Delhi High Court

Maghai vs State on 25 May, 2009

Author: S. Muralidhar

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                        CRIMINAL APPEAL No. 14 of 1992

        MAGHAI                                            ..... APPELLANT
                                 Through Mr. M.K. Duggal with
                                 Mr. Rahul Verma, Advocate

                        versus

        STATE                                           ..... RESPONDENT
                                 Through Mr. Pawan Bahl, APP

        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR

        1.      Whether Reporters of local papers may be
                allowed to see the judgment?                No
        2.      To be referred to the Reporter or not?      Yes
        3.      Whether the judgment should be reported     Yes
                in Digest?

                                  ORDER

25.05.2009

1. This appeal is directed against the judgment and order dated 23 rd

January 1992 passed by the learned Additional Sessions Judge („ASJ‟)

convicting the Appellant for the offence under Section 304 Part-I IPC. It

is also directed against the order dated 23 rd January 1992 passed by the

learned ASJ sentencing the Appellant to undergo rigorous imprisonment

for seven years.

2. The case of the prosecution is that at around 11.57 pm on 3 rd March

1989 an information was conveyed to the Police Control Room by one

Dr. R.N. Khera that the Appellant had brought his wife Smt. Shivrani

Devi to the hospital in an injured condition and that the injured victim

had given a statement before the doctor that she had been beaten by her

husband with a brick. This information in turn was conveyed at Police

Station Mangolpuri where DD No. 2A was recorded and the inquiry

was entrusted to Sub Inspector (SI) Lala Ram who along with Const.

Bhagwan proceeded to the said hospital. By that time it was discovered

the victim had died. The police thereafter went to the place of

occurrence which was the room on the first floor of House No. 81/1,

Mangolpuri, Delhi. The police took into possession on one brick, two

tat pieces and one piece of cloth all stained with blood and blood sample

from the scene of occurrence in sealed parcels. The appellant was

arrested on the same day and his shirt and lungi which he was wearing

were taken into possession in sealed parcel. The postmortem of the

deceased was conducted on 5 th March 1989. The sample collected was

sent to the CFSL for opinion.

3. The police recorded the statement of some of the public witnesses.

According to the prosecution, the Appellant was having illicit relations

with a lady in the neighbourhood which was resented by the deceased.

On the night of the occurrence an altercation between the Appellant and

his wife took place. The Appellant gave beatings to the deceased with a

brick. He took her thereafter to Khera Hospital where she was admitted

at about 12 midnight. She died there at 1.45 am on the following day.

4. The prosecution examined 19 witnesses. In his statement under

Section 313 CrPC the Appellant admitted that he and his wife were

living together in a room on the first floor and that he had taken her to

Khera Hospital in an injured condition on that night at about 10.30 pm.

He admitted that Dr. Manjit Singh had examined her at Khera Hospital

but denied that Dr. Manjit Singh had recorded the statement of his wife

or that she had made the dying declaration of having been beaten by her

husband. He also denied having made statement to the doctor that he

had beaten her. He took the plea that he has been falsely implicated. Dr.

Khera had demanded money which he was unable to pay and that so a

false case was instituted against him at the behest of Dr. Rama Khera.

The Appellant did not led any evidence in his defence.

5. The trial court noticed that all the public witnesses including the

teenaged daughter of the appellant and the deceased (PW-2 Parmila)

turned hostile. PW-1 was Chander Dev, the neighbour of the Appellant

who stated that at the time of occurrence the Appellant was sitting in his

house on the ground floor. This was also corroborated by the PW-2.

Both witnesses stated that when the deceased, responding to the call of

the appellant, came down hurriedly, she fell down the staircase and got

injured.

6. It was concluded that although the public witnesses did not prove the

motive for the crime, the forensic report as well as the medical evidence

proved the guilt. It was held that the evidence of PW-12, the doctor

who conducted the postmortem on the deceased where it was stated that

the injury No.11 it was "resembling nail marks on the neck" would have

been caused by "nail marks in an attempt to strangulate the deceased." It

is further opined that the other injuries could have been as a

consequence of her being beaten with a brick. The Trial Judge

concluded that this evidence was consistent with the crime having been

committed by the Appellant and was inconsistent with his innocence.

Although the teenaged daughters of the Appellant and the deceased

were present at the spot, it was concluded by the Trial Judge that they

were very young and could not have caused the death to the deceased.

Since there was no other person present at the moment "the accused

would have been present at the time and at the place of occurrence."

7. The learned Trial Judge also placed extensive reliance on the dying

declaration of the deceased and notwithstanding the apparent

inconsistency in the evidence of PW-18 Manjit Singh, the Trial Judge

concluded that the dying declaration was a truthful version of the

occurrence and therefore should be believed. Accordingly, the

Appellant was found guilty for the offence under Section 304 Part I IPC

and sentenced in the manner indicated hereinbefore.

8. Learned counsel for the Appellant took this Court through the entire

evidence on record to demonstrate that there is absolutely no proof of

motive for the Appellant to kill the deceased his wife. He submitted

that the story of the Appellant having illicit relations with a lady in the

neighborhood was not at all proved. In a case based on the

circumstantial evidence, the lack of proof of motive was fatal to the case

of the prosecution. It is further submitted that the evidence of PW-18

Manjit Singh is also uninspiring as there were two manipulations in the

so-called dying declaration which was not satisfactorily explained. It is

further submitted that the Appellant who was an employee of the

MTNL has had to remain under suspension for over twenty years and

his entire life was ruined on account of false implication in the present

case.

9. Mr. Bahl, learned APP appearing for the State placed reliance upon

the DD entry which was the earliest recording of the information

received about the case, in which it is stated that the Appellant had

pushed his wife from the first floor of the house and thereafter brought

her to the hospital. A reference was made to the actual dying

declaration recorded which showed that the deceased had laid the blame

for the injuries suffered by her at the doorstep of the Appellant. The

evidence of PW-12 also ruled out the possibility of injuries being

caused by falling from the first floor of a building, from the staircase. It

is submitted that notwithstanding the fact that the public witnesses

including the daughter of the deceased and the Appellant had turned

hostile, the medical evidence fully supported the case of the

Prosecution.

10. The submissions of learned counsel for the parties have been

considered. It is seen that the presence of the Appellant at the scene of

occurrence has not been proved by the prosecution at all. Apparently

during the course of investigation the prosecution had managed to

record the statement of certain witnesses to support the story that the

Appellant had entered into alteration with the deceased over her

resentment of his affair with a lady in the neighbourhood. This was

offered as the motive for his beating his wife with a brick. These

witnesses are PWs 1, 2, 3 and 6. PW.1 Chander Dev is a neighbour of

the Appellant. In his examination-in-chief he stated that on 3 rd March

1989 the Appellant was present with him in the ground floor of the

building. He stated that the Appellant and his wife were having cordial

relations. He had never seen them quarrelling. He stated that the

appellant‟s wife had died on account of a fall from the staircase. At

that time the Appellant was present with him in his room. He then

stated that he and the Appellant took her to Khera Hospital which is

near Shadipur Depot in a three wheeler scooter. In his presence the

deceased had not stated to the doctor at Khera Hospital how she had

been injured. She had become unconscious thereafter falling till her

death. This witness was declared hostile. In his cross-examination by

the APP, nothing was elicited to support the prosecution. In fact the

witness stated that the doctor at Khera hospital had demanded money

from the Appellant and when he refused, the doctor called the police

and had foisted on him a false case.

11. PW-2 was Smt. Parmila, is the daughter of the Appellant and the

deceased. She too stated that there was no quarrel between her parents.

She stated that she along with her younger sister and mother were

sitting in their room on first floor. The Appellant had brought

vegetables and was sitting in the ground floor with PW-1. Then the

Appellant called the deceased. While the deceased was coming down

hurriedly, he fell down the staircase and got injured. Thereafter the

Appellant and PW-1 took her mother to hospital in a three wheeler

scooter. The witness was also declared hostile and cross-examined by

the APP. She however stood firm in her version in the Court. Likewise

PW-3 Parkash who is a neighbour refused to support the case of the

prosecution. PW-5 Mahadev who is another neighbour stated that the

deceased had fallen from the staircase and he had not heard any cries of

the deceased. PW-6 Diwan Chand, another neighbour, denied that the

appellant was having an illicit relationship with a lady in the

neighbourhood.

12. In the light of the above overwhelming evidence of PWs 1,2,3 and

5, which do not support the case of prosecution, it is surprising that the

learned Trial Judge ignored it and proceeded to analyse the medical

evidence in detail to somehow find the Appellant guilty of the offence

under Section 304 Part I IPC. The absence of proof of motive

completely undoes the case of the prosecution. In the present case this

Court concludes that in the absence of proof of motive, the case of the

prosecution cannot be said to be proved beyond reasonable doubt.

13. The relevant portion of the documents containing the so-called

dying declaration of the deceased were marked as PW-18/A and PW-

18/B. The examination of PW-18 Dr. Manjit Singh showed that at that

time he was working as Resident Medical Officer at Khera Hopsital,

Pandav Nagar, Delhi. He appears to have acted only upon the

instructions of Dr. Padma Saxena, the senior doctor present there. In

response to the question put to him in his cross-examination, he stated

that he wrote the so-called statement of the deceased on the dictation of

Dr. Padma Saxena. The following questions and answers in his cross-

examination bring out this aspect:

"CC Had the patient made any statement to Dr. Padma or not?

A. In my presence the patient had not made any statement to Dr. Padma.

CC Were you present with Dr. Padma when she examined the patient?

A. I was present in the same room. Vol. Dr. Padma was dictating and I was recording the dying declaration.

CC. On that basis Dr. Padma was dictating this dying declaration?

A. She dictated after examining the patient. But I cannot tell if the patient had told anything to Dr. Padma or not?

CC. I have seen Ex.PW-18/1, the writing portion A to A in writing in my hand? In this writing correct or not?

A. I had written it as dicated by Dr. Padma.

CC. Have you mentioned this fact that you have written Ex.PW-18/A and PW-18/B as dictated by Dr. Padma?

A. No.

CC. Have you recorded that it was written on the dictation of Dr. Padma?

A. No.

CC. Are these two documents signed by Dr. Padma?

A. No."

14. As regards the interpolation in the documents he further states as

under:

"It is correct that my statement was also earlier recorded in this court on 4.2.91. It is correct to suggest that in my statement made on 4.2.91. I had stated that after dressing the patient Dr. Padma told me that the injuries were serious

and we should record her statement immediately as she may die. Then I recorded her statement. The injured had told me that "Mujhe mera aadmi ne maara tha, aant se maara tha, mera aadmi se pahale se ladai chalrahi thi". Her statement was recorded by me with my hand and that statement is Ex.PW- 18/A, portion A to A. It is also correct that on 4.2.91 I had taken oath before making the statement that I will speak truth. I had correctly made my statement on that date. It is correct that in my statement made in this Court yesterday I had stated that "the patient was unable to speak and I had recorded dying declaration Ex.PW-18/A as dictated by Dr. Padma Saxena, so I recorded this.

Q. There is contradiction in your two statements one made on 4.2.91 and the other made yesterday, as noticed above, which of your statement is correct?

A. I do not find any difference. I still say that I had recorded the statement as dictated to me by Dr. Padma. It is incorrect to suggest that I have been won over by the accused after I made statement on 4.2.91 or that to help the accused I have made false statement yesterday."

15. This witness was also unclear whether the deceased was conscious

or not at the time of making the statement. The following answer brings

out this:

"The word at point Y1 on Ex.18/B is "conscious". This was corrected by me for the earlier words "drowsy and semi conscious" appearing at point Y2. This correction as "conscious" was done by me on being told by Dr. Padma Saxena. It is correct that I had correctly written the condition as "drowsy and semi-conscious". It is correct that portions A 1 to A 1 in Ex.PW-18/B was added by me afterwards.

Court Question: What you mean by afterwards?

A. This portion was written by me after completing the entire portion of Ex.Pw- 18/B.

Court Question: Under what circumstances or for what reasons did you make this addition after-words?

A. First I was alone in the hospital. When I had examined the patient I did not have much experience in Medico Legal Cases as I was a new entrant. After about 15 minutes

of the arrival of the patient Dr. Padma Saxena had also reached there. She had also examined the patient and I had written as I was told by Dr. Padma Saxena. In the meanwhile the patient had also died."

16. In the considered view of this Court PW-18 was an unreliable

witness. The recollection of the facts was unclear. He was not able to

give satisfactory explanation for the interpolations made in the dying

declaration. Even the name of the deceased was erroneously recorded

and later corrected. Considering that the dying declaration was an

important piece of legislation, unless it was proved beyond reasonable

doubt it would be unsafe to base the conviction of the Appellant on such

document. It is plain that the deceased suffered from fracture of the

nasal bone and mandible. In such a situation the deceased could not

have made a coherent statement. Therefore, it was also important for the

prosecution to have examined Dr. Padma Saxena, the person whose

dictation Dr. Manjit Singh wrote down the dying declaration. As it is,