Delhi High Court
Rajender Singh @ Master vs State on 10 November, 2009
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: November 05, 2009
Judgment delivered on : November 10, 2009
+ CRIMINAL APPEAL NO.136/1998
RAJENDER SINGH @ MASTER ..... Appellant
Through: Mr. K.K.Sud, Sr. Advocate with
Mr. Kunal Malhotra, Advocate.
Versus
STATE ..... Respondent
Through: Mr. Sunil Sharma, APP
WITH
+ CRIMINAL APPEAL NO.170/1998
SRIKANT ..... Appellant
Through: Mr. K.K.Sud, Sr. Advocate/
Amicus curiae with Mr. Kunal
Malhotra, Advocate.
Versus
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 Yes
may be allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be Yes
reported in Digest ?
Crl.A.Nos.136/1998 and 170/1998 Page 1 of 17
AJIT BHARIHOKE, J.
1. Appellants Rajender Singh and Srikant feeling aggrieved by their
conviction under Sections 302 read with Section 34 IPC in terms of the
judgment dated 27.03.1998 in Sessions Case No.107/96, FIR
No.221/91, Police Station Janak Puri and sentence of imprisonment for
life and also to pay fine of Rs.5000/-, failing which to undergo further
imprisonment for a period of six months in terms of order on sentence
dated 30.03.1998, have preferred the above appeals.
2. Briefly put, case of the prosecution is that on 19.04.1991 around
7:30 a.m., appellants Rajender Singh and Srikant are stated to have
reached the jhuggi C-2/B, Janak Puri along with their co-accused Lal
Chand and asked Ms. Manju (deceased) if her father was there. When
she replied that her father was not at home, appellant Srikant who was
carrying a one ltr. tin of 'Rath' containing kerosene oil poured
kerosene on her from that can and the co-accused Lal Chand lit a
matchstick and set her on fire. PW1 Ram Ratti, mother of the
deceased, at that time is stated to have gone to answer the call of
nature and when she returned she saw her daughter on fire and a
crowd of people was trying to extinguish the fire. She also helped in
extinguishing the fire and in the process, suffered burn injuries on her
hands. Injured Ms. Manju was taken by PW1 and few other neighbours
to RML Hospital in a taxi. The injured is stated to have made a dying
declaration to her mother that she was set on fire by the appellants
Rajender and Srikant as also Lal Chand(P.O.). Manju (deceased) was
admitted in the hospital at about 9:00 a.m. Head Constable Jaswant
Singh, PW17 was the Duty Constable posted at RML Hospital at the
relevant time. He conveyed the information about the admission of the
deceased Manju with burn injuries to Police Station Janak Puri, which
was recorded as DD No.4A. On the receipt of the DD report, SI Khushi
Ram, PW16 is stated to have gone to RML Hospital and there he
obtained the MLC of injured Manju on which the Doctor had opined that
she had suffered 85% burn injuries. The Doctor at the Burns Ward
declared injured Manju to be fit for making statement. SI Khushi Ram
thus requested the services of SDM, Punjabi Bagh for recording her
dying declaration. Shri H.C. Gaur, SDM, PW5 reached at the hospital
around 11:30 a.m. and recorded the dying declaration of Ms. Manju
(Ex.PW5/A) in question answer form wherein she stated that the
appellants along with Lal Chand had visited her jhuggi in the morning
at 7:30 a.m. and asked about her father. When she told them that her
father was not available at the residence, Lal Chand (P.O.) suddenly
poured kerosene oil upon her from a one ltr. tin of 'Rath Vanaspati' and
the appellant Srikant lit a matchstick and set her on fire. Thereafter all
three of them ran away. PW5, Shri H.C. Gaur, SDM, obtained the
thumb impressions of the deceased Manju on first and last page of the
dying declaration and directed the Investigating Officer to register the
case under relevant provisions of the IPC against the appellants and Lal
Chand. The Investigating Officer sent the dying declaration along with
his remarks to the Police Station and on the basis of said dying
declaration, formal FIR under Section 307/34 IPC was registered.
Manju died of the burn injuries in the morning of 28.04.91, which
information was conveyed to the Police Station vide DD No.3 dated
28.04.91. Consequently, the offence under Section 302 read with
Section 34 IPC was added.
3. Inquest was conducted and the dead body was sent for post
mortem examination. The Investigating Officer obtained the report of
post mortem examination, recorded the statements of the witnesses,
completed the formalities of investigation and submitted challan
against the appellants and Lal Chand(P.O.) under Section 302/34 IPC.
4. The appellants were charged for the offence under Section 302
read with Section 34 IPC, to which they pleaded not guilty and claimed
trial. So far as their co-accused Lal Chand is concerned, he absconded
and he was declared proclaimed offender.
5. On conclusion of the trial, the learned trial Judge relying upon the
dying declaration Ex.PW5/A stated to have been made by the deceased
before the SDM, Shri H.C. Gaur (PW5), convicted both the appellants
Rajender Singh and Srikant on charge under Section 302/34 IPC and
sentenced them to undergo imprisonment for life and also to pay a fine
of Rs.5,000/- each.
6. It transpires from the record that pursuant to the order of this
Court dated 19.09.1999, appellant Srikant was released on bail.
Thereafter he absconded and failed to turn up for hearing. When his
presence could not be procured despite of best efforts, Shri K.K. Sud,
Sr. Advocate, who is representing appellant Rajender Singh, was
requested to assist the Court as Amicus in the appeal filed by the
appellant Srikant.
7. On perusal of record, it transpires that the case of the
prosecution rests solely upon the dying declarations made by the
deceased in presence of her mother PW1 Ram Ratti and before the
SDM, Shri H.C. Gaur, PW5.
8. Learned counsel for the appellants has submitted that though
there is no bar under law to convict an accused on sole basis of a dying
declaration, yet before acting on a dying declaration, it is incumbent
upon the court to satisfy itself about the veracity of the dying
declaration and also that it is not the result of some tutoring or
prompting and that the declarant, at the time of making the statement,
was in a fit state of mind to make a clear and concise statement about
the cause or circumstances leading to his or her death. He has
submitted that from the record it is established that neither of the
dying declarations is worth of any credence.
9. Regarding the first dying declaration purportedly made by the
deceased in presence of her mother, learned counsel has submitted
that the testimony of PW1 Ram Ratti is full of contradictions and
improvements, as such her version regarding the dying declaration
made by the deceased is not trustworthy. It was further submitted on
behalf of the appellants that as per the version of PW1 Ram Ratti, the
deceased made the dying declaration to her at the spot of occurrence
when she was extinguishing the fire and also on her way to the
hospital. She also deposed that several neighbours helped in
extinguishing the fire and the neighbours Ram Kishan, Mohan, Bhola
and Hamid accompanied her and the deceased in the taxi to the
hospital. It was argued if said version is to be believed then the dying
declaration was made in the presence of the neighbours who helped in
extinguishing the fire and also in presence of the above named persons
who accompanied the deceased to the hospital in the taxi and atleast
someone out of them was expected to hear the deceased making the
dying declaration. None of those neighbours have been examined as
witnesses to corroborate the version of PW1 Ram Ratti.
10. Learned counsel for the appellants further submitted that PW1
Ram Ratti has made several improvements in her testimony given in
the court vis-a-vis her statement made to the police and had to be
confronted with her earlier statement Exhibits PW1/DA, Ex.PW1/DB and
Ex.PW1/DC given to the police. Not only this, it was pointed out that
PW1 stated that the deceased told her that appellant Srikant poured
kerosene oil on her and Lal Chand ignited her which is contrary to the
case of prosecution that it was Lal Chand who poured kerosene oil
upon the deceased and Srikant set her on fire. Learned counsel for the
appellants also drew our attention to the testimony of initial
Investigating Officer SI Khushi Ram, PW13, who in his cross-
examination has admitted that in the case diary it is recorded that
deceased Manju did not state anything to her mother about the
manner in which she got burnt, which also rules out the possibility of
the deceased having made any dying declaration in presence of PW1
Ram Ratti. In view of the above, he has urged us to disregard the
testimony of PW1, being unreliable.
11. On the other hand, regarding the first dying declaration, learned
counsel for the State has argued that there is no reason to doubt the
testimony of PW1 Ram Ratti because her presence at the spot of
occurrence is established from the fact that she herself sustained burn
injuries on her hands while extinguishing the fire of the deceased, as is
apparent from her MLC Ex.PW16/A and there is no reason as to why
she would depose falsely to implicate the appellants.
12. We have considered the above submissions made on behalf of
the parties. We find merit in the arguments advanced on behalf of the
appellants. From the infirmities pointed out by the learned counsel for
the appellants, we do not find PW1 Ram Ratti to be a reliable and
trustworthy witness, particularly when she in her cross-examination
has admitted that there was long term animosity between her family
and the appellant Rajender Singh.
13. Coming to the second dying declaration Ex.PW5/A stated to have
been made by the deceased in presence of SDM. PW5, Shri H.C. Gaur,
the then SDM, Punjabi Bagh has categorically stated that on the receipt
of information from the Police Station Janak Puri, he had visited RML
Hospital, Burns Ward on 19.04.91 at about 11:30 a.m., where he
recorded the dying declaration of the deceased Manju Ex.PW5/A. He
stated that he recorded the statement in question answer form after
satisfying himself that she was in a fit state of mind. He has proved
the dying declaration in question answer form as Ex.PW5/A.
14. Learned counsel for the appellants has submitted that even the
second dying declaration Ex.PW5/A purportedly made by the deceased
in presence of the SDM is of suspect. He has referred to Section 32(1)
of the Indian Evidence Act and submitted that aforesaid provision being
an exception to law of hearsay evidence has to be construed strictly.
He has submitted that according to Section 32(1), when the cause of
death of a person comes into question in a court, then the statement
made by that person relating to the cause of his death or as to any of
the circumstances of the transaction which resulted in his death is
relevant and admissible in evidence. Learned counsel for the
appellants further submitted that in view of the aforesaid position in
law, the SDM was required to confine the recording of statement of the
deceased, whose condition was precarious, only to the aspect of the
cause of death of Ms. Manju or the circumstances of the transaction
which resulted in her death. The SDM, however, has gone beyond that.
Expanding on this argument, he has drawn our attention to the dying
declaration Ex.PW5/A, which shows that the cause of death and the
circumstances relating to the cause of death of Ms. Manju were
disclosed in the answer given by the deceased in response to Question
No.1. Therefore, the dying declaration complete in all respects, having
come in response to the question No.1, the SDM was not required to
ask further questions to the deceased. Despite of that the SDM went
on to ask superfluous questions to the deceased which were not
necessary for the purpose of recording the dying declaration as
envisaged under Section 32(1) of the Evidence Act.
15. From this, he has urged us to infer that the SDM was biased and
he was keen on promoting the case of investigating agency or the
complainant to implicate the appellants. Thus, according to learned
counsel for the appellants, the dying declaration Ex.PW5/A is suspect.
16. In order to appreciate the contention of learned counsel for the
appellants, it is necessary to have a look at Section 32(1) of the Indian
Evidence Act, as also the other questions put to the deceased by the
SDM while recording her statement which is being projected as the
dying declaration. Section 32(1) is reproduced as under:-
"32. Cases in which statement of relevant fact
by person who is dead or cannot be found, etc.,
is relevant.- ........
(1) When it relates to cause of death.- When
the statement is made by a person as to the
cause of his death, or as to any of the
circumstances of the transaction which resulted
in his death, in cases in which the cause of that
person's death comes into question.
Such statements are relevant whether the person
who made them was or was not, at the time when
they were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into question".
17. On perusal of the dying declaration Ex.PW5/A, it transpires that
following five questions were put to the deceased by the SDM:
Q.1. How your clothes caught fire?
Q.2. Why Lal Chand, Srikant and Master Rajender set her
clothes on fire?
Q.3. Who extinguished your fire?
Q.4. Whether your husband Anand Swarup has any role in
setting your clothes on fire?
Q.5. How much time has lapsed since your marriage?
18. Indeed, Section 32(1) deals with the law relating to the
admissibility of dying declaration in evidence and it specifies which
statements can be termed as dying declaration. It is true that in
response to Q.No.1 referred to above, the deceased had clearly stated
about the cause of her injuries which ultimately proved to be fatal and
about the circumstances of the transaction which resulted in her death
by responding that the appellants and Lal Chand had visited her Jhuggi
at about 7:30 a.m. and asked about her father. When she told that her
father was not present at the Jhuggi and she was alone, Lal Chand
threw kerosene oil upon her from a one ltr. can of Rath and Srikant,
after lighting a matchstick, threw it upon her and set her clothes on
fire. Thereafter all three of them ran away. Even if the SDM had not
gone further to ask subsequent Q. Nos.2 to 4 to the deceased, her
dying declaration was complete in all respects. However, in our
considered view, the nature of Question Nos.2 to 4 put to the deceased
is not such which could justify imputing any motive upon the integrity
of the SDM, who had no axe to grind with either of the appellants or
the proclaimed offender Lal Chand. If in his wisdom to elicit more
facts, he had asked certain questions to the deceased while recording
her dying declaration, it would not render the dying declaration
suspect. Otherwise also, when the SDM was recording the statement
of the deceased, he could not have been sure that the deceased would
die. If at all some part of the statement Ex.PW5/A is beyond the scope
of Section 32(1) of the Indian Evidence Act, in view of the provision of
law, that portion cannot be taken into consideration being inadmissible
in evidence, as that part of the statement is hit by the law relating to
hearsay evidence. The answer to Question No.1 given in the dying
declaration referred to above squarely falls within the ambit of Section
32(1) of the Evidence Act. Therefore, in our view, the learned trial
Judge was right in relying upon the dying declaration Ex.PW5/A of the
deceased.
19. It is further argued that PW5, Shri H.C. Gaur, the SDM has stated
in his cross-examination that he did not obtain any certificate in writing
from the treating Doctor that the deceased Manju was fit to make
statement. It was further stated that he did not even request the
Doctor to remain present at the time of recording of statement of the
deceased nor he perused the MLC of the deceased before recording
her statement nor he tried to ascertain as to how much percentage of
burns were suffered by the deceased and he could not even tell if the
patient had suffered 10% burns or 100% burns on her body. He could
not even tell if the entire body of the deceased except the face of
patient was covered or that she was covered with a net or she was on
oxygen or she was on a glucose drip etc. It was further submitted that
PW5 Shri H.C. Gaur, SDM, deflected all the questions in the cross-
examination by taking shelter of lapse of memory and saying that he
does not remember. From the above circumstances, learned counsel
for the appellants has urged us to infer that PW5 Shri H.C. Gaur, SDM is
not a reliable witness and he has deliberately concealed the facts.
20. We are not convinced with the submissions made on behalf of the
appellants. It is apparent from the record that the incident took place
on 19.04.91 and PW5, Shri H.C. Gaur, SDM was examined as a witness
for the first time more than five years later on 12.08.96 and his cross-
examination was conducted almost about a year later on 08.07.97. We
do not find it surprising that the SDM, Shri H.C. Gaur who had
examined the deceased in his official capacity could not remember the
details about the circumstances under which he recorded the dying
declaration of the deceased. This infirmity can easily be attributed to
fading of memory because of lapse of time.
21. Next submission on behalf of the appellants is that PW5 Shri H.C.
Gaur, SDM has stated that he asked the Doctor about the fitness of the
patient to make statement before proceeding to record her dying
declaration, yet there is no certification to that effect by the treating
Doctor. Therefore, it is doubtful whether or not the deceased was fit
for making statement at the relevant time. Aforesaid contention of
learned counsel for the appellants is belied by the MLC of deceased
Manju Ex.PW19/A. Perusal of the MLC of the deceased reveals that it
contains two different endorsements made by Dr. Sanjay Barnwal
declaring the patient fit for making statement. The first endorsement
appears to have been made by the Doctor concerned on the request of
the Investigating Officer. The second endorsement on the MLC has
been exhibited as Ex.PW19/B. This endorsement is also in the hand of
Dr. Sanjay Barnwal and it bears the time 11:50 a.m. under the
signatures of the Doctor. As per the testimony of PW5, the SDM, he
had reached at the hospital at 11:30 a.m. and thereafter he asked the
Doctor whether or not the patient was fit for statement and the Doctor
declared her fit for statement. Aforesaid version finds support from the
second endorsement Ex.PW19/B on the MLC of the deceased made at
11:50 a.m. declaring her fit for statement. Thus, there is no doubt in
our mind that statement of the deceased Manju was recorded by the
SDM after ensuring from the Doctor that she was fit for making
statement. Therefore, we find no reason to suspect the dying
declaration Ex.PW5/A on this count. It was also submitted on behalf of
the appellants that the dying declaration is neither attested by a
Doctor nor by a nurse nor by the Ward Boy on duty at the Burns Ward
at the relevant time. Non-attestation of the dying declaration by the
Doctor or any other employee of the hospital, in our view, is no reason
to disbelieve the version of PW5, Shri H.C. Gaur, SDM, particularly
when there is ample evidence on record that it was actually recorded
in a fair manner by the SDM. Otherwise also, the SDM, Shri H.C. Gaur
is a public servant. He had no axe to grind with the appellants and
there is no reason why he should mix up with the complainant or the
police to create false evidence against the appellants. Thus, we are of
the considered view that the dying declaration Ex.PW5/A is beyond
suspicion and the learned trial Judge has rightly acted upon the dying
declaration of the deceased.
22. Learned counsel for the appellants has lastly submitted that
assuming the dying declaration Ex.PW5/A is accepted, then also there
is no evidence on record to justify the conviction of appellant Rajender
Singh for the offence under Section 302 IPC with the aid of Section 34
IPC. He has submitted that the dying declaration Ex.PW5/A only
established that the appellant Rajender had accompanied Lal Chand
and Srikant to the jhuggi of the deceased where the occurrence took
place. There is nothing in the dying declaration to attribute any overt
or covert act to the appellant Rajender to justify the inference that he
shared a common intention to kill the deceased with the other co-
accused persons or that he developed common intention with them at
the spot of occurrence.
23. On perusal of the dying declaration Ex.PW5/A, it transpires that
the only role attributed to the appellant Rajender Singh is that he
accompanied his co-accused Lal Chand (PO) and Srikant, (appellant) to
the spot of occurrence where after enquiring about the father of the
deceased, Lal Chand suddenly threw kerosene oil on the deceased and
the appellant Srikant lit a matchstick and set her on fire. In absence of
any evidence of appellant Rajender having played any overt or covert
role in the act of setting the deceased on fire, merely because he was
in the company of the appellant Srikant and Lal Chand(PO), who played
an active role in the commission of crime and he then ran away from
the spot, we find it difficult to infer that he either shared common
intention with his co-accused persons to kill the deceased by setting
her on fire or he developed such common intention at the spot when
the deceased told them that her father was not available. Even if for
the sake of argument, it is assumed that the appellant Rajender Singh
had accompanied Lal Chand (PO) and Srikant (appellant) to the jhuggi
of the deceased with common intention to kill her father, then also in
absence of any evidence, it is difficult to conclude that at the spot of
occurrence on coming to know that father of the deceased was not
available at the jhuggi, the common intention to kill the father got
transformed into the common intention to kill the deceased. From the
dying declaration Ex.PW5/A, it is obvious that the incident took place
suddenly when Lal Chand threw kerosene oil on the deceased and
Srikant (appellant) threw a lighted a matchstick on her. The
suddenness of the event would not possibly have given time to
appellant Rajender Singh to react to prevent his companions from
committing such heinous act. In the matter of Daya Shankar Vs.
State of M.P., AIR2009 SC 1426, Hon'ble Supreme Court held that
mere fact that the appellant was in the company of the accused who
were armed, would not be sufficient to attract Section 34 IPC when it
was undisputed that the appellant in that case was not armed and he
had no animosity with the deceased.
24. In this case also only role attributed to the appellant is that he
accompanied his co-accused persons to the place of occurrence. There
is no evidence on record to suggest that the appellant Rajender was
either armed or he had any enmity with the deceased or he was aware
that the co-accused Lal Chand, (P.O.) was carrying kerosene oil in the
can and he had intention to cause harm to the deceased or her father.
In view of the above factual matrix, we are of the considered view that
Section 34 IPC does not come into play so far as appellant Rajender is
concerned and the learned trial Judge was not right in concluding that
he nurtured common intention with his co-accused to kill the deceased
by setting her on fire. Thus, conviction of the appellant Rajender under
Section 302 IPC with the aid of Section 34 IPC cannot be sustained.
We, however, do not find any fault with the conviction of the appellant
Srikant under Section 302 IPC read with Section 34 IPC because he did
play an active role in setting the deceased on fire by throwing lighted
matchstick upon her after the co-accused Lal Chand (P.O.) had poured
kerosene oil on her.
25. The result of discussion above is that the appeal of appellant
Rajender is allowed and he is acquitted of charge under Section 302
read with Section 34 IPC. So far as the appeal of Srikant is concerned,
we find no infirmity in the impugned judgment of conviction and order
on sentence. Accordingly, his appeal is dismissed.
26. Appellant Rajender Singh is on bail. His bail bond and surety
bond are cancelled and discharged.
27. Appellant Srikant has absconded after he was released on bail in
terms of orders dated 19.09.1999 of this Court. The concerned court
is directed to initiate proceedings for his arrest so that he can be sent
to judicial custody to undergo the remaining terms of his sentence.
28. The police authorities should also endeavour to apprehend Lal
Chand who absconded during trial.
29. Appeals are disposed of accordingly.
AJIT BHARIHOKE, J.
NOVEMBER 10, 2009 SANJAY KISHAN KAUL, J.
pst
