Jagmohan vs State
2009 Latest Caselaw 4810 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 12th November, 2009
                   Judgment Delivered on: 25th November, 2009

+                       CRL.APPEAL NO.676/2001

       JAGMOHAN                               ...........Appellant
           Through:     Mr.Dinesh Mathur, Sr. Adv. with
                        Mr.Shishir Mathur, Advocate

                              Versus
       STATE                                ...........Respondent
           Through:     Mr.M.N.Dudeja, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

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

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

     3. Whether the judgment should be reported in the
        Digest?                                        Yes

PRADEEP NANDRAJOG, J.

1. Jagmohan, husband of late Chander Kanta has been

convicted for the offence of having murdered Chander Kanta

and for which he has been sentenced to undergo imprisonment

for life. He has also been convicted for the offence punishable

under Section 498-A IPC and for which he has been sentenced

to undergo rigorous imprisonment for three years and pay a fine

in sum of Rs.2,000/-.

2. In convicting the appellant for both offences the

learned Trial Judge has relied upon the testimony of Kumari

Kanchan PW-3 and Kumari Karuna PW-4 aged 10 years and 9

years respectively when their mother was burnt i.e. on

26.4.1997. The two deposed in Court after about one year of

the incident. Both of them have deposed that their father used

to demand money from their mother and under influence of

liquor used to subject her to cruelty. Both of them have

deposed that they saw their father pour kerosene oil on their

mother and set her on fire. The learned Trial Judge has held

that the statement Ex.PW-25/A made by Chander Kanta to SI

Yashpal Singh PW-25 was her dying declaration and as per the

same the appellant had poured kerosene oil on her and

thereafter set her on fire. For the acts of cruelty, the learned

Trial Judge has also relied upon the testimony of Chander

Kanta's parents i.e. PW-1 and PW-2 as also her brother PW-23.

The learned Trial Judge has also relied upon Ex.P-1, a letter

proved to be written by Kanta about 15 days prior to 26.4.1997.

3. Briefly stated, the case of the prosecution is that the

appellant Jagmohan @ Pappu was married to Smt.Chander

Kanta (the deceased) about 13/14 years prior to April 1997.

They had 4 children; being, 2 daughters; namely, Kanchan and

Karuna and 2 sons; namely, Devender and Chanderkant.

Appellant Jagmohan was a drunkard and used to demand

money from the deceased and when the deceased declined, he

used to subject the deceased to cruelty. Some 15 days prior to

26.4.1997, the appellant shaved the hair on the head and

eyebrows of the deceased and cut her nose with a razor. On

26.4.1997, appellant told the deceased to arrange some money

from her parents and at around midnight when the deceased

told him that she did not bring any money from her parents,

appellant poured kerosene oil on her and set her on fire.

4. Process of criminal law was set into motion when at

12:30 midnight on 26.4.1997 HC Paitu Oraon PW-14, the Duty

Officer at PS Chandni Mahal received telephonic information

about a lady having been burnt by her husband at House

bearing Municipal No.1172, Hawa Mahal, Raquab Ganj, Chandni

Mahal, Delhi and recorded DD No.4B, Ex.PW-14/A. A copy of

said DD was handed over to ASI Mansa Ram PW-16 who,

accompanied by Const.Sanjay Kumar PW-19 went to the place

of incident and learnt that the injured lady had been removed to

Jai Prakash Narain Hospital. SI Yashpal Singh PW-25 also

reached the spot and took over the investigation from ASI

Mansa Ram. He went to Jai Prakash Narain Hospital and

collected the MLC Ex.PW-21/A of Chander Kanta which records

that the patient was brought to the hospital at 12:50 A.M. by

Geeta and HC Joginder and that patient was unconscious and

had 100% burns on her person. It stands recorded that the

history of the burns as told by Geeta is that the husband of the

patient had set her on fire after pouring kerosene oil on her. As

per the endorsement Ex.PW-21/B on said MLC, at 1:50 AM on

the same day i.e. 26.4.1997 Dr.Shyamanta Baruah declared the

patient fit for statement. In the presence of Dr.Shyamanta

Baruah, SI Yashpal Singh recorded statement Ex.PW-25/A of the

deceased wherein she stated that her husband Jagmohan was a

drunkard and spent all his earnings on liquor. He used to tell her

to arrange money from her parents, and on her being unable to

do so, used to beat her. Even that day, when she declined a

similar demand of Jagmohan he poured kerosene on her and set

her on fire. After recording said statement SI Yashpal Singh

obtained the right thumb impression of the deceased on the

same. He made endorsement Ex.PW-25/B under said statement

of the deceased and at 2:50 AM sent it through Const.Sushil

Kumar PW-20 for the registration of an FIR. FIR Ex.PW-14/B was

registered at PS Chandni Mahal for the offences punishable

under section 498-A/307 IPC. After having sent for the

registration of the FIR, SI Yashpal Singh returned to the place of

occurrence, prepared a rough site plan Ex.PW-25/C thereof at

the instance of the daughter of the deceased and got the site

photographed. He recorded the statements of the daughters of

the deceased and seized a plastic can, burnt and partly burnt

clothes and one matchbox lying at the spot as recorded in

seizure memo Ex.PW-3/A.

5. At 8:10 AM on 26.4.1997 Chander Kanta expired and

DD No.14B, Ex.PW-14/C with respect to the same was recorded

at PS Chandni Mahal. FIR which was earlier recorded only for

the offence punishable under sections 498-A/307 IPC was

converted to offences punishable under sections 498-A/302 IPC.

SI Yashpal conducted the inquest proceedings and prepared the

inquest papers Ex.PW-25/D and after getting the dead body duly

identified, sent it for the conduct of post-mortem. He recorded

statements of Banwari Lal PW-1 and Pradeep Kumar PW-23, the

father and the brother of the deceased respectively. He seized

the letter Ex.P-1 vide memo Ex.PW-25/F, handed over by

Banwari Lal stated to have been written by the deceased 15

days prior to the incident in which she complained to her

parents about the appellant subjecting her to torture.

6. On the same day i.e. 26.4.1997, Dr.S.B.Singh PW-8

conducted post-mortem on the body of the deceased and

prepared his report Ex.PW-8/A. The external injuries noted in

the post-mortem report read as under:-

"Dermo-epidermal-burn injuries present all over the body except right palm, inner half of back of right forearm and hand and both soles of feet. Skin was peeled off. At most of the places exposing red and white base. Blackening of the unpeeled skin was present due to deposition of soot particles. Line of redness was present at margins of burn injuries. All body hairs were burnt and singed. Smell of kerosene was present over the body.

Approximately 95% of the total body surface area was burnt."

(NB: Underlining has been emphasized)

7. The appellant was arrested and put to trial. Needless

to state, the prosecution hinged its case on Ex.P-1, the

handwritten note of Chander Kanta penned two weeks prior to

the date of the incident and the testimonies of her two

daughters, the testimony of Geeta and the testimony of the

parents and the brother of the deceased.

8. Kumari Kanchan PW-3 deposed that she was aged 11

years and the deceased Chander Kanta was her mother. That

her father used to harass her mother for bringing money from

her parents. He used to gamble and often used to beat her and

her siblings. He had often shunted them out of the house in the

middle of the night. Her father shaved the head and eye-brows

of her mother and injured the nose of her mother with a razor.

Her mother wrote about this in letter Ex.P-1 which she handed

over to her maternal grandmother. On 25.4.1997 her father

demanded money from her mother and when her mother

refused, he poured kerosene oil on her mother and set her on

fire by lighting a match stick. Her aunt (Tai) Geeta removed her

mother to the hospital.

9. Kumari Karuna PW-4 deposed that she was aged 10

years and the appellant was her father and Chander Kanta was

her mother. Appellant had set her mother on fire on 25th April.

That day, appellant came home and enquired from her mother

whether she brought money. When her mother denied,

appellant, after pouring kerosene on her mother set her on fire.

Even prior to this, the appellant and her mother used to quarrel

and once appellant had shaved the head and eye-brows and

had cut the nose of her mother with a razor. On cross-

examination she admitted that one Sartaj used to visit their

house when appellant was not there and that her mother often

went with Sartaj and appellant had to bring her back. Appellant

used to object to this. On one occasion her mother took her

siblings and her to Noida and they stayed there with Sartaj for

about 4 days. 10-15 days prior to her mother being burnt, her

mother had consumed poison but was saved when her sister

Kanchan made her mother vomit the poison.

10. Banwari Lal PW-1, the father of the deceased Rani

Devi PW-2, the mother of the deceased and Pradeep Kumar PW-

23, the brother of the deceased deposed in line with the

deposition of Kumari Karuna and Kumari Kanchan pertaining to

the appellant physically torturing his wife on the issue of money

to be given to him for purchasing liquor. They deposed that the

deceased was being given petty money and food stuff for her

survival. All three stated that the appellant had shaved the eye-

brows and the head of the deceased a few days prior to

26.4.1997 and that Ex.P-1 was in the handwriting of the

deceased which records the fact that the deceased had been

subjected to immense cruelty by the appellant.

11. Geeta PW-5, who admittedly is the elder sister-in-law

(jethani) of the deceased turned hostile and deposed that to her

knowledge the deceased and the appellant never quarreled.

Pertaining to what transpired in the night of the fateful day, she

deposed that at 11:45 PM she heard cries from the house of the

appellant and the deceased which was at a distance of 50 paces

from her house. When she reached the house of the appellant

and the deceased, the deceased was burnt and thus she took

her to the hospital. On the way, the deceased wanted to say

something, but could not.

12. It may be noted here that the learned Public

Prosecutor has not questioned Geeta with reference to the

recording contained in the MLC Ex.PW-21/A that Geeta had told

the doctor that the patient had sustained burn injuries when her

husband, after pouring kerosene oil on her, burnt her.

13. SI Yashpal Singh PW-25 deposed that after he

reached the hospital from the doctor on duty he obtained the

endorsement Ex.PW-21/B on the MLC Ex.PW-21/A, certifying

that the patient was fit for statement and thereafter recorded

the statement Ex.PW-25/A of Chander Kanta.

14. In his examination under Section 313 Cr.P.C. the

appellant stated as under:-

"It is a false case. I have not committed any offence. I never had asked my wife on the point of money. She herself committed suicide by pouring kerosene oil. On the day of occurrence my two daughters had gone to their Tai's house to see the T.V. and my son was present in the house. My wife quarreled with me and threatened to set on fire. I did not take it seriously thinking that she was joking and I went out of the room and went into the courtyard to take a bath. While I was still going in the courtyard to take a bath my son Devender and another son Chanderkant came to me and stated that my wife

had set herself on fire. I rushed into the veranda in the rear side where she had gone to cook food. I saw that she was burning with fire. I wrapped a bed-sheet around her and extinguished fire from her person. I also sustained burn injuries on my both hands and feet in that process. I was helped by one person Mukesh Kumar to extinguish the fire. My bhabi Smt. Geeta also came there. She took her to the hospital whereas I went to my in-laws house to inform them. I along with my mother-in-law and father-in- law came to the hospital to see her. I remained in the hospital through out the night whereas my parents-in-law left for their house at about 3 or 4.00 AM to refresh themselves and to come again to the hospital. At about 6.00 AM one Ct. came there and on being asked by him I accompanied him to PS Chandni Mahal he had told me that my statement was to be recorded and so I accompanied him to the PS. In the noon time I was taken to the JPN hospital for medical examination/treatment and thereafter I was brought back to the PS and was arrested in this case. My wife had illicit relations with one person namely Sartaj. She used to meet him and eloped with him on a number of occasions. I used to bring her back sometimes from guest house and sometimes from other places where she used to stay with the said Sartaz. She used to say openly that she wanted to reside with said Sartaz. She used to say that either she will stay with Sartaz or she will commit suicide. She committed suicide on that account."

15. In his defense, the appellant examined his son

Devender as DW-1. Devender was examined on 11.9.2000 and

on that day he was aged 10 years. He deposed that on the

night of the incident his sisters were in the house of his Tai

watching television when his father returned at around 10:00

PM. His mother picked up a quarrel and threatened to burn

herself. His father went to take a bath and his mother set

herself on fire. His parents used to quarrel for the reason his

mother had once eloped with Sartaj.

16. Pertaining to the statement Ex.PW-25/A made by the

deceased to SI Yashpal Singh PW-25, no doubt, if voluntarily and

correctly made by the deceased soon before her death, since

the same records a statement of fact pertaining to the death of

the maker of the statement, the same undoubtedly has to be

treated as a dying declaration of the deceased. Thus, the first

and foremost question to be posed and answered is, did the

deceased make any such statement as is claimed by SI Yashpal

Singh.

17. As per SI Yashpal Singh, from the doctor on duty he

obtained the endorsement Ex.PW-21/B on the MLC of the

deceased, certifying her to be fit for statement.

18. A perusal of the said endorsement shows that the

word 'unfit' has been first written and then scored off and above

the said word, the word 'fit' has been written. In other words,

the sentence, 'Pt. is unfit for statement' has been converted to

read 'Pt. is fit for statement'. It assumes significance to note

that Dr.Shyamanta Baruah, the author of the endorsement has

not been examined. It also assumed significance to note that

Dr.Sandeep Dhuriya, the doctor on duty who has prepared the

MLC after examining the patient has clearly recorded that the

patient is unconscious. It is also equally important to note that

it stands recorded in the MLC that the patient was admitted at

the hospital at 12:50 AM. The endorsement Ex.PW-21/B records

the time 1:50 AM. The time difference between the patient

being brought to the hospital and the condition recorded as

unconscious and the endorsement certifying the patient fit is a

mere one hour. The cumulative of the trinity of circumstances

i.e. the patient being recorded as unconscious at 12:50 AM; the

patient being badly burnt (nearly 100%); there being a cutting

on the endorsement Ex.PW-21/B and the doctor concerned not

being examined compels us to doubt the veracity of the stand

of SI Yashpal Singh that Chander Kanta was in a fit condition to

make any statement.

19. The issue has another angle to be looked into.

Chander Kanta was having an affair which was more than

platonic with Mohd.Sartaj. This fact has been proved by the

admissions made by Kumari Karuna, a star witness of the

prosecution. Her testimony also establishes and so does Ex.P-1

that the appellant had subjected Chander Kanta to extreme

cruelty about 15 days prior and Chander Kanta had even

attempted at suicide. Thus, even if Chander Kanta was fit to

make a statement, there is a possibility of her falsely

implicating the appellant as she has a motive to do so. We may

note that in the decision reported as 2006 (2) SCALE 482 P.Mani

vs. State of Tamil Nadu, the Supreme Court had spoken a word

of caution with respect to dying declarations requiring the trier

of the fact to guard against a motive in a dying declaration.

20. Since the learned Trial Judge has overlooked the

afore-noted features pertaining to the statement Ex.PW-25/A,

we conclude by holding that the reliance by the learned Trial

Judge on the said statement as a dying declaration of the

deceased, duly proved, is wrong.

21. Having perused the testimony of Kumari Kanchan

PW-3 and Kumari Karuna PW-4, no doubt, nobody can urge that

at a first reading of their testimony as also their cross-

examination, the two young girls have to be doubted. For, it

can always be urged, and indeed very powerfully, that being

daughters of the appellant and the deceased, they were neutral

persons and would have no motive to speak against their father.

The incident having taken place at around midnight further

establishes the fact that they were present in their house;

indeed, young girls aged 9 years and 10 years are expected to

be with their parents at the middle of the night. We note that

the incident took place between 12:00 midnight to 12:30

midnight.

22. But, there are certain features of the instant case,

which unfortunately have been overlooked by the learned Trial

Judge, which compels us to doubt the truthfulness of what has

been deposed to by the two young girls. Further, a reason why

the two young girls did so is also plausible and emerges from

the evidence brought on record.

23. The feature which has remained unnoticed by the

learned Trial Judge is the fact that the body of the deceased has

spoken something which has not been heard. What has the

body spoken and how? The body has spoken through the post-

mortem report Ex.PW-8/A and the testimony of Dr.S.B.Singh PW-

8. As noted above in para 6 above, in the post-mortem report it

has been clearly recorded that the entire body of the deceased

except right palm, inner half of back of right forearm and hand

and both soles of feet were burnt. While being cross-examined,

Dr.S.B.Singh admitted: It is correct that right palm and back of

the right forearm and hand were not burnt.

24. Though apparently insignificant, the same conveys

much. A similar dead body had spoken on an earlier occasion

which stands narrated in the decision reported as 1999 SCC

(Cri.) 352 Pavankumar Parasnath Trivari vs. State of Gujarat. It

was noted and simultaneously observed as under:-

"It may be indicated here that Mr.Sushil Kumar, the learned counsel for the appellant has also submitted that both the palms of the deceased were not burnt. Such a fact indicates that she had committed suicide because in that event, the palms were not likely to be affected. In a case of homicidal burning by pouring kerosene oil on the body by another person, the palms along with the other parts of the body will get burnt."

25. We may only supplement by bringing out the logic in

the aforesaid conclusions drawn by the Supreme Court. Firstly,

when a person holds a can containing kerosene oil in one hand

or both and then pours kerosene oil on self, depending upon

whether the can or the container containing the kerosene oil is

held by one or both hands, one or both hands would not have

kerosene oil being poured on the hand or the hands. But when

somebody else were to sprinkle kerosene oil, the natural

reaction of the victim would be to defend by bringing both

hands in front in a defensive action. In this situation, kerosene

oil is bound to fall on the hands. More so, as in the instant case

where it is proved that a large quantity of kerosene oil is poured

on the body of the victim. The evidence of excess kerosene oil

used in the instant case is proved by the fact, as recorded in the

post-mortem report, nearly 100% of the body was burnt; there

was charring/blackening of the unpeeled skin and soot was

detected in the trachea and stomach. All of them cumulatively

show that a large quantity of kerosene oil was used. The

second and the more powerful logical reason is the natural

reaction of every person to preserve the self. If any part of the

body catches fire, the instinctive reaction is to try and stamp

out the fire with the use of the hands. This

defensive/preventive action of self preservation would result in

the hands showing burn injuries. But where a person commits

suicide and lifts a can containing kerosene oil with one hand and

after pouring kerosene oil on oneself sets oneself on fire, the

hand with which the can was lifted would remain unaffected; the

other would not be so. Being voluntarily burnt and the fire

being self induced, the unaffected hand would not react to any

instinctive defensive/protective action.

26. The aforesaid fact which seemingly looks trivial and

hence escaped the notice of the learned Trial Judge, looked at

as aforesaid is not a trivial fact but is a fact of considerable

significance and importance. The same very strongly

probablizes the deceased having committed suicide; in any case

dents the strong proof required at a criminal trial with reference

to the standard to be achieved by the prosecution.

27. Having noted and said as aforesaid, we proceed to

answer as to why the two daughters who are expected to be

neutral towards their parents have deposed against their father.

28. From the testimony of the parents of the deceased

and even from the testimony of her brother it emerges that the

appellant was so addicted to alcohol that he was ignoring the

basic needs of his children in the form of even providing them

with food. Obviously, the children were mature enough to

understand that their plight was due to the wayward habits of

their father. Further, they were a witness to their father beating

their mother under influence of alcohol. Now, the incident has

admittedly taken place somewhere past midnight. It is a time

when children are deep in slumber. It is apparent that the

children rose from the slumber either when they heard their

parents fight or when their mother caught fire and there was

commotion in the house. If latter was the cause for the two

young girls to awake, it can well be argued that on seeing their

mother on fire and their father nearby, the two young girls

instinctively formed an impression that it was their father who

was the culprit and allowed their imagination to speak as if it

was a reality. The mind is very fertile. It can connect past and

current events and supply the omissions as if the omission was

actually seen by the narrator of the fact. This could be the one

possible reason as to why the two young girls deposed against

their father.

29. In the teeth of the post-mortem report and the fact

that the right hand palm as also the inner back of the right

forearm of the deceased has remained unaffected by the fire,

with reference to the decision of the Supreme Court in

Pavankumar's (supra); noting the totality of the facts and

circumstances herein above noted, we conclude by holding that

the facts of the instant case warrant a benefit of doubt to be

granted to the appellant pertaining to what happened on

26.4.1997 and accordingly we proceed to acquit the appellant of

the charge of having murdered his wife. But, in the teeth of the

testimony of the daughters of the appellant, his parents-in-law

and his brother-in-law, we convict him for the offence

punishable under Section 498-A IPC and maintain the relatable

sentence thereto.

30. The appeal is partially allowed. The conviction of the

appellant for the offence of murder is set aside and he is

acquitted of the said charge. The conviction of the appellant for

the offence punishable under Section 498-A IPC is affirmed.

Noting that by the time the appellant was admitted to bail he

had already undergone an actual sentence of 4 years, 2 months

and 10 days as on 7.7.2001, i.e. a sentence much in excess of 3

years rigorous imprisonment, the maximum sentence

contemplated for the offence punishable under Section 498-A

IPC, we discharge the bail bond and surety bonds furnished by

the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE NOVEMBER 25, 2009 mm / DHARMENDER