Sudhir vs State
2009 Latest Caselaw 3595 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 1st September, 2009
                      Judgment Delivered on: 7th September, 2009

+                           CRL.A.416/2001

        SUDHIR                                    ..... Appellant
                            Through:   Mr.Parminder Singh Goindi,
                                       Advocate.

                      versus

        STATE                                     ..... Respondent
                            Through:   Mr. M.N.Dudeja, APP.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE INDERMEET KAUR

     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

INDERMEET KAUR, J.

1. Vide impugned judgment and order of sentence dated

5.9.2000, the appellant Sudhir had been convicted for having

committed murder of deceased Reema. He had been sentenced to

undergo life imprisonment.

2. Version of the prosecution is that the deceased Reema along

with her five children and father-in-law was residing in house

bearing no. 10-A, Part V, Karan Vihar, Sultanpuri. Her husband was

living separately because of differences between the couple.

Reema, to earn her livelihood was working as an Assistant in the

office of an advocate. The accused Sudhir, a friend of her husband

was known to her. He had an evil eye on her and used to visit her

house. She i.e. Reema discouraged his advances and a few days

prior to the incident, she categorically asked him to stop visiting

her. Upon this the accused threatened her.

3. On 19.12.1996 at around 3 AM in the morning, some person

knocked at the door of her house. When she went to open it no one

was found there. She returned back to her room and thereafter

went to the toilet. The toilet was open to the sky and did not have a

roof. On entering the toilet, she saw the accused hiding himself; he

immediately poured petrol, which he had brought in a plastic can,

upon her and lit her with a match. She i.e. Reema tried to save

herself and ran out of the toilet shouting cries of 'Bachao-Bachao'.

Her elder son Raj Kumar woke up on hearing her cries and found his

mother in flames. The accused was also present there. Hue and cry

was raised. The accused, however, managed to flee. Reema along

with her son went to the police station where the police personnel

i.e. ASI Dharam Singh PW-13 along with Const. Raj Kumar PW-5

removed her to the RML hospital.

4. At 4.45 AM, the deceased was declared fit for statement and

her statement Ex.PW-13/A was recorded by PW-13 wherein she had

specifically named the accused as the culprit of the aforestated

event. Endorsement Ex.PW-13/B was made on this statement and

rukka was taken by PW-5 for registration of the FIR. FIR Ex.PW-1/A

was registered by HC Surjit Singh PW-1 which was initially for the

offence punishable under Section 307 IPC. The Investigating Officer

i.e. PW-13 informed the SDM Vinay Bhushan PW-8 who reached the

hospital. He i.e. PW-8 recorded the statement Ex.PW-8/A of the

deceased after she had been certified fit for giving a statement.

This certificate of fitness was obtained at 5.30 PM and is evidenced

in the MLC Ex.PW-5/A of the victim. The MLC further depicts that

the patient had been admitted into the hospital with 100%

superficial burns.

5. Statement of Raj Kumar PW-9, the son of the victim was

recorded. He was an eye-witness and he corroborated the version

as given by the victim in her statements Ex.PW-13/A and Ex.PW-8/A.

A subsequent statement of PW-9 Ex.PW-9/A under Section 164 of

the Cr.P.C. was also recorded by Sh.Ramesh Kumar PW-11, the

Metropolitan Magistrate. From the spot, the burnt gadda, quilt and

clothes of the deceased i.e. her chunni, salwar and shawl which

were seized and sealed.

6. The accused was arrested on the following day i.e.

20.12.1996. His personal search vide memo Ex.PW-5/C was

conducted. A railway ticket Ex.P-1 dated 19.12.1996 in the name of

the accused evidencing his journey from Nizamuddin Railway

Station, Delhi to Agra was recovered which was taken into

possession vide memo Ex.PW-5/B.

7. The deceased succumbed to her injuries on 24.12.1996. The

offence was converted from an offence punishable under Section

307 IPC to an offence punishable under Section 302 IPC. The post-

mortem Ex.PW-7/A on the deceased was conducted by

Dr.K.L.Sharma PW-7 who had opined that death was due to

septicemia caused by the burn injuries. He had recorded the

percentage of burns as 90%; they had spread all over the body from

upper side downwards i.e. the scalp hair, face, neck, upper point of

the chest and upper extremities, abdomen, thighs and portion of

the legs.

8. The scaled site plan Ex.PW-3/A was prepared by SI Manoj

Singh PW-3 on 17.3.1997.

9. The aforesaid stated two dying declarations i.e. Ex.PW-13/A

and Ex.PW-8/A coupled with the testimony of the eye-witness PW-9,

the recovery of the railway ticket evidencing the fact that the

accused was in Delhi on 19.12.1996 and had left for Agra on the

same day; were the cumulative circumstances which had led the

Trial Court to sustain the conviction of the accused.

10. On behalf of the accused it has been argued that both the

dying declarations are suspect. The first dying declaration Ex.PW-

13/A is in the narrative form and running into two pages; it is

difficult to imagine that a person who has sustained 100% burns

would be in a position to give her entire family history before

disclosing the cause of her death; this casts a doubt on the said

version. Attention has been drawn to the second dying declaration

Ex.PW-8/A; it is argued that the stamp of the SDM has been

embossed beneath the writing on the first page of the document

thereby establishing that this page had already been stamped by

the SDM and the contents had been written thereafter casting a

doubt on the manner in which this dying declaration had been

recorded. It is further submitted that on the second page of this

document the signatures of the victim Reema are running over the

punctuation mark (Puran Viram) and both these cumulative factors

show that the stamp of the SDM and the signatures of the victim

had been obtained on blank papers and thereafter the contents of

the purported dying declaration had been written. No credence can

be placed upon these dying declarations which are liable to be

discarded. The testimony of the eye-witness PW-9 is also suspect

as he has made material improvements in court qua his versions

recorded under Sections 161 and 164 of the Cr.P.C. It is further

submitted that if the grandfather, an elder male member of the

family was in the house, why he did not accompany the victim to

the police station is not answered. The victim had reached the

police station wearing only a shawl; it appears that the victim had

intimate relations with the accused and it could well be a case that

a third person i.e. the grandfather had committed the offence in

protest of this relationship between the victim and the accused.

11. We have perused the record.

12. There is no doubt to the preposition that a dying declaration is

an important piece of evidence and a conviction can be based solely

on a dying declaration. The court has however to keep in mind that

though a dying declaration is entitled to a great weight, the accused

has no right of cross-examination and for this reason the courts

have always insisted that the dying declaration should be of such a

nature as to inspire full confidence of the court in its correctness.

The court has to be on guard that the statement of the deceased

was not the result of either tutoring or prompting or a product of

imagination. The court must be further satisfied that the deceased

was in a fit state of mind with a clear opportunity to observe and

identify the assailant.

13. We have to test the two dying declarations on this anvil.

14. The first dying declaration Ex.PW-13/A was recorded by the

Investigating Officer ASI Dharam Singh. This document runs into

two pages and the version of the prosecution has been elicited from

this statement. The information as disclosed in this document was

in the special knowledge and in the know-how of the victim herself.

There is no other third person who could have disclosed these facts

as have been mentioned therein. In fact, the version of the

prosecution had been unfolded from this statement. Reema had

specifically mentioned herein that on the fateful day i.e. 19.12.1996

at 3 AM the door of her house was knocked; she went to open it and

found no one there. She thereafter went to the toilet where she

found the accused hiding himself. He immediately poured petrol

upon her and lighted her with a match. She was enflamed; she ran

out of the toilet into the chowk where her elder son Raj Kumar who

was sleeping in room came out. He saw the accused, who was also

present. The accused had fled. She thereafter accompanied by her

son went to the police station. This document further recites that

this version has been appended in the presence of PW-9 and has

been signed by him at point 'C'. It was this statement which had

formed the basis of the rukka for the registration of the FIR.

15. ASI Dharam Singh PW-13 has on oath deposed that he had

obtained the MLC of the injured and she was declared fit for

statement. He recorded her statement Ex.PW-13/A and thereafter

read over the same to her and after being satisfied with the same,

Reema had signed at point 'A'. He has deposed that her son Raj

Kumar had also signed the said statement and he made

endorsement at point 'C' endorsing that this statement had been

given by his mother in his presence. In his cross-examination, PW-

13 has admitted that he does not remember the name of the doctor

who had declared the patient fit for statement; the doctor was not

present by the side of the deceased when he recorded this version.

16. It is worthwhile to note that the incident had occurred at

about 3 AM, the victim had walked a two kilometer distance to the

police station along with her son to lodge her complaint. This has

been admitted by PW-9 in his cross-examination. MLC of the victim

shows that she had been admitted by PW-13 at 4.30 AM; the rukka

had been sent by PW-13 at 5.35 AM i.e. within a span of one hour;

almost forthwith keeping in view the fact that in this intervening

period after administering first aid to the victim, the patient had

been declared fit for statement and thereafter her statement was

recorded which was the basis of the rukka. This is too short a time

span for any manipulation as has been contended by the learned

defence counsel. Moreover, there also appears to be no reason as

to why the victim would name Sudhir specifically.

17. The second dying declaration Ex.PW-8/A had been recorded

by the SDM PW-8 at 5.30 PM. This is recorded in a question-answer

form and fully corroborates the version as contained in Ex.PW-13/A.

In this statement also Reema had stated that Sudhir was known to

her as he used to come to their house as he was a friend of her

husband; the accused had threatened her as she had discouraged

his advances. On 19.12.1996 when she went to her toilet the

accused who had hidden himself came out and poured petrol upon

her body and thereafter lit her with a match. This was at 3 AM in

the morning. She shouted for help and the neighbours collected.

Her son Raj Kumar came out of the room and with his assistance

she went to the police station to report the matter.

18. Vinay Bhushan PW-8 has on oath deposed that he reached

RML hospital at about 4.45 PM where he found the Addl.SHO already

present. He i.e. PW-8 along with his reader went to the Burn Ward

of the RML hospital and on reaching the ward he asked the reader

to call the doctor. The doctor came in the burn ward. MLC of the

victim was seen by the doctor as also by PW-8. The doctor

examined the victim Reema in his presence and declared her fit for

statement. He thereafter recorded the statement of Reema on her

instructions and in his own handwriting in question-answer form.

After the process of recording of statement was complete, it was

read over and its contents were explained to Reema before her

signatures were obtained on this statement. PW-8 has further

deposed that at that time injured Reema was fully conscious and

was capable of distinguishing between right and wrong and she had

made her statement voluntarily. In his cross-examination, this

witness has deposed that he has recorded the statement with a ball

pen and it took about 30-35 minutes in recording her statement.

The deceased Reema had signed at point X by using a ball pen. He

denied the suggestion that the signatures at point X on the

statement were not of Reema or that this version of Reema had

been recorded at the police station and her signatures were forged.

19. Ex.PW-8/A has been perused. We have scrutinized this

document not only with a naked eye but with a magnifying lens. The

first page of the said document supports the submission of the

learned defence counsel and it appears that the stamp of the SDM

Vinay Bhushan had been embossed on a blank paper as contents of

this first page appear to have been written over this stamp. This is

explainable by the fact that the SDM well knew the purpose for

which he was going to the hospital i.e. for recording the statement

of a burn victim and he was accompanied by his reader. He or his

reader must have stamped a blank page and the statement was

thereafter written by the SDM in the question-answer form as per

the instructions of Reema. No cross-examination has been effected

of this witness on this controversy which is now sought to be raised

and which has been explained above. There appears to be no

discrepancy on the second page of the document. The signatures

of the victim Reema have been scribbled and have appeared over

the punctuation mark; it is obviously because that Reema did not

have a firm grip of the pen while she was scribbling her signatures;

this was for the reason that she had suffered more than 90% burns

and her upper extremities had got burnt. This document further

clearly certifies that the statement of Reema had been taken by the

SDM in his own handwriting after the doctor had certified that her

she was fit for giving statement at 5.30 PM on 19.12.1996 at the

RML hospital at Bed No.25 Ward No.2. The MLC corroborates this

version; the patient had been declared fit for statement on

19.12.1996 at 4.45 AM and thereafter again at 5.30 PM.

20. The scrutiny of the aforestated two dying declaration i.e.

Ex.PW-13/A and Ex.PW-8/A show that the cause of death, the

circumstances and the manner in which the victim had been

attacked by her named assailant i.e. by Sudhir are on the same

parameters. There is no discrepancy pointed out in either of these

two versions of the dying victim. Investigating Officer as also the

SDM have both categorically deposed that the patient had been

declared fit for statement before her statement was recorded. The

Investigating Officer had recorded the first dying declaration of the

victim at 4.45 AM. The second dying declaration had been recorded

by the SDM after 5.30 PM. These certificates of fitness are

evidenced in the MLC Ex.PW-5/A. There was a span of almost 12

hours in the recording of the two dying declarations but both of

them are consistent and corroborative of one another on all scores.

They are fully reliable.

21. In this case, the doctor who had declared the patient fit for

statement had not been examined. The non-examination of the

doctor, in these circumstances, would however not affect the

evidentiary value to be attached to such a dying declaration. This

has been held by Supreme Court in Shanmugam alias Kulandaivelu

vs. State of Tamil Nadu AIR 2003 SC 209.

22. PW-9 Raj Kumar was the eye-witness in the instant case. His

version is fully corroborative of the aforesaid two dying declaration.

He has on oath deposed that the accused Sudhir was a friend of his

father and used to visit their house. He was paying Rs.300/- to

Rs.400/- for taking meals in their house. He had made demand of

Rs.5000/- from his deceased mother and when his mother did not

fulfill his demand, the accused threatened her. On the day of

incident between 3.00 AM to 4.00 AM the accused came with a can

in his hand. He i.e. PW-9 was sleeping at that time. Accused

crossed over the boundary wall and entered the bathroom where he

attacked his mother. In cross-examination, he has stated that one

railway ticket had been seized in his presence vide seizure memo

Ex.PW-5/B from the accused. He was confronted with his

statements recorded under Section 161 and 164 of Cr.P.C.; although

there are improvements to the effect that in his earlier versions he

had not stated that the accused was paying Rs.300/- to Rs.400/- for

having meals in their house or that he had demanded a sum of

Rs.5000/- and on non-payment of this money his mother had been

threatened; yet these improvements are not material in nature and

would not affect the otherwise credible version of PW-9.

23. Testimony of a child witness has to be scrutinized carefully

and if found reliable and trustworthy, the court can place reliance

upon such a version. Before examining PW-9 the court had tested

his competence by putting a preliminary round of question and it

was only thereafter he was put into the witness box. PW-9 has

passed the test of reliability.

24. The site plan Ex.PW-3/A corroborates the versions given by

the victim in her two dying declarations as also the ocular testimony

of PW-9. The incident had taken place in the toilet. After Reema

had been put on flames, she rushed out into the chowk which is

shown as the open space in Ex.PW-3/A. Her cries for help were

heard by her son who was in the room adjacent to the chowk; he

rushed out to save her. PW-9 had witnessed the incident from point

'E' on Ex.PW-3/A which is just outside the room. The boundary wall

has a height of about 2.30 meters i.e. about 8 feet; the accused had

scaled the boundary wall and had jumped into the toilet which was

open to the sky and did not have a roof and was hiding there when

Reema entered it.

25. The railway ticket Ex.P-1 recovered from the accused and

seized vide memo Ex.PW-5/B evidenced that the accused was in

Delhi on 19.12.1996 which is the date of the incident and on the

same day he had, in the late evening, travelled from Nizamuddin

Railway Station to Agra. He was admittedly a resident of Agra. He

has admitted in his statement under Section 313 Cr.P.C. that this

railway ticket had been recovered from his person. He, however,

had no explanation to offer as to what he was doing in Delhi on

19.12.1996 when he was otherwise a resident of Agra.

26. In our view, the judgment of the Trial Court calls for no

interference. We concur with the same. Appeal is without any

merit. It is dismissed. The appellant is reported to be on bail. His

bail bond and surety bond are cancelled. He is directed to

surrender forthwith to suffer his remaining sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

7th September, 2009 rb