Smt. Mam Kaur & Anr. vs State
2010 Latest Caselaw 5507 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELH I
%                              Judgment delivered on: 3rd December, 2010

+                    CRIMINAL APPEAL NO. 145 of 1994

SMT. MAM KAUR & ANR.                                         ..... Appellants

                              - versus -
STATE                                                        .....Respondent

Advocates who appeared in this case:

For the Appellant         : Mr. R.S. Gupta, Advocate
For the Respondent        : Mr. M.N. Dudeja, APP.



CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE P.K. BHASIN

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 the digest?(Yes)

P.K. BHASIN , J

This appeal was filed by two ladies who stood convicted for the

offence of murder by the Additional Sessions Judge vide judgment dated 28th

May, 1994. They were found guilty of murdering one Smt. Kamlesh by

burning her alive on 27th May, 1984. The deceased Kamlesh happened to

be the daughter-in-law of one of the two convicts, namely, Smt. Mam Kaur

and sister-in-law of the other convict, namely, Smt. Satto. Smt. Mam Kaur

expired during the pendency of the appeal which she had filed jointly with

her daughter Smt. Satto and, therefore, this Court is now to decide the fate of

Smt. Satto, appellant no. 2 herein, only.

2. The prosecution case is that the deceased Smt. Kamlesh was married to

DW-1 Richhpal in the year 1980. She was living in her matrimonial home

along with her husband, mother-in-law(accused Mam Kaur) and married

sister-in-law(accused Satto). Her mother-in-law and sister-in-law did not

treat her properly after her marriage since she had not brought sufficient

dowry at the time of her marriage. They started asking the parents of the

deceased to give a television and a motor-cycle but their demands could not

be met since the parents of the deceased could not afford to purchase

television and motor-cycle. The deceased had been requesting her parents to

meet the demands of her in-laws so that she could live peacefully and when

her parents failed to fulfill the dowry demands of the two accused they

decided to take away her life. On 27th May, 1984, as per the further

prosecution case, the mother-in-law and sister-in-law of the deceased set the

deceased on fire around noon time. It appears that after setting the deceased

ablaze the two accused ran away from the scene and her husband who was

around entered inside the house along with two of their neighbours(PWs 1 &

3) and tried to extinguish the fire and in that process he also sustained some

burn injuries. Though the deceased was rushed to a hospital immediately by

her husband she could not be saved and as a consequence of the burn injuries

sustained by her she died in hospital on the same day.

3. Before her death, the deceased had claimed at the scene of crime itself

before her husband(DW-1) and two neighbours(PWs 1 & 3) and in the

hospital also she had made statements before the doctor(PW-9) and the Sub-

Divisional Magistrate (PW-19) that she had been set ablaze by her mother-in-

law Smt. Mam Kaur and sister-in-law Smt. Satto. So, both of them were

arrested by the police and in due course were charge-sheeted also. The

statements made by the deceased before her death before different persons

were treated as her dying declarations during the trial of the two accused

ladies for the offence of murder. The husband of the deceased was cited by

the prosecution as one of its witnesses but was given up by the prosecutor

since he was of the view that he would not depose against his mother and

sister. That apprehension came out to be true since the husband ultimately

entered into the witness box and deposed as a defence witness and claimed

that his wife had burnt herself and had falsely implicated his mother and

sister. PW-3 Raghunath also turned hostile. The learned trial Court,

however, relying upon the evidence of the other neighbour of the deceased

PW- 1 Chander Bhan, PW-9 Dr. Rajesh Sethi and the Sub-Divisional

Magistrate PW-19 Mr.S.S.Sodhi convicted both the accused under Section

302 read with Section 34 IPC and sentenced them to life imprisonment vide

judgment and order dated 28th May,1994.

4. Thereafter the mother and daughter filed this joint appeal and

challenged their conviction. However, the mother has already died and so her

appeal stands abated and this Court is now to decide the fate of the second

appellant Satto.

5. The prosecution case that the deceased Smt. Kamlesh had died on 27 th

May, 1984 because of her having sustained 95% burn injuries was not

disputed on behalf of the two accused persons during the trial and, in fact, the

same was admitted by them categorically in their statements recorded under

Section 313 of the Code of Criminal Procedure. That fact even otherwise is

clearly established from the evidence of the autopsy surgeon PW-2 Dr.

Bishnu Kumar who deposed that in his opinion the cause of death of the

deceased was 95% burns caused by fire leading to toxemia and shock. The

surviving appellant Smt. Satto had however claimed in her statement before

the trial Court that her sister-in-law Smt. Kamlesh herself had set herself

ablaze. The question, thus, is whether the deceased was set on fire by the

two accused, as has been found by the trial Court or whether she herself had

burnt herself, as is the defence of accused-appellant Satto.

6. In order to prove its case to the effect that the deceased had been burnt

alive by the two accused because of her having brought insufficient dowry

the prosecution had relied upon three dying declarations of the deceased

besides the evidence of her parents(PWs11 & 12). PW-1 Chander Bhan, who

happened to be a neighbour of the deceased, is the witness before whom the

first dying declaration was made by the deceased. He had deposed that on

9th May, 1984 he had seen the accused persons quarrelling with the deceased

and abusing her. He further deposed that the accused used to abuse the

deceased since her father had not given television and cycle in the dowry.

This witness also deposed that on 27th May, 1984 at about 12.15 p.m. while

he was present in his house he had heard some noise and had seen a fire in

house no. 621 of the deceased. He had then rushed to that house along with

one Raghunath(PW-3) who was also living near that house and on reaching

there they saw that Smt. Kamlesh was burning. PW-1further deposed that

her husband Richhpal also reached there and he started extinguishing the fire

by throwing water over his wife. Smt. Kamlesh was crying and saying

'bachao-bachao' and also that her mother-in-law Mam Kaur and sister-in-law

Satto had first caught hold of her and beaten her and then Mam Kaur had

poured kerosene oil on her which was lying in a container and Satto had then

set her on fire by lighting the match stick. On hearing that from Smt.

Kamlesh he(PW-1) immediately rushed to the police station and informed the

police about that while Richhpal had taken his wife to JPN hospital.

7. In the cross-examination of PW-1 nothing favourable to the accused

could be extracted as far as his statement to the effect that the deceased had

proclaimed while burning that she had been burnt by her mother-in-law and

sister-in-law is concerned and in fact in cross-examination also this witness

had maintained that he had reported to the police that the deceased had been

burnt by her mother-in-law and sister-in-law. However, as far as the earlier

incident of 9th May, 1984, as also deposed by PW-1, is concerned we are

inclined to ignore that part of his statement since even according to the

witness himself he had not disclosed about that incident to the police.

Similarly he had made an improved statement in Court when he claimed that

the accused persons used to quarrel with the deceased because of her having

not brought television and motor-cycle and that is evident from the fact that

he had not disclosed this fact also to the police in his statement Ex. PW-1/DA

under Section 161 Cr.P.C. with which he was duly confronted by the defence

counsel during his cross-examination. However, the failure of this witness to

disclose to the police about the earlier incident of 9th May, 1984 and the

maltreatment of the deceased by the accused because of non-fulfilment of

their demand of television and motor-cycle his entire statement cannot be

rejected as being false, as was the submission made by the learned counsel

for the surviving appellant. Nothing has been brought on record from the

side of the defence to show that PW-1 had any axe to grind against the

accused persons or had deposed falsely against the two accused. So, his

statement regarding the cause of burning of the deceased as disclosed by the

deceased hereby has been rightly accepted by the Trial court as the dying

declaration of the deceased.

8. The next dying declaration of the deceased is in the form of history of

burns given by the deceased herself to PW-9 Dr. Rajesh Sethi at the time of

her medical examination at JPN hospital. PW-9 Dr. Rajesh Sethi had

deposed that on 27-05-1984 the deceased Kamlesh was brought to the

hospital at 12.55 p.m. by her husband with an alleged history of having been

burnt by household members(mother-in-law and sister-in-law) by pouring

kerosene oil and setting her on fire about 45 minutes back. He further

deposed that he had found Smt. Kamlesh to be conscious and well oriented at

that time. The witness proved the MLC of the deceased and the same was

exhibited as Ex. PW-9/A. In cross-examination this witness was asked

whether the deceased was smelling of kerosene oil at the time when he

examined her and his answer was that he could not say if she was smelling of

kerosene at that time. Learned counsel for the appellant had argued that if

actually the deceased had made a statement to this doctor that she had been

burnt by her mother-in-law and sister-in-law by pouring kerosene oil on her

there would have been smell of kerosene oil found by the doctor as also by

the chemical analyst in the Central Forensic Science Laboratory (CFSL)

where the sample of hair of the deceased and some clothes were sent by the

police but as per the CFSL reports Ex.X-1&2 no kerosene oil was detected

in any of the samples and absence of that creates a doubt as regards the

authenticity of the statement allegedly made by the deceased before this

doctor. We, however, do not find any substance in this submission of learned

counsel for the appellant. All that PW-9 stated was that he could not say if

Kamlesh was smelling of kerosene oil or not and not that there was no smell

of kerosene oil at the time of her medical examination coming from her body.

In cross-examination PW-1 had stated that smell of kerosene oil was there in

the environment when the deceased was being saved. The investigating

officer (PW-20) had also deposed in his cross-examination that smell of

kerosene was coming from the clothes which were seized by him. So, just

because in the CFSL report Ex.X-2 there is no mention of smell of kerosene

oil in the sample of hair tested at CFSL after about one month from the

incident, the said dying declaration cannot be viewed with any suspicion.

Therefore, the evidence of PW-9 cannot be discarded for this reason

advanced by learned counsel for the appellant Smt. Satto. It is also significant

to note that in the cross-examination of this witness it was not even suggested

to him that the deceased had not disclosed to him as to how she had got burnt

as had been recorded by him in the MLC Ex. PW-9/A. Therefore, the

statement of this witness to that effect has in fact remained unchallenged.

Not only that, the fact that the deceased did name before PW-9 the two

accused as the culprits who had burnt her gets confirmed even by the

statement of her husband who was examined by the accused persons as their

defence witness(DW-1). He had deposed that his wife had falsely implicated

his mother and sister for the burn injuries sustained by her when he took her

to the hospital. So, the evidence of this defence witness also establishes that

such a statement was made by the deceased before Dr. Rajesh Sethi and since

he himself was with her and none from the side of her parents the possibility

of her being tutored is also ruled out and the submission of the counsel for

the appellant that that was a tutored statement cannot be accepted. If the

statement of the deceased before the doctor was false her husband(DW-1)

would have informed the police or Dr.Sethi (PW-9) that her statement

implicating her mother-in-law and sister-in-law was a false statement. He,

however, did not do that which shows that he was at that time endorsing her

statement to be true.

9. The third dying declaration made by the deceased was before the SDM

Shri S.S. Sodhi(PW-19). He had deposed that on 27th May, 1984 he was

contacted by ACP Kewal Singh for recording the statement of Smt. Kamlesh

and when he arrived at the hospital at about 2.05 p.m. he had contacted the

doctor who declared her fit for making a statement and thereafter he recorded

her statement Ex. PW-19/A in her own words. She put her right hand thumb

impression on that statement. He also claimed that he had correctly recorded

her statement and did not add or subtract anything from his own side. PW-9

further claimed that he had made an endorsement also on the statement Ex.

PW-19/A to the effect that the patient was fit to make her statement and that

endorsement was attested by the doctor also. A perusal of the statement Ex.

PW-19/A also shows that the deceased had claimed before the SDM also that

she had been burnt by her mother-in-law Smt. Mam Kaur and sister-in-law

Smt. Satto. She had also claimed that before burning her she was beaten

also by these two ladies and also stated that her mother-in-law and sister-in-

law used to harass and beat her because she had brought insufficient dowry.

Nothing could be extracted during the cross-examination of PW-19 also on

behalf of the accused which could create any suspicion about the authenticity

of the said statement which the prosecution is relying upon as the dying

declaration of the deceased. Of course, it was suggested to this witness in

cross-examination on behalf of the accused persons that he had got mixed up

with the investigating officer for framing a false case against the accused but

no foundation had been laid either in his cross-examination or even in

defence evidence for accepting such an allegation against this witness who

was a responsible Government officer having no reason whatsoever to record

a false statement of the deceased. And as far as the submission of the counsel

for the appellant that this statement of the deceased was totally false is

concerned the same carries no weight. If the deceased wanted to make a

false statement she could have implicated her husband also since she had also

claimed that even her husband also used to beat her earlier but she did not do

that and claimed that at the time of the incident of burning he was not present

at home, as was the case of the prosecution also. Therefore, we have no

reason to reject the evidence of PW-19 and this piece of evidence relied upon

by the prosecution.

10. All the three dying declarations relied upon by the prosecution are

consistent and in all those statements the deceased had implicated her

mother-in-law Smt. Mam Kaur and sister-in-law Smt. Satto and there being

no inconsistency in those statements the same have been rightly relied upon

by the learned trial Judge while convicting the accused and we find no

infirmity in the reasoning given by the learned Judge for not entertaining any

kind of suspicion regarding the authenticity of any of the three dying

declarations of the deceased. To none of the relevant witnesses was it

suggested that the deceased was not in a position to speak and make

statements which she is shown to have made before different persons. We

find all the dying declarations of the deceased to have been made voluntary,

true and confidence inspiring.

11. The prosecution case about the motive for the murder may also be

noticed now. The prosecution had also claimed that the deceased was being

maltreated and harassed by the accused persons because of her having

brought insufficient dowry at the time of her marriage with Richhpal and for

not fulfilling their demand of television and motor-cycle and that part of the

case is also clearly established by the statement of the deceased herself made

before the SDM(PW-19). Apart from that dying declaration of the deceased

in that regard, the prosecution had also examined the mother of the deceased

as PW-11 and father of the deceased as PW-12. Both these witnesses had

also claimed that the accused were demanding television and motor-cycle and

since they could not fulfil that demand they had started harassing the

deceased. Even though suggestions were put to these witnesses in cross-

examination that their statements regarding maltreatment of the deceased and

demand of dowry by the accused persons were false but in our view we have

no reason to reject their statements to that effect particularly when nothing

could be elicited from them in cross-examination from which it could be

inferred that they were making false statements regarding demand of dowry

by the accused persons and harassment of the deceased by them because of

non-fulfilment of their demand of television and motor-cycle.

12. As far as the defence of commission of suicide by the deceased taken

by the appellant Satto and which was sought to be substantiated by her by

examining her brother DW-1 Richhpal is concerned the same cannot be

accepted at all since there are no circumstances brought on record by the

accused from which the commission of suicide by the deceased could be

inferred. Accused Satto had taken a plea that she was not present at the scene

of crime and if that was so she could not have come to know that the

deceased had committed suicide by burning herself. This defence taken is

clearly an afterthought and that is evident from the fact that no such case was

put to any of the prosecution witnesses in cross-examination which would

have been done in case accused Satto had the information that the deceased

had committed suicide. It appears that this story of suicide had been got

introduced by the husband of the deceased after he had decided to help his

mother and sister. However, even the statement of the husband of the

deceased(DW-1) to that effect cannot be believed since he had not made any

complaint to the police and it was for the first time when he entered into the

witness box as a defence witness that he took the plea that she had committed

suicide by burning herself because of his mother(the deceased accused Mam

Kaur) having refused permission to her to visit her parents. He had claimed in

his evidence that on 27/05/84 at about 11.30 a.m. he was present at his house

along with his children and the deceased when his wife had told him that she

wanted to go to her parental home. He told her to get the permission of his

mother to which she replied that she had already asked her mother-in-law but

she had refused her the permission to go to her parents' house. But she was

insisting that she would go and then he came out of the room and then he

heard noise and turned around and saw that the room was ablaze. He then

went inside the room and dragged his wife outside and in that process he

sustained burn injuries on his hands and face. He took his wife to Irwin

hospital where she falsely implicated his mother and sister in her dying

declaration. This statement of the husband of the deceased hardly inspires

any confidence. If at all the deceased wanted to commit suicide she would

have locked herself inside the room so that nobody could extinguish the fire.

The deceased had sustained 95% burns over her body which could have been

avoided by her husband if actually she had burnt herself immediately after he

had come out of the room after having an argument with her whether she

could go to her parental home without the permission of her mother-in-law

or not.

13. Thus, in the light of the statements of PW-9 Dr. Rajesh Sethi, PW-19

Shri S.S.Sethi, PW-1 Shri Chander Bhan and the parents of the deceased it

cannot be said that the learned Additional Sessions Judge had committed any

error and conviction of the accused deserves to be set aisde, as was the

submission of the counsel for the appellant Satto.

14. In the result, this appeal qua Smt. Satto fails and her conviction under

Sections 302/34 IPC recorded by the learned Additional Sessions Judge is

confirmed. She was granted the relief of bail during the pendency of the

appeal and now that her appeal stands rejected she shall be taken into custody

by the police and lodged in jail so that she can serve out the remaining part of

the sentence of life imprisonment awarded to her. As far as appellant Mam

Kaur is concerned, as noticed already, her appeal has already abated with her

death.

P.K. BHASIN,J

BADAR DURREZ AHMED,J

December 03, 2010 sh