Umesh Dutt vs State (Govt. Of Nct, Delhi)
2010 Latest Caselaw 2143 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on: April 19, 2010
                           Judgment delivered on: April 23, 2010


+      CRIMINAL APPEAL NO.524/2009

       UMESH DUTT                                 ....APPELLANT
              Through:       Mr. Keshav Kaushik, Advocate with
                             Mr. Govind N. Kaushik, Ms. Kanica
                             Bakhroo, Advocates

                       Versus

       STATE(GOVT. OF NCT, DELHI)           .....RESPONDENT
               Through: Mr. Lovkesh Sawhney, APP


        CORAM:
        HON'BLE MR. JUSTICE A.K. SIKRI
        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. The appeal is preferred against the impugned judgment dated

06.04.2009 in Sessions Case No.150/2008 FIR No.162/03 convicting the

appellant on the charges under Section 302 IPC and Section 307 IPC

and the consequent order on sentence dated 13.04.2009.

2. Briefly stated, the case of the prosecution is that in the morning

of 13.3.2003 at around 9.20 a.m., deceased Kavita and her daughter

Nikita sustained fire burn injuries at their house in Village Pandwala

Kalan, Delhi. At that time, they were alone in the house. The mother-

in-law of the deceased Gyanwati (PW-4) who had gone to provide water

to her buffalo returned home almost at the same time and she noticed

the deceased lying in burnt condition in the courtyard. She tried to put

off the fire by throwing water on her. In the meanwhile, Nagender(PW-

1) husband of the deceased also reached there and on seeing his

daughter Nikita aflame, he picked her up and dipped her in the water

tank to put off the fire. Thereafter, he arranged for a maruti van and

he along with his brother Dharmender(PW-5), Sanjay Kumar (PW-7),

Gaurav @ Manu(PW-8) and one Love Kumar took the deceased and

Nikita to Safdarjung Hospital.

3. It is claimed by the prosecution that on the way to the hospital,

the deceased Kavita was crying and insisting that she should be taken

to the hospital quickly. When the maruti van reached near Kapashera,

the deceased is claimed to have expressed her desire to make a

statement at Police Station Kapashera as she did not expect to survive

till the time she reached the hospital. Thus, the maruti van was

stopped at Police Station Kapashera. PW-1 Nagender and others went

inside the police station to request the police to record the statement

of the deceased while PW-5 Dharmender stayed back with the

deceased and Nikita in the van. It is claimed by PW-5 Dharmender that

at that time the deceased told him that she was set on fire by one

Umesh Dutt(the appellant herein). The police officials, however,

refused to record the statement of the deceased and advised them to

immediately take the deceased and Nikita to Safdarjung Hospital and it

is alleged that at Safdarjung Hospital, MLCs of the deceased as well as

her daughter Nikita were prepared.

4. It is also the case of the prosecution that on 13.3.2003, Inspector

Nirmal Kaur (PW-12) of CAW Cell, Nanak Pura, Delhi was on Women

Help Line duty from 8.00 a.m. to 8.00 p.m. She, while on duty,

received information about a quarrel involving a woman which is

subject-matter of DD No.17. On the receipt of said information, she

made an enquiry from PCR van Zebra 98, which van had visited the

spot of occurrence and learnt that the burnt woman had been removed

to Safdarjung Hospital. Thus, she reached Safdarjung Hospital and met

the deceased who had sustained burn injuries. The deceased, when

asked, told her that she and her daughter were set on fire by one

Umesh who had poured kerosene oil over them and set them ablaze.

She also disclosed that aforesaid Umesh was a friend of her husband

and he had a quarrel with her husband few days before the incident.

5. We may note that on 13.3.2003 at around 10.20 a.m., an

information was received at the Police Station Zafarpur Kalan about a

fight near the house of Pradhan, Village Pandwala Kalan. The said

information was recorded as DD No.11A(Ex.PW-10/A) and copy thereof

was entrusted to S.I. Bhoop Singh who reached at the spot along with

Constable Rajbir. By that time, the deceased and her daughter had

already been removed to the hospital.

6. On 13.3.2003 at 12.20 p.m., Duty Constable Mahesh

telephonically informed the police station from Safdarjung Hospital

about the admission of the deceased Kavita and her daughter Nikita at

the hospital in burnt condition. The said information was recorded as

DD No.13-A(Ex.PW-10/B). Copy of the report was also forwarded to S.I.

Bhoop Singh who had already left for verification of DD No.11-A. On

the receipt of said DD No.13A, S.I. Bhoop Singh visited the Burns Ward,

Safdarjung Hospital where both the injured persons were admitted. He

collected their MLCs Ex.PW-17/A and Ex.PW-17/B. Deceased Kavita

was declared `unfit for statement'. S.I. Bhoop Singh informed the SDM

concerned about the incident on telephone and also told him that the

deceased was unfit for statement. He, thereafter, returned back to the

spot of incident. There he found a white plastic can of kerosene oil, a

burnt hawai chappal, some burnt clothes, a plier and a matchbox

containing 1-2 matchsticks. Those articles were converted into sealed

packets and seized by the Investigating Officer.

7. Kavita died on the night of 13th /14th March 2003 at 12.30 a.m.,

which information was also conveyed to the Police Station Zafarpur

Kalan by the Duty Constable posted at Safdarjung Hospital. On

14.3.2003, father and brothers of the deceased were taken to the

Office of the SDM, Shri Madhup Vyas (PW-13) who recorded their

statements Ex.PW-13/A to Ex.PW-13/C wherein they did not suspect the

role of the husband of the deceased or her in-laws in the incident. The

SDM also examined PW-1 Nagender, PW-4 Gyanwati, PW-6 Gajraj Singh

and other witnesses and directed the SHO concerned to investigate the

case as per law. After the inquest proceedings, the dead body was

sent for post mortem examination and the report collected.

8. Despite of the order of the SDM, SHO Police Station Zafarpur

Kalan did not register the FIR. FIR was ultimately registered on

30.12.2003 after PW-1 is claimed to have filed a criminal writ petition

in the High Court. However, copy of the writ petition or the order, if

any, passed by the High Court has not been placed on record.

9. After the registration of the case, formal investigation started

wherein the statements of the witnesses were recorded under Section

161 Cr.P.C. and on completion of investigation, charge sheet against

the appellant was filed in the Court.

10. The appellant was charged by the learned Additional Sessions

Judge for the offences of murder of Kavita and attempt to commit

murder of Nikita punishable under Section 302 IPC and Section 307 IPC

respectively. The appellant pleaded not guilty to both the charges and

claimed trial.

11. In order to bring home the guilt of the appellant, prosecution has

examined 24 witnesses in all. There is no eye witness to the

occurrence nor there is any witness who might have seen the appellant

entering or coming out from the house of the deceased on or around

the time of occurrence. The prosecution case is based upon the

purported dying declarations made by the deceased.

12. The appellant in his statement under Section 313 CrPC has

denied the prosecution version and claimed that he has been falsely

implicated in this case. In defence, he has examined three witnesses,

namely, DW-1 Uttam Chand, DW-2 Naresh Kumar and DW-3 Kishan

Dutt who have stated to the effect that on the relevant day, the

appellant was playing cards with them from 8.00 a.m. onwards till 3.30

p.m., meaning thereby that the appellant has taken the plea of alibi.

13. Learned trial court, on consideration of the evidence, has

convicted the appellant on both the counts on the strength of the

purported dying declaration of the deceased.

14. At the outset, we may note that there is no eye witness to the

occurrence nor there is any witness who might have seen the appellant

entering or coming out of the house of the deceased on or around the

time of occurrence. Prosecution case is based solely upon the dying

declarations purportedly made by the deceased on first occasion in

presence of PW5 Dharmender outside Police Station Kapashera and on

second occasion in presence of PW-12 Inspector Nirmal Kaur, CAW Cell,

Nanak Pura, Delhi. Which dying declarations are oral.

15. Learned counsel for the appellant while assailing the impugned

judgment has submitted that the impugned judgment is based upon

the purported dying declarations made by the deceased, one being in

presence of PW5 Dharmender while the deceased was being taken to

the hospital and the other being made by the deceased in the hospital

in presence of PW12 Inspector Nirmal Kaur of CAW Cell. Learned

counsel submitted that both the purported dying declarations are

doubtful because testimony of PW5 Dharmender as well as PW12

Inspector Nirmal Kaur is unworthy of credence. Learned counsel

submitted that the learned Trial Court has committed an error in

routinely accepting the dying declarations without testing the evidence

relating to dying declaration on the anvil of the accompanying

circumstances. He also submitted that the learned Trial Court has also

ignored the fact that the deceased had suffered almost 95 per cent

deep respiratory burns. Therefore, she could not have been in a fit

physical and mental state to make a clear and concise dying

declaration. He submitted that once the dying declarations are taken

off from record, there is no other evidence to justify the conviction of

the appellant for the offences charged. Learned counsel for the State,

on the other hand, has argued in support of the impugned judgment

and submitted that from the testimony of PW5 Dharmender and PW12

Inspector Nirmal Kaur, the dying declarations of the deceased

implicating the appellant are proved beyond doubt and there is no

reason to suspect the reliability of the dying declarations. Thus, he

submitted that the learned Trial Court has rightly convicted the

appellant.

16. PW5 Dharmender, brother-in-law of the deceased is the sole

witness of the prosecution to prove the dying declaration purportedly

made by the deceased in his presence. He has deposed that when

they were taking the deceased to the hospital, on the way she was

crying and insisting that she should be taken to the hospital quickly as

she wanted to make statement or she should be taken to the police

station. When they reached near Kapashera, the deceased insisted

that her statement be recorded at Police Station Kapashera as she was

not likely to survive by the time she reached hospital. On this, maruti

van was stopped near the police station but the officials of police

station refused to record the statement of the deceased and advised

them to go to the hospital. He also deposed that while his brother and

others had gone inside the police station to request the police to record

her statement, the deceased made a dying declaration in his presence

that she was burnt by Umesh Dutt accused.

17. If aforesaid version of PW5 Dharmender is true, then obviously

the deceased, on her way to the hospital, was showing anxiety to make

a statement to disclose the name of the culprit who had set her and

her daughter on fire. If that was the state of affair, then, under the

natural course of circumstances, the deceased was expected to at least

tell her husband and brother-in-law etc. as to who had set her on fire.

This, however, is not the case, which casts a strong doubt on the

correctness of the version of PW5 Dharmender regarding the purported

dying declaration made by the deceased in his presence. Secondly, as

per PW5 Dharmender, on the way to hospital, they had stopped the

van outside the Police Station Kapashera but there is not even a

whisper about the desire of the deceased to make a statement to the

police or stopping at Police Station Kapashera to request the police to

record the statement of Kavita (deceased) in the statement of PW1

Nagender, husband of the deceased. This circumstance casts a doubt

on the version of the PW5 Dharmender regarding dying declaration.

Otherwise also, had the deceased disclosed the name of the appellant

as the person responsible for her burn injuries to PW5 Dharmender,

under the normal course of circumstances, he was expected to tell his

brother Nagender as well as other persons present in the maruti van

about the dying declaration so made. But, neither PW1 Nagender nor

PW7 Sanjay Kumar nor PW8 Gaurav alias Mannu have deposed that

PW5 Dharmender told them about the dying declaration of the

deceased implicating the appellant. Above circumstances taken

together cast a strong doubt on the credibility of the version of PW5

Dharmender. Therefore, we do not find it safe to rely upon his

testimony regarding the dying declaration made by the deceased in his

presence.

18. Now we are left with the dying declaration purportedly made by

the deceased in presence of Inspector Nirmal Kaur. She admittedly

was not posted at Jafarpur Kalan at the relevant time and was working

in CAW Cell, Nanakpura. It is a mystery as to how she reached at

Safdarjung Hospital to record the dying declaration of the deceased

Kavita. She has tried to explain this by stating that on 13.03.2003, she

was at Human Help Line duty from 8:00 am to 8:00 pm and on the

receipt of DD No.17 about a quarrel with a woman, she reached

Safdarjung Hospital. In later part of her examination-in-chief, she

clarified the facts by stating that the information was about a quarrel at

Pandwala Kalan and on the receipt of information she made inquiry

from PCR van Zebra 98, which had visited the spot and from the

officials of the said van she learnt that the burnt woman had been

removed to Safdarjung Hospital and thereafter she reached Safdarjung

Hospital. We do not find the aforesaid explanation acceptable for the

reason that the above referred DD No.17, which prompted Inspector

Nirmal Kaur into action and reaching the hospital, has not been proved.

It is not clear as to which police station said DD No.17 pertained.

However, if we go by the version of the witness that information was

about a quarrel at Pandwala Kalan, then perhaps this witness is

referring to DD No.11A (Ex.PW10/A) which records "Roop Nath has

given information about a fight near the house of Pradhan, Pandwala

Kalan". If this witness is referring to the above DD report, then there is

no mention of any woman involved in the crime or fight in the DD

report and that being the case, there was no occasion for Inspector

Nirmal Kaur (PW12) to go Safdarjung Hospital under the colour of

Women Help Line duty. We may note that one DD No.17A dated

13.03.2003 (Ex.PW20/B) was also recorded at Police Station Jafarpur

Kalan pertaining to the instant case. Said DD report, however, cannot

be the basis of the visit of PW12 Inspector Nirmal Kaur to Safdarjung

Enclave because it was recorded at 6:00 pm in the evening, whereas

as per the case of the prosecution and the testimony of PW1 Nagender,

Nirmal Kaur reached the hospital within one hour of admission of his

wife and daughter in Safdarjung Hospital in the afternoon. Thus, it is

apparent that there is no authentic evidence on the record to justify

the presence of PW12 Inspector Nirmal Kaur at Safdarjung Hospital to

record the statement of the deceased regarding the cause of death.

This circumstance makes her version regarding the dying declaration

made by the deceased in her presence highly suspect. Secondly, if the

version of PW12 Inspector Nirmal Kaur is true, then she, under the

natural course of circumstances, was expected to convey this

information to the concerned Police Station Jafarpur Kalan, whereas as

per her version she only prepared a performa and deposited it in the

office. Such a conduct is not expected of a senior police officer of the

rank of Inspector. Further there is no explanation as to why the dying

declaration, if it was made, was not reduced into writing. Thus, under

the circumstances, taking into account the fact that the deceased had

suffered an unnatural death by fire burn injuries within a period of less

than seven years of her marriage, PW1 Nagender who was a clerk of a

lawyer might have taken her help to save his skin. Another factor

which casts doubt upon the testimony of PW12 Inspector Nirmal Kaur

regarding the dying declaration is that had her version been true and

had the deceased given a dying declaration to her, Inspector Bhoop

Singh, under the natural course of circumstances, would have been

informed by the Doctor at the hospital about said dying declaration.

This, however, is not the case because had it been so, he would have

conveyed this fact not only to the Police Station but to the SDM also.

Thus, in our considered view, the testimony of PW12 Inspector Nirmal

Kaur is highly suspect and we find that prosecution has failed to

establish that the deceased actually made any dying declaration in

presence of Inspector Nirmal Kaur (PW12).

19. The doubt against the correctness of prosecution version is

further compounded by the fact that there is no evidence on record to

establish any motive on the part of the appellant to cause death of the

deceased or set her daughter Nikita on fire. Even as per the testimony

of PW1 Nagender, husband of the deceased, appellant was his friend.

Therefore, under the natural course of events, he could not have any

reason to cause harm to the wife and daughter of his friend.

20. In view of the discussion above, we find that prosecution case is

highly doubtful and it is not safe to rely upon the purported dying

declarations of the deceased which have not been firmly established to

hold the appellant guilty of charges under Section 302 IPC and Section

307 IPC. We, therefore, accept the appeal and set aside the impugned

judgment of conviction as also the order on sentence.

21. Appellant is in Jail. He be released forthwith, if not required in

any other case.

22. The appeal is disposed of accordingly.

AJIT BHARIHOKE, J.

APRIL 23, 2010                                    A.K. SIKRI, J.
ks/pst