16, in the presence of Const.

Lekh Raj PW-15 and Const. Narayan Singh PW-14. The

appellant made a disclosure statement Ex.PW-14/B wherein he

admitted his guilt and stated that he can get recovered the

can of kerosene oil and the matchsticks used by him for

setting the deceased on fire. Pursuant thereto, he led the

afore-noted police officers to the room where the deceased

was found burnt and got recovered a can of kerosene oil, a

match box containing about 20 match sticks, some used

match sticks and burnt ash from the said room which were

seized vide memo Ex.PW-7/A.

11. The body of the deceased was seized and sent to the

mortuary of G.T.B. Hospital, where Dr.Gaurav Vinod Jain PW-4,

conducted the post-mortem and made the report Ex.PW-4/A

recording as under:-

"External ante-mortem injuries: - Superficial to deep burns, involving 98% of the body surface area, and spacing the soles, parts of palms, and occipital area over the scalp. Pinna on both sides and tips of nose shrunken. Singeing of body and scalp hair present. Facial, pubic and axillary hair burnt and show singeing. Sooty blackening present all over. The underlying tissues in the burnt area show eryonema. No other external ante mortem injury could be ascertained."

12. He opined that the cause of the death was shock

resulting on account of ante mortem flame burn involving 98%

of the total body surface area.

13. After conducting the post-mortem, the doctor preserved

the scalp hair and blood of the deceased on gauze piece for

forensic examination which were taken possession of by SI

Vijay Pal PW-16, vide memo Ex.PW-16/E.

14. At the trial, Const. Mahavir PW-18, proved that DD Entry

No.22, Ex.PW-18/A was recorded by SI Keir Singh. Inspector

Satyapal Singh PW-12, deposed that he had taken over the

investigation of the present case from SI Vijay Pal on 15.11.98.

SI Mahesh Kumar PW-10, a draftsman proved the site plan to

scale Ex.PW-10/A and deposed that he had prepared the same

on 10.12.98 with the assistance of Inspector Satyapal Singh.

(It be noted here that two witnesses of the prosecution namely

SI Mahesh Kumar and Dr.R.Dayal have been marked as PW-

10). Dr.Gaurav Vinod Jain PW-4, proved the post-mortem

report Ex.PW-4/A. Const. Kuldeep Singh PW-9, a photographer,

deposed and proved that the photographs Ex.PW-9/7 to

Ex.PW-9/11 of the place of occurrence; negatives whereof

were Ex.PW-9/1 to Ex.PW-9/6 were taken and developed by

him. Ravi Dhadich PW-3, Sub-Divisional Magistrate, proved

that he had recorded the statement Ex.PW-3/A of the

deceased and that the said statement was the partial

statement of the deceased as she was not able to speak

properly during the course of her statement and midway the

doctor declared her unfit for statement.

15. We ignore the testimony of the formal police witnesses

as also the witnesses to the recovery of the kerosene oil can,

the burnt matchsticks and the matchbox containing

matchsticks pursuant to the disclosure statement of the

appellant. We do so for the reason, the police had already

accessed the room where the deceased had been burnt prior

to the disclosure statement made by the appellant and had

noted the presence of said articles in the room, i.e. the police

had knowledge about the presence of said articles in the room

before the disclosure statement of the appellant was recorded.

We shall be noting the testimony of Shashi PW-1, Sharda PW-

2, Rajender Singh PW-7 and Suresh PW-13 in respect of which

testimonies, submissions were made during arguments in the

appeal.

16. Shashi PW-1, the landlady of the house, deposed that

she and her husband had inducted the appellant as a tenant in

a room situated on the second floor of their house 3½ months

prior to the incident and that the appellant used to live with

his wife Rekha (deceased) in the said room. That on the day of

the incident, at around 6.00 A.M., four persons who claimed

themselves to be the maternal uncle, mother, wife and male

child respectively of the appellant had come to the house and

had gone to the room where the appellant used to live with

the deceased. At about 10.30 A.M. when she was present at

the ground floor of her house she heard voices to the effect

that 'the deceased has been burnt' coming from the room

where the appellant used to live with the deceased,

whereupon she went upstairs to the second floor where the

said room was situated and found that the deceased had been

badly burnt. While going upstairs she had seen the appellant

coming down from the second floor, but he thereafter

removed the deceased to the hospital.

17. Sharda PW-2, a neighbour of the appellant, deposed that

the appellant used to live with his wife whose name was

Rekha (deceased) in the house in question since about three

months prior to the incident. That on hearing noises she went

to the room where the deceased was found burnt and found

that the said room was locked. She deposed that the deceased

used to remain sick and was depressed because of her

sickness and that the deceased had told her that she was

contemplating suicide.

18. Since PW-2 introduced facts helpful to the appellant, she

was declared hostile by the Court at the request of the learned

public prosecutor and was cross-examined by the learned

public prosecutor. On being cross examined, with reference to

her statement that the door of the room was locked, Sharda

PW-2 stated: 'when I heard the noise coming out from the

room of the accused the door whereof was closed from inside,

I had called the accused Gokul who was on roof. When I called

Gokul from the roof, the mother, father, his earlier wife who

had the child were sitting there with the accused Gokul on the

roof.'

19. Relevant would it be to note that the witness changed

the expression of the door being „locked‟ to the door being

„closed‟.

20. Rajender Singh PW-7, the landlord of the house, deposed

that some persons who claimed themselves to be the relatives

of the deceased had made enquiries from him about the

whereabouts of the deceased in the morning of the day of the

incident. That, on being pointed out by the appellant, the

police had recovered a can of kerosene oil, some used match

sticks and a matchbox from the room where the appellant

used to live with the deceased.

21. Suresh PW-13, deposed that he is working as a manager

in a brothel and that the deceased used to work there some

months prior to the incident. That the deceased used to

remain tense because of her illness.

22. Examined under Section 313 Cr.P.C., the appellant

denied everything and pleaded false implication. He stated

that the deceased was ill since a long time; that he used to

live with the deceased but that she was not his wife; that the

persons who had made enquiries about his whereabouts on

the day of the incident were his maternal uncle, mother, wife

and child respectively; that on the day of the incident he was

present with his relatives on the terrace of his house when he

heard a noise made by the deceased, whereupon he came

down to his room and found that the deceased was badly

burnt; that the recording 'alleged H/o being burnt by husband

Gokul by pouring kerosene oil Informant self' contained in the

MLC Ex.PW-10/A of the deceased was not made on the basis of

the information given by the deceased as she was not fit for

making a statement; that the deceased used to remain

depressed because of her illness and hence committed

suicide.

23. In defence, the appellant examined Dr.Amit Gupta DW-1,

to prove the factum of illness of the deceased. He deposed

that the deceased had undergone Fine Needle Aspiration

Cytology (FNAC) at GTB Hospital two days prior to the

incident.

24. As already noted herein above, treating the recording

'alleged H/o being burnt by husband Gokul by pouring

kerosene oil Informant self' contained in the MLC Ex.PW-10/A

of the deceased as the dying declaration of the deceased;

believing the testimony of Dr.R.Dayal PW-10, that he had

made the said recording in the MLC on the basis of the

information given by the deceased to be trustworthy; holding

further that the testimony of Shashi PW-1 evidenced the

conduct of the appellant attempting to walk away and not

helping the deceased was suggestive of a guilty mind, the

learned Trial Judge has convicted the appellant. We note that

the learned Trial Judge has rightly ignored the recoveries

made from the room as meaningless because they were made

from a place which had been accessed by the police and were

from open place inside the room.

25. At the hearing, following submissions were advanced by

the learned counsel for the appellant:-

A The first submission advanced by the learned counsel for

the appellant was that the evidence on record probablizes the

defence of the appellant that the deceased had committed

suicide. The first limb of the said argument was that the

evidence on record shows that the room where the deceased

was found burnt was locked from inside which rules out the

possibility that the appellant had set the deceased on fire,

inasmuch as the appellant was found present outside the said

room soon after the occurrence. Drawing our attention to the

photograph Ex.PW-9/11 which shows the inside of the room

where the deceased was found burnt. The photograph depicts

a door on the ground with the latch pushed upwards. The

second piece of evidence pointed out by the counsel to urge

that the room in question was locked, is the testimony of

Sharda PW-2, that when she had gone to the room in question

soon after the incident she found that the door of the room in

question was locked from inside. Counsel urged that this

shows that the deceased had committed suicide. The

submission was attempted to be made good with reference to

the testimony of PW-13, DW-1 and PW-2 pertaining to the

sickness of the deceased; it was urged that there was every

possibility of the deceased committing suicide.

B The second submission was that Dr.Gaurav Vinod Jain

PW-4, the doctor who conducted the post-mortem, during

cross examination said that the burn injuries could be self

inflicted. Hence, counsel urged that even this evidence did

not rule out the possibility of a suicide.

C The third submission advanced by the learned counsel

was predicated upon the testimony of Sharda PW-2. The

counsel urged that the testimony of Sharda that she saw the

appellant on the roof i.e. the terrace when she went to the

place of occurrence establishes that the accused was not

present in the room when the deceased was on fire.

D The fourth submission advanced by the learned counsel

was that the MLC Ex.PW-10/A of the deceased cannot be relied

upon for the reason it does not contain the thumb impression

of the deceased. Learned counsel placed reliance upon the

decision of Orissa High Court reported as Niru Nanhar Becck v

State of Orissa 1995 Cri LJ 2412.

E The fifth submission advanced by the learned counsel for

the appellant was, that a dying declaration is to be tested on

the touchstone of following two tests namely, (i) whether

version stated by the deceased is intrinsically sound and

accords with probability, and (ii) whether any material part of

the dying declaration is proved to be false by other reliable

evidence. Counsel urged that the MLC records that the

appellant was the husband of the deceased, a fact which was

incorrect as the evidence on record establishes that the lady

and the child who had visited the house in the morning along

with two other persons, were the wife and the child of the

appellant.

F The sixth submission advanced by the learned counsel

was that the staff of GTB hospital was inimically disposed

towards the appellant inasmuch as two quarrels had taken

place between the staff of GTB hospital and the appellant prior

to the incident. The first quarrel had taken place between the

appellant, one Manoj and one Dharmender on one side and

staff of GTB hospital on other side few days prior to the

incident and that the second quarrel had taken place between

the appellant and nurses of GTB hospital just two days prior to

the incident.

G The seventh submission advanced by the learned

counsel pertained to the medical condition of the deceased

soon after she was burnt. Counsel urged that the deceased

had sustained extensive burn injuries on her person. The

doctor who performed the post-mortem of the deceased

stated that the injured had sustained 98% burn injuries.

Counsel argued that having sustained such serious injuries, it

is highly improbable that the deceased was conscious and in a

fit medical condition to make a voluntary disclosure of the

incident soon after sustaining said injuries. Counsel placed

reliance upon the decisions of the Supreme Court reported as

Paparambaka Rosamma v State of AP 1999 SCC (Cri) 1361

and Smt Laxmi v Om Prakash 2001 Cri LJ 3302.

H The eighth submission advanced by the learned counsel

was again predicated upon the decision of the Supreme Court

in Laxmi's case (supra). Counsel contended that a similar

statement made by the deceased to the attending doctor in

the said case was not considered as a dying declaration by

Supreme Court.

I The ninth submission advanced by the learned counsel

pertained to the conduct of the appellant in removing the

deceased to the hospital. Counsel urged that the factum of

removal of the deceased to the hospital by the appellant is a

pointer indicating towards the innocence of the appellant.

J The tenth submission advanced by the learned counsel

was that there is a serious contradiction in the evidence of

Const. Narayan Singh PW-14 and SI Vijay Pal PW16, with

regard to the investigation conducted by them on the day of

the occurrence. Counsel pointed out that Const. Narayan

Singh had deposed that he along with SI Vijay Pal had first

gone to the spot after the receipt of the information of the

incident whereas SI Vijay Pal deposed that they had first gone

to GTB hospital.

K The eleventh submission advanced by the counsel was

that the prosecution has failed to establish the motive of the

appellant for committing the murder of the deceased which is

a serious lacuna in the case of the prosecution.

L The last submission advanced by the learned counsel

was that the failure of the prosecution to examine the

relatives of the appellant who had come to meet him on the

day of the occurrence creates a serious dent in the case of the

prosecution inasmuch as the said persons were material

witnesses for the reason the evidence on record has

established that they were present at the place of occurrence

at the time of the incident and thus could have thrown some

light on the incident.

26. The argument advanced by the learned counsel

pertaining to the photograph Ex.PW-9/11 which shows the

inside of the room where the deceased was found burnt, at

first blush, seems attractive inasmuch as a door can be seen

on the floor, with the latch pushed upwards. It certainly

suggests, as if, the door fell on the floor after it was pushed

from outside and that the latch was locking the door. But, a

closer look at the photograph reveals something more, which

concludes that the door did not fall on the floor on being

pushed from outside. A utensil is seen on the door. This could

not have happened if the door was pushed and had to be

broken to gain access to the room. It shows that the door was

being used as a plank to keep articles thereon. It has to be

noted that the appellant and the deceased were residing in a

single room which served not only as their living room but

even the kitchen. It appears that the door in question was

being used as a kind of a slab for placing utensils.

27. Pertaining to the fact that Sharda PW-2 had deposed that

the room was locked when she reached the room, suffice

would it be to note that on being cross examined by the

learned public prosecutor she stated that the room was closed

from inside. It is apparent that the witness used a wrong

expression while deposing in examination-in-chief. It is not

out of place to note that it is not the case of the appellant that

the door had to be broken to gain access into the room. No

such suggestion was given to PW-1 or PW-2. No suggestion

was given to the investigating officer that the topology of the

room showed a forced entry.

28. The submission advanced by the counsel that the

testimony of the witnesses of the prosecution and the defence

that the deceased was ill; that she used to remain depressed

because of her illness and was contemplating committing

suicide, would merit consideration only if the dying declaration

of the deceased is not accepted by us. For if the same is

accepted, the question of the deceased committing suicide

would itself be ruled out. Of course, the conduct of the

appellant who was found to be leaving the house by PW-1 is

strongly indicative of his guilty mind.

29. That the doctor who conducted the post-mortem stated

that the burn injuries could be self-inflicted, is neither here nor

there, for the reason in every case of burning, the injuries can

always be classified as either suicidal or homicidal. Inasmuch

as somebody can pour kerosene on the victim and set the

victim on fire, the same act can be done by the victim himself.

Said evidence, would therefore, be neutral evidence.

30. The plea that Sharda PW-2 had deposed that she had

seen the accused on the terrace of the house and this shows

that the appellant could not have set Rekha on fire merits not

much deep consideration because of the fact that no eye

witness has spoken about having seen the appellant set Rekha

on fire. The case of the prosecution is based on the dying

declaration of Rekha and the conduct of the appellant. We

note that Sharda PW-2 is a hostile witness and has attempted

to bail out the appellant. PW-1 Shashi has categorically stated

that as she proceeded from the ground floor to go upstairs

when she heard noises, she saw the appellant descending the

stairs.

31. Since the next few submission pertained to the credibility

of the history recorded in the MLC of the deceased by

Dr.R.Dayal that the burns were caused by the husband Gokul

of the deceased who poured kerosene oil, as disclosed by the

patient herself, we note the law relating to dying declarations

before dealing with the submissions urged.

32. The admissibility of a dying declaration as a piece of

evidence is an exception to the general rule of exclusion of

hearsay evidence. 'A person will not meet his Maker with a lie

in his mouth' is the philosophy underlying admissibility of

dying declaration as a piece of evidence. Apart from an

implicit faith in the intrinsic truthfulness of human character at

the dying moments of one's life, admissibility of dying

declaration is also based on the doctrine of necessity. In many

cases victim is the only eye witness to a crime on him/her and

in such situations exclusion of the dying declaration, on

hearsay principle, would tend to defeat the ends of justice.

The judicially evolved rules of caution for acceptance of dying

declaration are being enumerated herein under:-

(i) There is neither rule of law nor of prudence that dying

declaration cannot be acted upon without corroboration.

(ii) The dying declaration is only a piece of untested evidence

and must, like any other evidence, satisfy the court that what

is stated therein is the unalloyed truth and that it is absolutely

safe to act upon it. If after careful scrutiny, the court is

satisfied that it is true and free from any effort to induce the

deceased to make a false statement and if it is coherent and

consistent, there shall be no legal impediment to make it the

basis of conviction, even if there is no corroboration.

(iii) The court has to scrutinize the dying declaration carefully

and must ensure that the declaration is not the result of

tutoring, prompting or imagination. The deceased had an

opportunity to observe and identify the assailants and was in a

fit state to make the declaration.

(iv) Where a dying declaration is suspicious, it should not be

acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never

make any dying declaration the evidence with regard to it is to

be rejected.

(vi) A dying declaration which suffers from infirmity cannot

form the basis of conviction.

(vii) Merely because a dying declaration does not contain the

details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to

be discarded. On the contrary, the shortness of the statement

itself guarantees truth.

(ix) Normally, the court in order to satisfy whether the

deceased was in a fit mental condition to make the dying

declaration looks up to the medical opinion. But where the

eyewitness said that the deceased was in a fit and conscious

state to make the dying declaration, the medical opinion

cannot prevail.

(x) Where the prosecution version differs from the version as

given in the dying declaration, the said declaration cannot be

acted upon.

(xi) Where there are more than one statements in the nature

of dying declaration, the one first in point of time must be

preferred. Of course, if the plurality of the dying declaration

could be held to be trustworthy and reliable, it has to be

accepted.

(xii) The law does not provide that a dying declaration should

be made in any prescribed manner or should be in the form of

questions and answers. Only because a dying declaration was

not recorded by a Magistrate, is no ground to disbelieve a

dying declaration.

33. There is no universal rule that unless the thumb

impression of the patient is obtained on the MLC, the fact of a

statement recorded on the MLC, by the doctor concerned is of

no value. The rule that the signatures or thumb impression of

the patient should be obtained is not a rule of prudence but a

rule of caution. The decision of Orissa High Court in Niru

Nanhar's case (supra) cited in support of the plea that if the

MLC does not contain the thumb impression of the patient, the

same has to be rejected, nowhere states so. The facts of the

said case were that the prosecution had alleged that the

appellant had poured kerosene oil on the body of the deceased

and set her on fire while the deceased was sleeping. The

deceased had made a dying declaration before succumbing to

her injuries. The High Court had acquitted the appellant on

account of infirmities in the dying declaration made by the

deceased as also in the other evidence on record. A similar

contention was urged on the behalf of the appellant therein

that the dying declaration made by the deceased therein

should be discarded, for the reason no signatures or thumb

impression of the deceased was obtained on the said

declaration. The said contention did not find favor with the

court which held that the doctor had satisfactorily explained

the absence of signatures or thumb impression of the

deceased on the said declaration. A perusal of the said

decision thus shows that the dying declaration was not

rejected on the ground that the signatures or thumb

impressions of the deceased was not obtained on the MLC, but

on account of various other infirmities.

34. The plea that the deceased falsely disclosed herself to be

the wife of the appellant, as recorded in the MLC requires her

dying declaration as recorded in the MLC to be discarded was

predicated with reference to the testimony of Shashi PW-1,

Shashi PW-2 and Rajender Singh PW-7 who have deposed that

on the day of the incident four persons, two of whom were the

wife and the child of the appellant had visited the house.

Thus, the appellant could not be the husband of the deceased.

It was urged that if the deceased could lie with reference to

her relationship, there was every possibility that she lied even

on qua the remainder. The plea is neither here nor there for

the reason Shashi PW-1 has categorically deposed that the

deceased and the appellant were living as husband and wife.

It is not the case of the appellant that the lady who came to

his house on the day of the incident was living with him as his

wife. It is obviously a case where the appellant had

abandoned his wife and his child and was living with Rekha,

holding out to the world at large that Rekha was his wife.

Obviously, Rekha was also holding herself out to be the wife of

the appellant. We find no lies spoken by Rekha.

35. The plea that the staff of GTB hospital was inimically

disposed towards the appellant is without any factual

foundation as there is no evidence on record that on two

previous occasions a quarrel involving the appellant and the

staff at G.T.B. Hospital had taken place. We note that a vague

suggestion has been given to Dr.R.Dayal, PW-10 during cross

examination that he i.e. Dr.R.Dayal, falsely recorded on the

MLC that the deceased had informed him that the appellant

had poured kerosene oil on her and set her on fire at the

behest of the nurses. We note that no names of any nurse

was suggested to the witness.

36. Pertaining to the medical condition of the deceased at

the time she was brought to the hospital, we note that

Dr.R.Dayal PW-10, who had prepared the MLC of the deceased,

has categorically deposed that the deceased was conscious

and oriented at the time of the preparation of the said MLC.

The appellant has not been able to show that the said doctor

had any animus towards the appellant. There was no occasion

or reason for the said doctor to falsely implicate the appellant.

The fact that the deceased was suffering from severe burn

injuries does not necessarily lead to a conclusion that she was

not in a position to inform the doctor about the said incident,

particularly in the light of the deposition of the doctor who had

conducted the post-mortem of the deceased that a patient

who has sustained 98% burn injuries can remain conscious for

sometime after sustaining the injuries.

37. Pertaining to decisions of the Supreme Court relied upon

by the learned counsel in support of the contention that the

extent of injuries suffered by the appellant makes it highly

improbable that she had informed the doctor about the

incident, we note that the facts of Rosamma's case (supra)

were that the dying declaration made by the deceased who

had sustained 90% burn injuries was sought to be proved by

the evidence of the Magistrate who had recorded the said

statement and the Medical Officer who was present at the time

of the recording of the said statement. The certificate given by

the doctor at the end of dying declaration merely stated that

the deceased was conscious and a note was made by the

Magistrate recording the said declaration that the deceased

was fit to make the statement. It was held by Supreme Court

that the certification given by a doctor should not only be

about consciousness of the deceased but should also record

that the deceased was in a fit state of mind at the time of the

recording of the dying declaration since the consciousness and

fitness of the mind are two distinct conditions. In the absence

of doctor's certification about the fitness of the mind of the

deceased at the time of the recording of the dying declaration,

said declaration was rejected by Supreme Court. In Laxmi's

case (supra) the Supreme Court rejected the dying declaration

made by the deceased who had sustained 85% burn injuries

on the ground that there was no medical evidence to show

that the deceased was in a fit state of mind and physical

condition at the time of the recording of the statement. The

said two decisions are clearly distinguishable from the present

case as in the present case the MLC of the deceased clearly

records that the deceased was conscious, oriented and fit to

make a statement at the time when she informed the doctor

about the incident. The doctor who prepared the said MLC

namely, Dr.R.Dayal PW-10, also clearly deposed about the said

fact.

38. It is no doubt true that the deceased was removed to the

hospital by the appellant. But, the fact that when PW-1 went

upstairs she saw accused going down, indicates that the first

attempt of the appellant was to remove himself from the

scene. We note that Shashi PW-1 has categorically deposed:

at about 10:30 AM on hearing the noise that Rekha jal gayi hai

I went upstairs and found Rekha lying burnt and the accused

Gokul going down. The conduct of the appellant of not making

any attempt to rescue his wife and joining in the rescue only

after Shashi reached the place cannot be ignored by us.

39. The testimony of SI Vijay Pal PW-16, that he along with

Const Narayan Singh had first gone to GTB hospital on the

receipt of the information of the incident is duly corroborated

by the contemporaneous document prepared by him

particularly the endorsement Ex.PW-16/A which clearly records

the same. That Const. Narayan Singh deposed that they first

went to the spot and thereafter the hospital, is neither here

nor there. In fact the very submission is baseless. What turns

whether the police first went to the spot or the hospital. It is

not the case of the appellant that the evidence has been

planted upon him. As noted hereinabove, the only evidence

used against the appellant is the dying declaration of the

deceased and his conduct emerging from the testimony of

Shashi.

40. That the prosecution has failed to establish the motive on

the part of the appellant to murder the deceased, suffice

would it be to state that it is settled law that failure to

establish motive of the accused is not fatal to the case of the

prosecution when there is clinching evidence establishing the

guilt of the accused as held in the decision of the Supreme

Court reported as Mulak Raj v Satish Kumar 1992 Cri LJ 1529.

41. That the prosecution did not examine the four persons

who as per the testimony of PW-1 and PW-2 had visited the

house in the morning, does not entitle the appellant to any

benefit of doubt for the reason there is no evidence that said

four persons had witnessed the incident. The prosecution is

not supposed to examine useless witnesses.

42. Having dealt with the submissions advanced by the

learned counsel for the appellant, we hold that the appellant

has not been able to demolish the testimony of Dr.R.Dayal PW-

10, that the deceased had informed him that the appellant had

set her on fire after pouring kerosene oil on her body. The

evidence of Shashi PW-1, that she had seen the appellant

coming down from the floor where the room in which the

deceased was found burnt was situated soon after the

occurrence is indicative of the fact that the appellant was

attempting to leave the place of occurrence so as to ensure

that no suspicion would fall upon him; a conduct which is an

incriminating fact.

43. In view of above discussion, the appeal is dismissed.

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

are cancelled. The appellant is directed to surrender and the

remaining sentence of imprisonment for life.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

May 12, 2009 mm