Kamlesh vs State
2009 Latest Caselaw 3593 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on: August 26 , 2009
                                   Judgment delivered on : September 07, 2009


+      CRIMINAL APPEAL NO.327/2009


       KAMLESH                                        ..... Appellant
                          Through:       Mr. A.J. Bhambhani, Advocate with
                                         Ms. Nisha Bhambhani, Ms. Lakshita and
                                         Ms. Ranjita, Advocates

                    Versus

       STATE                                        ..... Respondent
                          Through:       Mr. M.N. Dudeja, 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. Appellant Kamlesh has been convicted under Section 302 IPC and

sentenced to undergo imprisonment for life, also to pay fine of

Rs.5000/-, in default of payment of fine to undergo simple

imprisonment for six months, for having committed murder of his wife

Mithlesh by setting her ablaze after pouring kerosene oil.

2. Briefly stated, case of the prosecution is that on 16.05.2004, ASI

Jal Singh(PW10) was on duty at the PCR van in the area of Mundka

along with Constable Surya Kant (PW11) and driver Constable Satbir.

Around 9.20 PM, he received a call from someone informing that his

wife had set herself ablaze with kerosene oil at Mangal Bazar Road,

Swarn Park, Delhi. He immediately proceeded to the spot of

occurrence and also conveyed the information to the Police Station, on

basis of which, DD No.36B is stated to have been recorded at Police

Station Nangloi at 9.25 PM.

3. DD No.36B was entrusted to SI Jagminder Singh (PW15) for

verification. He proceeded to the spot of occurrence along with

Constable Sandeep. On reaching there, he came to know that the

injured lady had already been taken to Sanjay Gandhi Memorial

Hospital (for short "SGM") by the PCR van. No eye witness met him at

the spot of occurrence. He found a can of kerosene oil, some burnt

clothes and one match box lying in the room of the injured. No person

was found present in the room. He left Constable Sandeep at the spot

to preserve the scene of occurrence and proceeded to the hospital. At

the hospital, he obtained MLC of Mithlesh who was declared unfit for

statement. No eye witness was available at the Hospital.

4. SI Jagminder Singh summoned ASI Jal Singh (PW10) and recorded

his statement Ex.PW10/A. ASI Jal Singh in his statement Ex.PW10/A

narrated that on reaching near Kakkar General Store, Mangal Bazar, he

saw injured Mithlesh running around in the burnt condition on the road.

He immediately transferred her to the PCR van and took her to SGM

Hospital. On the way when he enquired about the cause of the burn

injuries, the injured told that she had been set on fire by her husband

and when he asked for the reason as to why her husband had done so,

she stated she will tell the reason after gaining consciousness. SI

Jagminder Singh endorsed the statement Ex.PW10/A of ASI Jal Singh

and sent it to the Police Station for registration of the case under

Sections 498A/307IPC. FIR was, accordingly, registered by the Duty

Officer.

5. Investigating Officer, SI Jagminder Singh seized the exhibits, i.e.,

the burnt clothes, can of the kerosene oil and the match box from the

spot of occurrence. He prepared the site plan and recorded the

statements of the witnesses. Subsequently, on the receipt of

information of death of injured Mithlesh, the offence under Section 307

IPC was converted into the offence punishable under Section 302 IPC.

Inquest proceedings were conducted by the SDM, Punjabi Bagh.

Intimation was sent to the relatives of the deceased. Post mortem

examination was got done. The accused was arrested on 18.06.2004

from his native place being Village Makul Pura, District Bhind, Madhya

Pradesh. On completion of investigation, charge sheet under Section

498A/302 IPC was filed against the accused.

6. Accused was charged for offences punishable under Sections

498A and 302 IPC. He pleaded not guilty and claimed to be tried.

7. On conclusion of trial, appellant was acquitted of the charge

under Section 498A IPC because the witnesses examined to prove that

charge did not support the case of prosecution. The learned Additional

Sessions Judge, however, accepted the evidence of oral dying

declaration made by the deceased to PW10 ASI Jal Singh and convicted

the appellant under Section 302 IPC.

8. Learned counsel for the appellant has challenged the impugned

judgment of conviction on several counts.

9. His first challenge to the impugned judgment is that oral dying

declaration of the deceased has not been proved on record. He has

submitted that prosecution has sought to prove the so-called dying

declaration Ex.PW10/A, which was recorded by SI Jagminder Singh,

who was not even present when the purported dying declaration was

allegedly made by the deceased, therefore, it is hearsay of the dying

declaration. Not only this the so-called dying declaration was recorded

by PW15 about two hours after the same was supposed to have been

made by the deceased. Therefore, it could not have been treated as a

dying declaration.

10. The submission of learned counsel is mis-conceived because

Ex.PW10/A is not the dying declaration of the deceased, actually it is

only the statement of PW10 Jal Singh ASI wherein he has narrated the

details of the oral dying declaration made by the deceased in response

to his query while she was being transported in PCR van to the

hospital. The dying declaration actually has been proved by PW10 ASI

Jal Singh who has deposed in the court that on the way to hospital, he

enquired from the deceased about the cause for her burn injuries and

she responded by stating that she had been set on fire by her husband.

The version of PW10 also finds corroboration in the testimony of PW11

Constable Surya Kant, who was accompanying the deceased and PW10

ASI Jal Singh in the PCR van, and who has also stated that on being

asked by ASI Jal Singh, injured lady told that it was her husband who

had set her on fire. There is no reason to disbelieve the aforesaid

witnesses, therefore, we are of the view that oral dying declaration of

the deceased has been rightly taken to be proved by the learned trial

Judge.

11. Next submission of the learned counsel for the appellant is that

the so-called dying declaration of the deceased purportedly made

before PW10 and PW11 ought not have been relied upon because of

following infirmities: it is not in the exact words of the deceased - it

was not contemporaneously recorded as spoken by the deceased - it is

not established that the deceased was actually in position to make a

statement when the dying declaration is purported to have been made

- the deceased as per the evidence was not in expectation of death.

12. We have carefully considered the evidence on record. PW10 ASI

Jal Singh has stated that "on the way to the hospital he asked the burnt

lady about the cause of burning and she told them that she had been

set on fire by her husband and she was requesting to take her to the

hospital at the earliest and told them that she would tell rest of the

facts in the hospital". His version stands corroborated by PW11

Constable Surya Kant when he deposed "on the way ASI Jal Singh had

made inquiries from the lady about the cause of burning and she told

them that it was her husband who had set her on fire". From the

aforesaid evidence, it is established on record that the deceased told

PW10 in presence of PW11 that she had been set on fire by her

husband. We find no reason to disbelieve the aforesaid version of the

witnesses.

13. PW10 ASI Jal Singh has also deposed that on the fateful night at

about 9.20 PM on receiving a call about a lady having been burnt, he

immediately proceeded to the spot where he noticed Mithlesh, the

injured, in a totally burnt condition. In the cross-examination, he has

given the time of his arrival on the spot as 9.24 PM. He has also stated

that he did not make inquiries from the public persons present and

straight away took the injured to the hospital. His aforesaid version

also finds corroboration from the testimony of PW3 Satinder who has

stated that after putting off the fire by wrapping a blanket around the

deceased, he rushed to inform the landlord from a nearby STD booth

and when he returned from the STD booth, he saw the PCR officials

removing injured Mithlesh in their zipsy to take her to the hospital.

From the aforesaid evidence, it is obvious that on reaching the spot,

ASI Jal Singh did not talk to any one and straight away took the injured

to the hospital. This means that he had no occasion to know how the

incident happened and who was responsible for the burn injury to the

deceased. Further, there was no reason for him to concoct the dying

declaration of the deceased as he was neither the Investigating Officer

nor he had any animus or motive to falsely implicate the appellant.

When the injured was admitted in the hospital, PW10 ASI Jal Singh

could not even have known whether the injured has committed suicide

or someone else had set her on fire. Therefore, without having any

background information about the occurrence, he could not have given

the history mentioned in the MLC Ex.PW16/A as "burns sustained due

to kerosene thrown over her by husband and setting her on fire". Not

only this, PW10 has given consistent version in his statement

Ex.PW10/A to the Investigating Officer, which leaves no scope to doubt

the testimony of PW10 about oral dying declaration of the deceased,

which is fully corroborated by PW11.

14. The case of the prosecution is that said dying declaration was

made by the deceased while she was being transported in the PCR van

to the hospital. This explains as to why the dying declaration was not

recorded contemporaneously by ASI Jal Singh. However, immediately

on reaching the hospital, PW10 ASI Jal Singh had narrated about the

dying declaration made by the deceased while giving the history of the

burns suffered by the deceased to the Doctor concerned. That

recording, to our mind, is as good as the contemporaneous recording of

dying declaration. Purpose of insisting on contemporaneously

recording of oral dying declaration is only to ensure that the exact

words used by the deceased should be placed before the Court so as to

enable the Court to come at the right conclusion. But, if the

circumstances under which oral dying declaration was made were such

that it was not practically possible to simultaneously prepare

contemporaneous record of the oral dying declaration, it cannot be

taken as a ground to reject the dying declaration. In this case also,

since the deceased gave her dying declaration while being transported

to the hospital, there was no scope for making contemporaneous

record of dying declaration.

15. The next contention of the learned counsel for the appellant is

that the evidence relating to the oral dying declaration is not reliable

because it is not probable that, after having suffered hundred per cent

burn injuries, the deceased was able to speak and give a statement

regarding the cause of her injuries which eventually resulted in her

death. In support of this contention, learned counsel for the appellant

has referred to the MLC of the deceased Ex.PW16/A as also her post

mortem report Ex.PW24/A which indicate that the deceased had

suffered hundred per cent burns covering the total body and the face

area.

16. The deceased had suffered 100 per cent burns do not, by itself

show that she was not fit to speak or make the statement. Whether a

person after suffering extensive burn injuries would be able to speak or

not would depend upon the physical constitution of the person and the

gravity of injury. Perusal of the MLC Ex.PW16/A shows that the

deceased was admitted in the hospital by PW10 Jal Singh and in the

MLC her name is mentioned as Mithlesh. Admittedly, no relation or

friend of the deceased had accompanied her to the hospital and even

no complaint implicating the appellant was made to the police by that

time. Therefore, only person who could have given the name of the

patient was injured herself or ASI Jal Singh, PW10 who took her to the

hospital. If PW10 had given her name as Mithlesh then also his source

of information about the name of the deceased could only be the

deceased herself as she was not known to him. Not only this, PW3

Satinder, who is a hostile witness and has not supported the case of

the prosecution, has stated that after the fire was put off, the deceased

was saying "Mai AA Rrahi Hu - Mai AA Rahi Hu", which is sufficient

assurance that the deceased was able to speak. From the evidence, it

is apparent that the PCR van reached at the spot within few minutes

and the deceased was immediately put in the van and transported to

the hospital. She is stated to have given dying declaration on way to

the hospital which, in our considered view, is not improbable. Thus, in

view of the categoric testimony of PW10 ASI Jal Singh, which stands

corroborated by the testimony of PW11 Constable Surya Kant, we are

of the view that the learned Trial Court has rightly concluded that the

deceased had made oral dying declaration.

17. The learned counsel for the appellant has also submitted that the

aforesaid oral dying declaration of the deceased is not reliable because

having suffered hundred per cent burns all over the body, she could

not be expected to be in a fit state of mind to give clear and rational

statement regarding the cause of injuries suffered by her.

18. The patient had suffered hundred per cent burns do not by itself

show that she was not fit for making statement. The MLC Ex.PW16/A,

which was prepared after the dying declaration, shows that the patient

was still conscious and her BP was more or less normal 110/70 and the

pulse rate was 110/min. This implies that the patient was conscious on

the way and could have narrated the cause of her injury to the

witnesses PW10 and PW11. Medical jurisprudence guides us that a

patient suffering from burns starts losing consciousness when bilateral

crepts start occurring due to loss of body fluids. The MLC of the

deceased does not record the onset of bilateral crepts. We see no

reason why PW10 ASI Jal Singh and PW11 Constable Surya Kant would

collude to concoct a false story of oral dying declaration by the

deceased on her way to the hospital. Otherwise also, the oral dying

declaration is clear and categoric leaving no scope to doubt that the

deceased was not in a fit mental state to make the statement. Since

no family member or friend was accompanying the deceased, there

was no possibility of the dying declaration being tutored.

19. The learned counsel for the appellant has further submitted that

the appellant has been acquitted on the charge under Section 498A

which implies that it is not a case of dowry demand or harassment. He

has pointed out that PW6 Kanshi Ram, father of the deceased and PW5

Preeti, the niece of the deceased have given almost a clean chit to the

appellant by saying that the deceased and appellant were living

peacefully and there was nothing wrong in their relationship. Thus,

according to the learned counsel for the appellant, there was no motive

on the part of the appellant to set the deceased on fire. He has also

submitted that absence of motive coupled with the fact that PW3

Satinder in his testimony has stated that when they opened the shutter

of the room, they found deceased Mithlesh ablaze and there was

nobody else present in the room which provides an alibi to the

appellant and makes the story of oral dying declaration suspect.

20. We are not impressed with the argument. Charge under Section

498A has failed because PW6 Kanshi Ram, father of the deceased,

turned hostile and did not support his earlier version in statement

Ex.PW6/B recorded by the SDM during inquest. Similarly, PW3

Satinder is also a hostile witness who resiled from his earlier statement

made under Section 161 Cr.P.C. during investigation. This, by itself,

cannot be taken as a circumstance to disbelieve the testimony of PW10

ASI Jal Singh and PW11 Constable Surya Kant regarding oral dying

declaration made by the deceased, particularly when they had no

reason whatsoever to falsely implicate the appellant by concocting a

story of dying declaration. It would be seen from the record that the

stand of PW10 ASI Jal Singh is throughout consistent with his testimony

regarding the oral dying declaration as he has given same version

while giving the history of the injuries suffered by the deceased at the

time of her admission in the hospital and also in his statement

Ex.PW10/A recorded by the Investigating Officer which is basis of

registration of the case. Thus, we do not find any reason to suspect

the credibility of the dying declaration.

21. The learned counsel for the appellant has submitted that though

the deceased died five hours after the occurrence at 2.15 AM, no effort

whatsoever was made to get her dying declaration recorded either by

the Magistrate or the Doctor. Therefore, he has urged us to extend

benefit of doubt to the appellant. In support of his contention, he has

relied upon the judgment in the matter of Dalip Singh and Others

Vs. State of Punjab (1979) 4SCC 332.

22. The aforesaid judgment is of no help to the appellant. In the

aforesaid case, while considering the evidentiary value of a oral dying

declaration made to a Police officer, Hon'ble Supreme Court, inter alia,

observed thus:

"8. ......We may also add that although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a magistrate or by a doctor. As observed by this Court in Munnu Raja V. State of M.P. the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.

9. There is a dying declaration of Teja Singh Ex.P/FF recorded by Harcharan Singh, PW10. He was the Head Constable of the Police Post Chheharta. At the direction of the Assistant Sub- Inspector of Police, PW 28 he recorded the statement of Teja Singh at the spot. This dying declaration has been relied upon by the High Court. It could not be rejected on the ground that it was recorded by a police officer as he was in a critical condition and no other person could be available in the village to record the dying declaration of Teja Singh.............."

23. From the above position of law, enunciated by the Hon'ble

Supreme Court, it is apparent that there is no bar under law to rely

upon oral dying declaration made to a Police officer. However, before

acting upon the oral dying declaration, the Court is required to satisfy

itself as to why it was not recorded by a Magistrate or a Doctor.

24. In the instant case also the deceased was in critical condition. A

perusal of MLC Ex.PW16/A show that the deceased on examination at

the hospital was found unfit for statement. There is nothing on the

record to suggest that at any stage, after admission in the hospital, the

deceased became fit for making statement. This explains as to why

the dying declaration of the deceased was not recorded either by a

Magistrate or a Doctor. Thus, even as per the judgment relied upon by

the learned counsel for the appellant, there was no bar on acting upon

the dying declaration of the deceased Mithlesh.

25. Looking from another angle, the deceased could have poured

sufficient quantity of kerosene oil on herself but, in that event also to

commit suicide, the deceased must have picked up match box and lit

the match stick to set herself ablaze. Had this happened, kerosene

being a highly combustible liquid, the match box would have flared up

in her hand and reduced to ashes, when she ignited herself. But, the

match box was found near the can of kerosene by the Investigating

Officer at the place of occurrence. The existence of match box at the

place of occurrence, therefore, rules out the possibility of suicide

having been committed by the deceased.

26. In view of the discussion above, we find truth and credibility in

the oral dying declaration of Mithlesh and find no embellishment

therein. We find no infirmity in the impugned judgment, thus we

dismiss the appeal.

AJIT BHARIHOKE, J.

SEPTEMBER 07, 2009                       SANJAY KISHAN KAUL, J.
pst