Rajender Singh & Anr. vs State
2010 Latest Caselaw 1045 Del

R-93
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 23rd February, 2010

+                    CRL.APPEAL NO.1033-34/2006

       RAJENDER SINGH & ANR.           ..... Appellants
                Through: Mr.Raman Sahney, Advocate

                                  versus

       STATE                                      ..... Respondent
                     Through:     Ms.Richa Kapoor, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     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. Vide impugned judgment and order dated

26.9.2006 appellants Rajender Singh and his wife Smt.Bala

have been convicted for the offence punishable under Section

302/34 IPC.

2. The deceased is Smt.Geeta wife of Satnam Singh.

3. Appellant Rajender is the younger brother of

Satnam Singh and Bala is the wife of Rajender Singh.

4. According to the prosecution deceased Geeta and

her husband Satnam Singh as also the accused used to reside

in the same house and had a common kitchen. On 24.7.2004

the appellants poured kerosene oil on Bala and set her on fire.

After doing the dastardly act, both fled.

5. Bala was removed to Sanjay Gandhi Memorial

Hospital where she was treated by Dr.Anu Vijyant PW-8. He

prepared her MLC Ex.PW-8/A and pertaining to the history of

the burns, recorded that the history was given by the patient

herself and as told him her brother-in-law had burnt her by

pouring kerosene oil over her.

6. The police was informed who in turn informed the

Sub-Divisional Magistrate Harish Kumar Ahuja PW-6.

7. As deposed to by Harish Kumar Ahuja he reached

LNJP Hospital for the reason Geeta was transferred to said

hospital from Sanjay Gandhi Memorial Hospital. He reached

there at about 2:50 PM and started recording the statement

Ex.PW-6/B of Geeta at 3:05 PM.

8. The statement Ex.PW-6/A is in question answer

form and is in Devnagri script.

9. Pertaining to the cause of her death, Geeta told the

learned SDM that she was residing with her husband, her

father-in-law, mother-in-law and her devar and devrani in the

same house. That she was married on 28.2.1999. She

informed that she had no problems with her husband or her in-

laws but on account of common kitchen she used to have

problems with her devar and devrani.

10. Pertaining to how she suffered burns she disclosed

that in the morning, between 11-12 she have gone to the

house of her sister Seema in L Block, Mangol Puri to obtain

some money on loan from her as she had to pay a debt. Her

sister told her to come the next day. She returned. Even

yesterday her husband had a quarrel with her on account of

her going out of the house. She and her husband had a

quarrel and her devar intervened. She objected to his

intervention at which her devar got angry and started abusing.

In anger her devar walked out of the room. Even her husband

walked out of the room. All of a sudden her devar and devrani

returned and sprinkled kerosene oil on her. Her devrani lit a

matchstick and set her on fire. She shrieked. Her husband

doused flames by pouring water. Her devar and his wife ran

away with their children.

11. As deposed to by PW-6 he obtained the right thumb

impression of Smt.Geeta at two places on her dying

declaration.

12. Needless to state, at the trial the prosecution

sought to nail the guilt of the appellants with reference to her

dying declaration as recorded on the MLC and her statement

Ex.PW-6/A.

13. We note that as per PW-6 he did not bother to

obtain any certification from any doctor pertaining to the

fitness of Geeta for the reason there already existed one such

certification at 1:10 PM.

14. We note that on the MLC of the deceased, a

certification has been recorded at 1:10 PM by Dr.Saurabh PW-

10 that Geeta was fit for statement. Dr.Saurabh PW-10 has

proved the said endorsement. But, we cannot lose sight of the

fact that the SDM has recorded the dying declaration of Geeta

at 3:05 PM. There is a time lag of 1 hour and 55 minutes

between the time when Geeta was certified fit for statement

and the time when the learned SDM claims to have

commenced regarding the statement Ex.PW-6/A of Geeta.

15. It is urged by learned counsel for the State that

Geeta died after 6 days of the incident and this proves her

consciousness when the SDM recorded her dying declaration.

16. We are afraid, this process of deductive analysis is

not contemplated by law. In any case, we note that on the

same night when Geeta was admitted i.e. the intervening night

of 25th and 26th July 2004, recording the time at 3:00 AM, there

exists an endorsement that the patient is unstable and hence

unfit for a statement. What we intend to say is that merely

because somebody has lived on for a few days cannot be

treated as a factor wherefrom consciousness of a person can

be gathered at a particular point of time.

17. A dying declaration is an exception to the rule of

hearsay and is based on the doctrine of necessity. The history

of the debate pertaining to dying declarations being made

admissible shows that the antagonists against admissibility

had argued that the same causes great prejudice to the

accused for the reason the maker of the statement is not

available for being cross-examined. The antagonists had

argued that cross-examination is an effective and probably the

only tool in the hands of the accused pertaining to the oral

evidence.

18. As against that, the protagonists of the view had

argued that dying declarations should be made admissible

because what can you do if the maker of the statement is

dead. In other words, necessity was pressed into aid.

19. To balance the competing claims, as the law

evolved, it was held that before acting upon a dying

declaration its proof must come with utmost purity and it must

be shown that the maker of the statement was fit for

statement.

20. Consciousness and being fit for statement are two

different facets. A person in extreme pain and suffering may

be conscious but may not be mentally fit to make a statement.

21. In the instant case, the learned SDM has not

bothered to take note of the fact that he had reached the

hospital around 3:00 PM and the certification pertaining to the

fact of Geeta being fit for statement related to 1:10 PM. We

see no reason why the learned SDM chose not to call the

doctor on duty and get re-certified at 3:00 PM that Geeta was

fit for statement. There is no evidence that Geeta was fit for

statement at 3:05 PM.

22. Any blemish in a dying declaration or the fitness of

the maker of the statement would render it unsafe to sustain a

conviction on a dying declaration.

23. Learned counsel for the appellant has further

brought to our notice that as recorded on the MLC by Dr.Anu

Vijyant PW-8, at the first available opportunity, Geeta only

inculpated her brother-in-law. Learned counsel highlights that

in the statement Ex.PW-6/A not only the brother-in-law but

even the wife of the brother-in-law has been inculpated. In

other words, learned counsel points out a variation in the two

statements allegedly made by the deceased. Counsel further

points out that there are traces of a motive for the reason

sharing common kitchen with the appellants appears to be a

problem with the deceased. That the deceased was in debt

and had gone to her sister Seema, who has appeared as PW-3

and confirm said fact has also to be factored pertaining to the

mental condition of Geeta. Further, learned counsel points out

that the burnt clothes which were lifted from the house and all

other exhibits which were lifted were not detected with any

residue of kerosene oil thereon as per the report Ex.PX of the

Central Forensic Science Laboratory. This negates the claim in

the dying declaration that kerosene oil was thrown on her

urges the counsel and calls upon us to take note of the fact

that was in the MLC the doctor has not noted that he could

smell kerosene on the patient.

24. We may note that Surender Singh PW-7 is related to

the deceased from the side of her mother. Surender Singh

PW-7 is not related to the deceased from the side of her in-

laws. In his deposition he had stated that he had gone to the

house of his niece as he was informed that she had quarreled

with her husband. When he went to her house a quarrel was

on. He advised his niece not to quarrel. She went inside a

room and he saw her in flames. Lastly it would be relevant to

note that as per post-mortem of the deceased burn injuries

were noted on the front side of her body; but not on her palms.

The normal and instant reaction of a person who catches fire

accidentally or is set on fire is to douse out the flame by

stamping out the same using the palms.

25. Cumulatively read, with primacy to the fact that

there is no certification qua the mental condition of Geeta at

3:05 PM and the prosecution is seeking to rely upon the fitness

recorded on the MLC at 1:10 PM, we are of the opinion that it

would be unsafe to sustain the conviction of the appellants on

the given evidence.

26. The appeals are allowed. Impugned judgment and

order dated 26.9.2006 is set aside. The appellants are

acquitted of the charge of having murdered Geeta.

27. Since the appellants are in jail we direct that they

should be set free forthwith unless required in any other case.

28. Copy of this order be given dasti to learned counsel

for the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 23, 2010 mm