Raj Singh vs The State
2009 Latest Caselaw 3687 Del

                THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: 11.09.2009


+      CRL A. 190/1993


RAJ SINGH                                                       ...     Appellant


                                      - Versus -


THE STATE                                                       ...     Respondent

Advocates who appeared in this case :-

For the Appellant           : Mr D.C. Mathur, Sr Advocate with Ms Rebecca M. John,
                              Mr Vishal Gosain and Mr V. Saharya
For the Respondent          : Mr Sunil Sharma.



CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.B. GUPTA

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

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

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

BADAR DURREZ AHMED, J

1. The appellant Raj Singh and his brother Krishan Lal were charged

with the commission of the offence punishable under Sections 325/34 IPC.

The nature of the charge was that on 10.11.1990 at about 5.30 a.m. in the

gali opposite Jiwan‟s house in village Shahbad Daulatpur, in furtherance of

their common intention, Raj Singh and Krishan Lal had voluntarily caused

grievous hurt to Jiwan and Ram Chander by means of a blunt object. In

respect of the appellant Raj Singh, further charges were framed under

Sections 354 and 302 IPC. Insofar as the offence punishable under Section

354 IPC was concerned, the charge against the appellant Raj Singh was that

on 10.11.1990, at about 5.30 a.m. in the said gali opposite to Jiwan‟s house

in village Shahbad Daulatpur, he assaulted or used criminal force against the

said Jiwan‟s daughter Sudesh Kumari intending to outrage or knowing it to

be likely that he would thereby outrage her modesty. With regard to the

offence punishable under Section 302 IPC, the charge against the appellant

Raj Singh was that at the above mentioned date, time and place, he

committed the murder of the said Sudesh Kumari. Since both Raj Singh and

his brother Krishan Lal pleaded not guilty, the case was taken up for trial

before the learned Additional Sessions Judge in Sessions Case No.25/1991

emanating from FIR No.285/1990 of police station Samaipur Badli. The

trial culminated in the impugned judgment dated 26.10.1993 passed by the

learned Additional Sessions Judge whereby the appellant Raj Singh was

convicted for offences punishable under Sections 354 and 302 IPC. By

virtue of the impugned judgment, both Raj Singh and his brother Krishan

Lal were also convicted under Sections 323/34 IPC.

2. By a separate order on sentence of the same day, i.e., 26.10.1993, the

appellant Raj Singh was sentenced to undergo rigorous imprisonment for a

period of six months in respect of the offence punishable under Section 354

IPC. He was also sentenced to undergo imprisonment for life and also to

pay a fine of Rs 500/- in respect of the offence punishable under Section 302

IPC. In default of payment of fine, the appellant was sentenced to undergo

further rigorous imprisonment for a period of two months. Finally, the

appellant was also sentenced to undergo rigorous imprisonment for a period

of three months in respect of the offence punishable under Sections 323/34

IPC. As regards the appellant‟s brother Krishan Lal, the learned Additional

Sessions Judge, keeping in mind his age, character and antecedents, was of

the view that it was expedient that he be dealt with under Section 360 CrPC

and consequently directed that instead of sentencing him at once to any

punishment, he was directed to be released on probation. The appellant Raj

Singh is aggrieved by the impugned judgment and the order on sentence

which has been awarded to him.

3. The case for the prosecution is that an information had been received

at the police station which was recorded in Exhibit PW-8/A being D.D.

No.23-A at 6.15 a.m. on 10.11.1990 that a quarrel was taking place near the

Harijan well at village Shahbad Daulatpur. Five minutes later, another

information was received in the same police station that a girl had been set

on fire near the Harijan well at village Shahbad Daulatpur. This information

is recorded in Exhibit PW-8/B being D.D. No.24-A dated 10.11.1990. As

per the prosecution, on receipt of the said information, ASI Inder Singh

alongwith Constable Anil Kumar reached the spot where they found Head

Constable Subhash Chand and Constable Naresh Kumar already inquiring

with regard to the incident in respect of D.D. No.23-A. There they found

Sudesh Kumari aged about 16 years, daughter of Jiwan, resident of village

Shahbad Daulatpur lying in the gali in a burnt condition in front of her

house. According to the prosecution, the said Jiwan and his brother Ram

Chander were also found at the spot in an injured condition inasmuch as they

had been injured in the quarrel referred to in D.D. No.23-A.

4. As per the prosecution, the said ASI Inder Singh, in view of the

serious condition of Sudesh Kumari, took all the three injured to JPN

Hospital. Sudesh Kumari was admitted into hospital and after filling the

injury sheet in respect of Jiwan and Ram Chander, the said Inder Singh sent

them to the emergency ward alongwith Constable Anil Kumar. Thereafter,

ASI Inder Singh obtained the MLC (Exhibit-PW-18/DA) in respect of

Sudesh Kumari which indicated that she had suffered 75% burns. The said

MLC also indicated that Sudesh Kumari had alleged that she was confronted

by a neighbour (Raj) who sprinkled kerosene oil over her and set her alight

after an altercation.

5. As per the case of the prosecution, the doctor declared Sudesh Kumari

to be fit for a statement and thereupon the statement of Sudesh Kumari was

recorded by the ASI Inder Singh in the presence of Dr Rajender Kumar. In

that statement, which was taken as the dying declaration, the said Sudesh

Kumari stated that she was residing alongwith her parents at village Shahbad

Daulatpur and was studying in Class-7. It is further indicated that on that

day, i.e., on 10.11.1990, at about 5.00 a.m., she had gone to take a bucket of

water from the tap of her neighbour Raj Singh‟s house. Having collected the

said water, she returned to her house. Her mother asked her to bring one

more bucket of water whereupon at about 5.30 a.m., she again went to take

water from the tap at Raj Singh‟s house. When she was operating the tap for

collecting water, Raj Singh also happened to come at the spot and started

taking liberties with her. She raised an alarm and on hearing the noise, her

father arrived at the spot and extricated her from Raj Singh. Her father told

Raj Singh that he should be ashamed of what he had done. Angered by this,

Raj Singh started beating her father. Sudesh Kumari then rushed to call her

uncle Ram Chander. In the meanwhile, Raj Singh‟s brother Krishan Lal also

arrived at the scene of conflict. Thereafter, Krishan Lal and Raj Singh

started to beat her father and uncle with lathis. As per the said statement, on

hearing the noise, neighbours also rushed there and extricated her father and

her uncle from the assailants. The statement then goes on to state that she

(Sudesh Kumari) was standing outside the door of her house. Raj Singh,

while standing on the roof of his house, poured kerosene oil on a gunny bag

and set it on fire and threw it on her. As a result of this, her clothes caught

fire. When she raised an alarm, the members of her family put out the fire

caught by her clothes. It is further stated that Raj Singh having poured the

kerosene oil on a gunny bag and having set it on fire had dropped the same

on her person with an intention to kill her so that she may not make any

statement against him. The statement reveals that she requested that legal

action be taken against Raj Singh and his brother Krishan Lal. The right

thumb impression of Sudesh Kumari was taken on the said statement. It also

bore an endorsement which was signed by Dr Rajender Kumar at 9.25 a.m.

on 10.11.1990 to the effect that the statement had been given by the patient

in front of him. On the basis of the above statement of Sudesh Kumari, the

said ASI Inder Singh made his endorsement (Exhibit PW-5/A) and got the

case registered under Sections 307/354/323/34 IPC through Constable Anil

Kumar and took up investigation. During the investigation, the said ASI

Inder Singh got the site plan prepared. He also had the scene of crime

photographed and took into possession the burnt pieces of clothes, ash and

the burnt skin and hair. He is said to have recorded the statements of the

witnesses and to have taken into possession the weapons used in the

commission of the crime.

6. On 15.11.1990, Sudesh Kumari died at JPN Hospital and thereupon

the case was converted into one under Section 302 IPC and the investigation

was taken up by SI Baljeet Singh. Thereupon the inquest proceedings were

conducted as also the post mortem examination of the dead body of Kumari

Sudesh. Samples were sent to the Central Forensic Science Laboratory for

their tests and reports. Apparently, the MLCs of Jiwan and Ram Chander

were also obtained and the doctor opined the injuries received by Jiwan and

Ram Chander as grievous and thereupon Section 325 IPC was added. After

completion of the investigation, the challan was filed and the charges were

framed as indicated above. Twenty witnesses were examined on the part of

the prosecution and three defence witnesses on the part of the accused /

appellant. In their statements under Section 313 CrPC both the accused

denied the incriminating evidence against them and asserted that they had

been falsely implicated by Jiwan and his family due to their enmity with

them. While the trial court convicted the appellant, it considered the dying

declaration given by Sudesh Kumari as the most material evidence brought

on record by the prosecution.

7. According to the learned counsel for the appellant Raj Singh, the said

dying declaration ought not to and cannot be believed for the following

reasons:-

(1) As per the alleged dying declaration, Sudesh Kumari was

standing outside the door of her house when Raj Singh, after

pouring kerosene oil on a gunny bag and after igniting the same

threw it from the roof of his house, upon her, due to which her

clothes caught fire. The scaled site plan (Exhibit-PW-14/A)

indicates that there is another house bearing No.256 of one

Inder Singh in between. Thus, according to the learned counsel

for the appellant, it was a physical improbability on the part of

Raj Singh to have flung a flaming gunny bag with any degree

of accuracy from the roof of his house (No. 255) over house

No. 256 and onto the gali. It was further contended that even if

such a flaming gunny bag could be thrown onto the gali, this

act would not be visible by anybody standing in the gali

inasmuch as the gali was only 1.95 metres wide and the wall of

the gali, which was essentially the wall of House No. 256, was

2.3 metres in height (a little more than 7 and a half feet). The

learned counsel also submitted that the theory of pouring

kerosene oil on the gunny bag and of throwing the same on

Sudesh Kumari, as indicated in the dying declaration, is not

corroborated inasmuch as there has been no recovery of any

container in which the kerosene oil had been kept. No matches

or any other lighting implement has also been recovered. It is

further contended that if Sudesh Kumari saw Raj Singh flinging

the flaming gunny bag, she could have seen it coming towards

her and could have easily avoided the same;

(2) It was next contended on the part of the learned counsel for the

appellant that the alleged dying declaration (Exhibit-PW-18/A)

was recorded by a police officer, though allegedly in the

presence of Dr Rajender Kumar (PW-19). The learned counsel

submitted that Sudesh Kumari died four days later and the

question arises as to why a Magistrate was not called for

recording the statement when there was ample time to do so.

This factor, according to the learned counsel for the appellant,

also creates doubt about the dying declaration (Exhibit-PW-

18/A);

(3) The learned counsel further submitted that the dying declaration

is not of a sterling quality and, therefore, the court must look

for corroboration. According to the learned counsel, it is not

corroborated by the testimony of the prosecution witnesses. It

was contended that there were two incidents on that date. First,

there was the quarrel which is alleged to have taken place in

and around the tap in Raj Singh‟s house at 5.30 a.m. After this

incident subsided, there is an incident of burning of Sudesh

Kumari at 6.15 a.m. It was contended that the date on which

these incidents took place was 10th of November, 1990. The

sunrise on that date was approximately around 6.27 a.m.

Consequently, there was a possibility that Sudesh Kumari could

not have seen clearly because it was yet dark at that point of

time.

8. It was then contended that the credibility of PW-1 (Jiwan) is also in

doubt. This is so because even the learned Public Prosecutor cross-

examined PW-1 (Jiwan). The defence counsel also confronted the said

witness extensively in view of the fact that he had changed his stand from

what he had stated in his Section 161 statement. According to the learned

counsel for the appellant, PW-1 (Jiwan) is the "kingpin" of the incident and

he had every reason to embellish his account in order to secure the

conviction of Raj Singh. Since the credibility of PW-1 (Jiwan) is doubtful,

this witness, according to the learned counsel for the appellant, cannot be

relied upon for the purposes of corroborating the dying declaration.

9. It was next contended that PW-11 (Ram Chander), who is (PW-1)

Jiwan‟s brother, is also not a credible witness. According to the learned

counsel, he lied about the first incident inasmuch as he did not mention any

injury to Krishan Lal, whereas it is a fact that Krishan Lal was injured. It

was alleged that PW-1 (Jiwan) and PW-11(Ram Chander) both sustained

injuries, but the MLCs in respect of the said witnesses had not been placed

on record. Looking at the testimony of PW-11, it appears that after the first

incident, PW-11 (Ram Chander), his brother PW-1 (Jiwan) and Jiwan‟s wife

went to Jiwan‟s house and sat there. It was stated that Mohinder Singh (PW-

17) and Bhoop Singh (PW-9) also came to the said house. After some time,

they heard shrieks of Sudesh Kumari upon which the said witness, i.e., PW-

11 (Ram Chander) alongwith his brother PW-1 (Jiwan) and his wife rushed

out and saw Sudesh Kumari on fire. The clothes worn by her were said to be

burning. It is stated by this witness that Sudesh Kumari told them that Raj

Singh had thrown a burning cloth with kerosene oil upon her from the roof

of his house. Referring to the said testimony, the learned counsel for the

appellant submitted that the sequence of events indicate that Sudesh Kumari,

after the first incident, went back to her house. The accused also went back

to their house. The question arises as to at what point of time did Sudesh

Kumari go out again and why ? The learned counsel for the appellant also

submitted that due weightage ought to be given to the suggestions put by the

defence counsel to both PW-1 (Jiwan) and PW-11 (Ram Chander) about

them being upset about Sudesh Kumari‟s alleged illicit relations with the

appellant Raj Singh.

10. The same is the position insofar as PW-9 (Bhoop Singh) is concerned,

who is a cousin of PW-1 (Jiwan). The learned counsel submitted that

neither PW-1 (Jiwan) nor PW-9 (Bhoop Singh) nor PW-11 (Ram Chander)

had seen the incident of burning. In other words, there is actually no eye

witness to the actual incident of Raj Singh throwing a flaming gunny bag on

Sudesh Kumari. It is only on the basis of the so-called dying declaration that

Raj Singh has been convicted.

11. In this context, the learned counsel for the appellant submitted that the

court should also take note of the fact that PW-17 (Mohinder Singh), whose

presence has been acknowledged by PW-11 (Ram Chander), has come out

with an entirely different account. He was declared as having become

hostile and was cross-examined by the public prosecutor. The account given

by PW-17 (Mohinder Singh) is that at about 5.30 a.m., he heard the shrieks

of Jiwan‟s wife and his daughter. He ran towards the house of PW-1 (Jiwan)

and saw that he had an iron phookni (air blower) and was giving blows with

it to his wife and daughter. The said witness stated that he snatched the said

phookni from the hands of Jiwan and asked Jiwan as to why he was beating

his wife and daughter. On this, Jiwan allegedly told PW-17 (Mohinder

Singh) that he was doing so because his daughter had been teased.

12. The learned counsel for the appellant also stated that the testimony of

DW-2 (Jai Narain Saini), who was unrelated to any of the parties must also

be given due consideration. This is so because his presence has been

acknowledged by the prosecution. The version given by him was entirely

different and suggests another possibility. According to him, on the fateful

day, when he was returning from the fields after answering the call of the

nature at about 6.15 a.m., he saw some people assembled outside Jiwan‟s

house. He enquired about the matter and after some time he heard a voice

from inside Jiwan‟s house - "mujhe jala diya, mujhe bachao" (eq>s tyk

fn;k, eq>s cpkvsk). In the meanwhile, Jiwan‟s daughter came out from

Jiwan‟s house in a burning condition and fell on the road. The people

extinguished the fire. Jiwan and Ram Chander followed the girl. He further

stated that both Jiwan and Ram Chander were saying that nobody should

inform the police. The said witness stated that Sudesh Kumari said that she

had been burnt by her father Jiwan and her uncle Ram Chander. He further

suggested that the parents of the girl doubted her character. In cross-

examination by the learned APP, DW-2 (Jai Narain Saini) stated that Sudesh

Kumari came out of the house first. She was on fire at that time and that her

face was partly covered with the gunny bag. The girl had tried to remove

the gunny bag. However, the gunny bag remained stuck on her face. She

fell in front of her own house. He further stated that besides her father and

uncle, he saw Mohinder Singh and Chander Bhan coming out from Jiwan‟s

house. He stated that Sudesh Kumari‟s mother, who was inside the house,

remained there.

13. The learned counsel for the appellant also contended that nothing

turns on the recovery of danda / lathi and jalli. This is so because there is

nothing on record to indicate any injuries on the person of PW-1 (Jiwan) or

PW-11 (Ram Chander). Although the case of the prosecution is that their

MLCs were prepared, the same have not been produced before court.

Despite this, recovery has been shown of the danda / lathi and jalli from the

house of Raj Singh. Apparently, the jalli was blood stained, but the same

was not sent to the Central Forensic Science Laboratory for determining the

blood group, etc. The learned counsel for the appellant contended that while

the recovery of danda / lathi and jalli has been shown, which are irrelevant

to establish the cause of death of Sudesh Kumari, on the other hand, there is

no recovery of the kerosene oil container or the matches or other lighting

implement used or said to have been used by Raj Singh. Even the alleged

recovery of the danda / lathi and jalli is very suspect inasmuch as in the

cross-examination by the learned APP of PW-1 (Jiwan), it has been revealed

that the said witness did not actually accompany the appellant Raj Singh and

the police to the house of Raj Singh. He only stated that he had seen the

lathi and jalli in the hand of Raj Singh when he came out with the police.

He also stated that he did not sign any recovery statement at the spot as his

hands were not working properly and that he signed the papers two days

after the incident. Coupled with this is the statement of PW-9 (Bhoop

Singh). On being cross-examined by the learned APP, he has denied the

suggestion that Raj Singh was arrested by the police in his presence and that

Raj Singh had produced the lathi and jalli (Exhibits P-1 and P-2) before the

police after bringing the same from his house. He denied having made any

such statement to the police. Another circumstance, which, according to the

learned counsel for the appellant, greatly diminishes the credibility of PW-1

(Jiwan) and PW-11 (Ram Chander) is the fact that they have not given any

explanation in respect of the injuries received by Krishan Lal. In fact, they

have completely denied any such injury having been received by him. The

learned counsel for the appellant submitted that the injury received by

Krishan Lal was not a minor injury, but was an injury caused to the head.

Although the accused have been convicted under Section 323 IPC for having

caused injuries to PW-1 (Jiwan) and PW-11 (Ram Chander) without the

MLCs in respect of them being on record, there is no explanation

forthcoming as to how Krishan Lal received the injuries. While PW-1

(Jiwan) pointedly stated that none of the accused received any injury, PW-11

(Ram Chander) stated that he did not know as to whether Krishan Lal

received any injury. The true fact has been acknowledged by PW-18 (Sub-

Inspector Inder Singh) who was the investigating officer when he stated that

it is correct that accused Krishan was injured on his head but that he did not

know if he had received eight stitches or not. The said PW-18, however,

stated that he did not consider it fit to make a case against Jiwan or Ram

Chander for the injuries on the head of accused Krishan Lal.

14. Lastly, reference was made by the learned counsel for the appellant to

the post mortem report (Exhibit-PW-10/A) and the testimony of PW-10 (Dr

George Paul) who conducted the post mortem examination on the body of

Sudesh Kumari. A reference was made, in particular, to the statement of the

said witness on cross-examination by the defence counsel that the findings

suggested that Sudesh Kumari had a previous sexual act. According to the

learned counsel for the appellant, this is a significant circumstance inasmuch

as it shows that there was a possibility that Sudesh Kumari‟s father and

uncle were both angry with her because of this. The learned counsel for the

appellant summed up his arguments by saying that the uncorroborated

evidence of PW-1 (Jiwan) and PW-11 (Ram Chander) is wholly unreliable.

There was ample opportunity for having called a Magistrate and for having

the dying declaration of Sudesh Kumari recorded inasmuch as she remained

alive for four days before she finally succumbed to the burn injuries. It was

also contended that there were serious doubts with regard to the veracity of

the alleged dying declaration (Exhibit-PW-18/A). It was contended that the

trial court erred in relying wholly upon the dying declaration and the so-

called corroborative evidence of the PWs 1, 9 and 11. Consequently, the

learned counsel for the appellant submitted that this was a case where the

accused ought to have been acquitted.

15. Mr Sunil Sharma, appearing on behalf of the state, supported the

finding of guilt as returned by the learned Additional Sessions Judge. He

contended that the victim and the accused were living near each other.

Referring to the rough site plan (Exhibit-PW-18/B), he contended that the

place where the incident of burning occurred has not been disputed. The

said site plan also indicates mark „B‟ to be the place on the roof of Inder

Singh‟s house from where Raj Singh threw the gunny bag. Mr Sharma

submitted that Inder Singh is Raj Singh‟s brother. He submitted that the

dying declaration (Exhibit-PW-18/A) has been mostly corroborated by the

other witnesses. The said dying declaration was recorded in the presence of

the doctor PW-19 (Dr Rajender Kumar). The recovery of cloth pieces, hair

and ashes clearly indicate the gali outside Jiwan‟s house to be the place of

occurrence. This implies that Sudesh Kumari was not in a position to move

away and she fell at the spot and remained there. Referring to the MLC

(Exhibit-PW-18/DA), the learned counsel submitted that, in fact, the first

dying declaration before the doctor is recorded in this MLC. He submitted

that the name of the assailant is rarely mentioned in the MLC, but in this

case, Sudesh Kumari herself has stated that she was put on fire by her

neighbour (Raj). According to Mr Sharma, this dying declaration recorded

in the MLC (Exhibit-PW-18/DA), has not been disputed by the defence by

way of giving any suggestion to the relevant witnesses. He also contended

that it is not the defence case that Sudesh Kumari was tutored to make the

statement against Raj. The learned counsel referred to the testimony of PW-

18 (Sub-Inspector Inder Singh) in an attempt to explain as to why the

Magistrate was not called for recording Sudesh Kumari‟s statement. PW-18

stated that the SHO had a talk with the SDM (Mr R.K. Yadav) over the

telephone in connection with the recording of the statement of Sudesh

Kumari. But, the said Magistrate advised that there was no need to record

the statement of Sudesh Kumari once again in his presence inasmuch as

Sudesh Kumari‟s statement had already been recorded in the presence of a

doctor, who was an independent person.

16. Mr Sunil Sharma then referred to the testimony of PW-19

(Dr Rajender Kumar), wherein he testified that he had examined Sudesh

Kumari in the burns ward. He also stated that at about 8.45 a.m. on

10.11.1990, he found Sudesh Kumari to be fit for making a statement and

that he had made an endorsement at Exhibit-PW-19/A in the MLC (Exhibit-

PW-18/DA). He also stated that the police officer, who had approached

him, recorded the statement of Sudesh Kumari in his presence and

throughout the statement, Sudesh Kumari was fit to make a statement. He

also proved his endorsement on the statement, which is Exhibit-PW-19/B)

on the dying declaration (Exhibit-PW-18/A). Mr Sharma, therefore,

submitted that once the factum of recording of the dying declaration is

established and cannot be disputed, the fact that a dying declaration was not

recorded before a Magistrate is of no significance or relevance. Mr Sharma

also contended that the defence witnesses have contradicted themselves and

are, in any event, false witnesses. With regard to conviction being based on

a dying declaration, he placed reliance on the decision of the Supreme Court

in the case of Kusa and Others v. State of Orissa: AIR 1980 SC 559. In the

said decision, the Supreme Court observed that it is manifest that a person

on the verge of death is most unlikely to make an untrue statement unless

prompted or tutored by his friends or relatives. The Supreme Court

observed that if the statement of a dying person passes the test of careful

scrutiny applied by the court, it becomes a most reliable piece of evidence

which does not require any corroboration. The Supreme Court observed as

under:-

"Suffice it to say that it is now well established by a long course of decisions of this Court that although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration."

17. At this stage itself, it may be pointed out that there is no dispute with

the aforesaid principle that a conviction can be based on a dying declaration

alone without the necessity of requiring any corroboration. But, it must be

remembered that the dying declaration must of a stellar quality. Two facts

have to be established before a dying declaration can be relied upon for

basing a conviction. The first is that it must be established that the

statement, which is sought to be labeled as „a dying declaration of the

deceased person‟ is a statement actually made by that person without any

tutoring or influence from any other person and it must be made by that

person in a fit state of mind. The second is that the court must be satisfied

that what is stated by the dying person is the truth. When both these facts

are established, then the dying declaration is of such a quality and caliber

that it can by itself be made the basis of a conviction without requiring any

corroboration. However, if there is any doubt with regard to either of the

two aspects, then corroboration becomes necessary. Corroboration need not

be on every aspect but it is sufficient if there is corroboration on material

and crucial aspects.

18. In rejoinder, the learned counsel for the appellant referred to the

decision of the Supreme Court in the case of Tori Singh and another v.

State of Uttar Pradesh: AIR 1962 SC 399 and submitted that the court must

consider as to which part of the sketch-map and the plan to scale are

admissible. The learned counsel referred to the rough sketch (Exhibit-PW-

18/B) which had been prepared by Sub-Inspector Inder Singh at the pointing

out of PW-1 (Jiwan). The place marked „B‟ in the said rough sketch is said

to be the location from where Raj Singh had, from the roof of the house of

his brother Inder Singh, thrown the burning gunny bag upon Sudesh Kumari.

According to the learned counsel for the appellant, the mark „B‟ and the

noting in respect thereof is inadmissible. She submitted that it is

inadmissible because it has been indicated on the basis of the pointing out by

PW-1 (Jiwan) who was not even an eye witness to the incident. The learned

counsel in this context referred to the observations of the Supreme Court in

the case of Tori Singh (supra) to the following effect:-

"In the second place, the mark on the sketch-map was put by the Sub-inspector who was obviously not an eye-witness to the incident. He could only have put it there after taking the statements of the eye witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of S. 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation."

19. With regard to the plan drawn to scale (Exhibit-PW-14/A), the learned

counsel for the appellant submitted that the same principles would apply. In

addition, she submitted that in Tori Singh (supra), the court had observed:-

"This court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map. In Santa Singh v. State of Punjab: AIR 1956 SC 526, it was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by S. 162 of the Code of Criminal Procedure."

20. In this context, the testimony of PW-14 (Sub-Inspector Manohar Lal),

the draftsman who prepared the scaled site plan (Exhibit-PW-14/A) was

referred to. He stated that on 03.12.1990, he had visited the place of

incident and had taken notes and measurements of the place of incident at

the pointing out of ASI Inder Singh on the basis of which he prepared the

scaled site plan.

21. Therefore, the learned counsel for the appellant submitted that the

mark „B‟ shown in both the rough sketch and the scaled map is inadmissible

in evidence. She submitted that the prosecution case is also that the burning

gunny bag was thrown from the roof of Raj Singh‟s house on Sudesh

Kumari. In fact, even the question put to the appellant Raj Singh, while

recording his statement under Section 313, CrPC was that:-

"It is further in evidence against you that you after soaking a gunny bag with kerosene oil and after igniting it threw the same from the roof of your house on Sudesh Kumari due to which her clothes caught fire. What have you to say ?"

22. The learned counsel for the appellant further submitted that even the

purported dying declaration (Exhibit-PW-18/A) indicates that the flaming

gunny bag was thrown from the roof top of Raj Singh‟s house. PW-1

(Jiwan) also stated that the same was thrown from the roof of Raj Singh‟s

house. In the course of cross-examination by the learned APP, no

suggestion was given by him that it was thrown from the roof of Inder

Singh‟s house and not Raj Singh‟s house. PW-9 (Bhoop Singh) has only

stated that the gunny bag was thrown from the roof. He did not mention as

to the roof of which house. PW-11 (Ram Chander) also stated that the

gunny bag was thrown by Raj Singh from the roof of his house.

23. On the basis of the aforesaid, the learned counsel for the appellant

submitted that no witness has corroborated the point marked „B‟ in the rough

sketch (Exhibit-PW-18/B) to be the place from which the gunny bag was

thrown. On the other hand, it has been the consistent case of the prosecution

that the gunny bag had been thrown from the roof of Raj Singh‟s house. It

was consequently submitted that the dying declaration (Exhibit-PW-18/A)

cannot be construed as a truthful one because of the sheer improbability of a

flaming gunny bag being hurled from the roof of Raj Singh‟s house over

Inder Singh‟s house onto the gali and upon Sudesh Kumari who happened to

be standing there.

24. The learned counsel for the appellant referred to the Supreme Court

decision in the case of P. Mani v. State of Tamil Nadu: 2006 (1) JCC 447

to submit that indisputably conviction can be recorded on the basis of a

dying declaration alone, but the same must be wholly reliable. The Supreme

Court observed that in a case where suspicion can be raised as regards the

correctness of the dying declaration, the court, before convicting an accused

on the basis thereof, would look for some corroborative evidence. It was

further observed that suspicion, it is trite, is no substitute for proof and that if

evidence brought on record suggests that a dying declaration did not reveal

the entire truth, it may be considered only as a piece of evidence in which

event, conviction may not be rested only on the basis thereof.

25. The learned counsel for the appellant also referred to the Supreme

Court decision in the case of Jagga Singh v. State of Punjab: 1994 SCC

(Cri) 1798, wherein the Supreme Court observed that:-

"It is a settled law that for a dying declaration to provide the basis for conviction, the same has to be beyond any reproach. As the present dying declaration is not of such a status at all, we are of the view that the conviction of the appellant cannot be based on what has been recorded in the dying declaration."

26. The learned counsel for the appellant also submitted that even if the

defence has faltered, it is for the prosecution to prove its case and that a false

defence by itself cannot lead to conviction. The defence has only to

probabilise its case and not to prove it beyond doubt. On the other hand, the

prosecution has to prove its case beyond reasonable doubt. The learned

counsel further submitted that when two views are probable, then the one

contended by the accused ought to be accepted.

27. Finally, with regard to the contention that the MLC (Exhibit-PW-

18/DA) of Sudesh Kumari also contains a dying declaration and that the

same has not been challenged, the learned counsel submitted that the MLC

itself has not been proved because the scribe of this document is Dr Anjali

who was not produced. Consequently, no opportunity was afforded to the

accused to cross-examine the said Dr Anjali. No witness has been produced

who stated that he knew her writing or recognized her writing. Therefore,

according to the learned counsel for the appellant, it cannot be construed that

the MLC (Exhibit-PW-18/DA) has not been challenged. No occasion for

such challenge arose inasmuch as Dr Anjali had not been produced and her

recording has not been proved by any other witness. Consequently, the

learned counsel for the appellant urged this court to set aside the impugned

judgment and order on sentence and to acquit the appellant.

28. Upon a consideration of the entire evidence on record and the

submissions made by the learned counsel for the parties, we are of the view

that the impugned judgment and the order on sentence are liable to be set

aside and the appellant is entitled to an order of acquittal. This is so because

the appellant would get the benefit of doubt which exists in our minds. We

have already noted that the learned Additional Sessions Judge placed a

significant amount of reliance on the dying declaration (Exhibit-PW-18/A)

of Sudesh Kumari. As indicated in the course of recording the arguments

made by the counsel for the parties, the law on dying declarations is well

established. First of all, a conviction can be founded solely on the basis of a

dying declaration. But for doing so, the dying declaration must be of an

impeccable character. Secondly, where a dying declaration is not of such a

sterling quality, conviction can still be founded on the basis of such a dying

declaration provided it finds corroboration from other evidence on record.

Thirdly, where a dying declaration is neither truthful nor correct, no amount

of corroboration would lead to the conviction of anybody on the basis of

such a dying declaration.

29. Keeping these principles in mind, let us examine the dying declaration

(Exhibit-PW-18/A). As per the said statement, Sudesh Kumari was standing

in the narrow gali outside her house. The walls of the gali were between 7-8

feet height. She stated that Raj Singh was on the roof of his house. She

stated that Raj Singh poured kerosene on a gunny bag, ignited it and threw it

upon her from the roof of his house. A portion of the site plan (Ex. PW-

14/A), which is to scale, is as under:-

30. The scaled site plan (Exhibit-PW-14/A) clearly indicates that in

between the gali where Sudesh Kumari was said to be standing and the

house of Raj Singh (No.255), there was the house of Inder Singh (No.256).

The site plan indicates the total width of the two houses on an East-West

direction to be 6.85 metres. From the scaled plan, it appears that the two

houses bearing Nos. 256 and 255 were of equal width on the East-West

direction. This means that Raj Singh‟s house was at least about 3.42 metres

away from the wall of the gali over which the flaming gunny bag is said to

have been thrown. The wall of the gali being between 7-8 feet height

(actually, 2.30 metres as per the site plan), would have certainly prevented

Sudesh Kumari from getting a clear view of Raj Singh on the roof of his

house, if at all. The angle of vision would definitely be a steep incline in

view of the fact that Sudesh Kumari was only 145 cms tall as per the Inquest

Report (Exhibit PW-20/A). This would be apparent from figure 1 below

which shows Sudesh Kumari standing in the gali and Raj Singh standing on

the east-most portion of the roof of his house No.255. Sudesh Kumari‟s

angle of vision would be obstructed by the 2.30 m wall. Consequently, she

would not be able to see anything below the line ABC in figure 1. In other

words, the shaded portion would be shielded from her vision by the 2.30 m

wall.

[ Figure 1 ]

31. Figure 2 is derived from figure 1. „A‟ is the point, 145 cms from the

surface of the gali representing the height of Sudesh Kumari as shown in

Figure 1. „B‟ is the top of the Western wall of the gali which is at a height

of 230 cms. „D‟ indicates the measure by which the wall is higher than

Sudesh Kumari‟s height. BD is 85 cms (230 cms - 145 cms). Since Sudesh

Kumari is assumed to be standing in between the two walls of the gali.

„AD‟ = 97.5 cms (half of the width of the gali, i.e., half of 195 cms). „BE‟ is

the distance between the top of the Western wall of the gali and the Eastern-

most edge of House No.255. Thus, even if Raj Singh were to have flung the

gunny bag from the Eastern-most part of the roof of his house, he would be

at point „E‟ and the distance „BE‟ would be 342.5 cms (as per the site plan).

„θ‟ is the angle of vision of Sudesh Kumari over the Western wall of the

gali.

[ Figure 2 ]

32. We know that „θ‟ in both the triangles ABD and BCE is the same. We

need to know the measure of CE. Because this will tell us the minimum

height of objects at point E which could be visible to Sudesh Kumari,

standing in the gali, CE can be easily derived mathematically as follows:-

                tan θ =   BD            .....   (1)
                          AD

                tan θ =   CE            .....   (2)
                          BE

                ∴    CE   =    BD
                     BE        AD

                ∴    CE   =    BD x BE
                                AD

                          =    85 x 342.5 =         298.6 cms or 299 cms.
                                 97.5

Thus, if Raj Singh were to be visible to Sudesh Kumari, he would have to be

299 cms tall (approximately 10 feet tall)! It is obvious, going by the

evidence on record, Sudesh Kumari could not have seen Raj Singh standing

on the roof of his house.

33. Apart from this, we find merit in the submission of the learned

counsel for the appellant that it would be highly improbable on the part of

Raj Singh to have thrown a flaming gunny bag over a distance of about 3

and a half metres onto a gali where Sudesh Kumari was standing with any

degree of accuracy. This is aside from the question that if Sudesh Kumari

would not be in a position to see Raj Singh on the roof of his house, it is

obvious that Raj Singh would equally not be in a position to see Sudesh

Kumari standing in the gali. The factors of poor visibility are further

heightened by the fact that the incident is alleged to have occurred at around

6.15 a.m. on the 10th of November, 1990, when the sunrise on that day was

at about 6.27 a.m. This certainly casts serious doubts on the veracity of the

statement (Exhibit-PW-18/A).

34. Another important circumstance is the fact that in the MLC (Exhibit-

PW-18/DA), it is indicated that Sudesh Kumari herself was the informant

and she had alleged as under:-

"Pt. alleges that she was confronted by a neighbour (Raj) who sprinkled kerosene over her & set her alight after an altercation."

While the learned counsel for the appellant, as noted above, stated that this

MLC could not be looked into inasmuch as the scribe, Dr Anjali, has not

been produced as a witness and, therefore, the defence was not given an

opportunity to cross-examine her, even if we assume that the said MLC

stands proved and established, we find that the version given in the same is

different and distinct from the statement of Sudesh Kumari recorded in

(Exhibit-PW-18/A). The version given in the MLC is that she was

confronted by Raj who sprinkled kerosene over her and set her alight after

an altercation. However, the version in (Exhibit-PW-18/A) and which is

also the prosecution case is that Raj Singh poured kerosene oil on a gunny

bag, set it on fire and then threw the same from the roof of his house onto

Sudesh Kumari who was standing in the gali. It is apparent that the two

versions, if what is recorded in the MLC can be regarded as the first dying

declaration, are at variance. This circumstance has also given rise to doubt

about the veracity of the statement contained in (Exhibit-PW-18/A).

35. Thus, even if we assume that (Exhibit-PW-18/A) was a statement

which had been correctly recorded by PW-18 on the basis of what Sudesh

Kumari actually said, there are serious doubts with regard to the veracity or

truthfulness of what she said. In such a situation, as noted in the course of

discussing the arguments advance by the counsel for the parties,

corroboration becomes necessary. While looking for corroboration, we find

that the same is not forthcoming. Both PW-1 (Jiwan) and PW-11 (Ram

Chander) have veered away from the prosecution case and were, therefore,

subjected to cross-examination by the learned APP. The said witnesses have

not been truthful about injuries caused to Krishan Lal. In any event, these

witnesses were not the eye witnesses to the actual incident. Furthermore,

there has been no recovery of any container from which the kerosene oil is

said to have been poured onto the gunny bag. No matches or any other

material, which may have been used for igniting the gunny bag, have been

recovered from the roof of Raj Singh‟s house or at his instance. What have

allegedly been recovered are the lathi and jalli which are irrelevant for the

purposes of the offence under Section 302 IPC which was allegedly caused

by the burning gunny bag. It is also of significance that PW-17 (Mohinder

Singh) whose presence has been acknowledged by the other prosecution

witnesses, has given a completely different version and has been termed as

„hostile‟ by the prosecution. Jai Narain (DW-2), whose presence has also

been acknowledged by the prosecution, has given a version entirely different

from that of the prosecution.

36. We accept the argument of the learned counsel for the appellant that

the mark „B‟ shown in the rough sketch and the scaled map as being the

place from where the gunny bag was thrown would not be admissible in

view of the decisions referred to and relied upon by the learned counsel for

the appellant. The rough sketch had been prepared on the pointing out of

PW-1 (Jiwan), who was not an eye witness and who, in any event, in his

testimony, stated that the gunny bag was thrown from the roof of Raj

Singh‟s house. He did not say that the gunny bag was thrown from point

„B‟, which is the roof of Inder Singh‟s house. Same is the position with

regard to PW-11 (Ram Chander). We have already indicated that PW-9

(Bhoop Singh) did not indicate as to from which house the gunny bag was

thrown, but he has only stated that it was thrown from the roof. Therefore,

the point marked „B‟, which is indicated on the roof of Inder Singh‟s house

in both the rough sketch and the scaled map, cannot be taken as the point

from which the gunny bag was thrown because the same is not corroborated

by the testimonies of PW-1 (Jiwan) and PW-11 (Ram Chander) in particular,

both of whom stated to the contrary that the gunny bag was thrown from the

roof of Raj Singh‟s house. We have already indicated how that would also

be an improbability.

37. We may also note that the prosecution has not been able to make a

convincing argument with regard to the motive on the part of Raj Singh.

The only motive indicated by the prosecution is that in order to prevent

Sudesh Kumari from testifying against him, with respect to the earlier

incident at the tap of Raj Singh‟s house, Raj Singh though it fit to put an end

to Sudesh Kumari‟s life. This reasoning does not impress us. The first

incident which took place had, even as per the prosecution case, been settled

by the intervention of the people, who had gathered there. PW-1 (Jiwan)

and PW-11 (Ram Chander) had returned to Jiwan‟s house. Sudesh Kumari

had also returned to the same house. Raj Singh and Krishan Lal had stayed

back at their house No.255. Thus, there was no occasion for Raj Singh to

further aggravate the situation by deciding to commit the murder of Sudesh

Kumari. We do not think that the motive for committing the murder of

Sudesh Kumari has been established by the prosecution. Although in cases

involving eye witnesses, the question of motive is not of prime importance,

but in cases based entirely on circumstances and where the dying declaration

is of doubtful quality, the existence of a motive becomes a very important

circumstance. In this backdrop also, we find that the prosecution has not

been able to establish its case beyond reasonable doubt.

38. In view of the foregoing, we find that there are serious doubts with

regard to the prosecution case. The benefit of such doubts, insofar as the

offence punishable under Section 302 IPC is concerned, would have to be

given to the appellant. Insofar as the conviction under Sections 323 and 354

IPC is concerned, no serious arguments were advanced by the learned

counsel for the appellant. Perhaps, because the accused has already been

imprisoned for over three years and the sentences awarded for the said

offences were six months rigorous imprisonment and three months rigorous

imprisonment respectively. In the result, we set aside the conviction and

sentence of the appellant for the offence punishable under Section 302 IPC.

The conviction of the appellant under Sections 323/34 IPC and Section 354

IPC are maintained. It is apparent that the appellant has already served out

the sentences for the latter offences. The appellant is on bail. Consequently,

the bail bond stands cancelled and the surety stands discharged. The

appellant stands acquitted and is set at liberty insofar as the offence under

Section 302 IPC is concerned. With regard to the offences under Sections

354 IPC and 323/34 IPC, the appellant has already served out the sentences

therefor.

The appeal stands allowed to the extent indicated above.

BADAR DURREZ AHMED, J

V.B. GUPTA, J September 11, 2009 dutt