Devki vs State Of Delhi
2009 Latest Caselaw 4800 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment delivered on : November 24, 2009

+      CRIMINAL APPEAL NO.243/1996

       DEVKI                                    ..... Appellant
                         Through:     Mr.Chander Mohan Sanon,
                                      Advocate with Appellant in
                                      person.

                   Versus

       STATE OF DELHI                   ..... Respondent

Through: Mr.Pawan Sharma, APP.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

SANJAY KISHAN KAUL, J.(ORAL)

1. On 07.09.1991 an information was received by the Inspector

at the Police Station Madipur at 1:30 pm that a lady has been burnt

in House No.B-606 J.J. Colony, Madipur. The information was

recorded vide DD No.11( Ex.PW13/A) and ASI Lal Chand, who was

entrusted with the task of looking into the matter visited the site

along with Constable Rajpal. On reaching the spot, it transpired

that the injured had been taken to the DDU Hospital by her

husband. Inspector Harpal Singh had also reached the spot of

occurrence and ASI Lal Chand and Inspector Harpal Singh went to

the hospital. The MLC Ex.PW1/A was recorded by Dr. Chaman

Prakash, PW23 who had also examined the deceased regarding the

cause of her burn injuries. Said statement is Ex PW23/B. In terms

of the statement, the injured Smt. Darshna had been married to

Hem Chand, son of the appellant only six months prior to the

occurrence. The appellant did not like the injured and denied her

meals. It was also stated that the sister-in-law of the injured, Smt.

Santosh also used to harass her. On 07.09.1991, when the injured

was sleeping on the second floor of the house, another sister-in-law

Tara and her husband were present on the ground floor of the

house. The appellant poured kerosene oil on the injured and set her

on fire with the intention to kill her. Thereafter, she ran downstairs.

The injured also ran downstairs screaming and her husband

extinguished the fire. Inspector Harpal Singh made his

endorsement Ex.PW24/A on the statement and the case was

registered under Section 307/498A IPC.

2. After Dr. Chaman Prakash had recorded the statement of the

injured at 2:45 pm, Executive Magistrate Krishan Kumar, PW4 also

recorded the statement of the injured at 4:45 pm, which is

Ex.PW4/A. The injured reiterated her earlier statement and the only

thing added was that the appellant had brought kerosene in a doli.

The reason for harassment by the appellant was stated to be the

failure of the injured to have conceived, but that she was never

harassed for dowry. On the same day, at 7:00 pm on 07.09.1991,

the injured succumbed to her injury and died in the hospital (since

hereinafter referred to as "deceased"). In view thereof, the offence

under Section 307 was changed to under Section 302 of the IPC.

3. The post mortem report Ex.PW21/A establishes the reason for

the cause of the death to be the burn injuries. The CFSL report

Ex.PW20/D opines that residues of kerosene oil was found on the

burnt and the partly burnt clothes, scalp hair of the deceased as

also on empty doli (steel container). In view of aforesaid, the

challan was filed under Section 302/498A read with Section 34 of

the IPC against the appellant and Ms. Santosh as also the husband

of the deceased. The husband of the deceased was discharged.

The charges were framed against both the appellant and Ms.

Santosh. They pleaded not guilty and claimed trial. The Additional

Sessions Judge, in terms of the impugned judgment dated

30.08.1996, held both the said persons guilty of offence under

Section 498A read with Section 34 IPC. The appellant was also held

guilty under Section 302 IPC. The appellant was sentenced to life

imprisonment and a fine of Rs.1000/-, failing which RI for one month

for the offence under Section 302 IPC and for the offence under

Section 498A IPC, he was sentenced to undergo RI for a period of

three years and fine of Rs.1000/-. Ms. Santosh filed an appeal, but

died during the pendency of the appeal. Thus, her appeal stood

abated. The appellant herein has preferred the present appeal.

4. The appellant in her statement under Section 313 Cr.P.C. has

denied any role in the occurrence and has stated that she was living

on the ground floor of the house separately from the deceased who

was staying on the first floor of the house. She claims that at the

time of occurrence, she was sitting in her room and came to know

from neighbours that the room of the deceased had caught fire.

She made certain allegations against IO Harpal Singh.

5. The case of the prosecution rests on the three dying

declarations. In fact, learned counsel for the State pleaded that

there were five dying declarations. The first dying declaration was

in the form of the history recorded by PW23 in the MLC

Ex.PW1/A/PW23/A, wherein it is mentioned "alleged history of

sustaining burn by pouring kerosene oil by her mother-in-law Devki

W/o Deva Ram as stated by her (injured Darshna)".

6. The second dying declaration is the statement of the

deceased recorded by the said PW23 at 2:35 pm, which reads thus:

"I reside at the above-mentioned address along with my husband and mother-in-law. I was married to Sh. Hem Chand S/o Dava Ram, B- 706, about six months earlier. Today, I and my mother-in-law Devki were present in our house and I was sleeping on the second floor of the house. My mother-in-law poured kerosene oil on my person and set afire my clothes. No one was present in the house at that time. My mother-in-law usually refused to give me food and told me that she did not like me and she would get me divorced from my husband. She poured kerosene oil on my person when I was sleeping and set me afire with an intention to kill me. Besides my mother-in-law, my sister-in- law Santosh also harassed me much. Today, Santosh was present at the lower portion of the house and my husband Hem Chand and elder sister in law Tara were present on the ground floor of the house. My both sister-in -law and mother-in-law harassed me much. After setting affire my clothes, my mother-in-law ran downstairs. I also rushed downstairs, while crying and fell down. My husband, sisters-in-law namely Santosh and Tara were present at the downstairs. My husband extinguished my fire. My mother-in-law and sister-in-law Santosh harassed me much frequently whereas, Tara did not harass me."

7. Third dying declaration (Ex.PW4/A) is recorded at 5:45 pm by

the SDM, PW24, which reads as under:

"I have been residing at the afore-mentioned address since the month of last March. My marriage took place on 24th March. My mother-in-law Devki harassed me much right from the time of my marriage. My sister-in-law Santosh also used to hurl abuse at me. Today, on 7.9.91, I had been sleeping alone in the upper room of the house at the noon time and in the meantime, my mother-in-law had set me afire by way of pouring kerosene oil on my person. She had brought kerosene oil in a doli ( a utensil). On sustaining burn injuries, I rushed towards the ground floor from upper room and fell down. Thereafter, my husband extinguished the fire on my person and got me admitted in the hospital. My mother-in-law harassed me as I could not conceive. My in-laws never harassed me for dowry articles. I want that legal action may be taken against my mother-in-law Devki and sister-in-law Santosh."

8. The fourth dying declaration sought to be referred by the

learned counsel for the State is stated to have been made in

presence of Smt. Pushpa, PW8, sister of the deceased. PW8 has

deposed that when she went to the house of the deceased on being

informed by her parents, she found the deceased shouting that the

deceased has been burnt by her mother-in-law. The fifth dying

declaration is alleged to have been made in presence of Inspector

Harpal Singh, PW24, who has deposed that when he made enquiries

from the deceased after the SDM recorded her statement, she told

him the same version as that recorded by the SDM.

9. The principle while appreciating dying declaration has been

set out in the case of Paniben Vs. State of Gujarat, AIR 1992 SC

1817. The Hon'ble Supreme Court after considering various earlier

pronouncements has summed up the principles governing the law

relating to dying declaration as under:-

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) this Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where 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 be discarded.

On the contrary, the shortness of the statement itself guarantees truth

(ix) Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this 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.

10. The sanctity which is given to a dying declaration is based on

the presumption that no person about to die would wish to die with

a lie on his/her lips. No doubt, in case of a dying declaration, the

accused is deprived of the opportunity of cross-examination and

thus a dying declaration has to be carefully examined. In the

present case, there are undisputedly at least three dying

declarations. The remaining two so-called dying declarations are

depositions of two witnesses of what they claim to have been

informed to them by the deceased prior to her death, which also

substantiate above referred three dying declarations. We find all

the three dying declarations consistent with each other and relating

the same story. The allegation is direct and clear against the

appellant of having poured kerosene oil on the deceased and

setting her on fire. We may notice that the deceased has not tried

to rope in other members of the family in a vindictive manner. In

fact, even qua the appellant, she is clear that the present case is

not one of a dowry demand. The allegation is that sister-in-law Ms.

Santosh and the appellant used to harass the deceased for not

conceiving and treated her with cruelty. There is no allegation

against her father-in-law or even the other sister-in-law Tara. The

husband has also not been blamed and in fact he assisted in

extinguishing the fire and removing her to hospital. This is the

reason the husband was discharged at the stage of framing of

charges. Thus, we find clearly no blemish in the three dying

declarations which are consistent with each other and state the

same story.

11. We may also note that the story stated in the dying

declarations in so far as the manner of causing injury is concerned is

corroborated with the circumstantial evidence showing that from

the spot of occurrence, the utensil (doli) and a burnt matchstick,

both smelling of kerosene oil, were recovered. A matchbox was also

recovered from the stairs of the house. The CFSL report also

confirms the presence of kerosene oil on the recovered articles as

also on the body, including the scalp hair of the deceased.

12. Learned counsel for the appellant has made strenuous effort

to persuade us by pointing out perceived infirmities in the impugned

judgment. It is submitted that the learned Trial Court failed to take

note of the fact the deceased had suffered 95% burn injuries and

she must have been in acute pain and trauma. He further

submitted that in such cases the sedatives are given to the patients

in order to reduce their suffering and those sedatives have an

impact on the mental faculty of the patient and generally after the

infusion of sedatives, the patients go into stupor and in such a

situation the deceased could not have given a dying declaration

with clear mind. We do not find any merit in this contention

because perusal of the MLC reveals that at the outset when the

deceased was brought to the casualty of the hospital, her MLC was

recorded and in the MLC Ex.PW1/A/ PW23/A the patient herself gave

the history to Dr. Chaman Prakash, PW23 that she had been set on

fire by the appellant after pouring kerosene on her. Further, from

the MLC, it transpires that the patient was brought to the hospital at

2:15 pm and her detailed dying declaration Ex.PW23/A, as per

record, was reduced into writing by Dr. Chaman Prakash at 2:35 pm

i.e. within twenty minutes of her arrival to the hospital. Even if it is

assumed that sedatives were given to the patient at the casualty

twenty minutes time is not such a long time in which the sedative

could have impaired the mental capability of the deceased. The

presence of 95% burns by itself do not rule out the possibility of the

patient's capacity to describe the cause of her injuries which proved

to be fatal. It depends upon the physical constitution and will-power

of the person concerned whether after suffering such injury he or

she would be able to make a statement or not. Otherwise also,

there is no reason why Dr. Chaman Prakash would falsely record the

dying declaration of the deceased. It is also submitted on behalf of

the appellant that the Doctor who recorded the MLC as also the

dying declaration of the deceased Ex.PW23/B has not specifically

deposed that the deceased was in fit mental condition when she

made the dying declaration nor he has recorded this in the dying

declaration. We may note that the concerned Dr. Chaman Prakash,

who prepared the MLC Ex.PW1/A/PW23/A and who also recorded the

dying declaration Ex.PW23/B was examined by the prosecution as

PW23. The appellant had an opportunity to cross-examine him

about the mental condition of the deceased, but he did not opt to

ask any question in that regard to clarify the position. There is no

law which requires that the Doctor preparing the MLC or while

recording the dying declaration must give a specific certificate that

he had checked whether the patient was in fit mental state to make

the statement. The certification by the Doctor that the patient is "fit

for statement" itself imply that the patient was in a fit physical and

mental state to make clear and concise statement. The dying

declaration Ex.PW23/B recorded by the Doctor Chaman Prakash is

further corroborated by the dying declaration Ex.PW24/A recorded

by the SDM. We are, thus, unable to accept the argument advanced

by learned counsel for the appellant that the dying declarations

have been recorded in suspicious circumstances and that her

mental faculty was impaired due to excessive burns and

medication. Another argument advanced by the learned counsel for

the appellant is that there is no eye witness to the occurrence and

even the husband of the deceased who purportedly extinguished

the fire and took the deceased to the hospital has not been

examined. Therefore, it would not be safe to base conviction on

dying declaration alone.

13. We fail to appreciate the requirement of any independent

witnesses in such a situation where the crime has not been

committed in the presence of any other person and thus no one

could have been an ocular witness. The deceased was fortunately

able to give dying declarations both to the Doctor and to the SDM.

Both of them are public servants having no motive to falsely

implicate the appellant, as such there is no reason to doubt their

testimony or the dying declaration recorded by them. So far as

husband of the deceased is concerned, he being son of the

appellant was not expected to depose against her. We may note

that nothing prevented the appellant to examine her son in defence

if the story set forth by the prosecution was incorrect.

14. There is force in the argument of learned counsel for the

appellant that in so far as the offence under Section 498A of the IPC

is concerned, the same is not made out. This is apparent even from

the dying declaration where the deceased has categorically stated

that there was no demand for dowry. It does appear that the

aggrieved parents of the deceased have brought in the story of

demand of dowry since the daughter was put to death by the

appellant. To that extent the appeal is liable to be accepted.

15. We find that the impugned judgment in so far as the order of

conviction and sentence under Section 302 of the IPC is concerned

is unexceptionable, though we are unable to agree with the

conclusion of the learned Additional Sessions Judge in so far as the

conviction under Section 498A of the IPC is concerned. The order of

conviction and sentence accordingly stand modified. We set aside

the impugned conviction of the appellant under Section 498A IPC,

while sustaining the conviction under Section 302 IPC and the

sentence awarded for the aforesaid offence.

16. The appeal is accordingly disposed of.

17. The appellant is required to surrender to undergo the

remaining sentence.

18. Learned counsel for the appellant, on instructions from the

appellant, prays that some time may be given to the appellant to

surrender since she is aged and has some property disputes and

she would like to make necessary arrangements to authorize her

husband to take necessary action in that behalf.

19. We accept the said request and direct that the appellant shall

surrender before the Trial Court on or before 23.12.2009,

whereupon the bail bond and surety bond stand cancelled.

SANJAY KISHAN KAUL, J.

NOVEMBER 24, 2009                       AJIT BHARIHOKE, J.
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