Kamla vs State
2009 Latest Caselaw 4814 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment reserved on : November 19, 2009
                                  Judgment delivered on : November 25, 2009

+      CRIMINAL APPEAL NO.138/1996

       KAMLA                                                ..... Appellant
                                        Through: Mr.Ajay Verma ,Amicus
                                                 Curiae/Advocate with
                                                 Appellant in person.

                    Versus

       STATE                                               ..... 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 ?

AJIT BHARIHOKE, J.

1. On 21.1.1991 at about 8.30 p.m, Lady Constable Shashi no.2681/PCR

informed Police Station Gokal Puri that one Ram Sujan had intimated on telephone

that a lady has sustained fire burn injuries at House No.F-2/3 Dalapur, Karawal

Nagar, Delhi. The information was converted into DD No.21 (Ex.PW6/A) and a copy

thereof was sent to SI Champat Singh, PW20 for verification. SI Champat Singh

proceeded to the spot of occurrence where he came to know that injured Malti

(deceased) had been removed to GTB Hospital. SI Champat Singh then reached the

hospital and collected the MLC of injured Malti. He contacted the attending doctor

who declared injured Malti fit for statement and recorded her statement Ex.PW20/A.

The deceased stated that the appellant Kamla was her neighbour and she generally

remained in the company of her husband which was not liked by her. Whenever she

protested, the appellant quarreled with her. On the fateful day, when she demanded

money for expenses from her husband, he gave beating to her in the afternoon. At

around 8.00 p.m., a quarrel ensued between her and Kamla and in the fit of anger,

Kamla picked up a plastic can containing kerosene oil from her house and threw

kerosene oil on her. Thereafter she set her on fire by throwing a lighted matchstick.

On this, she raised alarm and ran outside. Some persons present in the street

extinguished the fire by pouring water on her and rushed her to the hospital. Her

aforesaid statement was attested by Dr. T.S. Daral, PW4. The Investigating Officer

sent said statement along with his endorsement to the police station with a request for

registration of formal FIR under Section 307/34 IPC and on the basis of said ruqqa,

formal FIR was recorded.

2. That the Investigating Officer SI Champat Singh, after the receipt of copy of

the FIR, went to the spot of occurrence. He prepared a rough site plan Ex.PW20/C.

He found one plastic can of kerosene oil at the spot of occurrence which was taken

into possession vide memo Ex.PW7/A. He also got the spot of occurrence

photographed, he requisitioned the services of the SDM for recording the dying

declaration of the deceased and PW21, SDM Sh. K.K. Siam recorded the dying

declaration of the deceased the next morning some time before 11.15 a.m. On

31.1.1991, Malti (deceased) expired in the hospital and on receipt of information of

her death, the offence was converted into Section 302 IPC. Inquest proceedings were

conducted, dead body was sent for post mortem and the post mortem report

Ex.PW15/A was collected and as per the opinion of the post mortem doctor, Dr. L.T.

Ramani (PW15), the patient had suffered burns all over the body and the cause of

death was opined to be septicaemia following infected burns. On 1.2.1991, the

investigation was taken over by Inspector Satyavrat thereafter it was taken over by the

SHO w.e.f. 20.2.1991. On 11.4.1991, scaled site plan was prepared by Inspector

Davinder Singh. On completion of investigation, appellant Kamla was challaned and

sent for trial under Section 302 IPC.

3. The appellant on being charged under Section 302 IPC pleaded not guilty and

claimed trial.

4. During trial, the prosecution examined 21 witnesses to bring home the guilt of

the appellant. PW1 Vidya Sagar, PW10 Sukhraj Singh, PW13 Shri P.L. Chopra,

PW14 Rajesh, son of the deceased and PW17 Balbir Singh who are examined by the

prosecution to prove that there were strained relations between the deceased and her

husband and that the deceased, when the fire was extinguished, was saying that she

was set on fire by the appellant after pouring kerosene on her. The above witnesses,

except PW14 Rajesh, however turned hostile and did not support the case of the

prosecution. Though PW14 Rajesh was also declared hostile, he stated in his

examination-in-chief that when he reached in the gali, his mother was shouting that

Kamla Pandatiyan has set her on fire after pouring kerosene on her. PW20 Inspector

Champat Singh, in his testimony, has proved the dying declaration of the deceased

Ex.PW20/A, which was initially recorded as the complaint statement before

registration of the case and PW21 Sh.K.K. Siam, SDM, Shahdara proved the dying

declaration of the deceased recorded by him on 22.1.1991.

5. The learned Trial Court on consideration of the records found the dying

declaration Ex.PW20/A made by the deceased in presence of PW20 SI Champat

Singh as also the dying declaration Ex.PW21/A made in presence of the SDM

consistent and reliable and convicted the appellant under Section 302 IPC in terms of

the impugned judgment dated 9.5.1996 and by the order on sentence of the even date,

sentenced the appellant to imprisonment for life and to pay a fine of Rs.1,000/- and in

default of payment of the same, to undergo SI for the period of three months.

6. Feeling aggrieved by the above referred judgment of conviction and order on

sentence, the appellant has preferred the instant appeal.

7. The conviction of the appellant rests mainly on two dying declarations

Ex.PW20/A and Ex.PW21/A, purportedly made by the deceased in the presence of

the Investigating Officer PW20 SI Champat Singh and PW21 Sh.K.K. Siam, SDM,

Shahdara.

8. Before adverting to the submissions made by the learned Amicus Curiae on

behalf of the appellant, it would be useful to have a look on the law relating to dying

declaration. It is well settled that conviction can rest solely upon a dying declaration

provided the Court is convinced that the dying declaration is not the result of tutoring,

prompting or imagination of the deceased and it is convinced of the truthfulness of the

dying declaration. In order to find out whether or not the dying declaration is truthful,

the Court is under obligation to look into the other evidence and accompanying

circumstances to satisfy itself. As a matter of prudence, the Court must seek some

corroboration to the dying declaration because it is only a piece of evidence made at

the back of the accused which could not be tested at the anvil of cross-examination.

9. In the case of Paniben Vs. State of Gujarat, AIR 1992 SC 1817, Hon'ble

Supreme Court after realizing various earlier pronouncements of the Supreme Court

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. Learned Amicus Curiae appearing on behalf of the appellant has submitted

that the impugned conviction rests solely upon the purported dying declarations of the

deceased Ex.PW20/A and Ex.PW21/A alleged to have been made by the deceased in

presence of the Investigating Officer SI Champat Singh, PW20 and Shri K.K. Siam,

SDM, Shahdara, PW21. The first challenge of the learned Amicus Curiae to the

impugned judgment is that the Trial Court ought not have relied upon the dying

declaration when prosecution witnesses PW10 Shri Sukh Raj Singh and PW13

Sh.P.L. Chopra did not support the case of prosecution regarding the dying

declaration made by the deceased at the spot, while said witnesses along with others

were extinguishing her fire. Learned Amicus has pointed that PW10 Sukh Raj Singh

stated that the deceased did not tell them as to how she caught fire and PW13 Shri

P.L. Chopra in his examination-in-chief stated that when the deceased was afire she

pointed towards her room and said that person has set her on fire and thereafter her

husband came out of the room and ran away. From the aforesaid evidence, learned

Amicus has urged us to infer that in the first dying declaration, the deceased has

implicated her husband for her plight, which creates a doubt on the correctness of

alleged subsequent dying declarations Ex.PW20/A and Ex.PW21/A.

11. We do not find merit in this contention. Both PW10 and PW13 are hostile

witnesses as they have resiled from their previous statements made to the police.

They were confronted with their respective previous statements but they denied

having made such statement before the police. However, the fact remains that both

PW10 and PW13 claimed themselves to be present at the spot immediately after the

occurrence, but their versions are contradictory. PW10, Sukh Raj Singh stated that

the deceased did not tell them about the cause of the fire whereas PW13 Sh.P.L.

Chopra stated that the deceased pointed towards her house and stated that person has

set her on fire. From the aforesaid material contradictions in the respective versions

of PW10 and PW13, who are hostile witnesses, it is apparent that they are not coming

out with the truth. Therefore, their testimony has to be discarded as unreliable.

12. Learned Amicus Curiae has further submitted that the dying declarations

Ex.PW20/A and Ex.PW21/A purportedly made by the deceased in presence of the

Investigating Officer and the SDM Sh.K.K. Siam, PW21 are not worthy of any

credence because perusal of the dying declaration Ex.PW20/A shows that the

deceased suspected an extra-marital affair between her husband Dinesh Chand and

the appellant. She was opposed to their meeting and she held the appellant responsible

for the ill-treatment meted out to her by her husband. He has urged us to infer from

the aforesaid circumstance that because of said grudge, the deceased might have

falsely implicated the appellant while exonerating her husband of the crime, who

possibly could have set her on fire as from the evidence, and who, as per evidence did

not even care to attend to his wife in the hospital while she was combating for her life.

13. It is nobody's case that the deceased committed suicide. The instant case

being a case of homicide, obviously someone must have set the deceased on fire. In

that eventuality, it is highly improbable that the deceased, in her dying declaration,

would have falsely implicated the appellant to settle a score with her and allow the

real culprit to go scot free. Thus we are not inclined to accept the contention.

14. Learned Amicus Curiae has further argued that the dying declaration

Ex.PW20/A is not free from doubt, firstly, because from the testimony of PW14

Rajesh @ Babloo it appears that the husband of the deceased had visited the hospital

when she was admitted there, therefore, a possibility of the husband of the deceased

having tutored and persuaded the deceased to refrain from naming him as the person

who set her on fire and put the blame on the appellant cannot be ruled out. He has

further argued that it is also not certain whether the deceased was fit for making

statement when the Investigating Officer recorded her statement Ex.PW20/A. In

support of this contention, he has drawn our attention to the MLC of the deceased

Ex.PW4/A on which the endorsement "fit for statement" is in the ink different from

other particulars detailed in the MLC and from this, he has urged us to infer that the

aforesaid endorsement has been subsequently appended on the MLC at the instance of

the police.

15. We are not convinced with the argument. A careful reading of testimony of

PW14 Rajesh @ Babloo shows that in his cross-examination by learned counsel for

the appellant, he stated that his father was present at the spot when public persons

extinguished the fire and he also stated that he was not aware whether or not his father

went to the hospital. Thus the testimony of PW14 does not establish that husband of

the deceased visited her at the hospital. Therefore, the possibility of tutoring of the

deceased by her husband is ruled out. Otherwise also, had the deceased been set on

fire by her husband, under the natural course of circumstances, she would not have

exonerated her husband in her dying declaration and instead falsely implicated the

appellant. Regarding the other limb of the argument, it is true that on the MLC

Ex.PW4/A the endorsement of the Dr.Daral, PW4 to the effect "fit for statement" is in

a different ink. This however, does not help the appellant. Ex.PW6/A is the copy of

DD report No.21A about the information received at the police station regarding one

lady having sustained fire injuries at house No.F-2/3, Dalapur, Karawal Nagar. From

the statement of PW20, SI Champat Singh, it transpires that on the receipt of DD

report, he first went to the spot of occurrence where he found that the deceased had

been removed to the hospital and thereafter he reached GTB Hospital. As per MLC

Ex.PW4/A, the deceased was admitted in the hospital by Vidya Sagar at 9.15 p.m.

PW20, SI Champat Singh stated that on reaching the hospital, he collected the MLC

of the deceased Ex.PW4/A and thereafter he must have obtained the fitness certificate

from the doctor concerned. Thus, it is obvious that there has to be a gap between

recording of MLC and the endorsement on the MLC about the patient being fit for

statement. This explains the difference of ink so far as the fitness certificate is

concerned. Further it is apparent from the record that first information about the

incidence was received at the police station at 8.30 p.m., the deceased was admitted in

the hospital at 9.15 p.m., her statement was recorded by the Investigating Officer

some time before 10.20 p.m. when the rukka is stated to have been sent to the police

station for registration of the FIR, which as per record, was registered at 10.50 p.m.

From the aforesaid sequence of events, it is apparent that the statement of deceased

Ex.PW20/A was recorded by the Investigating Officer within 2 hours and 20 minutes

of the occurrence. There is no evidence on record to suggest that during this period

anyone tried to influence or tutor the deceased. There was no reason whatsoever for

the Investigating Officer to record incorrect statement of the deceased to falsely

implicate the appellant. Further, perusal of the statement Ex.PW20/A shows that it

was even attested by the attending doctor, which also gives an assurance of

correctness of the statement. Thus, we do not find any reason to discard the dying

declaration Ex.PW20/A.

16. Coming to the dying declaration recorded by the SDM Shahdara, learned

Amicus Curiae has submitted that dying declaration Ex.PW21/A recorded by the

SDM is not worthy of reliance, firstly, because it is not recorded in the exact words of

the deceased, secondly, leading questions were put to the deceased by the SDM which

indicates that the answers were extracted by giving suggestions to the deceased.

Thirdly, he has submitted that admittedly the SDM did not even bother to contact the

doctor to seek his opinion on whether or not the deceased was fit for making

statement and lastly it was argued that the SDM Sh.K.K. Siam was not even aware of

procedure, as is apparent from the endorsement at the bottom the dying declaration

Ex.PW21/A that "after questioning her, it has come to my knowledge that the case

does not comes under Section 176 but Section 174, the concerned police is directed

to proceed under Section 174".

17. We do not find much merit in the above argument. Perusal of the dying

declaration Ex.PW21/A shows that at the very inception, the deceased has stated that

"she was burnt by Kamla Devi, she is not my relative but my neighbourer" and that

answer is not in response to a leading question. Thereafter he put a question "why

burnt" and she answered "because she (Kamla Devi) is jealous of me". The next

question put to her, however, is suggestive in respect of relationship between the

appellant and the husband of the deceased, to which the deceased replied that her

husband used to stay with her and he sometimes used to come in and stay with the

deceased. Even if the answer to this suggestive question and the 77 are discarded,

then also, the dying declaration was complete when the deceased stated at the outset

that she was burnt by Kamla Devi, appellant. Therefore, it cannot be concluded that

version of the deceased about the cause of her fire burn injuries, which proved to be

fatal, was in response to the leading question. From the manner in which the dying

declaration Ex.PW21/A is recorded and also the endorsement at the bottom given by

the SDM, it is obvious that the SDM was not fully aware of his responsibilities while

recording the dying declaration, nor he was conversant with the procedure and

precautions to be taken while recording the dying declaration. This by itself cannot

be the reason to discard said dying declaration which is consistent with the earlier

dying declaration Ex.PW20/A recorded by the Investigating Officer and appears to

have been recorded fairly. The incompetent manner in which the dying declaration

Ex.PW21/A has been recorded by the SDM, in our view, is an assurance of the fact

that the SDM recorded said dying declaration on his own, uninfluenced by extraneous

factors of the I.O. Had he taken guidance from the Investigating Officer, the form and

shape of dying declaration would have been something different and it would have

been more or less the replica of the dying declaration Ex.PW20/A. Thus, we find no

reason to reject the dying declaration Ex.PW21/A. It is true that PW21 K.K. Siam did

not consult the doctor before recording the dying declaration to ensure that the

deceased was fit for making statement, yet the fact that the dying declaration

Ex.PW21/A is consistent with the dying declaration Ex.PW20/A is an assurance that

while giving stated dying declaration before the SDM, deceased understood the nature

of questions and was in a fit state of mind to state about the circumstances leading to

her death i.e. the appellant having set her on fire, we find no reason to give much

importance to this aspect of the case.

18. In view of the discussion above, we find no infirmity in the dying declarations

Ex.PW20/A and Ex.PW21/A so as to suspect the truthfulness of the dying

declarations. Both the dying declarations are consistent in blaming the appellant

Kamla for setting the deceased on fire, therefore, we find no reason to interfere with

the impugned judgment of conviction based upon the above referred dying

declarations.

19. The appeal is therefore dismissed.

20. The appellant is on bail. Her bail bond and surety bond stand cancelled. She

be taken into custody and sent to jail for undergoing the remaining sentence.

AJIT BHARIHOKE, J.

NOVEMBER 25, 2009                           SANJAY KISHAN KAUL, J.
gm