Delhi High Court

Brij Kishan vs State on 14 September, 2009

Author: Pradeep Nandrajog

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                           Date of Decision : September 14, 2009



+                               CRL.A. 631/2001

       BRIJ KISHAN                         ..... Appellant
                 Through : Mr.P.R.Thakur, Advocate.


                                    Versus

       STATE                                    ..... Respondent
                       Through : Mr.M.N.Dudeja, A.P.P.


                                CRL.A. 647/2001

       VIJAY LAXMI & ANR.                  ..... Appellants
                 Through : Mr.P.R.Thakur, Advocate.


                                    Versus

       STATE                                    ..... Respondent
                       Through : Mr.M.N.Dudeja, A.P.P.


                                CRL.A. 665/2001

       RAJ KISHAN                          ..... Appellant
                 Through : Mr.P.R.Thakur, Advocate.


                                    Versus

       STATE                                    ..... Respondent
                       Through : Mr.M.N.Dudeja, A.P.P.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
CRL.A. 631, 647 & 665 of 2001                           Page 1 of 17
 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

PRADEEP NANDRAJOG, J. (ORAL)

1. 5 persons; namely, Raj Kishan husband of the

deceased Suman, Suman‟s mother-in-law Smt.Pushpa,

Suman‟s brother-in-law (jeth) Brij Kishan, Suman‟s sister-in-law

Vijay Laxmi and Jagat Narayan the husband of Vijay Laxmi

were charged with the offence punishable under Section

302/34 IPC and for the offence punishable under Section

498A/34 IPC.

2. During trial, Smt.Pushpa, the mother-in-law of the

deceased expired on 16.8.2000; a fact noted in the impugned

judgment and order dated 22.8.2001. Thus, proceedings

abated against Smt.Pushpa.

3. The remaining four accused have been convicted

for the offence they were charged and for the offence

punishable under Section 302/34 IPC have been sentenced to

undergo imprisonment for life and for the offence punishable

under Section 498A/34 IPC they have been sentenced to

undergo rigorous imprisonment for a period of three years.

Fine has also been imposed upon the accused who have been

convicted and in default of payment of fine it has been

directed that they would undergo further imprisonment for a

period of 6 months.

4. During the pendency of the afore-noted appeals

whereunder the husband, the sister-in-law and the two

brothers-in-law of the deceased have challenged their

conviction, Vijay Laxmi, the sister-in-law of the deceased

expired on 14.1.2006; in respect whereof a certificate issued

by the Registrar of Births and Deaths has been produced in

Court for our perusal. Photocopy thereof has been handed

over to learned counsel for the State.

5. It hardly matters whether qua Vijay Laxmi

Crl.Appeal No.647/2001 is disposed of as having abated, for

the reason after hearing arguments in the three appeals we

are of the opinion that the impugned decision of conviction

cannot be sustained; entitling the accused to be acquitted.

6. In returning a finding of guilt against the accused,

the learned Trial Judge has held that the testimony of Brij

Mohan Sharma PW-1 established an oral dying declaration

made by the deceased to Brij Mohan who claims to have been

present in the taxi in which the deceased was removed to the

hospital. The learned Trial Judge has also held that two other

dying declarations; namely Ex.PW-29/C, recorded by the

investigation officer SI Hoshiar Singh PW-29; followed by

another dying declaration Ex.PW-19/B recorded by Shri

G.C.Pillai PW-19, then functioning as the Executive Magistrate

of the area concerned, inspired confidence. The learned Trial

Judge has held that the said dying declarations clearly

inculpated all the five accused. Since the mother-in-law of the

deceased had expired, the remaining four accused have been

convicted for the offence of murder.

7. Pertaining to the conviction of the appellants for the

offence punishable under Section 498A/34 IPC, the learned

Trial Judge has held that the testimony of Brij Mohan PW-1,

Bhola Shankar PW-2 and Bhu Dev PW-3 who resided in the

neighbourhood of the matrimonial house of the deceased as

also the testimony of Mahesh Chand Nagar PW-11, the brother

of the deceased and Ms.Kamla Nagar PW-10, the mother of the

deceased, inspires confidence and establishes that on account

of inadequacy of dowry brought by the deceased she was

subjected to mental and physical cruelty.

8. It is not in dispute that Suman received burn

injuries in her matrimonial house at around 1:00 AM on the

intervening night of 8th and 9th August 1985. It is also not in

dispute that Suman was immediately rushed to Lok Nayak Jai

Prakash Hospital. There is some dispute whether Suman was

removed to the hospital by her father and PW-1 or that they

reached the hospital a little late and Suman was removed to

the hospital by her husband and Brij Kishan, the brother-in-law

of Suman.

9. Whereas the MLC Ex.PW-27/A of Suman records

that her father Shri Kanti Chand Nagar had got her admitted at

hospital at 1:50 AM; the authorization at the rear of admission

form bears the signatures of Brij Kishan.

10. According to the accused when Suman was

admitted at the hospital necessary formalities pertaining to

the treatment to be given to her were being completed

requiring an authorization, permitting the medicines which had

to be given to the deceased, to be given. At that time, the

father of the deceased reached the hospital and

simultaneously when the MLC was being drawn up got

recorded in the MLC that it was he who had brought Suman to

the hospital.

11. The controversy aforesaid would be relevant for the

conduct of the in-laws of Suman. Indeed, if the in-laws of

Suman were indifferent towards her, it would show, if not

substantially at least to some extent the acrimonious

relationship and the indifference of the in-laws in rescuing

Suman.

12. But, we need not resolve the aforesaid controversy

for the reason we find considerable doubt being cast on the

two written dying declarations and even if the two were

truthfully recorded, a serious doubt is cast whether at all

Suman voluntarily made the statements or was influenced by

her father, who, admittedly had reached the hospital before

the statements were recorded. Corroboration to said fact i.e.

of Suman‟s father being in the hospital is to be found in the

MLC of the deceased, which, as noted above, record that

Suman was brought to the hospital by her father.

13. It is settled law that where there are inconsistencies

in a dying declaration or where there are traces of the maker

of the dying declaration being influenced, unless corroborated

by independent evidence, it would be unsafe to sustain a

conviction on such dying declarations.

14. Before we note the contents of the two written

dying declarations, we may note that while putting the

incriminating circumstances to the accused when they were

examined under Section 313 Cr.P.C., the incriminating

circumstance of the deceased having made any oral dying

declaration to Brij Mohan PW-1 has not been put to the

accused. Thus, while considering the incriminating

circumstances against the accused, said evidence has to be

excluded while considering the evidence led against the

accused.

15. We shall also be noting hereinafter the possibility of

Brij Mohan falsely deposing on account of local politics in the

colony.

16. The statement Ex.PW-29/C, as noted therein, has

been recorded somewhere around 11:00 AM on 9.8.1985. The

scribe of the statement is SI Hoshiar Singh PW-29. The

statement is in Devnagri script. It is not in question-answer

form. It is a narrative in one paragraph.

17. The statement reads as under:-

"Statement of Smt.Suman W/o Shri Raj Kishan R/o 1766 Kucha Lattu Shah, Dariba Kalan, aged 27 years.

I reside at the address above noted and about 1¼ years ago got married to Raj Kishan and since marriage I am residing in my matrimonial house where my mother-in-law, my jeth and jethani as also my nand and nandoi reside. No child has been born to me. After marriage my mother-in-law and sister- in-law used to directly and indirectly harass me on account of dowry. On 8.8.1985 Sudhir whom I treat as a brother came to my house and counseled me and my husband. He left in the night at around 12:30. After seeing him off my husband returned and started speaking very harshly with me and even slapped me. After switching off the light in our room we went to sleep. The three doors in the room were latched. After sometime I got up and went towards the toilet. At that time somebody poured kerosene oil on me from the back and lit a matchstick and set me on fire. I could not see who that person was. But saw Jagat Prasad, my Nandoi, leaving the place. In the night whenever my husband used to cohabitate

with me he used to leave the room after beating me. My mother-in-law used to sleep in a room downstairs. My bedroom was upstairs. In the night my mother-in-law used to tell me to call my husband to the room and sleep with him and when I used to refuse she used to beat me. This had been happening for quite some time and on account thereof I used to be beaten. The reason was dowry. I have heard the statement. It is correct."

18. The second dying declaration Ex.PW-19/B is in

English. It reads as under:-

"On the night of 9.8.1985 after 12 am (midnight) on the night while I was came out from the room to the batroom, then two or three persons came after me. Sister and brother-in-law came before and after their arrival I was gone to the bathroom. My mother-in- law beat me and my husband Raj Kishan told me that Vijay the sister-in-law and Jagat Prakash brother-in-law told him all the facts and Vijay and Jagat also beat me in between. Then someone poured K.oil on me. I could only see a man with Pyajama & Pyajama was worn by Raj Kishan and some other peson lighted the matches over my body. Mr.Gopal Krishan, brother of Raj Kishan, Vijay laxmi and Jagat Prakash, Annu Bhai of Moradabad were present there and was asking for dowry. All other girls used to bring more dowry by neighbours and they were asking why you did not bring dowry. I was wearing a synthetic saree and the fire was spread all over my body. I was married in 10.5.1984 and no children. I was brought to the hospital by Shri Brij Mohan Sharma resident of the same street and Shri Mool Chand Gupta, Municipal Councillor and admitted. I was sleeping and mother-in-law and wife of Brij Kishan alias Gopal Kishan used put Sindoor on body. Mrs.Vijay used to talk everything to her mother and she used to tell to my husband with this my husband used to beat me. I was used compel to sleep with Jagat brother-in-law. I can‟t talk anymore."

19. The second dying declaration has been recorded, as

noted thereon at 1:20 PM i.e. after a gap of about two hours

and twenty minutes of Ex.PW-29/C being recorded. Suffice

would it be to state that a bare reading of the two dying

declarations shows great deal of inconsistencies therein.

20. There is no mention of anybody beating Suman at

the time when she was set on fire in the dying declaration

Ex.PW-29/C. In the dying declaration Ex.PW-19/B it stands

recorded that the mother-in-law, Raj Kishan the husband of the

deceased, Vijay the sister-in-law of the deceased and Jagat

Prasad the husband of Vijay Laxmi gave her beating. Nobody

is named being present, whom she had seen, in the first dying

declaration Ex.PW-29/C. In the second dying declaration

persons who are named being present are Gopal Kishan, Raj

Kishan, Vijay Laxmi, Jagat Prasad and one Annu Bhai of

Moradabad.

21. The only commonality in the two statements is

when Suman states that she saw somebody in a pyjama leave

the spot where she was burnt. But, even in respect thereof,

we find a changed version. In Ex.PW-29/C she says that the

pyjama was the one which she had been seeing worn by Jagat

Prasad. In the statement Ex.PW-19/B she says that the pyjama

was the one which was worn by Raj Kishan.

22. So different and discrepant are the two dying

declarations that rule of prudence compels us to discard both.

23. We eschew reference to certain features pointed

out by learned counsel for the appellant wherefrom counsel

doubted the capacity of Suman to make the statements.

Suffice would it be for our purposes to note that the presence

of Suman‟s father in the hospital is suspicious enough to doubt

whether Suman spoke for herself or was made to speak at the

behest of her father.

24. While commencing our decision we had noted a

reference to some local politics being played and the same

influencing the witnesses to depose falsely.

25. Brij Mohan Sharma PW-1 a resident of Kuch Lattoo

Shah is admittedly a neighbour of the deceased. As per him

when he removed Suman to the hospital in the taxi along with

Kanti Chand, father of Suman, on the way Suman told him that

Raj Kishan i.e. her husband had poured kerosene oil on her

and Pushpa, her mother-in-law set her on fire, when she tried

to save herself Brij Kishan, Jagat Narayan and Vijay closed the

door.

26. Though said evidence has to be ignored by us for

the reason while examining the appellants under Section 313

Cr.P.C. said incriminating evidence has not been put to the

accused, but we would be failing to note that PW-1 has given a

third version of who participated and in what manner as

disclosed to him by Suman.

27. We note that on being cross-examined, PW-1

admitted that he was a worker affiliated with the Indian

National Congress. He admitted that there was a Consumer

Cooperative Society formed by the residents of the area and

that he had been a Secretary of the society. He denied that he

had embezzled the funds of the society but admitted that the

Inspector of Food and Supply Department had checked the

working of the society. He stated during cross-examination

that he could neither affirm nor deny whether this was done

pursuant to the complaint made by appellant Brij Kishan. He

admitted that the consumer store was challaned a number of

times and fine was imposed by the Court. He admitted that a

case was pending against him under the Essential

Commodities Act. He denied the suggestion that Suman‟s

brother had stood surety for him, but failed to give the name

of his surety.

28. Suffice would it be to state that it is apparent that

Brij Mohan had a past enmity with the appellants and Suman

receiving burn injuries in her matrimonial house was a golden

opportunity for Brij Mohan to ensnare the appellants in the

clutches of law.

29. Bhola Shanker PW-2 claimed to be an eye-witness.

He deposed that the cries of bachao-bachao broke his slumber

when he heard the noise at around 1:00 - 1:15. He switched

on the light and saw through the „jangla' that Suman was

trying to open a window. The accused were pulling her

towards the bathroom. He ran down in the street and

informed Suman‟s parents who resided nearby and that in the

company of Mahesh, brother of Suman and Kanti Chand, father

of Suman, he reached Suman‟s matrimonial house who had

been brought down by then.

30. In cross-examination, Bhola Shanker admitted that

he had been convicted and fined by a Criminal Court and that

appellant Brij Kishan had filed a suit seeking compensation on

the allegation that Brij Kishan had been defamed by him. But,

he clarified that the suit was dismissed. He admitted that Brij

Kishan had filed a suit against him to injunct him from parting

possession with the portion of the property under his tenancy.

31. It is apparent that Bhola Shanker is a tenant under

the appellants. Thus, it is apparent that even Bhola Shanker

had an axe to grind against the appellants.

32. Bhu Dev PW-3, a resident of house No.1771, Kucha

Lattoo Shah, Dariba had deposed in a very blurred language.

His testimony hardly inculpates anybody and is of not much

relevance. We may note that as per him when he heard noise

in the street at around 1:00 AM he got up and on making

enquiry was told that the daughter-in-law in an adjoining

house had been burnt. He stated that he saw Brij Mohan bring

down Suman whose body was covered with a cloth.

33. We may note that the testimony of Bhu Dev lends

credence to the defence version that Brij Mohan, the brother-

in-law of the deceased and her husband, were the ones who

removed the deceased to the hospital.

34. Mahender Singh PW-8, a resident of House No.1757

Kucha Lattoo Shah, Dariba depsed that at around 1:00 AM in

the night of 8th and 9th August 1985 noise of „bachao-bachao

maar- diya maar-diya‟ awoke him from his slumber. He heard

one Bhola shouting that a daughter-in-law had been killed. He

saw the accused on the first floor of their house. We note that

Mahender Singh was cross-examined with reference to the

distance of his house and the house where the incident took

place as also whether the two houses were in a straight line of

vision.

35. In the absence of a site plan showing the location of

the two houses it would not be possible for anyone to draw any

conclusion on said issue. But, what is worthy of being noted is

that in his statement Ex.PW-8/DA recorded under Section 161

Cr.P.C. it has not been recorded that Mahender Singh saw all

the accused on the first floor of their house. It is also

worthwhile to note that in the said statement it has not been

recorded that Mahender stated to the police that he heard

Bhola Shanker shouting that a bahu (daughter-in-law) had

been killed.

36. Only two witness of the prosecution i.e. PW-1 and

PW-2 have deposed facts which are inculpatory of the accused

but since both of them have an axe to grind, being interested

witnesses, it would be unsafe to rely on their testimony.

37. Thus, as regards the offence punishable under

Section 302/34 IPC the only fact we have on record is that the

deceased suffered burn injuries in her matrimonial house. The

manner in which she received burn injuries as disclosed by the

deceased in her two dying declarations are full of

contradictions, rendering both liable to be rejected. As per the

defence, the deceased committed suicide by pouring kerosene

oil on her.

38. The appellants would thus be entitled to a benefit of

doubt entitling them to be acquitted of the charge of murder.

39. Pertaining to the offence punishable under Section

498A/34 IPC, PW-1 and PW-2 have deposed of the deceased

being troubled for dowry. The other witnesses pertaining to

the dowry demand are PW-10 and PW-11, the mother and

brother of the deceased.

40. Before discussing their evidence we may note that

this issue has become academic insofar as appellants Raj

Kishan and Brij Kishan are concerned for the reason they have

already suffered incarceration for a period in excess of three

years. They have been sentenced to undergo imprisonment

for three years for the offence punishable under Section 498A

IPC.

41. Appellant Jagat Narayan is the only accused who

would be affected by our decision for the reason as against a

sentence of three years simple imprisonment he had

undergone imprisonment only for a period of one year seven

months and fifteen days.

42. In her testimony PW-10, the mother of the

deceased, with reference to the demand of dowry deposed as

under:-

"The accused persons did not make any demand from me except Raj Kishan who once came and demanded Rs.7,000/- and had also given me abuses. I did not tell my husband or son of the said demand of Rs.7,000/-. Raj Kishan had made demand of Rs.7,000/- in the presence of my daughter Suman."

43. Mahesh Chand Nagar PW-11, the brother of the

deceased has deposed that his parents never told him that his

sister was being harassed nor did his sister ever told him about

said fact. He deposed that he used to often come to the house

of his sister but was not allowed to meet her.

44. Though Kamla Nagar, PW-10, the mother of the

deceased has stated that the dowry demand in sum of

Rs.7,000/- was made on 24.6.1985, we note that the defence

was that Shobha, the sister of the deceased had purchased a

television set and a mosquito net from the accused and in

respect thereof Rs.7,000/- was the outstanding payment and

this amount was demanded from the parents of the deceased