Nand Lal vs State Of Delhi
2009 Latest Caselaw 4138 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: September 14 , 2009
                                 Judgment delivered on : October 13, 2009


+      CRIMINAL APPEAL NO. 214/1995

       NAND LAL                                         ..... Appellant
                          Through:     Mr. Rajesh Mahajan, Advocate/
                                       Amicus Curiae

                    Versus

       STATE OF DELHI                                    ..... Respondent
                    Through:           Mr. Sunil Sharma, Advocate

       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. This appeal arises from the judgment of the learned Additional

Sessions Judge, Karkardooma Court, Shahdara in Sessions Case

No.12/88 arising out of FIR No.42/87 under Section 302 IPC, P.S.

Krishna Nagar, Delhi. By the impugned judgment, appellant Nand Lal

has been convicted for the offence punishable under Section 302 IPC

for the murder of his wife Satwati and son Lakhan by setting them on

fire after pouring kerosene oil on them. The learned Additional

Sessions Judge vide his order on the point of sentence dated

15.09.1995 sentenced the appellant to undergo imprisonment for life

and also to pay fine of Rs.10,000/- and in the event of failure of

payment of fine, to undergo imprisonment for a further period of three

months.

2. Briefly stated, case of the prosecution is that on 11.02.1987, one

Om Prakash visited police post Kanti Nagar within the jurisdiction of

P.S. Krishna Nagar and informed that a woman and a child had

sustained burn injuries in Gali No.4, Shanti Mohalla. This information

was passed on wireless to the Police Station Krishna Nagar and was

recorded as DD entry No.20A at 1.40 AM on 11.02.1987. Copy of the

DD entry was entrusted to SI Rajbir Sharma for necessary action. SI

Rajbir Sharma, alongwith Constable Joginder Singh left the Police

Station for verification of DD report and visited House No.3664, Gali

No.4, Shanti Mohalla, Delhi. There, he came to know that injured

Satwati and her child Lakhan had been removed to JPN Hospital. In the

meanwhile, PW Ram Dhani got injured Satwati as well as her son

Lakhan admitted at JPN Hospital at about 2.45 AM on 11.02.1987.

Appellant Nand Lal was also admitted in the Hospital at 2.55 AM. SI

Rajbir Sharma collected their respective MLCs. Satwati, deceased, as

per her MLC gave alleged history of the occurrence "of having been put

on fire with kerosene oil by her husband Nand Lal in House X-3664, Gali

No.4, Shanti Mohalla". As per the MLC of injured child Lakhan, Ram

Dhani gave the history "being caught by fire in his home with his

mother". Appellant Nand Lal gave alleged history of "being caught by

fire when he tried to put off the fire of his wife (Satwati) he burnt his

hands". It was also recorded in the MLC of Nand Lal that "according to

the patient he was lying and saw the fire in which his wife and child

Lakhan Singh were present".

3. Deceased Satwati in her statement Ex.PW20/B made before the

SI stated as under:

"I reside at the above- mentioned address alongwith my family. I have got three children. I am the second wife of Nand Lal. His son namely Rajinder is begot from his former wife and Nand Lal has begot two sons from me namely Lakhan Singh and Deepak. I am a house-wife and my husband Nand Lal is a „ Halwai‟ by profession. Tonight, I was sleeping with my husband in my room. My husband Nand Lal had been quarrelling with me for the last about two days as he could not receive his meals at proper time at his shop. Tonight, my husband took out kerosene oil from the kitchen and poured the same on my person. Thereafter, he lit a match stick and set a fire my clothes as a result whereof, I loudly cried and after a short while, my neighbours reached the spot. I do not know their names. I have been married for the last about eight years. I have heard the contents of my statement made by me in my rightful five senses and the same are correct."

4. On the basis of Rukka sent to the Police Station, formal FIR

No.42/87 under Section 307 IPC was registered at P.S. Krishna Nagar

and the investigation was handed over to SI Rajbir Sharma. He

returned to the spot of occurrence and prepared the rough site plan

along with the marginal notes. He also got the scene of crime

photographed and requisitioned SDM Shahdara on 11.02.1987. Shri

Sanjay Partap Singh, SDM Shahdara visited JPN Hospital at 10.30 AM on

11.02.1987 and recorded the dying declaration/statement of the

deceased Satwati, which is more or less similar to the statement of the

deceased Satwati Ex.PW20/B recorded by the Investigating Officer.

5. On 11.02.1987, SDM Sanjay Partap Singh also visited House

No.3664, Shanti Mohalla, Old Seelampur, Delhi and inspected the room

in which the occurrence took place. There, he found a burnt cot, a five

ltrs tin of kerosene oil with some kerosene oil still left, two crutches

slightly blackened with smoke, half burnt rajai, burnt pillow and a

match box with matchstick. He, however, did not find any appliance

like stove which could suggest the case of accidental fire. In the

adjoining kitchen, there was a stove and utensils for cooking were

lying there. On verbal inquiries from the neighbours, the SDM found

that at around 1.30 AM, the neighbours heard cries and when they

came down, they saw the victims Satwati and her son Lakhan in burnt

condition. Appellant Nand Lal was standing outside the exit and he

had called an auto rickshaw and was trying to escape. The neighbours

tried to stop him, but Nand Lal insisted on going away and managed to

go away on the scooter.

6. On 15.02.1987 at about 6.30 AM, the child Lakhan expired and

information of his death was conveyed to the Police Station vide DD

No.4A. SDM Shri Sanjay Partap Singh and the Investigating Officer

were also informed about the death of Lakhan. As such the inquest

proceedings were conducted and the body of Lakhan was sent for post

mortem.

7. On 17.02.1987, injured Satwati also expired at 10.45 PM.

Information of her death was passed on to the Investigating Officer as

well as the SDM. The SDM conducted inquest proceedings with the

help of SI Rajbir Sharma. SI Rajbir Sharma arranged for the post

mortem of the dead body of Satwati, which was carried out on

20.02.1987. Four pullandas were handed over to Constable Bali Singh

and those were produced before SI Rajbir Sharma. On 03.03.1987, SI

Balwant Singh sent those pullandas to CFSL for examination. Scaled

site plan of the place of the occurrence was prepared by Balbir Singh,

PW2 Assistant Draftsman on the pointing out of SI Rajbir Sharma.

Report from CFSL was obtained and after completion of investigation,

the appellant was sent for trial for offence punishable under Section

302 IPC.

8. On being charged under Section 302 IPC for committing murder

of his wife Satwati and son Lakhan, the appellant pleaded not guilty

and claimed to be tried.

9. On conclusion of trial, the learned Additional Sessions Judge

found the appellant guilty of committing murder of the deceased

Satwati and the deceased Lakhan.

10. The conviction is essentially based upon the dying declarations of

the deceased Satwati. As per the case of the prosecution, the first

dying declaration was made by the deceased in presence of Dr. Anand

Rathoria, PW19 when she gave the history of the cause of her burn

injuries to the Doctor at the time of preparation of her MLC Ex.PW19/A.

The second dying declaration being the statement given by the

deceased Satwati Ex.PW20/B to the Investigating Officer SI Rajbir

Sharma, PW20 which formed basis for the registration of the FIR

against the appellant. Third dying declaration being the statement

Ex.PW16/A given by the deceased Satwati to the SDM Shahdara, Shri

Sanjay Partap Singh, PW16.

11. Learned counsel for the appellant has challenged the impugned

judgment on the ground that none of the above three purported dying

declarations of the deceased Satwati are worthy of credence.

12. As regards the first dying declaration of the deceased Satwati

purportedly recorded by Dr. Anand Rathoria, PW19 on MLC Ex.PW19/A,

learned counsel for the appellant has submitted that Dr. Anand

Rathoria, PW19 in his examination in court has admitted that the

condition of the patient was very critical when she was admitted in the

hospital. He has pointed out that as per the medical history as

recorded in history papers Ex.CX-1, the general condition of the

patient was very very low, temperature extremely cold, pulse feeble,

dehydration+++ and injection pathediene 100 mg was also

administered to the patient who had suffered 97 per cent burns and

submitted that considering the aforesaid medical condition of the

patient, it is not probable that she would be fit to make a statement

particularly when PW19 the Doctor has admitted in his cross-

examination that mental faculties of a patient having such severe

burns are affected. He has further submitted that even if it is assumed

for the sake of argument that the patient Satwati at that time was able

to speak, it cannot be safely inferred that she was in a fit state of mind

to make a dying declaration.

13. In support of this contention, he has relied upon the judgment of

Delhi High Court in the case of Smt. Amrik Kaur Vs. State, 1989 (2)

RCR 250 wherein it was, inter alia, observed thus:

"29.There is yet another aspect to be considered for appreciating the claim of the prosecution about the making of dying declaration by Smt.Harpreet Kaur . Dr.K.N. Srivastava (PW7) has admitted that the case sheet in respect of Smt.Harpreet Kaur shows that at 7.05 P.M. on 8th September 1983 the patient was prescribed injection morphia 1/4 grain equivalent to 15 mg. He has made a categorical statement that it is a sedative given for the relief of pain and has its effect for about 8 hours. He has, however, claimed that he was not sure if it was actually given or not before recording her statement. He has claimed that whenever such injection is given to patient the sister on duty usually ticks the place of prescription but there is no such mark against all the medicines. We are very clear in our mind that a person in critical condition taken to the Casualty would immediately be given the treatment prescribed by the doctor attending to the patient and there can possibly be no question of not doing so especially to a patient like Harpreet Kaur who was having 95 per cent burns and in critical condition. Morphia is stronger than Pathedene and a judicial notice can be taken that a patient given such an injection in such condition would not have normal alertness and so it would be difficult to give full credence to the statement of the doctor that she was fully fit to make a statement. We find support for this view from the case State (Delhi Administration) Vs. Laxman Kumar and others (supra)."

14. We are not convinced with the argument. As per case of the

prosecution, the occurrence took place at 12.30 AM and the deceased

Satwati was admitted in the hospital on 11.02.1987 at 2.45 AM.

Perusal of the MLC Ex.19/A reveals that PW19 Dr. Anand Rathoria

examined the patient and he recorded on the MLC that the patient

informed alleged history "being put into fire with the kerosene oil by

her husband Nand Lal in the House X-3664, Gali No.4, Shanti Mohalla".

Dr. Rathoria was examined as PW19 and he has categorically stated

that on 11.02.1987 at about 2.45 AM, he examined patient Satwati W/o

Nand Lal brought by a police Constable and on his inquiry the patient

herself narrated the aforesaid history. He further stated that the

patient was conscious and well-oriented in time, space and person and

all her vitals were maintained i.e. pulse was regular and respiration

was regular. There is no reason to disbelieve the testimony of Dr.

Rathoria who is an independent witness and had no axe to grind with

the appellant. Otherwise also, his fairness is writ large on record

because as per the MLC of the appellant Nand Lal Ex.PW19/C which

was also prepared by him, he had recorded the history given by Nand

Lal as "being caught by fire when he tried to off the fire of his wife

Satwati. He burnt his hands. According to the patient, he was lying

and saw the fire in which his wife and child Lakhan Singh was present".

This is sufficient assurance that Dr. Rathoria had honestly recorded the

history given by the appellant. Had there been any manipulation or

intention to falsely implicate the appellant, the Doctor would not have

recorded the above history on the MLC of Nand Lal, which has some

potential of providing defence to him. So far as the physical condition

of the deceased is concerned, it is not always true that a person with

90 per cent or 100 per cent burns is not in a position physically or

mentally to make a statement. Above observation in the case of Smt.

Amrik Kaur Vs. State (supra), in our view, is of no help to the

appellant because in that case the patient had been administered

sedative injection prior to recording of dying declaration. In the instant

case, the dying declaration Ex.PW19/A was recorded by Dr. Anand

Rathoria immediately on being brought to the casualty. Till then

admittedly no treatment had started, nor she was administered any

sedative. Therefore, there is no reason to infer that her mental faculty

was clouded and she was not in a fit state to make statement.

15. The second dying declaration of the deceased was made to the

Investigating Officer in the form of the complaint statement Ex.PW20/B,

which formed basis of the registration of FIR against the appellant.

Learned counsel for the appellant has challenged the authenticity of

the dying declaration Ex.PW20/B on the ground that it purports to bear

the signatures of the deceased Satwati, which is an impossibility

because of the above referred medical condition of the deceased and

also because the deceased had suffered burn injuries on her hands, as

per the post mortem report, which records "cuticle peeled off most of

the places with base showing adherent pus". Learned counsel for the

appellant, in support of above contention has pointed out that PW16,

SDM Sanjay Partap Singh has stated in his testimony that he did not

obtain thumb mark or signatures of the deceased on the dying

declaration recorded by him as her hands and feet were completely

burnt. Learned counsel for the appellant has submitted that if the

hands and feet of the deceased were completely burnt, it is highly

improbable that the deceased could have signed the statement

Ex.PW20/B. Thus, he has urged us to infer that the dying declaration

Ex.PW20/B is a fabricated document and the purported signature of

Satwati thereon is a forgery. It was submitted that the aforesaid doubt

against the authenticity of dying declaration Ex.PW20/B is further

compounded by the fact that PW4 Constable Sharma Nand, who

claimed to be present at the time of recording of the dying declaration

by the Investigating Officer, has materially contradicted the

Investigating Officer by stating that the deceased thumb marked her

statement Ex.PW20/B.

16. We are not impressed with the above referred submission on

behalf of the appellant. Even if the deceased had suffered burns on

her hands or cuticle, it cannot be ruled out that she was not in a

position to append her signatures on the statement Ex.PW20/B.

Otherwise also, we find from the record that no relative of the

deceased had visited the hospital, nor has anyone of them been cited

as a prosecution witness. In the circumstances, we find no reason as

to why the Investigating Officer would go out of the way to falsely

implicate the appellant Nand Lal, particularly when there is nothing on

record to suggest that he had any enmity or motive to falsely implicate

him. The explanation of Nand Lal in his statement under Section 313

Cr.P.C. to the effect that the police demanded Rs.10,000/- as bribe

from him and when he refused to oblige he was falsely implicated in

this case is not plausible in view of the fact that prior to the recording

of the statement Ex.PW20/B, PW19 Dr. Anand Rathoria had already

recorded on the MLC of the deceased Satwati the history given by the

deceased herself indicating that she had been set on fire by kerosene

by her husband Nand Lal in House No. 3664, Gali No.4, Shanti Mohalla.

17. Next challenge of the appellant to the dying declaration

Ex.PW20/B is that the Investigating Officer has not followed the rules

inasmuch as he has neither obtained the certificate of fitness on the

dying declaration by any Doctor nor has he got it attested by any

Doctor or Nurse available in the ward nor has he recorded his

satisfaction on the statement Ex.PW20/B about the fitness of the

patient before recording her statement.

18. We do not find any merit in the above submission. PW20, SI

Rajbir Sharma has deposed that on 11.02.1987, copy of DD report 20A

in respect of the occurrence in question was entrusted to him for

verification. He initially went to the spot and found that the injured had

been removed to JPN Hospital. Then, he went to the hospital and

obtained MLCs of both the injured Satwati and Lakhan Singh. Injured

Satwati was declared fit for statement, thus he recorded her statement

Ex.PW20/B and obtained her signatures thereon. Thereafter, he sent

the said statement along with his endorsement Ex.PW20/C to the Police

Station for the registration of the case. From the aforesaid evidence, it

transpires that till the recording of statement Ex.PW20/B, no case was

registered and investigation had not commenced. It was recorded as a

statement of the injured to verify the facts and when said statement

disclosed commission of an offence, a case under Section 307 was got

registered. Therefore, at that juncture, the Investigating Officer was

not supposed to obtain attestation of Doctor or Nurse on the statement

Ex.PW20/B which subsequently assumed the character of a dying

declaration on the demise of injured Satwati. Further, perusal of the

MLC Ex.PW19/A reveals that patient Satwati was declared fit for

statement as per endorsement of Dr. Suender Kumar made at 3.15 AM

on 11.02.1987 on the MLC. Perusal of the statement Ex.PW20/B and

endorsement of the Investigating Officer Ex.PW20/C thereupon reveals

that the aforesaid statement along with the endorsement of the

Investigating Officer was sent to Police Station by 3.40 AM, meaning

thereby that the statement of the deceased Ex.PW20/B was recorded

sometime before 3.40 AM. Investigating Officer, SI Rajbir Sharma has

categorically stated in his cross-examination that he reached JPN

Hospital somewhere around 3.15 AM to 3.30 AM. From the above

evidence, it cannot be inferred that the patient Satwati was not fit for

making statement at the relevant time. Thus, we find no reason to

discredit the dying declaration Ex.PW20/B made by the deceased in

presence of PW20 SI Rajbir Sharma.

19. As regards the dying declaration Ex.PW16/A purported to have

been made by the deceased in presence of SDM Sanjay Partap Singh,

PW16, the learned counsel for the appellant has submitted that it is not

properly proved because as per the version of PW16, it was recorded in

the hand writing of his clerk on his dictation and said clerk has not

been produced in evidence to prove it. In support of this contention,

he has relied upon the judgment in the matter of Govind Narain and

another Vs. State of Rajasthan, 1993 CRL.L.J. 2598.

20. In our considered view, the above referred judgment cited on

behalf of the appellant is based upon its peculiar facts which are

distinct from the facts of this case. Perusal of the dying declaration

Ex.PW16/A shows that it is written in Hindi and at the bottom of the

dying declaration, a certificate is appended by the SDM that the dying

declaration is recorded before him. PW16, SDM Sanjay Partap Singh

has categorically stated in the court that the dying declaration was

recorded on the basis of examination of Satwati on his dictation. The

fact that he dictated the dying declaration made by the deceased

Satwati and appended his certificate on the dying declaration is

sufficient assurance that it is a genuine document.

21. Learned counsel for the appellant has submitted that authenticity

of dying declaration Ex.PW16/A is highly doubtful because of several

reasons. He has submitted that on comparison of dying declaration

Ex.PW16/A with the statement of the deceased Ex.PW20/B recorded by

the Investigating Officer, it would be seen that it is more or less

identical to the aforesaid statement, which raises a doubt that the SDM

has not recorded the dying declaration of the deceased Satwati, but

has simply preferred to get it copied from the statement of the

deceased Ex.PW20/B. He has submitted that the aforesaid doubt is

further compounded by the fact that on dying declaration Ex.PW16/A,

there is over-writing regarding the time at which it was recorded, but

the over-writing has not been initialled by the SDM. It was further

urged by learned counsel for the appellant that the SDM in his

testimony has admitted that he had not gone through the medical

history of the patient before recording her statement nor had he

recorded his satisfaction about the fitness of the patient to make dying

declaration Ex.PW16/A nor had he called any Doctor or Nurse to

witness the recording of dying declaration or attest the same nor had

he obtained any certificate of fitness of patient to make statement at

the time of recording of the dying declaration. From this, the learned

counsel for the appellant has urged to infer that the dying declaration

Ex.PW16/A is not a reliable document, particularly when, as per

medical record, pathediene injection was administered to the patient

as a part of her treatment, which definitely has an effect on the mental

capacity of the patient.

22. Above referred arguments against the dying declaration

Ex.PW16/A were considered by the learned trial Judge in paras 44 to 48

of the impugned judgment. In para 47 and 48 of the impugned

judgment, the learned Trial Court has, inter alia, observed thus:

"47.......In view of the fact that the S.D.M. failed to obtain certificate about fitness the fact that the dying declaration is not in his own hand and the scribe had not been produced and the fact that it was neither signed nor thumb marked by the deceased, it is difficult to say that this third dying declaration is an unimpeachable document by itself

for safely basing the conviction of the accused. One may say that PW16 Sanjay Partap Singh, S.D.M. failed to give due importance to the recording of the dying declaration, it may be uncalled for to say that he did so with any motive or idea to gain anything out of it. It may be incidentally mentioned that in this case there is not a single relation of the deceased who had been produced as a witness nor it has come on record that she had any relation at all, therefore, there could not be any person to unduly influence the S.D.M.

48. In this connection, it may further be mentioned that all the three dying declarations are consistent and not contradictory as has been mentioned earlier. However, in the dying declaration recorded by PW16 Sanjay Partap Singh, there was slight difference that the marriage had taken place six or seven years ago, instead of eight years. It has been held in Kamla Vs. State of Punjab, A.I.R. 1993 SC page-374 (para 8), that if there are more than one dying declarations, they should be consistent particularly in material particulars. This consistency rule is not absolute and was not followed in Harbans Lal Vs. State of Haryana, A.I.R. 1993 S.C. 819, on account of the credit worthiness of the dying declaration recorded by a doctor and another dying declaration recorded by a Sarpanch alleging suicide. Conviction in that case was sustained on the basis of the dying declaration recorded by the doctor. Even for the sake of argument, if we ignore the dying declaration recorded by PW16 Sanjay Partap Singh, S.D.M., the two other dying declarations are consistent and, therefore, can safely be acted upon by this Court."

23. We do not find any infirmity in the above reasoning adopted by

the learned trial Judge and conclude that he has rightly accepted the

dying declaration Ex.PW16/A recorded by the SDM. Otherwise also, on

comparison of the dying declarations Ex.PW20/B and Ex.PW16/A, we do

not find the dying declarations verbatim similar. The language used in

the dying declarations obviously had to be more or less similar because

both the dying declarations have been recorded on the narration of the

deceased. All the three dying declarations discussed above are

consistent on material aspects. Therefore, we are of the view that the

learned Trial Judge has rightly relied upon the dying declarations.

24. Learned counsel for the appellant has submitted that the law

relating to dying declaration is well-settled. It has been time and again

held by the Hon'ble Supreme Court and various High Courts that

though the conviction of an accused can be based on a dying

declaration, but as a rule of prudence, it must, like any other evidence,

satisfy the court that the facts stated therein are untampered truth

and it is absolutely safe to act upon it. He has submitted that in the

instant case the contents of dying declaration of Satwati are

completely belied by the medical and scientific evidence produced in

the court. The dying declaration speaks about the kerosene being

poured over the deceased, while as per the post mortem report

Ex.PW15/A, no smell of kerosene oil was found present on the scalp of

the deceased. Learned counsel for the appellant has further submitted

that the viscera and scalp hair were preserved on the orders of SDM for

CFSL examination, but scalp hair were not sent for analysis to CFSL to

verify whether or not kerosene was present. He has pointed out that

perusal of the CFSL report Ex.PW20/G would show that even no trace of

kerosene oil was found on the exhibits seized from the spot of

occurrence i.e. burn quilt and gadda, match box with burn alive,

matchstick and the burnt pieces of cloth. He has submitted that the

absence of any trace of kerosene on the aforesaid articles rules out the

theory that the appellant poured kerosene oil on the victims and set

them ablaze. Thus, the learned counsel for the appellant has urged us

to discard the dying declarations of the deceased as unreliable and

extend benefit of doubt to him.

25. Absence of kerosene oil in the scalp of the deceased at the time

of post mortem, in our view, does not help the appellant. Admittedly

the occurrence took place on 11.02.1987, the deceased expired on

17.02.1987 and the post mortem as per the report Ex.PW15/A was

conducted on 20.02.1987. Admittedly she was under treatment at the

hospital till her death on 17.02.1987. During the aforesaid period, she

must have been sponged and treated to clean her burn wounds.

Therefore, absence of smell of kerosene oil on the scalp of the

appellant is not of much consequence. Similarly, the absence of

kerosene oil on the above referred exhibits seized from the spot as it

appears from the CFSL report is also not such a strong reason to

discard three consistent dying declarations made by the deceased.

Kerosene oil is a highly combustible material, therefore, a possibility

cannot be ruled out that entire quantity of kerosene oil which fell on

those exhibits got fully burnt in the fire and in such an eventuality, no

trace of kerosene oil was expected to remain in those articles. Thus,

we do not find any merit in the above contention.

26. Lastly, it is submitted that the learned Trial Court has committed

a grave error in not accepting the defence version of accidental fire

which finds corroboration from the conduct of the appellant whose

hands got burnt while trying to save his wife. In support of this

contention, he has drawn our attention to the MLC of the appellant

Ex.PW19/C wherein the alleged history given by Nand Lal to the Doctor

concerned was as under:

"on being caught by fire when he tried to off the fire of his wife (Satwati). He burnt his hands. According to the patient, he was lying and he saw fire in which wife and child Lakhan Singh was present."

27. Learned counsel for the appellant has further submitted that

aforesaid evidence of the appellant finds support from the statement

of PW1 Chiranji Lal Jain who deposed on oath that at about 12 in the

night on hearing the cries, he woke up and came outside and he saw

the appellant Nand Lal wailing and raising alarm that someone should

save his wife. He further saw that the appellant was trying to put off

the fire as his wife was aflame. Thereafter, the appellant asked him to

arrange for a vehicle to take deceased to the hospital, but on his

advise the appellant went to the Police Station. The police arrived at

the house of the appellant in his absence about one and half hours or

two hours later and they took the deceased to the hospital.

28. On careful scrutiny of the evidence, it transpires that the conduct

of the appellant is not consistent with his defence. From the MLC

Ex.PW19/C, it transpires that Nand Lal, appellant, himself reached the

hospital at 2.55 AM with burn injury on both hands. The history given

by him to the Doctor is a self supporting explanation. Therefore, it is

required to be analysed with caution. As per the version of PW1,

Chiranji Lal Jain, who is a hostile witness, the incident took place at

around 12 in the night. If the version of Chiranji Lal Jain, PW1 is to be

believed, after putting off the fire the appellant left the spot ostensibly

to inform the police and police reached at the spot one and half hours

to two hours later and took Satwati(deceased) and child Lakhan Singh

(deceased) to the hospital. Had the intention of the appellant Nand Lal

been to save his wife and child, he instead of going to the Police

Station would definitely have taken his injured wife Satwati and son

Lakhan Singh to the hospital or some Doctor for treatment, or at least

he would have instructed PW1 Chiranji Lal Jain to immediately take

them to the hospital. The version of Chiranji Lal Jain does not inspire

confidence because in his entire testimony, which is directed towards

the defence of the appellant, he is silent about the presence of injured

Lakhan Singh at the spot. PW21, Ram Dhani is another neighbour who

has stated that on the fateful day about 5/6 years back at about 4 AM,

he visited Irwin Hospital where Satwati (deceased), Lakhan Singh

(deceased) and appellant Nand Lal were admitted. During his cross-

examination, he deposed that when he went to the hospital, he saw

Nand Lal with burn injuries on hands and legs and on his asking Nand

Lal told him that he was sleeping while his wife was warming the food.

Then he heard the cries and saw his wife burning and tried to save her

and in the process, his hands got burnt. This witness also tried to

explain the burn injuries on the child Lakhan Singh by stating in his

cross-examination that the child suffered injuries as he tried to catch

hold of his mother. Above version of PW21 does not inspire confidence

because his stand is that he reached the hospital subsequent to the

admission of both the deceased and Nand Lal in JPN Hospital.

Aforesaid version is belied by the MLC of Lakhan Singh Ex.PW14/A,

wherein it is recorded that Lakhan Singh was brought to the hospital at

2.45 AM on 11.02.1987 by Ram Dhani, PW21, which means that Ram

Dhani was present at the time of occurrence or he reached at the spot

immediately thereafter. So far as superficial burns on the person of

the appellant Nand Lal are concerned, those could be possible because

he might have suffered while putting the deceased on fire. Otherwise

also, as per the version of PW21 Ram Dhani, the appellant has tried to

project a defence that the deceased Satwati suffered burn injuries

accidentally and the child Lakhan Singh, deceased, suffered burn

injuries because he clinched to his mother who was ablaze. The

accidental fire could only have occurred while cooking on stove. As

per the testimony of PW20, SI Rajbir Sharma, on examination of spot of

occurrence, he found five ltr can of kerosene Ex.P-1, match box Ex.P-

2, half burnt cloths Ex.P-3, half burnt gadda Ex.P-4, pillow Ex.P-5, one

cot in burnt condition Ex.P-6 and half burnt quilt Ex.P-7, which were

seized vide memo Ex.PW1/A. PW2 Balbir Singh, Assistant Draftsman

has proved scaled site plan Ex.PW2/A, which, as per his version, was

prepared on the pointing of SI Rajbir Sharma. As per this site plan,

there was no stove found in the room, which implies that if at all the

defence version is true, the accidental fire must have occurred in the

kitchen. If that was true, then there was no occasion for the above

referred articles i.e. gadda, quilt and cot etc. to get burnt. The fact

that the bedding articles got burnt in the occurrence is a sufficient

assurance of the fact that dying declaration is correct and the

appellant set the deceased Satwati and Lakhan Singh ablaze after

pouring kerosene oil on them while they were sleeping on the bed. He

admittedly, being a layman person, must have suffered some burn

injuries in the process. Thus, we are of the view that the learned trial

Judge has rightly given precedence to the dying declaration of the

deceased over the above referred defence projected by the appellant,

which apparently is false.

29. In view of the discussion above, we are of the considered view

that the learned trial Judge has rightly relied upon the dying

declarations Exhibits PW19/A, PW20/B and PW16/A of deceased

Satwati to convict the appellant for the offence punishable under

Section 302 IPC.

30. The result is that the appeal is devoid of merit. It is accordingly

dismissed.

31. Appellant is on bail. He be taken into custody and sent to Jail for

undergoing his remaining sentence.

AJIT BHARIHOKE, J.

OCTOBER 13, 2009                         SANJAY KISHAN KAUL, J.
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